In the New Republic, Seventh Circuit judge Richard A. Posner has a long essay that criticizes Justice Scalia’s majority opinion in District of Columbia v. Heller (the Second Amendment case) and argues that the Supreme Court should exercise “judicial modesty”—what I would call judicial restraint—on constitutional issues. In Posner’s words: “[T]he question of whether to nationalize an issue in the name of the Constitution calls for an exercise of judgment; and when the nation is deeply divided over an issue to which the Constitution does not speak with any clarity, and a uniform national policy would override differences in local conditions, nationalization may be premature.”
I will pass over Posner’s criticisms of Heller and would like instead to offer a couple comments on Posner’s case for judicial modesty:
1. Posner oddly equates judicial modesty with “loose construction” of the Constitution. Indeed, his essay is titled “In Defense of Looseness”, and although I don’t hold authors responsible for the titles their articles bear, in this case the title matches the argument. But Posner ends up tying himself in knots of “loose construction”. For example, first he tells us that Scalia’s opinion in Heller was “a narrow originalism” that ignored the “reigning theory of legislative interpretation in the eighteenth century [, which] was loose (or flexible, or nonliteral) construction.” But then, just four paragraphs later, he says that Scalia’s “Heller decision is exposed as an example of loose construction.”
Again, after seeming to make the broad case for loose construction, Posner states: “There is an important difference, obvious but often overlooked, between using loose construction to prevent making the Constitution a straitjacket and using it to make the Constitution a straitjacket.” That is indeed an important and obvious difference—the difference, that is, between construing governmental powers broadly and extravagantly concocting constitutional rights—but it is Posner’s confusing use of the malleable term “loose construction” that is likely to cause it to be overlooked.
2. Consistent with his defense of pragmatism (a defense that I have criticized here), Posner argues that his “preference for judicial modesty—for less interference by the Supreme Court with the other branches of government—cannot be derived by some logical process from constitutional text or history.” I believe, by contrast, that the obligation of judicial modesty—again, what I would prefer to call judicial restraint—flows directly from the fact that we live in a constitutional republic. When application of the proper interpretive methodology does not yield a clear answer that a democratic enactment violates a constitutional provision, then judges have no legitimate authority to override that enactment.
I would therefore modify Posner’s proposition, quoted above, to read: “[T]he question of whether to nationalize an issue in the name of the Constitution calls for an exercise of judgment; and
when the nation is deeply divided over on an issue to which the Constitution does not speak with any clarity, and a uniform national policy would override differences in local conditions, nationalization (via judicial creation of constitutional rights) may be premature is impermissible.”