The modern conservative legal movement began with a principal focus on judicial self-restraint. But as I detail in the Fall 2019 issue of National Affairs, the movement’s initial focus on constraining the courts’ interference with democratic choice has given way to empowering the courts to police the coordinate branches and the states. If the next generation loses an appreciation for—or outright disregards—judicial self-restraint, the liberty that defines a self-governing people goes with it: the liberty to make laws.
While modern theories of individual autonomy condition Americans to think of liberty in purely individualistic terms, the Constitution’s structure and the political theories that produced it demonstrate that liberty also possesses a communal dimension. The liberty imbued within the American founding was not, pace Justice Kennedy, a right to define one’s own concept of existence—but rather a liberty to discover, and then live out together, what is true, good, and beautiful. This liberty is individual in the sense that everyone must possess the freedom to debate, deliberate, and discover truth. But it is also communal in the sense that, when conclusions about what is good and true are drawn, there is a freedom for a people to come together and build a society that reflects those conclusions. This is the virtue of the liberty to make laws—it allows communities to manifest their values.
Absent a commitment to self-restraint, the judiciary poses a potent threat to the liberty to make laws. The judiciary’s structure and substantive work not only preclude it from giving voice to the various perspectives that the liberty to make laws brings to the fore, they make the courts susceptible to undermining that liberty by raising individual liberty to such a level of abstraction that it cannot coexist with the liberty to make laws. Were the judiciary to myopically focus on vindicating a theory of individual liberty, courts would miss the role for the people in addressing unforeseen changes, the different values beyond individual liberty that give life to a community, and the key insight that only the people—not the courts—can save self-government. Early legal conservatives understood this, and we would be wise to recall their teachings.
The Liberty to Make Laws
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Various constitutional provisions implicitly demonstrate the ability of a people, usually through their respective states, to build a community that reflects their values and the lessons from their shared experiences. These provisions include, for example, the Establishment Clause (originally conceived as a federalism provision ensuring that the states could manifest their peoples’ own religious commitments—and now protecting their peoples’ ability to see religion as a distinct public good), the Tenth Amendment (ensuring that the respective states retain the “police power” to safeguard their peoples’ health, safety, and morals), the requirement that every state possess a republican form of government, the original Constitution’s directing the election of senators by state legislatures, and the president’s election by the electoral college (rather than directly by individuals). More generally, an originalist understanding of the Constitution’s individual liberties includes an acknowledgment that the people working through the democratic process can manifest their value judgments about related matters (like with respect to the freedom of speech, as I have previously written)
By protecting the liberty to make laws, the Constitution incorporates a deep insight into human nature and law itself. As Yale Law professor Alexander Bickel explained in The Morality of Consent:
Law is more than just another opinion; not because it embodies all right values, or because the values it does embody tend from time to time to reflect those of a majority or plurality, but because it is the value of values. Law is the principal institution through which a society can assert its values.
Bickel derived this view of law from what he called the “Whig model” of Western political thought, and he contrasted it with the “contractarian” view prominent among some liberals and libertarians. The contractarian, unlike the Whig, “begins with theoretical rights,” not “a real society.” He views human nature as bending to individual rights that have a “clearly defined, independent existence predating society and are derived from nature and from a natural, if imagined, contract.” The Whig, by contrast, “assesses human nature as it is seen to be.” Mankind’s decision to possess self-government is not one entered into solely by a rational syllogism starting with the state-of-nature thought experiment; it is the product of certain traditions, experiences, intuitions, sentiments, and habits that have formed a community in which rational arguments for self-government can be appreciated and adopted.
The liberty to make laws gives expression to the Whig insight into human nature. When the liberty to make laws is exercised, man is not only engaging in a rational debate about abstract concepts of rights. He is also debating, as Bickel put it, his “culture,” the limits of “time-and-place bound conditions,” the wisdom of experience, and “the present state of values”—what Joseph Schumpeter characterized as the “extra-rational” forces that truly bind a people’s commitment to otherwise individualistic concepts like individual liberty or capitalism.
To faithfully apply the original public meaning of liberty protected by the Constitution—that is to say, to be a faithful originalist—one must acknowledge that both a contractarian view of individual liberty and a Whig view of the liberty to make laws were held by the founding generation.
Judicial Self-Restraint and Originalism
The need for a judicial philosophy that accounts for both forms of liberty protected by the Constitution is acute because, as the founding generation recognized, one of the principal threats—if not the principal one—to the liberty to make laws would be the judiciary itself. Unlike the other branches of the federal government, which are “checked” and “balanced” and publicly accountable by explicit constitutional constraints, the judiciary is independent and comparatively free from such controls. To Brutus and the other Anti-Federalists, this lack of constraint would enable judicial supremacy. The Constitution, Brutus reasoned, could be interpreted according to its “spirit,” rather than its words. “Men placed [on the Supreme Court],” Brutus claimed, “will generally soon feel themselves independent of heaven itself.”
