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Originalism and judicial restraint, part II
Chris Green

When last we left our hero, we had looked at two ideas from current philosophy of language and epistemology. "Knowledge," the central concern of epistemologists, constrains permissible assertion and supplies the goal of those in a position to speak to issues. Those who speak about the Constitution should stick to what they know, but also not neglect relevant sources of knowledge. Neglecting sources of information relevant to constitutionality is the level 1 too-passive error, while forging ahead with assertions about the Constitution amid ignorance of relevant details is the level 5 too-active error. Between these two errors lie different assessments of the stakes in judicial review, and so of the level of proof required for "knowledge" in that context, because knowledge (and thus permissible assertibility) are stakes-sensitive. This part of our activismometer is really a spectrum, but I assign the three conventional options for burdens of proof--beyond a reasonable doubt, clear and convincing evidence, and preponderance of evidence--to levels 2, 3, and 4, respectively. Here's the cheesy picture.

I should say again what I said briefly in part I: while I take these norms from contemporary philosophy, they are properly applied to judicial exercises of power only if (for the federal courts) they accurately reflect "judicial power" in Article III. Resolving that issue properly would require, for me, a careful canvass of early evidence to see if the Marburian "province and duty ... to say what the law is" is properly seen as the sort of assertion governed by the norms contemporary philosophers apply to assertions. Philosophers have ideas about how language works and how language ought to work, and other things being equal and in the absence of reason to think otherwise, we can assume that their ideas probably match how constitutional language works and ought to work, but historical investigation would be required to nail down the point fully. We can generally rely on philosophers to produce distinctions that are coherent, relatively free of conceptual confusion, and as clear as they can reasonbly be made. But whether those distinctions describe the actual Constitution and the methods proper to its enforcement are further issues.

That said, let's look at some examples. The easiest ones are in the middle: examples of beyond-a-reasonable-doubt, clear-and-convincing, and preponderance-of-the-evidence standards for judicial review. The level-2-activist strike-down-statutes-only-if-unconstitutional-beyond-a-reasonable-doubt standard is articulated in Bushrod Washington's separate opinion (one of several seriatim opinions, with Marshall in dissent for 3 justices on the basic issue) in Ogden v. Saunders (1827):

It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.

Washington claims that "[t]his has always been the language of this Court when that subject has called for its decision," but without citation, and a bit of investigation turns up no obvious earlier cases.  [Update: David Upham points out Commonwealth ex rel. O'Hara v. Smith, 4 Binn. 117, 123 (Pa. 1811): "It must be remembered however, that for weighty reasons, it has been assumed as a principle in construing constitutions, by the Supreme Court of the United States, by this court, and every other court of reputation in the United States, that an act of the legislature is not to be declared void, unless the violation of the constitution is so manifest as to leave no room for reasonable doubt."  As with Washington, the big talk isn't matched with citations, but it seems likely there are still-earlier cases the court has in mind, though they may be phrased differently. David also mentions this intriguing comment in Judge Haywood's separate opinion in Hartley v. United States, 4 Tenn. 45, 52 (1816): "It is as much the duty of a judge to cause his judgment to be carried into effect when he has no reasonable doubt pressing on his mind, as it is to suspend it when he has, and I can not say that my mind is affected with any reasonable doubt."  The context seems to be the extent of the presumption of constitutionality, but that matter is not itself free from doubt.]

A level-3 clear-and-convincing standard for activism is exemplified by Marshall's opinion in Fletcher v. Peck (1810):

The question whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.

I should add an interpretive point here: there is a difference between a judge saying that he will not speak in the name of the Constitution in a "doubtful case" (Marshall's language in Fletcher) and saying that the Constitution's conflict with a statute must be shown  "beyond all reasonable doubt" (Washington's language in Ogden). The latter suggests a hypothetical inquiry--could a reasonable person disagree?--while the former suggests an inquiry into actual doubts by the judge at issue: "the judge" is the one who must "feel[] a clear and strong conviction of their incompatibility."  

Level 4 activism is advocated particularly clearly by Steven Calabresi

Since judgments of constitutionality are made by all three branches of the federal government acting together, a law that arrives in court with the imprimatur of two of the three branches should be presumed constitutional. And, the courts should be restrained in striking the law down except where it appears by a preponderance of the evidence to conflict with the Constitution. I would not go as far as James Bradley Thayer and invalidate only laws that are clearly and beyond a reasonable doubt unconstitutional. But I do think the burden of proof lies on those who are challenging the constitutionality of a law or of an executive action.

What of levels 1 and 5, too-passive and too-active breaches of the knowledge norm of assertion? To ease the suspense, the level-1 example I have in mind is O'Gorman & Young v. Hartford Fire Insurance (1931), but the explanation will have to wait for a later installment.

Level-5 errors are confessions of ignorance on critical facts coupled with the use of judicial power to strike down statutes. Justice Jackson's famous 1952 Youngstown concurrence claimed that the original history of executive and legislative power was just too enigmatic to be helpful:

A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. 

Note that Jackson does not begin by rejecting the relevance of originalist evidence: he says that the original history would have  genuine "authority" over his decision if it were clear enough. He then moves on to consider other rationales for his decision only because the historical materials (and later cases as well) were not clear enough. But insufficient clarity regardingly matters that would be authoritative if they were clear is simply ignorance of relevant considerations. And if knowledge is a genuine norm of assertion--that is, if level 5 is too high on our activismometer--ignorance of the relevant considerations should end the issue; Truman's actions should have been allowed, absent sufficient knowledge that the actual Constitution forbade them. The alternative, of course, is to dig into the Helvidius/Pacificus debates and other relevant material, but unless Jackson is willing to do that, he should either (a) explain why that material is irrelevant, i.e., why his initial inclination is wrong, or (b) refrain from making assertions about the Constitution contrary to Truman's.

[2/8 update: Matt Estrin writes to suggest an alternative Level-4 interpretation of Jackson's reasoning.  If Jackson genuinely thinks that the historical materials are, not merely enigmatic, but genuinely in equipoise, then if he is searching for the preponderance of evidence, even the slightest bit of evidence from other sources would be enough to tip the balance.  Given his complete lack of engagement with the history, Jackson certainly wouldn't be justified in claiming that the evidence is in equipoise, but he also doesn't even seem to be claiming that.  Rather, he asserts that it is too hard for him to tell how much historical evidence there is on either side of the debate.  Turning to other considerations because considerations initially thought to be authoritative are too difficult to assess seems closely akin to looking for dropped car keys under the lamp post instead of the place where the keys were dropped because that's where the light is best.]

I'm already a good bit over 1000 words, so I'll leave it at that for now. In future installments: a few more level-5 errors and my take on O'Gorman.