As goes the Supreme Court, so goes American constitutional law—for better or for worse. In an article recently published on this site, Erin Hawley argues that “worse” is the order of the day, and the worst may be yet to come.
Picking up on some comments Hillary Clinton made during the second presidential debate, Hawley claims that “[d]ebates over religious liberty, marriage, and abortion suggest that both left and right have abandoned the idea of judicial restraint” in favor of “judicial engagement”—the latter which Hawley seems to equate with judicial indifference to the Constitution. Hawley argues in favor of a “restrained” Supreme Court, in the sense of being broadly deferential to “decision[s] made by the people’s representatives.” This kind of court would be “boring,” she says approvingly.
Hawley’s arguments are unpersuasive and her concerns about judicial engagement are unwarranted. If widely embraced, judicial engagement would give constitutional conservatives something to get genuinely excited about.
Judicial Review Isn’t Necessarily Evil
Hawley’s troubles begin with her overview of the history of judicial review. She gives readers the impression that judicial review sprang fully formed from the head of Chief Justice John Marshall in the seminal 1803 case of Marbury v. Madison. In so doing, she neglects centuries’ worth of Anglo-American jurisprudence, as well as public debates about the judiciary leading up to the ratification of the 1787 Constitution.
While Hawley claims that “Marshall’s conclusions are by no means obvious from the text of the document itself,” there is in fact overwhelming evidence that the text of Article III—specifically, “[t]he judicial power”—was understood by those who ratified the Constitution to incorporate a rich concept of judicial duty that included the duty to exercise independent judgment in accordance with the “supreme law of the land”— and to invalidate unconstitutional enactments.
Hawley’s perception of judicial review as a power grab leads her to minimize the importance of the role of the judiciary in our constitutional scheme. The principal threats to liberty in eighteenth-century America came from state legislatures and popular majorities. What James Madison described as an “excess of democracy” left many Americans in a condition not unlike the “state of nature” absent government. The Framers, following John Locke, believed legitimate governments were instituted to cure such deficiencies.
Among the principal deficiencies of the state of nature is that people act as judges in their own cause—and because people are (as Locke put it) “biassed [sic] by their interest[s],” the danger that one’s life, liberty or property might be taken away through force backed only by will leaves individual freedom “very unsafe, very unsecure [sic].” Article III ensures that a “known, indifferent judge” will always be available to ensure that the governmental burdens on individual freedom are consistent with the law of the land.
The People’s Will Isn’t Always Right
Hawley’s errors continue when she discusses the evolution of the Supreme Court’s role over time. She laments that the court has moved away from “primarily correct[ing] run-of-the-mill errors” to “decid[ing] important questions of federal law.” This is problematic, she urges, because judges as “unelected” and therefore “unaccountable”—thus, she agrees with Alexander Bickel that the invalidation of decisions “made by the people’s representatives” presents a “countermajoritarian difficulty.”
Although the countermajoritarian difficulty has long been an academic obsession, it rests upon a false premise. The amended Constitution is chock-full of provisions that are calculated to make it difficult for majorities to impose their will; explicitly protects a number of individual rights against both federal and state infringement; and affirms that individual rights not listed are not thereby relinquished.
The structure and content of the Constitution is designed to implement an individualist theory of the relationship between government and citizen, not a majoritarian theory. Our independent judiciary, designed to (in Alexander Hamilton’s words) “guard the Constitution and the rights of individuals,” is not an exceptional feature in our system—it reveals the nature of the system.
Insofar as Hawley’s case for “judicial restraint” rests on false premises—about the history of judicial review, about the constitutional role of the judiciary, about the political theory that the Constitution is designed to implement—it fails. Fortunately, an alternative approach to judging is readily available. That approach is judicial engagement.
Judges Should Actively Check the Government
Judicial engagement is a framework for approaching cases that involve assertions of government power. It provides that judges should engage in an evidence-based inquiry into whether the government is truly pursuing constitutionally legitimate ends through means that are calculated to achieve those ends, without deference to the government’s legal position or its unsupported factual assertions.
Engaged judges will require the government to offer a constitutionally legitimate reason for and produce evidence in support of its actions. They will then evaluate whether there is a sufficient fit between means and ends, or whether (borrowing from Chief Justice Marshall in McCulloch v. Maryland (1819)), government officials are “under the pretext of executing [their] powers, pass[ing] laws for the accomplishment of objects not intrusted [sic] to the government.”
We know judges are capable of engagement. It is the norm in cases involving government actions that burden any of a handful of rights the Supreme Court has dubbed “fundamental” (including freedom of speech, freedom of religious exercise (in the context of discriminatory legislation), freedom to travel, and freedom to choose whether to bear children), or which affect “discrete and insular minorities.” The court’s particular choices concerning which constitutional contexts call for engagement often appear to rest solely on the justices’ preferences—but there is no denying that judicial review has genuine bite in these contexts.
There are, however, a number of statutory and constitutional contexts in which judges systematically defer to assertions of government power. In no context is this deference more pronounced than in cases involving the default standard of constitutional review—the so-called “rational basis test,” applicable to burdens on all constitutional rights that the Supreme Court has not deigned to identify as “fundamental,” including the right to earn an honest living, the right not to have one’s property taken by the government through eminent domain except for a truly public use, and even the right to try to save one’s own life.
The rational-basis test has allowed the people’s representatives to trample rights the Framers held sacred and which are of fundamental importance to ordinary Americans. In addition, Supreme Court-fashioned doctrines that command systematic judicial restraint in cases involving the interpretation of federal statutes and regulations have facilitated the expansion of an administrative state in which unaccountable bureaucrats routinely exercise executive, legislative, and judicial power over seemingly every aspect of Americans’ lives. Such restraint constitutes an abdication of judges’ constitutional duty and has allowed government at all levels to operate outside of constitutional limits.
Hawley is right that our constitutional law is in a state of decline, and that the Supreme Court has facilitated that decline. But the most pressing problem with our constitutional law is not judicial overreach. It is judicial abdication. When judges set aside the will of the people’s representatives in favor of the will of We the People, they fulfill their duty—and they should be encouraged to do so. Judicial engagement equips them to do so as often as is necessary.