THE BLOG
05/27/2016 08:08 pm ET Updated May 28, 2017

The Menace of Arbitrary Power and the Duty of Judicial Engagement: A Further Reply to Greg Weiner

There is no question of more pressing and fundamental importance to modern American constitutional law: Is it proper for judges to broadly and systematically defer to the mere will of government officials when those officials seek to deprive private citizens of what is rightfully theirs? Over the course of several exchanges, it has become apparent that Professor Greg Weiner and I answer that question very differently. Our differing answers are downstream from underlying disagreements about the Constitution's substantive mission and the role of the federal judiciary in furthering that mission.

To summarize: Weiner believes that the Constitution is a majoritarian document--that, under the Constitution (to borrow Judge Robert Bork's language), "in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities." Thus, Weiner advocates judicial restraint--judicial deference to the will of legislative and executive branch officials when their actions are challenged in court, unless their actions are clearly in conflict with the Constitution. In contrast, I believe that the Constitution is primarily designed to protect individual rights--that, under the Constitution, any exercise of government power over private citizens needs to be justified by a constitutionally proper end of government. Thus, I advocate judicial engagement--genuinely impartial, evidence-based judicial inquiry into whether the government's actions are truly calculated to achieve a constitutionally proper end of government, without deference to government officials' beliefs, desires or unsupported factual assertions.

In spite of our fundamentally differing views, I always enjoy my exchanges with Weiner, and it is a testament to Weiner's fair-mindedness that, in his most recent reply to me, he offers a capsule summary of my understanding of the Constitution and my approach to constitutional decision-making that I can enthusiastically endorse. In his most recent reply to me, he writes:

Bernick's model of judicial engagement, in which duly elected legislatures must go before unelected judges and affirmatively defend restrictions on liberty--or, stated in the converse, in which unelected judges operate on a presumption against laws passed by duly elected legislatures--seems to make of the Constitution a series of locked doors through which majorities must pass to attain an outcome. Judges hold one of the keys.

Exactly! Yes, the Constitution consists in a "series of locked doors through which majorities must pass to attain an outcome." Yes, judicial engagement requires "duly elected legislatures" to "go before unelected judges and affirmatively defend restrictions on liberty." What Weiner seems to regard as bugs in my constitutional vision and my proposed judicial approach, I regard as salutary features--features which ought to recommend judicial engagement to constitutional conservatives.

Those who dedicated their lives, fortunes, and sacred honor to casting off a long-established government and creating a new one understood that governments are unique institutions. Governments claim unique authority--the power not only to compel individuals, against their will, to act (or forbear from acting), but to do so legitimately.

What could possibly legitimate such a claim? One need only read what those who drafted and ratified the Constitution wrote and said about the proper ends of government. James Wilson, perhaps the leading political theorist among the Framers, summed up the consensus view when he wrote that a government that is not designed to "secure and enlarge the natural rights of its members" is "not a government of the legitimate kind." Recalling John Locke, who regarded arbitrary government--under which force can be initiated at the mere will of the holders of political power--as the worst of all evils, James Madison wrote in Federalist 51 that "[i]n a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature." It is precisely to safeguard natural rights against arbitrary power that the Constitution erects (borrowing Weiner's image) a "series of locked doors" through which majorities must make their way.

Hard though it may be to say it, our constitutional jurisprudence at present places Americans under arbitrary government power in "wide areas of life." This state of affairs is in large part the product of institutionalized judicial abdication. Outside of a few limited contexts, assertions of government power over individuals receive the benefit of an effectively irrebuttable presumption of constitutionality when they are challenged in court, thanks to the so-called "rational-basis test"--a doctrine that has been described by the Supreme Court in terms that, taken literally, would render a successful constitutional challenge epistemologically impossible. Immunity doctrines fashioned by the Supreme Court out of whole cloth insulate government officials against civil liability for rights-violations. Administrative law doctrines fashioned by the Supreme Court out of whole cloth require judges to broadly defer to regulators at federal executive agencies when ordinary citizens challenge their efforts to micro-manage ever-broadening swaths of American life. The list of judge-made doctrines of deference goes on and on.

But to hear Weiner tell it, the primary threat to our constitutional order at present is judicial usurpation of the political branches' authority. In the piece that prompted our most recent exchange, Weiner drew upon a recent article in which Professor Mark Tushnet argued that progressives should abandon "defensive-crouch liberal constitutionalism" and use the courts as instruments of their political values. Weiner challenged conservative and libertarian proponents of judicial engagement to respond to Tushnet.

In my reply to Weiner, I pointed out that proponents of judicial engagement can demonstrate that Tushnet's approach as institutionally illegitimate because his approach rests upon the premise that judicial decision-making is inherently political, driven by judges' idiosyncratic values. I contended that no judge who acts upon that premise can discharge their duty to give effect to "This Constitution" as a fixed, objectively ascertainable rule of law. I further argued that judicial engagement is uniquely capable of equipping judges to do their duty and maintain the rule of law established by the Constitution. Weiner has yet to explain why he believes that judicial restraint, which has demonstrably failed to preserve constitutionally limited government in the past, is capable of doing so today. The case for engagement as a superior means of enforcing the Constitution's limits on government power remains unanswered.

