George Will’s Mistaken Critique of Judicial Restraint

by Ed Whelan

In his column today, the venerable George Will praises a recent speech by law professor Randy Barnett that (in Will’s summary) urges Republicans “to adopt a vocabulary that is disconcerting to conservatives who have grown lazily comfortable with rhetorical boilerplate in praise of ‘judicial restraint.’” Will encourages Republican presidential candidates to adopt this new vocabulary.

Some comments on Will’s observations.

1. I’m also against conservatives being “lazily comfortable with rhetorical boilerplate”—on any topic. But the proposition that some conservatives are “lazily comfortable with rhetorical boilerplate in praise of ‘judicial restraint’” itself says nothing about the merits of the concept of judicial restraint.

As I’ve explained before, most contemporary conservative proponents of judicial restraint are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question. These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. I don’t see how any conservative could object to that approach (though I of course recognize that there is plenty of disagreement among originalists on what some provisions of the Constitution mean).

As Will would surely acknowledge, it’s very possible for someone deeply steeped in American history and political theory to be a strong advocate of judicial restraint: to believe, say, that the “zest for judicial decrees to supplement or even supplant legislative policy-making, and [a] corollary contempt for representative institutions,” is a mark of “contemporary American authoritarianism”; to recognize that there is an inherent “tension between judicial review—the invalidation of laws enacted by elected representatives—and popular government”; to think it praiseworthy for a court to have “the courage to let [an] injustice stand rather than resort to judicial overreaching …., the courage to be judicial and self-denying rather than political and self-indulgent”; to lament that “many Americans rather like courts sparing them the rigors of democratic responsibility for social policies”; and to decry that “judicial imperialism” means that “democracy is so debilitated that Americans no longer seem to find [rule by judges] irksome.”

For all of the quotes above in praise of judicial restraint are from George F. Will himself (see citations in point 1 here)—before, of course, Will in recent years took what Matt Franck has called his “strange turn … toward endorsing judicial activism.”

2. Instead of the traditional paradigm of judicial activism versus judicial restraint, Will endorses Barnett’s proposed new paradigm of Lockeans (good) versus Hobbesians (bad). (As I understand it, this new paradigm isn’t intended as just a relabeling of the traditional categories—though the Washington Post editor who headlined Will’s piece “The Problem Is Judicial Restraint” in the print version seems to have missed that point.)

Will explains that Lockeans, in Barnett’s paradigm:

(a) “favor rigorous judicial protection of certain individual rights—especially private property and freedom of contract—that define and protect the zone of sovereignty within which people are free to act as they please”;

(b) “say the Constitution, properly construed and enforced by the judiciary, circumscribes the majoritarian principle by protecting all rights that are crucial to individual sovereignty”;

(c) “say the Constitution codifies the Declaration of Independence, which, in its most neglected word, says governments are instituted to ‘secure’ natural rights”;

(d) “say that our natural rights, only some of which are enumerated in the Constitution (the Ninth Amendment: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people’), place on government the heavy burden of justifying restrictions of these rights” (emphasis in original); and

(e) argue that “a nonpassive, properly engaged judiciary bears the burden of saying when the government has not justified its restrictions as necessary and proper.”

So, if I’m understanding correctly: Lockeans believe, under proposition (a), that some nontextual “freedom of contract” deserves “rigorous judicial protection”—indeed, at least in Will’s understanding (or so it would seem from the “especially”), even greater protection than rights that are set forth explicitly in the Constitution. Further, under proposition (b), the judiciary has free rein to determine what rights “are crucial to individual sovereignty” and is dutybound to protect such rights—again, whether or not there is any mention of them in the Constitution. If proposition (c) is correct, I guess that would mean that slavery was unconstitutional ab initio. Proposition (d) appears to read (misread, I would contend) the Ninth Amendment as a font of substantive rights. And proposition (e) somehow reads into the Constitution a presumption of unconstitutionality of all governmental action, state or federal.

My point in this (relatively) short post is not to try to argue that all of these propositions are wrong (though I believe they are), but merely to highlight that each is, at the very least, highly contestable.

3. I confess that I don’t understand what Will expects Republican presidential candidates to do with Barnett’s vocabulary. I don’t think that we’ll see candidates accusing each other of being Hobbesians. And if they try to go deeper into the Lockean propositions, there are lots of traps that await them. Do we want to make it easy for Hillary Clinton, or whoever the Democratic candidate will be, to allege that the Republican candidate will appoint justices who will repeal the New Deal and strike down civil-rights laws?

I’d be much happier if Republican candidates instead would simply say that they want justices who will enforce the rights and limits that are in the Constitution and not make up rights and limits that aren’t in it.

4. Will closes his piece by contending that “reflexive praise of ‘judicial restraint’ serves the progressives’ Hobbesian project of building an ever-larger Leviathan.” I think it far more likely that rhetorical camouflage for liberal judicial activism—which, alas, is what libertarian talk of “judicial engagement” and attacks on judicial restraint furnish—will have that effect. I’m no great fan of the demos, but I place much higher hope in the good sense of the American people than I do in the products of elite American law schools who are all too eager to impose their progressive vision on us.

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