Originalism and judicial restraint, part I
I thought it might be useful to reduce to blog-post form some of the thoughts I presented in New Orleans a few weeks ago as part of the Federalist Society's panel on Judicial Deference and Judicial Restraint (my contributuion begins at about 43:08). They are relevant, I think, to the oft-dicussed issue of whether originalism is itself a theory of judicial restraint, or is instead in tension with it. Neither, I think, is true. The restraint principles I suggest seem independent of originalism as such. (I take them from modern epistemology and the philosophy of language, but they would ultimately need to be justified as the proper understanding of "judicial power" in Article III.) Non-originalists could adopt them too, but originalism would in no way undermine them; indeed, originalism about "judicial power" might require them. On my view of constitutional meta-theory, though, a form of originalism is required not because of its relation to judicial restraint, but instead by its proper assessment of "this Constitution" in Article VI. The issue of originalism is at root an ontological/temporal issue--i.e., the extent to which the Constitution to which officeholders swear their oaths is temporally-extended or temporally-confined--while judicial restraint is an epistemic one.
The idea behind knowledge as the norm of assertion that if you assert something that you don’t know, that normally violates a norm. We should stick to what we know, and, if we are ordinary participants in a conversation on the topic, say what we do know without deliberately staying ignorant. If someone makes an assertion, it is normally proper to ask in response, “How do you know that?” If someone asks me a multiple-choice question, and the answers are “Yes,” “No,” and “I don’t know,” then usually these answers are both exhaustive of the possible replies (as long as a reply is reasonably expected) and non-overlapping. Ordinarily if I say “Yes,” I’m not also tempted to say “I don’t know.” If I don’t know, I shouldn’t answer yes. On the other hand, if I do know, so that “I don’t know” isn’t a proper response, then I should be willing to assert either “Yes” or “No” in response.
The second idea is the interest-sensitivity of knowledge. How much we have riding on a proposition will help determine whether we know it. More at stake means that the “knowledge” honorific requires more evidence (and, if we accept knowledge as the norm of assertion, so does assertion). The standard example is “the bank is open on Saturday.” It’s Friday and I’m thinking of going to the bank, but I’ve got other things to do, so if I know it’ll be open tomorrow morning, I’ll wait until then. Now, if I need to go to the bank to get cash for a poker game on Saturday, that’s a low-stakes context. A vague recollection of seeing cars at the bank on a Saturday last month would count. But if I need to deposit a paycheck to avoid eviction or a mortgage default on Monday, that’s a high-stakes context: if I only have a vague recollection, I'd say, "Well, I don't know it's open tomorrow." Knowledge requires more evidence in that context.
We can combine these two ideas into a “philosophically-informed judicial activismometer” with 5 levels. (In New Orleans, to save time, I collapsed levels 2 and 3 and presented only a 4-level activismometer, but with a little more blog-form legroom, I'll stretch it out.)
There are two ways to breach the knowledge norm of assertion (or its close kin): (a) to make assertions about the law while remaining confessedly agnostic about critical facts (violating Grice's maxim of Quality) or (b) to refuse to make assertions even about matters that are able to be known (violating Grice's maxim of Quantity). These are levels 5 and 1. Level 1 is, if a court has jurisdiction to interpret the Constitution, too passive, because a court remains silent in the face of known or knowable constitutional problems. Level 5 is too active, because it makes assertions contrary to the elected branches even in the face of agnosticism about critical facts.
In between these we have courts that accept knowledge as the norm of assertion, but see judicial review as a relatively high-stakes or relatively-low-stakes proposition. These are levels 2, 3, and 4. The three traditional levels of burdens of proof--beyond a reasonable doubt, clear and convincing evidence, and preponderance of the evidence--correspond to decreasing levels of the gravity of a pronouncement. Criminal punishment is a high-stakes context, so we require a relatively large amount of evidence--sufficient to prove guilt beyond a reasonable doubt--before we encourage juries to make the assertion that criminal defendants are guilty. But compensatory civil liability is a relatively low-stakes context, in which less evidence is required (even for the same assertion, e.g., "A purposely killed B"). The termination of parental rights is a middle-stakes context requiring clear and convincing evidence.
Courts committed to staying at Level 2 activism would find constitutional violations only if they are established beyond reasonable doubt. Those at Level 3 would also allow judicial assertions of unconstitutionality if they are clear. Level 4 activists would allow judicial assertions of constitutional violations if shown by a preponderance of the evidence.
Here, then, is our activismometer (click to enlarge):