Bench Memos

Law & the Courts

John McGinnis on the Originalist Case for Judicial Restraint

In an important new paper, law professor (and prominent originalist scholar) John McGinnis presents an extended originalist case for judicial restraint.

Against those (e.g., many libertarians) who contend that judges owe no deference to legislative enactments, McGinnis argues that “originalists should require a clear violation of the Constitution before invalidating legislation.” Against 19th-century scholar James Bradley Thayer’s position that judges should (in McGinnis’s summary) “defer [to legislative enactments] whenever there is any lack of clarity [on] the face of a [constitutional] provision” (emphasis added), McGinnis argues that originalists should “demand that judges use the ample methods of clarification that are available to clarify the precise meaning of the Constitution.”

In other words, judges should first use the traditional tools of interpretation to determine whether a constitutional provision that initially seems unclear remains so after they have applied those tools. Then, under what McGinnis calls the “duty of clarity,” judges should invalidate statutes only if they clearly conflict with the determined meaning of the constitutional provision.

McGinnis’s conclusions comport entirely with my understanding of what proper judicial restraint entails. I invite interested readers to explore his detailed originalist case for those conclusions.

One quibble that I have with McGinnis’s paper is that he seems to equate Thayer’s position with the “modern idea of judicial deference.” But, so far as I can tell, there are hardly any modern advocates of judicial restraint who embrace the position that courts may invalidate a democratic enactment only when its facial invalidity is (in Thayer’s phrase) “so clear that it is not open to rational question.” Indeed, as McGinnis discusses, 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—a standard that seems very much like McGinnis’s. 

Most Popular

PC Culture

Hate-Crime Hoaxes Reflect America’s Sickness

On January 29, tabloid news site TMZ broke the shocking story that Jussie Smollett, a gay black entertainer and progressive activist, had been viciously attacked in Chicago. Two racist white men had fractured his rib, poured bleach on him, and tied a noose around his neck. As they were leaving, they shouted ... Read More

White Progressives Are Polarizing America

To understand how far left (and how quickly) the Democratic party has moved, let’s cycle back a very short 20 years. If 1998 Bill Clinton ran in the Democratic primary today, he’d be instantaneously labeled a far-right bigot. His support for the Religious Freedom Restoration Act, the Defense of Marriage Act, ... Read More
Politics & Policy

The Strange Paradoxes of Our Age

Modern prophets often say one thing and do another. Worse, they often advocate in the abstract as a way of justifying their doing the opposite in the concrete. The result is that contemporary culture abounds with the inexplicable — mostly because modern progressivism makes all sorts of race, class, and ... Read More

One Last Grift for Bernie Sanders

Bernie Sanders, the antique Brooklyn socialist who represents Vermont in the Senate, is not quite ready to retire to his lakeside dacha and so once again is running for the presidential nomination of a party to which he does not belong with an agenda about which he cannot be quite entirely ... Read More
PC Culture

Fake Newspeople

This week, the story of the Jussie Smollett hoax gripped the national media. The story, for those who missed it, went something like this: The Empire actor, who is both black and gay, stated that on a freezing January night in Chicago, in the middle of the polar vortex, he went to a local Subway store to buy a ... Read More
Film & TV

A Sublime Christian Masterpiece of a Film

‘There are two ways through life -- the way of nature and the way of grace,” remarks the saintly mother at the outset of The Tree of Life, one of the most awe-inspiring films of the 21st century. She continues: Grace doesn’t try please itself. It accepts being slighted, forgotten, disliked, accepts insults ... Read More
PC Culture

Changing Reality with Words

The reinvention of vocabulary can often be more effective than any social protest movement. Malarial swamps can become healthy “wetlands.” Fetid “dumps” are often rebranded as green “landfills.” Global warming was once a worry about too much heat. It implied that man-made carbon emissions had so ... Read More