Keeping “will” confined to the people and “judgment” to the judiciary, as Federalist No. 78 states, gives the people the foremost prerogative in preserving self-government. This delineation was critical to Hamilton’s response to Brutus. As Hamilton explains in Federalist Nos. 78 and 81, judicial independence is warranted because a judge’s “long and laborious study” in the law—an institution, at the time, with its axioms and rules of construction firmly rooted in human nature and, as Hamilton says, “common sense”—would incline potential judges toward self-restraint. This training would teach judges to uphold enactments of the liberty to make laws unless, as he says in Federalist No. 78, they were at an “irreconcilable variance” with the Constitution’s text. And such an inquiry was, to Hamilton, fully textual: “there is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution,” Hamilton says in Federalist No. 81, nor would the qualities of those fit for judicial service permit such constructions. Moreover, a people committed to self-rule would punish extra-constitutional attacks on the liberty to make laws with impeachment.
Hamilton’s reliance on personal characteristics, a judge’s acculturation in self-restraint and textualism, and the public’s esteem for these qualities all bespeak a disquieting reality: preserving the distinction between “will” and “judgment” is an ongoing task for each generation, one that makes judicial self-restraint contingent on a society that wants the liberty to make laws. The liberty to make laws and judicial self-restraint therefore go hand in hand, and the latter will not devolve into judicial supremacy only to the extent that the former is valued by the people.
Accordingly, the originalist commitment to judicial self-restraint must be explicit and intentional. Were it not, originalism could come to resemble the very thing early legal conservatives invoked originalism to oppose: an abstract theory. Unfortunately, such a trend is afoot.
There are multiple reasons why originalism has shifted from its early emphasis on restraining courts to its present emphasis on empowering them, and I detail them in my National Affairs essay. In short, the growth of originalism as an academic pursuit, the increasing prominence of libertarians and even liberals explicating originalism, and the growth of the federal government, have all contributed. Recent Supreme Court cases provide illustrations of the shift, while those cases also provide, in opinions by Justice Alito, the virtues of judicial self-restraint.
Justice Alito’s dissent in North Carolina Board of Dental Examiners v. Federal Trade Commission, for example, exposed the judicial role some libertarians have indulged simply to pursue a certain theory of economic liberty. There, the Supreme Court was asked whether or not a North Carolina board that governed dentistry practice should be subjected to antitrust liability despite an exception for anticompetitive “state action.” Judicially enforcing antitrust law in this way advances the federal government’s ability to regulate wholly intrastate commerce—an understanding that many libertarians and economic-liberty proponents typically reject. In his dissent, Justice Alito rightly called out this diminished “respect for federalism and state sovereignty” employed simply to vindicate a theory of economic liberty.
Two other cases demonstrate the effects of an increasingly academic approach to originalism: Brown v. Entertainment Merchants Association and United States v. Jones. Arguments in both cases relied on the growing volume of originalist scholarship in an effort to analogize the novel, modern conduct at issue to something the founders would have recognized. In Brown, California’s effort to restrict the sale of graphically violent video games to minor children was analogized to early American attitudes toward violence and attempts to regulate minors’ reading habits. And in Jones, the government’s use of a GPS device to engage in extensive monitoring of an automobile was analogized to what gave rise to a 1791 trespass to chattels claim (the use of property without the owner’s permission). Rather than join in the two majority opinions that used these analogies to find constitutional-rights violations, Justice Alito concurred. While he shared the Court’s bottom-line conclusions, his separate opinions explained how such “highly artificial” analogies to original meaning preempt the people in addressing novel phenomena and providing clear rules and comprehensive solutions.
Finally, Justice Alito’s opinion in Perez v. Mortgage Bankers Association provides a helpful framework for employing originalism, informed by judicial self-restraint, to confront the expansion of federal administrative power—a prominent cause among modern conservatives and libertarians. There, Justice Alito distinguished challenges posed by the administrative state between “matter[s] that can be addressed by” the Supreme Court and matters that must be addressed by Congress. This delineation is often overlooked by conservatives and libertarians today, who seek to employ the judicial power to supplant administrative discretion with judicial discretion—all the while neglecting the essential reality that only Congress can solve significant aspects of administrative overreach.
A Republic, If We Can Keep It
Though originalists have been tempted away from self-restraint for some understandable reasons, the judiciary is, still, structurally and procedurally distinct from the nature and process of democracy. And the judiciary, unlike the liberty to make laws, cannot give substantive voice to a community’s various values and extra-rational attachments. Supplanting nearly all agency discretion with judicial discretion and deploying the courts to decide whether every exercise of state police power is in the public interest, as defined by libertarianism, does not vindicate self-government. As Justice Scalia put it in a related context, all of this tells our judges to “govern us.” That is not a solution to the erosion of self-government—it is acquiescence in it. By limiting itself to an originalism informed by judicial self-restraint, the judiciary plays its part in ensuring we remain a republic, as Benjamin Franklin put it, if “we,” the people, keep it that way. Conservatives should insist on the same.