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10/17/2018

William Haun: The Virtues of Judicial Self-Restraint
Michael Ramsey

In the current issue of National Affairs, William Haun: The Virtues of Judicial Self-Restraint.  Here is the introduction:

The modern conservative legal movement began with a principal focus on judicial self-restraint. Decades of a burgeoning federal criminal code, expanded delegation and deference to administrative agencies, and an increasingly prominent libertarianism within the conservative legal movement, however, have facilitated a shift in originalism's emphasis. Rather than focus on constraining the courts' interference with democratic choice, originalists now advocate empowering the courts to police the coordinate branches and the states. The main goal underlying this shift — protecting the individual liberty guaranteed by the Constitution — is a goal originalism rightly values. But this new focus does present the serious risk that the next generation of conservative legal minds will either not appreciate the role judicial self-restraint plays in originalism, or — if certain libertarian originalists have their way — the next generation will simply discard judicial self-restraint altogether.

As early legal conservatives like Judge Robert Bork and Chief Justice William Rehnquist understood, originalism without judicial self-restraint is not originalism at all. Applying the original meaning of the Constitution's limits on power protects individual liberty, but those limits do not create a self-governing community or provide answers to every challenge self-government faces. Rather, those limits constitute the fundamental boundaries that no government committed to liberty can cross. Self-government is therefore facilitated by another, complementary form of liberty, the liberty that judicial self-restraint protects: the liberty to make laws.

As the guarantor of the liberty to make laws, judicial self-restraint is more than a critique of "judicial activism" or "legislating from the bench." It is the conclusion of deep insights into human nature and the nature of law. Writings from Yale law professor Alexander Bickel, who informed Judge Bork's articulation of judicial self-restraint, demonstrate that the liberty to make laws is what defines a self-governing people. Genuine communities are not sustained solely by ideological commitments to abstract theories of rights. Adherence to a certain conception of individual liberty depends not merely on philosophical principles, but on what Joseph Schumpeter referred to as the "extra-rational" attachments of family, neighborhood, religious associations, and interpersonal connections that build allegiance to a nation and its ideals. Individual liberty therefore depends upon the liberty of a people to create a community in law that reflects their values.

By confining judicial analysis to what the American people adopted in text when they originally made law (i.e., when they adopted the Constitution), judicial self-restraint ensures that courts cannot invalidate or impose upon the liberty to make laws. Judicial self-restraint's respect for the liberty to make laws also gives focus to the originalist inquiry. Since Alexander Hamilton responded to Brutus in the Federalist Papers, there has been a debate over the harmony of judicial review and self-government. By insisting on judges that are committed to an originalism that is explicitly informed by judicial self-restraint, the challenge presented by that debate can be met.

And from later on:

An originalism that is explicitly committed to judicial self-restraint resolves the counter-majoritarian difficulty. This originalism respects both individual liberty and the liberty to make laws, and thus is the only judicial philosophy, as Chief Justice Rehnquist put it in "The Notion of a Living Constitution," that is "consistent with [a] democratic philosophy of representative government." Under this approach, only the liberty to make laws (as exercised by the American people when they adopted a given constitutional provision) could invalidate a subsequent exercise of the liberty to make laws (by a subset of the American people in a statute or other legislation). Where the Constitution does not speak to an issue — because the controversy simply could not have been envisioned by the founders, or the closest historical analogue is too attenuated, or the power sought to be exercised is simply not the "judicial power" Article III vests in courts — the judiciary must let the people decide how to exercise the liberty to make laws.

This originalism therefore protects the liberty to make laws from judicial encroachment, while also preserving the integrity of the Constitution's individual-liberty guarantees by applying them as they were understood by the American people. Any other philosophy, Rehnquist observed, makes judges something other than "keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country."

And this, relevant to some recent posts here:

Judicial self-restraint still provides originalism with political talking points; selecting judges who will only "interpret the law, not make it," deriding "judicial activism," and admonishing judges that "legislate from the bench" are all part of our political lexicon regarding the role of the courts. But as discussed above, judicial self-restraint provides much deeper insights into human nature and the role of law than mere sloganeering. Those insights risk being discarded by the recent, considerable shift in originalist emphasis from constraining the judiciary to empowering the judiciary to constrain the other branches of government.

Several explanations have been offered for this shift. One reason is the supposed academic "turn" in originalism: the change from an approach appealing to the citizenry at large to one that is developed by academics, with their colleagues and judges as the primary audience. As Thomas Colby detailed in "The Sacrifice of the New Originalism," the approach to originalism articulated by Bork and Rehnquist in the 1970s and '80s underwent transformations in the latter decade that enhanced its intellectual appeal. Some of these changes improved originalist methods; perhaps the most widely accepted change was the shift from searching for the founders' "original intent" to the Constitution's "original public meaning." But, Colby argued, "[i]ntentionally or not," subjecting originalism to the academy made it more like an abstract theory that, in turn, "effectively sacrificed [its] promise of judicial constraint."

Another reason is the rise of libertarians and even liberals adopting originalist approaches, which is arguably connected to the academic "turn" given their prominence in academia relative to traditional conservatives. In an essay at the website Law and Liberty, law professor Jesse Merriam characterizes the critical turn in originalism as one that infused it with libertarian premises about the nature and source of rights (which are inherently contractarian). While some have disputed aspects of Merriam's account, it would be very hard to argue that the prominence of libertarian law professors and scholars in expounding originalism has not affected how originalists, especially younger college and law students, think about originalism.

(Thanks to Mark Pulliam for the pointer).