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.
What I mean by that is this: one of the great innovations of the founders was the idea that a written constitution would embody the true sovereign act—the act of the whole people in concert—and would thus stand on a higher plane than mere legislation. Mere legislation is not the act of the whole sovereign, but only of a temporary legislative majority acting at a particular time. When courts interpret the Constitution and block the legislature from violating it, the courts are, on one hand, acting as the genuine representative of the people, by enforcing the people’s true will (the Constitution) instead of the “mere act of usurpation” (unconstitutional legislation) which was written by the legislature, not by the people.
On the other hand, the rightness of a court opinion is not a function of the people’s will, but of its correctness as an interpretation. A court opinion is right or wrong, not because it represents the people’s desires or contradicts those desires, but because it correctly or incorrectly reads the words of the Constitution. That’s what Federalist 78 means when it differentiates between will and judgment, ascribing the latter to the judicial role. In this view, there is no “countermajoritarian difficulty” because democracy is only an instrumental good that serves deeper principles of liberty and justice, and courts act rightly to defend the latter from the former. Courts, of course, have their limits—the courts can’t make policy calls; can’t say whether the age of consent should be 17 or 18, or whether the speed limit should be 55 or 65, or say whether the President should grant formal recognition to the People’s Republic of China versus the Republic of China on Taiwan. But on legal and constitutional questions, the court’s duty is clear and binding.
Progressives, by contrast, concocted the Dogma of Deference on the premise that the justice of a political act is not a function of its consistency with natural law, but on the contrary, that the will of the people simply is the law. Rights are seen, not as “trumps” rooted in the laws of nature and of nature’s god, but as privileges which the government chooses to give to people as a function of the General Will. Democracy is seen as a fundamental good, and rights as instrumental goods that serve democracy. From this perspective, judicial review is a real conundrum—a “countermajoritarian difficulty.” Courts should therefore defer to the other branches except where resisting them is justified in democratic terms. This accounts for the Progressive privileging of freedom of speech or the right to vote over the right to own property or the right to economic liberty. The former are, according to the Dogma, justified because they serve democratic values. And as all law is politics and all politics is law, the distinction between principle and policy that plays such an important role in Marshall’s conception of deference is washed away. Instead, courts are basically always engaged in policy.
That’s the difference. And that’s why Marshall never articulates any general theory of judicial restraint, although he refers to the “painful duty” of striking down laws, and says that he will assume that the legislators have abided by the Constitution unless it’s shown that they have not. This is simply a matter of institutional respect for Marshall. In the Dogma, by contrast, it’s a general principle of the theory.
The problem, of course, is that there is no constitutional warrant for this general principle. There is nothing in the Constitution that justifies treating speech and travel as “fundamental” rights while treating property and economic liberty as “not fundamental.” There is nothing in the Constitution to support the “rational basis” test, or that justifies applying different levels of “scrutiny” to different kinds of laws. There is nothing in the Constitution to justify presuming a law to be constitutional unless a plaintiff “negatives every conceivable basis for it.” There is nothing in the Constitution to substantiate the idea that an engaged judiciary lacks constitutional legitimacy—again, because the theory of legitimacy on which the Constitution rests is the classical liberal theory of legitimacy articulated in the Declaration of Independence, not the Progressive’s (and modern conservative’s) majoritarian theory of legitimacy.
2. The Presumption of Liberty versus the presumption of constitutionality
At the beginning of his article. Holloway does recognize this difference between Marshall’s reluctance to conclude that Congress violated the Constitution on one hand, and the Dogma of Deference on the other. But then he goes on to condemn what he calls “judicial activism in defense of a libertarian understanding of rights,” and to embrace the Dogma of Deference later on. (This “libertarian understanding of rights” is, of course, merely the “understanding” of the founders.) Holloway, like another writer, Joel Alicea, attacks the Presumption of Liberty.
Barnett responds to Alicea by focusing on originalism as a methodology. But let’s just look at the text itself. Not only does the Constitution never refer to the idea of judicial restraint, but it articulates the Presumption of Liberty throughout.
For example, the Fifth Amendment says that no person shall “be deprived of life, liberty, or property, without due process of law.” Deprived means that people already have it, and that the government cannot take it away without giving some good reason. The First Amendment refers to laws “abridging the freedom of speech.” That is, a freedom people already hold, which Congress may not abridge. The Second Amendment refers to the right to keep and bear arms being “infringed.” The Fourth Amendment says that the right to be secure in your person, your home, and your things “shall not be violated.” The Seventh Amendment refers to the jury trial right being “preserved.” And, most importantly of all, the Ninth Amendment says that the fact that some rights are listed in the Constitution’s text does not mean that there are not other rights that the people “retain.” In these and other provisions, the Constitution consistently speaks of rights that the people already have and that government may not take away without sufficient justification. That just is the Presumption of Liberty.
