John McGinnis and the Originalist Case Against Judicial Restraint

03/31/2015 07:00 pm ET | Updated May 31, 2015

Last week, I argued that the judicial restraint long advocated by conservatives has its roots in the Progressive era, drawing upon Professor John McGinnis' recent paper, The Duty of Clarity, in support of my arguments. McGinnis' paper criticizes on originalist grounds the "conception of judicial deference, often referred to as judicial restraint" held by Harvard professor James Bradley Thayer. Thayer's teachings inspired an ideologically diverse line of restraint advocates, including Oliver Wendell Holmes, Jr., Louis Brandeis, Felix Frankfurter, Alexander Bickel, and Robert Bork.

So it was rather surprising to find Ed Whelan at the National Review praising McGinnis' paper as an originalist case for judicial restraint. Equally surprising was Whelan's claim that "there are hardly any modern advocates of judicial restraint" who adhere to the Thayerian approach that McGinnis criticizes. This is surprising because the default standard of review in constitutional cases -- the so-called rational basis test -- requires precisely the kind of reflexive judicial deference that Thayer endorsed, and I've yet to see any modern advocates of judicial restraint explicitly reject it on the grounds that it is excessively deferential.

Thayer set forth his approach to judicial review in an influential 1893 article, The Origins and Scope of the American Doctrine of Constitutional Law. In this article, Thayer articulated what became known as the "clear-error rule," arguing that a court should only strike down a congressional statute if its unconstitutionality is "so clear that it is not open to rational question." Thayer also believed that it would be improper for judges to undertake an independent inquiry into the factual predicates of legislation; rather, he contended that judges should always attribute "virtue, sense, and competent knowledge" to legislators.

Although Thayer appealed to early cases in support of his approach, he started from epistemological premises that were very different from those of jurists in the founding era, and, not surprisingly, he came to very different conclusions about judicial review as well. As McGinnis explains, while founding era jurists believed that doubtful questions concerning constitutionality could be rendered clear through tried-and-true interpretive principles and disciplined inquiry into the available evidence, Thayer believed that this was a fool's errand. For Thayer, there was no discoverable "truth" about what the Constitution required in any context-- he viewed the Constitution as pervasively indeterminate. Thus, he argued, the Constitution "does not impose upon the legislature any one specific opinion, but leaves open (a) range of choice; and whatever choice is rational is constitutional."

If this language sounds familiar, it should. Although at the time Thayer's teachings were, in the words of Learned Hand, "subversive" in their skepticism about judicial review, they soon worked their way into the very bedrock of American constitutional law. With the aid of Oliver Wendell Holmes, Jr., Thayer's deferential approach --as embodied in the rational basis test-- became our constitutional default across the board, not just in cases involving challenges to congressional statutes (as Thayer had advocated).

Holmes argued in his canonical dissent in Lochner v. New York (1905) that courts should not overturn legislation "unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law." This dissent anticipated the formal adoption of the rational basis test as the default standard of review in constitutional cases that do not implicate "fundamental" rights or involve suspect classifications. In FCC v. Beach Communications (1993), the Court stated that under rational basis review, judges must uphold legislation "if there is any reasonably conceivable state of facts that could provide a rational basis for it"; those challenging legislation must "negative every conceivable basis which might support it"; and the government need not justify legislation with "evidence or empirical data." As the Court put it, the rational basis test is "a paradigm of judicial restraint."

If McGinnis is correct that Thayer's clear-error rule is, indeed, clearly erroneous (and I believe that he is), so, too, is the constitutional default described in FCC v. Beach Communications. (Whether courts consistently adhere to this toothless standard of review has, of course, been the subject of much debate.) According to Whelan, there are "hardly any" restraint advocates who believe that courts should strike down statutes only when their unconstitutionality is "so clear that it is not open to rational question." If only it were so. To take just one of many possible examples, Whelan's colleague, Matthew Franck, took me to task during a recent exchange for criticizing the clear-error rule, arguing that the rule is "as old, and as valid, as the Constitution it seeks to honor" and that "judges today should in fact work harder to conform to it." More broadly, given that the rational basis test represents our constitutional default, one would expect to see restraint advocates vigorously criticizing it if they believed it to be excessively deferential. But Whelan himself has referred to a decision in which the judge relied upon the language of FCC v. Beach Communications as an example of court "properly applying rational basis review and judicial restraint."

So, I would put the question to Whelan, as well as any other restraint advocates: Is the rational basis test excessively deferential? If so, what should we do about that?