Some conservatives have once again taken up the defense of “judicial restraint,” or as I call it, the Dogma of Deference. They’re responding to libertarians such as Randy Barnett, Damon Root, Evan Bernick, and myself, who have argued that the Dogma finds no support in the Constitution, and is actually a Progressive construct which in practice leads to expanding government and narrowing individual rights in a way contrary to the Constitution’s text and philosophical foundations. Most recently, Carson Holloway at National Review’s Bench Memos argues that judicial restraint is rooted in the views of the founding era, and particularly John Marshall.
1. Marshall’s “reluctance” versus the Dogma of Deference
Of course it’s true that Marshall regarded the idea of courts declaring a law unconstitutional to be a “painful duty,” and he said he would presume that lawmakers were attentive to their constitutional obligations when passing laws. But there is a crucial difference between this respect for the other branches of government and the Dogma of Deference which was fashioned by Progressives and which today dominates the judicial system. The latter is a general theory of constitutional government—as opposed to Marshall’s pragmatic, rebuttable presumption of respect for a coordinate branch. The Dogma holds that judicial acts which frustrate the will of elected officials or their administrative hirelings lack legitimacy—that they present a “countermajoritarian difficulty.” To Marshall and his contemporaries, by contrast, there was no such “difficulty,” and judicial intervention was seen not as an essentially antidemocratic act, but on the contrary as simultaneously (1) justified by higher criteria than majoritarianism and (2) fundamentally more democratic than even a legislative act.