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Is the Burden of Proof for Judicial Review a Precept of Natural Law?
Chris Green

In a recent discussion of natural law and interpretation, Lee Strang and Joel Alicea noted that some originalists—John McGinnis and me—have argued that there is a clarity requirement for judicial review. Even if a bare preponderance of the evidence suggests that a statute is unconstitutional, unless that evidence is clear and convincing, courts should refrain from speaking about constitutional requirements unless and until they get better evidence. This is what the words “judicial power” in Article III and state constitutions expressed in context: the power to exercise judicial review, but not in unclear cases.  (As Mike Ramsey has noted, Eric Segall has likewise relied on our work recently.)

Some other originalists have, of course, disagreed with us. Some of them have canvassed early instances of judicial review and noted that they seemed to occur in unclear cases. Others have suggested that the rationale for a clarity requirement is obsolete, because it is based on the empirical claim, frequently false today, that the legislature has itself carefully thought about constitutional issues. These replies, of course, engage the issue of what “judicial power” expressed in its original context. The claim about actual instances of judicial review sees its meaning as more closely tied to applications at the time of the founding, rather than statements of principle, while the claim about obsolescence would read “judicial power” to have expressed a principle more abstract than how the many early statements of a clarity requirement read the phrase.

Conor Casey and Adrian Vermeule, though, take a very different tack in responding to Strang and Alicea. They say that rules like the clarity requirement for judicial review, like other “closure rules” that govern what to do when interpreters are less than completely certain about constitutional meaning, are actually instances of “ius” as opposed to “lex”—i.e., principles of natural law rather than positive law. “The best account of 'closure rules,' then, is that they are just another set of arguments about the content of ius, as opposed to lex. Closure rules are just ius for originalists.”

This is quite a bold claim. But if extraordinary claims require extraordinary evidence, Casey and Vermeule’s reasons to think that closure rules are always ius in disguise seem quite inadequate indeed. They do not engage with the literature on a clarity requirement for judicial review at all. In rebutting the idea that we can think about issues like the scope of “judicial power” the way the founding generation did, Casey and Vermeule contend categorically that “such rules themselves come in multiple competing versions.” But this is just not true with respect to the statement of a principle of a clarity requirement for judicial review. The extent of unanimity among early courts is remarkable.   Further, a canvass of the reasoning of these courts (see pp. 192-95) reveals nothing of the sort of natural-law-infused interpretive approach that Casey and Vermeule prefer and to which they think “jurists will inevitably appeal.” As noted above, there are issues about the consistency of early courts in the application of those principles, and a question about the extent to which the principle is implicitly fact-dependent in a way that can license stricter judicial review in a world with less legislative constitutional interpretation. But these are not different statements of the principle of how to resolve the allocation of power between legislatures and courts. When courts stated that principle, they spoke with a striking degree of unanimity, and without appealing to natural law. Casey and Vermeule assume a priori that “multiple competing versions” of the scope of judicial power must have been articulated historically. But they just weren’t.