Weiner has, however, raised an additional objection to judicial engagement, contending that it cannot be squared with the conception of the judicial role articulated by Alexander Hamilton. In his canonical defense of the duty of judicial review in Federalist 78, Hamilton writes that judges are to hold void legislative decisions that they find to be at "irreconcilable variance" with the Constitution. Writes Weiner, "the modifier 'irreconcilable' suggests that judges are not simply to deliver decrees reflecting their judgment as to constitutionality, and still less that they are to start with a presumption against certain laws." Professor John McGinnis, without taking sides in the debate between Weiner and myself, raises the question whether judicial restraint or judicial engagement can be derived from the Constitution's original meaning.

I believe that Weiner is correct that Hamilton's "irreconcilable variance" language suggests an expectation on his part that judges would apply a presumption of constitutionality. One can detect in Federalist 78 the marks of what Professor McGinnis has termed the "duty of clarity"--a perceived obligation to invalidate acts of government only if they manifestly contradicted the Constitution's meaning.

But Weiner does not appear to recognize that the duty of clarity bears a stronger resemblance to judicial engagement than modern rational-basis review does to either approach. McGinnis distinguishes the duty of clarity from the sweepingly deferential "clear-error rule" articulated by Harvard law professor James Bradley Thayer, who argued (in one of the most influential articles in the history of American constitutional law) that judges should only strike down congressional statutes if their unconstitutionality is "so clear that it is not open to rational question." The duty of clarity, by contrast, entails only a relatively soft, rebuttable presumption of constitutionality. Modern rational-basis review is arguably even more deferential than the clear-error rule and it is our constitutional default across the board. I would be interested to hear how Weiner believes certain decisions that I have condemned as examples of judicial abdication--Bradwell v. Illinois, Buck v. Bell, Wickard v. Filburn, Kelo v. New London and NFIB v. Sebelius--as well as other decisions that I have praised as examples of judicial engagement--Pierce v. Society of Sisters, Loving v. Virginia, Texas v. Johnson, District of Columbia v. Heller and Citizens United v. F.E.C.--would fare under the duty of clarity.

More importantly, I believe that systematic deference to the government in constitutional cases is inconsistent with the Constitution's specific commands, whatever Hamilton, Thayer or anyone else may have thought. While I can only offer a preliminary defense of this position here, I acknowledge the importance of developing a comprehensive defense in the future, as well as the need for proponents of judicial engagement to show (as McGinnis says) that engagement "flow[s] from the Constitution."

Consider first Article III, which authorizes "The judicial Power." Professor Philip Hamburger has demonstrated that this language incorporates a duty of independent judgment. The duty of independent judgment, understood as a duty to interpret and give effect to the law of the land without influence from either internal or external will, has its roots in English law but became especially pronounced in America. The importance of independent judgment is highlighted in state constitutions, in numerous Founding-era judicial opinions and in the 1787 Constitution itself, which creates a separate judicial branch, vests "The judicial Power of the United States" exclusively and in "one Supreme Court, and in Such inferior Courts as the Congress may . . . ordain and establish" and guarantees judges life tenure during good behavior, as well as undiminished salaries.

Any systematic deference to the mere will of government officials would require a departure from the duty of independent judgment. Genuinely independent judgment requires treating both parties in a constitutional case as presumptive equals; recognizing that one party is seeking to impose its will upon the other; and requiring the party seeking to impose its will upon the other to demonstrate that its actions are consistent with the law of the land.

Further, any systematic deference would require judges to deprive litigants of due process of law. The Constitution's guarantees of due process require impartial adjudication. A judge who understands him or herself to be obliged to take the side of the most powerful of parties--the government--is necessarily partial to the government. When the government deprives a citizen of their life, liberty, or property as a consequence of partial judgment, citizens are deprived of what is rightfully theirs without the truly adjudicative proceeding to which they are entitled.

Our Constitution is informed by an understanding of the destructive character of arbitrary power that was derived from the experience of living under a government that claimed the authority to bind "the colonies and people of America . . . in all cases whatsoever." This understanding is all too often absent from discussions of political theory. When government officials (to borrow Weiner's language) "attain" "outcomes" that are driven by mere will, the fallopian tubes of the "socially inadequate" may be severed, homes may be bulldozed, terminally-ill patients may be prevented from procuring potentially life-saving medicines and would-be entrepreneurs may die in poverty. That is why the Constitution requires officials in the legislative and executive branches of government to make their way through so many locked doors before they may assert power over their fellow Americans. That is why it leaves the key to the final door in the hands of officials who have "neither FORCE nor WILL, but merely judgment," with instructions not to open the door except under certain conditions. The call for judicial engagement is nothing more or less than a call for judges to act as responsible custodians of the key.

For more constitutional commentary, tune into the Institute for Justice's Short Circuit podcast, presented by IJ's Center for Judicial Engagement