This is to be expected, since the Declaration of Independence—the foundation on which the Constitution rests—explains that people are fundamentally free and that they then create government which derives its legitimacy from their choice and from the fact that it respects their rights. As Madison explained, the fundamental innovation of the Founders was that whereas in Europe, rights had been given to the people by the throne, “America has set the example and France has followed it, of charters of power granted by liberty.” Again, people are presumptively free, and government must justify its limitation of that freedom.
The Presumption of Liberty absolutely saturates America’s organic laws. It is not only reflected in the text, it was essentially the whole point of the American Revolution. It is entailed by the proposition that all men are created equal, because that equality—and only that equality—is the reason why government must ask our permission before it can govern us.
The Presumption of Liberty is also a basic proposition of logic. He who asserts the positive claim bears the burden of justifying that claim. Onus probandi. If I claim that I am the ruler of the Queen’s Navee, then I bear the burden of proving that to be the case. If I claim that I have the right to tell another person how to live his life, then I bear the burden of proving that claim. Merely asserting it won’t do. As the Continental Congress put it in 1775,
If it was possible for men who exercise their reason, to believe that the divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by his infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these Colonies might at least require from the Parliament of Great Britain some evidence, that this dreadful authority over them has been granted to that body.
Or as Jefferson later said, paraphrasing Algernon Sidney, there are not in this world some people “born with saddles upon their backs, and others booted and spurred, ready to ride them legitimately, by the grace of god.”
Holloway claims that “the absence of a clear textual basis for the right asserted is certainly a good reason for a judge to decline to hold a law unconstitutional.” One wonders how strictly Holloway would cling to this. First, there is a “textual basis” for both the right to choose the conditions of one’s employment and the right to an abortion—that is, the Constitution protects “liberty” against arbitrary deprivation. Liberty means freedom in the abstract—the right to act without interference from others. That freedom cannot be taken away except for justified reason. Perhaps one thinks that there is sufficient reason to deprive a person of his right to work as he chooses, or a woman’s right to an abortion, but the point is, there is a “textual basis” for both of these rights.
If Holloway means that these rights are not explicitly referenced in the Constitution, well, the list of rights not explicitly referenced in the Constitution is literally infinitely long. Does this mean government has infinite power? The Constitution makes no reference to the right to sleep on your left side. May the government prohibit this? The Constitution makes no reference to the right to listen to Debussy on your iPhone at 9 in the morning. May the government forbid this? The Constitution makes no reference to the right to make love to your wife. May the government send its armed agents into your bedroom to drag you from the arms of your beloved? The Constitution makes no reference to the right to eat ice cream, to blow bubbles, to hum to oneself, to run barefoot through sprinklers, or to breathe.
(I mention “breathe” because I can never forget when Orin Kerr argued that the government may tax you for breathing….)
We know that these “unenumerated” rights are subject to judicial protection not only because they are included within the umbrella term “liberty” but because at the time the Constitution was written, there were no enumerated rights: the Bill of Rights was not to come about for some years yet. Before the Revolution, the founders were governed by a British Constitution which was not even written down. Under it, courts enforced unenumerated rights because rights were then unenumerated. The Founders were well familiar with this—and they wrote a Constitution that gave “the judicial power” to the federal court system. Those who embrace “original methods originalism” must, therefore, concede a robust judicial power to protect “unenumerated” rights.
3. Holmes in Lochner and Marshall in Fletcher
Back to the subject at hand. The Presumption of Liberty is particularly woven into the Due Process of Law Clause. For the government to take away a person’s freedom without sufficient justification is to deprive him of liberty without due process of law—whatever that liberty might be. In Lochner, it was the liberty to make one’s own decisions about employment. Holloway argues that there is no such right because it is not expressly referenced in the Bill of Rights. This argument, of course, ignores the Ninth Amendment and centuries of Anglo-American common law precedent substantiating both the principle of Due Process of Law and the more specific right to earn a living without unreasonable government interference. Given not only the original Constitution, but also the Fourteenth Amendment—with its roots in the free labor principles of antislavery constitutionalism—the restriction on working hours in Lochner was at least arguably—and I think clearly—unconstitutional. Justice John Marshall Harlan disagreed, and, speaking in Marshall’s language of reluctance, concluded that where there’s a close call, the tie should go to the legislature.
