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01/16/2020

Marc DeGirolami on Greg Weiner on Judicial Restraint
Michael Ramsey

At Law & Liberty, Marc DeGirolami: Wanted: A republican Judiciary (reviewing [somewhat favorably] Greg Weiner’s The Political Constitution: The Case Against Judicial Supremacy [Univ. of Kansas Press 2019)]).  From the introduction:

Professor Greg Weiner’s The Political Constitution: The Case Against Judicial Supremacy, is a new book in an emerging genre of constitutional literature that champions judicial restraint, the intellectual inheritance of James Bradley Thayer, and the late jurisprudence of Justice Felix Frankfurter.[1] In taking aim at the libertarian school of adjudication now ascendant in originalist constitutional theory, Weiner frames the crucial contest of our day as between partisans of judicial restraint and partisans of “judicial engagement.” While appreciating the contributions of this readable, succinct, and thoughtful book, I want in this review to pick a few friendly fights with it.

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.

These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.

And in conclusion:

Nothing in these observations should take away from the considerable achievements of this book. And one should have no illusions about the bleak prospects of success in the ongoing contest for shaping the republican sensibilities of the American people today in civically healthy ways. But that is the contest, one about the kind of judicial engagement we should want, not about whether we should want it at all.