Bench Memos

Judicial Restraint, (At Least) As Old as Judicial Review Itself

In his NRO article earlier this week, “Rand Paul Is Right: Judicial Restraint Is Wrong,” Evan Bernick writes:

Judicial restraint as a concept can be traced to an influential 1893 article by Harvard law professor James Bradley Thayer. Thayer argued that statutes should be invalidated only if their unconstitutionality is “so clear that it is not open to rational question.”

This is a strange statement, for Thayer understood himself to be summarizing, in this article (“The Origin and Scope of the American Doctrine of Constitutional Law,” published in the Harvard Law Review and also a little book), the cumulative wisdom of over a century of American jurisprudence.

Here, for instance, is Chief Justice Morrison Waite in 1879, fourteen years before Thayer’s article:

It is our duty, when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the United States; but this declaration should never be made except in a clear case.  Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a reasonable doubt.  One branch of the government cannot encroach on the domain of another without danger.  The safety of our institutions depends in no small degree on a strict observance of this salutary rule.

And the principle Waite identified was already old by then.  Here is Chief Justice John Marshall in 1810:

The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case.  The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes.  But it is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void.  The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.

For some latter-day admirers of an ahistorical “presumption of liberty” that in their view should supplant the actually-traditional presumption of constitutionality in the exercise of judicial review, Marshall is something of a villain.  (Their complaint comes down to regretting that he did not strike down more acts of Congress than the part of one section of one act he invalidated in Marbury v. Madison.)  But Marshall did not “invent” this presumption, either.  Here are his predecessors:

William Paterson, 1800: “[T]o authorise this Court to pronounce any law void, it must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative implication.”

James Iredell, 1798: “[A]s the authority to declare [a law] void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case.” 

Samuel Chase, 1798: “I will not decide any law to be void, but in a very clear case.”

The presumption of constitutionality—in its strong form as the “clear case rule”—was thus by no means invented by Thayer, and certainly not for purposes of clearing the path for Progressivism in legislation (Thayer died in 1902).  It’s as old, and as valid, as the Constitution it seeks to honor.  Our judges today should in fact work harder to conform to it.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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