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Originalism and judicial restraint, part V
Chris Green

(Parts I, II, III, IV) Does judicial restraint necessarily increase legislative and executive flexibility? We might think so; less judicial review seems to leave more room for other branches to operate. But my theory of judicial restraint—limiting judicial assertions about the Constitution to occasions when a court has knowledge, judged by the proper stakes-sensitive standard without neglecting sources of relevant evidence—does not mean that legislatures are free from similar obligations. 

Thomas Cooley has a nice statement of the applicability of restraint principles to all three branches of government in his 1868 treatise (pp. 73-74):

But when all the legitimate lights for ascertaining the meaning of the Constitution have been made use of, it may still happen that the construction is a matter of doubt. In such a case it seems clear that everyone called to act where, in his opinion, the proposed action would be of doubtful constitutionality, is bound from that doubt alone to abstain from acting. Whoever derives his power from the Constitution to perform any public function, is disloyal to that instrument, and grossly derelict in duty, if he does that which he is not reasonably satisfied the Constitution permits. Whether the power be legislative, executive, or judicial, there is manifest disregard of constitutional and moral obligation by one who, having taken an oath to observe that instrument, takes part in an action which he cannot say he believes to be no violation of its provisions. A doubt of the constitutionality of any proposed legislative enactment should in any case be reason sufficient for refusing to adopt it; and, if legislators do not act upon this principle, the reasons upon which are based the judicial decisions sustaining legislation in very many cases will cease to be of force.

If the mere act of legislation is an implicit assertion that the legislation is consitutional, then we can use the interest-sensitivity of knowledge and knowledge as the norm of assertion to construct a legislative activismometer as well.  Legislatures might remain too passive by failing to conduct an investigation into evidence relevant to their constitutional responsibilities (legislative activismometer level 1, too low). They might remain confessedly ignorant of whether legislation is constitutional, but pass it anyway, leaving it to the courts to decide (legislative activismometer level 5, too high). Finally, they might apply different standards of proof to the conclusion that their own actions are constitutional (beyond a reasonable doubt, clear and convincing, or preponderance of the evidence, levels 2, 3, and 4). Because the stakes in judges striking down legislation might not be the same as the stakes in legislatures passing legislation, the proper levels on the two activismometers might not be the same.

Further, there might be different proper levels on the legislative actvismometer—or a different assessment of the threshold is-there-an-implicit-assertion-here-at-all issue—for rights and powers. Perhaps a legislature passing a law is implicitly asserting that the law is within the legislature's constitutional power, but not implicitly asserting that the law does not violate anyone's constitutional rights. Or perhaps the level of proof required with respect to those two issues could differ.

Similarly for executive action: does the taking of executive action implicitly assert that the action is constitutional, and if so, how much proof of constitutionality is required? We can also have a special activismometer for executive review—that is, executive action finding statutes unconstitutional. We could thus have executive-action and executive-review activismometers. Indeed, as Federalist 78 seems to contemplate (the judiciary "must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments"), we might also have executive constitutional review of judicial decrees, and again different standards to govern it—an executive-judgment-enforcement activismometer. Those horrified at the prospect of such a power might limit it to super-clear cases.

If executive review requires even a minimal amount of proof, then we would probably need to limit the implicit-assertions-of-constitutionality-from-executive-action trigger for the executive-action activismometer to situations in which executive officials have discretion under statutes. Imagine a case in which the legislature tells the executive to do X, and executive officials are unsure whether X is constitutional. If simply doing X—i.e., obeying the statute—is the implicit assertion that X is constitutional, and executive officials don't know that (by whatever standard), then the mere existence of such uncertainty would be warrant for executive review in refusing to enforce a statute on constitutional grounds. That would be inconsistent with the need for knowledge of unconstitutionality in order to exercise executive review. Sufficiently poor information to support agnosticism on a particular constitutional issue would produce a conflict between the knowledge-required-for-executive-review and knowledge-required-for-executive-action norms.

The distinction between our judicial and executive-review activismometers could also give a foundation for the Obama Administration's enforce-but-don't-defend approach to the constitutionality of DOMA. If judicial review requires a smaller degree of proof than executive review, and the administration thought the level of proof fell between those two thresholds—enough for judicial review, not enough for executive review—then the administration could take a position in favor of a court striking down the law, even though unwilling to refuse enforcement on constitutional grounds. A while back, I floated a position like this (see the last few paragraphs of the post). All of this theoretical background perhaps makes the idea more comprehensible.

Still to come: deploying the activismometer to deal with vagueness and to answer indeterminacy-based objections to originalism.