Bench Memos

Law & the Courts

Randy Barnett’s Our Republican Constitution—Part 3

See Parts 1 and 2

Before I head out for some vacation, let me continue my exercise of grappling with some of Randy Barnett’s arguments in his new book Our Republican Constitution.

Barnett’s book presents a broadside against “judicial restraint” and in favor of a very aggressive reading of the Due Process Clauses of the Fifth and Fourteenth Amendments. In this post, I’ll sketch why I think that Barnett’s wholesale attack on judicial restraint misses the mark. If time allows, I’ll address his Due Process argument soon in another post.

Barnett particularly criticizes the “Thayerian” version of “judicial restraint” or “judicial deference,” and the readers of his book might well be left with the impression that the only viable alternative is Barnett’s “judicial engagement.” Such an impression would be mistaken.

In an 1893 law-review article, Harvard law professor James Bradley Thayer adopted an extreme view of deference under which a federal court should not strike down a federal law merely because it “conclude[s] that upon a just and true construction the law is unconstitutional”; rather, it should do so only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question.”

As I have observed before, among the many originalist proponents of judicial restraint, there might be one Thayerian. (Indeed, Thayer himself wasn’t an across-the-board Thayerian, as he applied his standard of exceptional deference only to the “case of a court passing upon the validity of a co-ordinate department”—e.g., a federal court reviewing an Act of Congress. For review of state laws, Thayer called on the federal courts to apply the “just and true interpretation” of the Constitution.)

As law professor John McGinnis has explained in “The Duty of Clarity,” there is ample middle ground between Thayerian deference and no deference. Specifically, McGinnis makes the originalist case for a more modest “deference theory” that “requires the judiciary to decline to displace legislation unless it conflicts with a meaning of the Constitution that can be clearly ascertained after applying all legal methods.”

Thus, for example, in Federalist No. 78, Alexander Hamilton, in making the case for the power of judicial review, emphasizes that the courts could regard a statute as unconstitutional “[i]f there should happen to be an irreconcilable variance” between the meaning of the Constitution and the meaning of the statute:

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. [Emphasis added.]

Comparing the exercise of judicial review to the ordinary judicial act of determining which of two contradictory laws to apply, Hamilton observes:

So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. 

In a famous passage, Hamilton again emphasizes that an actual “repugnancy” between the Constitution and a challenged statute is necessary before a court may decline to apply the statute:

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.… The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. [Emphasis added.]

Indeed, Justice Samuel Chase, who makes cameo appearances in Barnett’s book because of his dictum in Calder v. Bull (1798) suggesting a judicial power to invoke natural-law principles as the basis for refusing to enforce a law, states at the end of his opinion that he “will not decide any law to be void, but in a very clear case” (emphasis added).

I will highlight that Barnett has previously objected that the concept of “judicial restraint” that I have defended—which I think fits fully with McGinnis’s theory of deference—differs from the dominant historical meaning of that term. In any event, his sweeping repudiation of judicial restraint and judicial deference does not engage these arguments of Hamilton in Federalist No. 78 or the other originalist evidence for McGinnis’s “duty of clarity” theory of judicial deference. (Barnett does invoke Federalist No. 78 for the proposition that judicial review is better understood as a duty rather than a power; I’m fine on that understanding, but don’t think it has the implications that Barnett thinks it has.)

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