Continuing the debate noted in this post, Evan Bernick replies to Ed Whelan at NRO: When Courts Abdicate – There’s nothing originalist in rubber-stamping laws that wrongly infringe liberty. From the core of the argument:
Ed chides me for failing to explicitly embrace originalism. (For the record, I’m an originalist.) But even a universal commitment to originalism would not cure what ails our judiciary. It is impossible for judges to hold the government to the terms of a written Constitution if they do not judge. Under the rational-basis test, judges must uphold a law unless the plaintiff can perform a logically impossible feat: refuting an infinite set of negatives. This standard of review has no basis in constitutional text or the political philosophy that informs it — no surprise, given that it is the product of a Court, the Holmes Court, that largely signed on to the so-called Progressive agenda (as Ed rightly notes, this agenda was predicated upon the “abandonment of originalist principles”). As James Madison noted in Federalist 10, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” When judges do not judge (or, rather, when they merely go through the motions of judicial review while depriving it of any substance, as they routinely do in rational-basis cases), the political branches are left to be judges in their own cause, and unconstitutionality follows.
Ed Whelan replies: More on Rand Paul’s Support for Judicial Activism. Matthew Franck adds these thoughts: Misreading Federalist No. 10.
I'm not sure that Evan Bernick's (and Rand Paul's) central claim is adequately answered, though. The Constitution (given its original meaning) imposes substantial limits on Congress, both structurally and through individual rights. One may doubt how effective those can be without judicial enforcement of them. But meaningful judicial enforcement requires an independent judicial assessment both of the Constitution's original meaning and (often) of the circumstances surrounding the challenged enactment. If courts defer to the legislature, through some version of the rational basis test, judicial enforcement becomes very thin.
Of course, you can say this deference is a good thing (in the terms of my earlier post, as a "restrained originalist"), although you would need some argument for it aside from just opposition to "activism." More importantly — as Senator Paul said in the remarks that prompted this debate — you would have to give up some positions that are common ground to many originalists: for example, you might have to agree with the majority in Kelo v. New London; the majority in Gonzales v. Raich; and the majority in NFIB v. Sebelius. The short of it is that a nominal commitment to originalism plus strong deference to the legislature (or the executive branch) is not going to do much to implement the Constitution's original design of limited government.
Posted at 6:03 AM