But the Holmes dissent in Lochner is a different world entirely. Here we find the very manifesto of the Dogma of Deference. Rights are only privileges given by the state. The word “liberty” is “perverted” when it is used “to prevent the outcome of a dominant opinion.” The majority is the source of all justice, and its will is its only limit. The Constitution has no basic philosophical framework; it is made for people of “fundamentally differing views” and can accommodate legislation of whatever character. Its moral relativism is total. Its nihilism is haunting. Its majoritarianism flies in the face of every principle articulated in the Constitution. Holmes barely stops short of repudiating the entire concept of judicial review—conceding that a court can declare a law invalid if “a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” (The reference to “understanding” and “tradition” is Holmes’s reassertion of relativism—it’s not the principles that matter, since they can’t be true, but rather the collective subjective understanding and tradition.) And even this was too much for Robert Bork, who in Tempting of America chastised Holmes for this concession to “judicial activism”!
Holmes’s Lochner dissent is rooted not in Marshall’s reluctance, but in an ideology of majoritarianism that rejects the ideas of natural rights and fundamental equality on which the 1787 Constitution and the institution of judicial review rest. How do we know? Look at Fletcher v. Peck, the case on which Holloway relies. In that case, Marshall not only declared a duly enacted law of Georgia to be unconstitutional, but did so because it would entrench on private property rights. He did so in an ingenious opinion which lacks even a single case citation, and which adopts a creative and persuasive interpretation of the Contracts Clause of the Constitution—a Clause which was primarily intended to protect contracts between private parties, not in which the state was a party. Most of all, Marshall was motivated by a belief in natural rights and the limits of sovereignty totally alien to Oliver Wendell Holmes:
The lands in controversy vested absolutely in James Gunn and others.… [T]hey…conveyed portions of the land to those who were willing to purchase. If the original transaction was infected with fraud, these purchasers did not participate in it, and had no notice of it. They were innocent. Yet the legislature of Georgia has involved them in the fate of the first parties to the transaction, and, if the act be valid, has annihilated their rights also. The legislature of Georgia was a party to this transaction; and for a party to pronounce its own deed invalid…must be considered as a mere act of power which must find its vindication in a train of reasoning not often heard in courts of justice.
Note the distinction between “a mere act of power” and “justice.” For Holmes, all government acts were mere acts of power, and for a citizen to complain about a legislative intrusion on his rights was like “shaking one’s fist at the sky, when the sky furnishes the energy that enables one to raise the fist.” Had Holmes been Chief Justice in 1819, he would have regarded it as a perversion to use the Contracts Clause in order to prevent the outcome of a dominant opinion, and would certainly have upheld the law at issue. And as we know, the triumph of the Dogma of Deference did lead to essentially the near total extinguishment of the Contracts Clause as a meaningful limit on government. In any case, it is, as Damon Root rightly concludes, “a real stretch to try and transform John Marshall—of all founding era figures—into the poster boy for judicial minimalism.”
I’ve gone on too long. The point is that the Dogma of Deference isn’t your great-grandfather’s judicial restraint. It’s a legal presumption rather than a factual one. It operates through hypotheses rather than evidence. It is a tool of legal analysis, rather than a defeasible respect for coordinate branches. It has bizarre and paradoxical consequences in theory—so that, as Justice Thomas observed, courts apply skeptical scrutiny to any search of your house, but defer blindly to the complete demolition of your house. It has perverse consequences in practice, enabling an exponential growth of government power far beyond what the Constitution’s authors could have imagined. And it has no foundation whatsoever in the words of the Constitution.
4. What, then, is the restraint?
Are we then calling for courts to just impose their will as they see fit? Obviously not. Marshall was right that courts can’t do policy, and I know no libertarian who says otherwise. Nor do I know any libertarian who thinks courts should impose their individual political views as law—or who disputes that conservatives are right to fear such an outcome. But there is a role for conscience in judicial interpretation. It’s just not the judge’s individual conscience that plays that role—it’s the conscience of the Constitution.
In his masterful book, The American Judicial Tradition, G. Edward White observes that “the obligation of judges to explain” their conclusions limits their discretion:
Once an explanation is culturally required, one can see how an allied requirement rapidly surfaces: some explanations are “better” than others—better in the sense of more consistent with the impartiality principle. Doctrinally based justifications for a result are…simply exalted versions of an implicit claim that a judge’s decision deserves respect because it was “impartial” in its fidelity to something other than the judge’s ideology. At some point…any appellate judge…confronts the paradox that judging is ideological, and because it is ideological it requires in its practitioners efforts to show that the ideological position being advanced in a given case is a position based on sources external to its author, a position others with different preconceptions can share.
What is that position external to the author? It’s the fundamental assertion of the principles on which this nation’s sovereignty rests: the Declaration of Independence, with its classical liberal principles of equality and the presumption of liberty.
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