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.