At the Intercollegiate Studies Institute, Mark Pulliam: The Libertarian Constitutional Fantasy (Modern Age, Vol. 60, No. 1 (2018)). From the introduction:
Debates regarding the role of the courts used to be waged primarily between conservatives, who were opposed to “judicial activism,” and liberals, who contended that the U.S. Constitution was a “living” document susceptible of a flexible interpretation. In recent years, however, libertarian scholars such as Georgetown Law professor Randy Barnett have altered the course of the debate by arguing—with some ingenuity—that the Constitution contains both enumerated and unenumerated (i.e., unwritten) rights, which federal courts have the obligation to enforce against both the federal and state governments. Barnett, and like-minded libertarians, claim that laws should enjoy no presumption of constitutionality, and the government should have the burden of justifying all challenged laws as necessary and appropriate.
This notion of “judicial engagement” purports to be an originalist theory, meaning that it is supposedly consistent with the original public meaning of the Constitution. I strongly disagree. The theory of judicial engagement is unsound as a matter of history and contrary to the original understanding of the framers. Moreover, it is flawed in theory and practically unworkable. Critics have accused judicial engagement of being an invitation for libertarian judicial activism, but given the overwhelmingly liberal orientation of the legal academy, the organized bar, and the federal courts, the theory will likely just encourage more mischief by progressive judges seeking to impose their personal predilections on the polity—continuing (or accelerating) a trend that began in the 1960s with the activism of the Warren Court.
The libertarian theory of constitutional law is clever and undoubtedly well-intentioned. The theory of judicial engagement posits that all nonharmful conduct is a protected liberty, and these individual “rights” are safeguarded from “majoritarian” interference. The real problem with the courts, proponents insist, has been judicial passivity, even abdication, especially since the New Deal. The government has grown, they believe, because courts have not held the Congress and state legislatures in check. All we need to tame the Leviathan is “better judging.” Enter “judicial engagement,” which sounds innocuous but actually reorders the way our government would operate in fundamental—even radical—ways.
(An extended discussion follows).
Regular readers will be familiar with this debate. Without meaning to take sides, a way to frame it is this:
Judicial engagement, as I see it, consists of two basic steps:
(1) Judges should aggressively enforce the original meaning of the Constitution against the federal political branches and the states. This position rejects the idea of "judicial restraint" to the extent that phrase is understood to mean that judges should defer to political branch decisionmaking and generally avoid interference with democratic results except where the Constitution is very clear. Instead, "judicial engagement" sees judicial policing of the political branches as an essential defense of liberty against majoritarianism and an essential component of separation of powers.
(2) The Constitution's original meaning contains broad protection for unenumerated rights against the federal government (through the Ninth Amendment) and the states (through the Fourteenth Amendment, probably the Privileges or Immunities Clause). Coupled with proposition (1), this proposition would lead to wide-ranging judicial scrutiny of state and federal legislation — although how wide-ranging it would be would depend on how one identified the category of constitutionally protected unenumerated rights. On the latter point there might be some substantial disagreement among proponents of judicial engagement, and so considerable variance in how much judicial supervision there would be.
The first proposition could be either a claim about original meaning or a claim about institutional roles. The second proposition seems purely a question of original meaning which would stand or fall with the historical record offered in its support.
Of course, one could accept the first proposition and reject the second. That was, I think, Justice Scalia's view. Although there are passages in his writing that seem to reject the first proposition as well, his practice as a Justice reflected considerable willingness to intervene against the political branches, including in cases where the Constitution was not completely clear. He emphatically rejected the second proposition as a matter of his view of the historical record.
Posted at 6:45 AM