Bench Memos

The Judicial Power in a Fallen World

Ramesh, I’m open to taking into account the background assumptions of the framers concerning the scope of the judicial power. I don’t think they wanted the judiciary to be as deferential to legislators as you do, especially where legislators have so thoroughly abdicated the responsibility of constitutional fidelity.

But the question of what role the judiciary should have in enforcing the Constitution is distinct from the question of what the individual provisions of the Constitution mean. I know you’re skeptical of this distinction. But at the very least, it matters a great deal in practice, since the realistic chances of the judiciary becoming as deferential as you want it to be are very low for the foreseeable future. If I were in your shoes, I think my view would be: As long as the judiciary is so aggrandized in its role as constitutional enforcer, however improper this is, conservatives would do well to stay theoretically engaged in the modern practice of judicial review so as to develop a positive vision of how the Constitution should be applied in cases that come to bar. This task is made easier by the fact that the framers were conservatives (or, more fittingly, classical liberals).