Judicial Engagement and its Discontents: A Modest Proposal for Constitutionalists

How should the next Supreme Court Justice adjudicate? Last month, I participated in a thought-provoking debate on Cato Unbound concerning that question--a question of pressing importance in the wake of the recent passing of Justice Antonin Scalia. I am grateful to Cato Unbound for hosting the debate and although my disagreements with my interlocutors were substantial, I am also grateful to Professor David Strauss, Professor Barry McDonald, and Ed Whelan for challenging my argument that the next Justice should adopt a particular approach--judicial engagement--in evaluating assertions of government power. With the benefit of time to reflect upon our exchange, I will offer some thoughts in response to Whelan and McDonald's final replies, and conclude with a brief discussion of what judicial engagement is and is not--and why it matters.

Ed Whelan and I are both originalists. Both of us believe that the meaning of the Constitution's provisions was fixed at the time of their enactment and that judges--indeed, all government officials--are bound to adhere to that meaning. In Whelan's view, Article III's authorization of "[t]he judicial power" is properly understood to require a form of "judicial restraint"--to impose upon judges a duty to uphold government enactments unless those enactments are found to be clearly unconstitutional after the application of Founding-era interpretive techniques. Thus, the Constitution itself commands judges to presume that government enactments are constitutional and even to endeavor to "save" the constitutionality of government enactments by adopting interpretations of those enactments that are "fairly possible"--even if they are not the best interpretations.

If the text of Article III, enriched by the publicly available context in which it was enacted, communicated the concept of clarity, I would be bound to accept that concept as part of our law and binding on judges who draw their power from that law. For reasons that I articulated in my response to Whelan, I do not believe that the "[t]he judicial power" communicates that concept. I explained in some detail why I believe that Professor John McGinnis--whose scholarship Whelan draws upon--has not demonstrated that it does. I further explained why I believe that there is a tension between any presumption in favor of the government's legal position and a concept that is communicated by Article III--the concept of independent judgment. In the course of doing so, I acknowledged evidence adduced by Professor Philip Hamburger that judges at common-law and during the Founding era understood themselves to be required to exercise independent judgment and to presume government enactments to be valid. Although Whelan claims that I have not met his arguments, I have acknowledged precisely the objections that he has raised and a substantial portion of my response to him is devoted to addressing them. Readers may decide for themselves who has had the better of our debate.

I do agree with Whelan that any rule of constitutional construction--any doctrine developed to implement the Constitution's guarantees in a particular legal setting, including judicial engagement--must not contradict the original meaning of the Constitution's text. Indeed, I would go further--constitutional constructions must be consistent not only with the text but with the spirit of the Constitution's provisions--their functions, as ascertained by careful study of the relevant evidence at the time of their enactment. In requiring the government to offer a reason for its actions and to bear the burden of producing evidence that its actions are calculated to achieve a constitutionally proper end, judicial engagement comports with core function of Article III: ensuring that those burdened by assertions of government power that they believe to be unlawful have access to an independent judge who will impartially measure the government's actions against the law of the land. Litigants are not well-equipped to produce evidence concerning the government's true ends or to explain the government's actions. Government officials are in possession of that evidence and can be presumed to know what their actions were designed to achieve. Placing the burden of production on the government is likely to produce more evidence than would otherwise be available and thus allow judges to better assess the constitutionality of the government's actions. Because Whelan's textual argument for judicial restraint fails, he must justify restraint as a constitutional construction--and that would require a further argument grounded in the spirit of the law that he has not yet made.

Professor McDonald claims that my call for engagement ignores the elephant in the room, namely, "how we determine what [constitutional] rights are and the appropriate role of unaccountable judges in this process." I have acknowledged that judges do need an objective methodology for ascertaining the Constitution's meaning--I have denied that such a methodology is sufficient to maintain the rule of law set forth in the Constitution. Indeed, McDonald acknowledges as much in describing the rational-basis review applied by Supreme Court in Williamson v. Lee Optical (1955) as a "rubber stamp" and stating that "at least meaningful rational basis scrutiny should have been applied," owing to "facts [that] reeked of special interest group capture of the legislature." But Lee Optical has been taken to stand for the proposition that such facts should not be inquired into at all in rational-basis cases--that "meaningful rational-basis scrutiny" is a contradiction in terms. If judges adopt such an approach, judicial review is not meaningful. It is that problem that constitutional interpretation cannot resolve--and that judicial engagement is designed to address.

