“Judicial Engagement” or Government by Judiciary?

by Matthew J. Franck

Regarding my Brother Whelan’s opinion, I concur in part and dissent in part.  Ed writes that “no serious advocate of judicial restraint contends that the courts should enforce laws that have been demonstrated to be unconstitutional.”  This is true . . . up to a point.  Perhaps I am too serious an advocate of judicial restraint, but I would say that courts should not presume to declare laws unconstitutional, no matter what has been “demonstrated” about them, if they concern constitutional questions that are not the proper business of courts.  In the schools they used to teach this, as I’m sure Ed remembers, as the “doctrine of political questions.”  The classic example concerns the “guarantee” to each state of a “Republican Form of Government” in Article IV.  This is a perfectly serious constitutional principle, consistently held by the Supreme Court to be absolutely none of its business.  Ditto for the requirement that the Senate of the United States “try all Impeachments.” The Court held in 1993 that the question whether an impeached officer got a trial worthy of the name from the Senate was a political question and thus “nonjusticiable,” or not a fitting subject for a judicial decision of any kind.

It is, to put it bluntly, not a principle of the Constitution that the judges are required, on every occasion that is brought to their attention, to “examine whether laws comply with the Constitution,” as Anthony Sanders puts it.  Sometime it is, and sometimes it isn’t–and getting that distinction right is a matter of high judicial duty, and should be part of any calculus of the very real difference between judicial activism and judicial restraint.