At NRO, George Will discusses Randy Barnett's recent speech on the libertarian Constitution: Republicans’ Judicial Nominees Should Defend the Lockean Conception of Liberty. In his description:
Barnett, a professor at Georgetown’s law school, recently took to a place that needs it — the University of California–Berkeley — this message: “The judicial passivism of the Supreme Court has combined with the activism of both congresses and presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be.”
In his lecture “Is the Constitution Libertarian?” Barnett acknowledged that in many respects American life “feels freer” than ever, and that we have more choices about living as we wish. In many other ways, however, the sphere of freedom is too constricted, and individual rights are too brittle, because for decades America’s Lockeans have been losing ground to Hobbesians: “The Lockeans are those for whom individual liberty is their first principle of social ordering, while the Hobbesians are those who give the highest priority to government power to provide social order and to pursue social ends.”
And in conclusion:
Republican presidential aspirants must be forced to join their party’s intramural argument about the judiciary’s proper function. Then we can distinguish the Lockean constitutionalists from the merely rhetorical conservatives whose reflexive praise of “judicial restraint” serves the progressives’ Hobbesian project of building an ever-larger Leviathan.
Ed Whelan responds: George Will’s Mistaken Critique of Judicial Restraint. He has various objections but this seems the strongest:
As I’ve explained before, most contemporary conservative proponents of judicial restraint are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question. These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. I don’t see how any conservative could object to that approach (though I of course recognize that there is plenty of disagreement among originalists on what some provisions of the Constitution mean).
At Volokh Conspiracy, Randy Barnett has extensive further thoughts, including:
[Whelan] is among the most thoughtful defenders of “judicial restraint” as something other than what he calls “judicial passivism.” Historically, “judicial restraint” was typically invoked precisely to urge judicial passivism. Whelan is free to revise, update, and repurpose the phrase “judicial restraint” if he likes. But my own sense is that his distinction is largely unknown to many politicians who invoke judicial restraint (or other bromides like “strict construction” or “not legislating from the bench”). They probably don’t know what any of these words mean because they are “lazily” invoking rhetorical boilerplate that does not always, or perhaps even often, mean what Ed Whelan now defines it to mean.
I am old enough to remember when [Texas Law Professor] Lino Graglia’s version of judicial restraint was the wholly dominant vision of the role of judges in the Federalist Society. Although Graglia grudgingly allowed for judicial review in principle, he used to delight in saying that there is no law that Congress would actually pass that would justify judicial negation. He was a mainstay at every national student symposium, and he was no originalist. [Judge J. Harvie] Wilkinson is of that school. Times have changed, and not just among “libertarians.”
It really wasn’t until Ed Meese came to Washington that originalism was reinserted into conservative thinking. But Meese’s heroic reassertion of originalism introduced a tension between enforcing original meaning and judicial restraint. Over the years, as originalism has assumed an increasingly powerful hold on the legal culture, this tension has increased to the point were one must either reject judicial restraint, or attempt to redefine it so it is compatible with originalism. That is what Whelan is proposing, but at this point, it is more a wish than a reality. Language is stubborn, and the original meaning of judicial restraint is not so easily displaced.
Ed Whelan has a further reply here, including:
Barnett welcomes (or at least accepts) my distinction between judicial restraint (proper deference to a democratic enactment when originalism fails to generate a sufficiently clear answer that the enactment is unconstitutional) and judicial passivism (wrongful deference). He argues, though, that the version of judicial restraint that “used to be the dominant strain in conservative circles” rejected any such distinction, and he is skeptical that judicial restraint can be effectively “redefine[d]” to incorporate that distinction (and thus to be “compatible with originalism”).
I’m dubious of Barnett’s claim that what “used to be the dominant strain” of judicial restraint “in conservative circles” denied a distinction between judicial restraint and judicial passivism. I also think that such a distinction (however labeled) is obviously necessary. Anyone who denies the distinction would believe that the judiciary could never err by determining a democratic enactment to be constitutionally permissible. Who has ever taken that position? (No, not even Lino Graglia, who in any event was never representative of traditional thinking on judicial restraint.)
At Cato on Liberty, Roger Pilon has more: What Should Presidential Candidates Say about Judges? (defending the Will/Barnett view and calling for "a judiciary actively engaged in reading and applying the Constitution as written").
My sense is that there is less of a philosophical dispute here than meets the eye. Rather, it's a proxy battle over a different proposition (that sometimes shows through): whether the Ninth and Fourteenth Amendments (in their original meaning) license wide-ranging judicial oversight of federal and state laws to protect rights not specifically spelled out in the Constitution. In that sense, it's not really an argument about interpretive approach -- I think everyone involved agrees with Pilon's proposition at the general level -- but an argument about a particular (though very important) application of that approach.
This spills over into the recurring judicial restraint debate because Whelan wants to use the positive connotations of restraint as a rhetorical tool against the broad interpretation of the Ninth and Fourteenth Amendments, and Barnett and his allies want to resist that. But I think it might be better if they just argued about the meaning of the Amendments.
As to some candidates and political commentators, though, I agree that there is a tendency to invoke "judicial restraint" without thinking carefully about what it means (as I've written here). And I absolutely agree with Professor Barnett that there is a tension between originalism and judicial restraint that one needs to deal with in some way (perhaps, though not necessarily, in the way Ed Whelan deals with it).