Further, although this is a matter of constitutional interpretation rather than construction, I cannot pass over McDonald's claim that my affirmation that "our Constitution is not primarily majoritarian but, rather, individualist" is mere "libertarian rhetoric." McDonald points out that the Constitution's Preamble refers not only to "the blessings of liberty" but "the general welfare," characterizing the latter as a "collective goal[]." He notes that the Bill of Rights was "not even in the original Constitution" but was, rather, the product of a "campaign promise." Thus, he concludes, "the Constitution is both majoritarian and individualistic, and it will not do to deify the latter feature and demonize the former."

The examples that McDonald cites are entirely consistent with my thesis and, indeed, reinforce it. I mentioned the concept of fiduciary government in my initial reply to McDonald--the idea that the Constitution delegates power to government officials (the fiduciaries) to act on behalf of We the People (the beneficiaries) for specified purposes through specified means. The term "general welfare" indicates that the government authorized by the Constitution, like a private fiduciary, must act to advance the interests of all its beneficiaries, rather than only a select group of them. Like the so-called "General Welfare Clause," it is a limitation on government power. And it is a countermajoritarian limitation, inasmuch as it precludes the pursuit of purely factional ends rather than the genuine public good--a public good that, in Founding-era thought, consisted in securing individual rights.

And what of the failure to include a bill of rights in the proposed, unamended 1787 Constitution? As counterintuitive as it might seem to us today, "Federalist" supporters of the 1787 Constitution initially opposed the inclusion of a bill of rights on individualist grounds. Chief among their concerns was that rights not listed--and there was broad agreement that individual rights could not be comprehensively listed--would be considered to have been surrendered to the federal government. The Ninth Amendment was designed to address this concern--it sets forth a rule of construction that prohibits government actors, including judges, from "den[ying] or disaparag[ing]" rights "retained by the people" on the grounds that they are not enumerated. Unfortunately, its mandate has been ignored in our jurisprudence. Unenumerated rights have been presumptively relegated to second-class constitutional status by the Supreme Court, unless and until they are shown to be "fundamental" on the basis of vague, shifting criteria--with McDonald's apparent approval--even as the Court has consistently affirmed that certain unenumerated rights (including what McDonald refers to as "economic liberty rights") are constitutionally protected.

In the end, judicial engagement is a modest proposal for those who believe that our Constitution is a good Constitution and ought to be consistently enforced. It does not ask judges to enact Mr. Herbert Spencer's "Social Statics." It does not ask judges to do things that they are not competent to do, but, rather, things that they do routinely in a handful of constitutional contexts but do not do consistently in all constitutional contexts. It holds that when a case "aris[es] under this Constitution," judges must exercise judgment in accordance with "this Constitution," without deference to the government's assertions that its actions are lawful or its unsupported factual assertions. And it can be identified empirically--cases in which judges make genuine efforts to identify and evaluate the constitutionality of the government's true ends on the basis of record evidence can be distinguished from those in which they do not. There is a gulf between the rubber-stamp approach in Lee Optical and the careful consideration and rejection of implausible justifications for government action in City of Cleburne v. Cleburne Living Center (1985), discussed in my lead essay, that can be readily perceived and can serve as the basis for criticism and commendation, respectively.

I began the debate by touching briefly upon the passing of Justice Antonin Scalia. Scalia's career was defined by his steadfast commitment to the rule of law. He insisted that constitutional law need not be politics by another means--and that constitutional meaning can be accurately ascertained through a particular methodology. We are indebted to him doing so. Yet the most rigorously objective methodology for ascertaining the meaning of the law is not sufficient to equip judges to discharge their duty--and numerous doctrines that cover wide, consequential areas of American law and life require them to abdicate that duty. It is thus of the utmost importance that the next Justice be constrained by the Constitution--and engaged in enforcing it.