At Legal Theory Blog, Larry Solum's Legal Theory Lexicon tackles Restraint and Constraint in Constitutional Theory. Here is the introduction:
The idea that judges should not unduly interfere in decisions made by the political branches is a familiar trope in both popular discourse about the Constitution and in constitutional theory. One aspect of this idea connects with the notions of "judicial activism" and "strict construction" that are discussed in a previous Legal Theory Lexicon entry. Another aspect of this discourse concerns the ideas of judicial restraint and constraint.
One of the difficulties with discussion of restraint and constraint is that these ideas have been imprecise and ambiguous. Is restraint simply inaction? Or does constraint have to do with the idea that courts should be bound by the constitution? These two notions are not the same. The constitution might require action that interferes with the political branches, but it might require inaction as well.
Thomas Colby has made a metalinguistic proposal to sort out the potential confusion. Here is the way he put the suggestion:
(“[A]lthough originalism in its New incarnation no longer emphasizes judicial restraint–in the sense of deference to legislative majorities–it continues to a substantial degree to emphasize judicial constraint–in the sense of promising to narrow the discretion of judges. New Originalists believe that the courts should sometimes be quite active in preserving (or restoring) the original constitutional meaning, but they do not believe that the courts are unconstrained in that activism. They are constrained by their obligation to remain faithful to the original meaning.”).
Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011). Colby's idea is that we can stipulate that "restraint" refers to deference and that "constraint" refers to the a requirement of consistency with the constitutional text.
The remainder of this Lexicon entry develops Colby's proposal. [Ed.: with a helpful matrix].
I agree with Professor Colby's terminology, as does Professor Solum. Note that originalism calls for constraint but does not necessarily require (or even allow) restraint.
Posted at 6:23 AM