Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement

Is a firm commitment to following the Constitution's original meaning enough to equip a judge to consistently enforce constitutional limitations on government power? Over at Balkinization, Professor Jack Balkin examines a distinction that constitutional theorists have recently drawn between judicial restraint ("deferring to the political branches about contested questions of constitutional law") and judicial constraint ("act[ing] consistently with the Constitution's original meaning"). Balkin notes that an increasing number of "conservative and libertarian originalists" (most prominently, Professor Randy Barnett) have become convinced that "the language of judicial restraint" does not capture the fact that judges have a duty to enforce the Constitution, even if that entails thwarting majoritarian will. Because judicial restraint is informed by a "theory of respect for majoritarian democracy," these originalists argue, judicial restraint "may actually be contrary to the judicial duty to interpret and defend the Constitution."

Judicial constraint, however, holds more promise for defenders of constitutionally limited government. Judges who are constrained by the original meaning of the Constitution must give effect to that meaning, and the Constitution carefully circumscribes government power. But Balkin wonders whether judicial constraint "may promise more than it can deliver." Specifically, he points out that Professor Barnett has argued that the presumption of liberty--the notion that the government should be made to affirmatively demonstrate why its interference with individuals' peaceful exercise of their natural rights is both necessary and proper--is a constitutional construction that is consistent with the Constitution's original meaning but is not commanded by it. Because a judge who acted consistently with the Constitution's original meaning would thus not necessarily adopt the presumption of liberty, Balkin argues, the concept of judicial constraint "does not justify a robust use of judicial review to protect important constitutional values."

I believe that Balkin is largely correct, although for different reasons than those which he puts forward. I have argued elsewhere that judges have a constitutional duty to adopt a posture of judicial engagement in all cases--to always make a genuinely impartial, evidence-based effort to evaluate the lawfulness of the government's true ends and means, without deference to the government. I have offered a preliminary sketch of why I believe that Article III's authorization of "the Judicial Power" imposes a duty of independent judgment and that judicial deference to the most powerful of parties--the government--in constitutional cases deprives litigants of "due process of law," which requires impartial decision-making. But if judges are to consistently enforce the Constitution, they must understand judicial engagement to be an essential component of adjudication as such rather than a subset of a broader obligation to follow the Constitution's original meaning.

To begin with, the Constitution's textual commands to judges are sparse. The Constitution contemplates that judges will bring an understanding of their duty to their office. The Constitution vests the federal courts with "the Judicial Power" and makes plain that judges who draw their power from Article III are to give effect to the Constitution, federal laws "made in pursuance thereof" and treaties as the "Supreme Law of the Land." The substance of judicial duty--including the duty of independent judgment--is incorporated into the Constitution through "the Judicial Power" but it is not spelled out. To rely upon the Constitution's text to instruct judges about judicial duty is to rely upon it to do something that it was not designed to do.

Further, judges have few occasions, in the course of deciding constitutional cases, to reflect upon the meaning and implications of textual commands that do incorporate the concept of judicial duty. We rarely find examples of judges doing so, even though a number of doctrines fashioned by the Supreme Court that command systematic and sweeping deference to the government--including the default standard of review in constitutional cases, the so-called "rational-basis test"--may require judges to abdicate their duty of independent judgment. Consider that the late Justice Antonin Scalia, committed originalist though he was, championed and even helped to expand the doctrine of judicial deference set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984), which requires judges to defer to federal executive agencies' "reasonable" interpretations of ambiguous congressional statutes when those agencies write and enforce regulations pursuant to those statutes. When judges do raise the question whether particular doctrines make it impossible for them to perform their constitutional duty, it is noteworthy. (Justice Clarence Thomas' recent criticism of "Auer deference," a doctrine that requires judges to broadly defer to executive agencies' interpretations of regulations that the agencies themselves issue, comes to mind.)

Finally, while the significance of the fact that judges are not professionally-trained historians can be overstated (many judges are not professionally trained in biochemistry, economics, law enforcement or medicine either, and yet they must decide complex cases involving these disciplines and thus develop something of an expertise in them), historical inquiry is full of pitfalls and the stakes in constitutional adjudication are particularly high. When judges fail to engage, people may be deprived of their liberty, their property and even their lives arbitrarily--on the basis of the mere will of the politically powerful. While it is certainly possible for judges to discover the duty of independent judgment through disciplined historical inquiry and to conclude that fulfilling this duty today requires judicial engagement, litigants who are about to be sent to prison, whose livelihoods are about to be destroyed or whose homes are about to be bulldozed cannot afford to count upon this possibility. Advocates of constitutionally limited government should not count on it either.

Calls for judges to be constrained by the Constitution's original meaning are entirely proper--and important. The Constitution's meaning is fixed until it is properly changed through the amendment process set forth in Article V. Judges take an oath to support "this Constitution" and derive their authority from their fidelity to it. But while fidelity to original meaning is necessary, it is not sufficient to equip judges to stand fast against unconstitutional assertions of government power. It is easy to dismiss the ideal of independent, impartial judgment as a mere shibboleth--something to which we pay homage but which is no longer relevant to constitutional decision-making--but that ideal can be traced to an understanding of the judicial office that is not only deeply rooted in our nation's legal history and traditions but is essential to the maintenance of the rule of law established by our Constitution and the protection of individual rights. If judges defer to anything other than the rational constraints on government power set forth in our supreme law, individual rights are to that extent left at the mercy of the unconstrained will of the powerful. Judicial constraint is an empty promise without judicial engagement.

For more constitutional commentary, tune into the Institute for Justice's Short Circuit podcast, presented by IJ's Center for Judicial Engagement