Bench Memos

“Real Judicial Restraint”

That’s the title of an excellent essay by the young legal scholar Joel Alicea in the new issue of National Affairs, the outstanding quarterly journal edited by my Ethics and Public Policy Center colleague (and 2013 Bradley Prize winner) Yuval Levin.

Alicea explores the tensions that can arise between originalism and judicial restraint. As he explains, originalism and judicial restraint “have reinforced one another,” and have been “rhetorically and intellectually intertwined,” in “opposing the fabrication of constitutional rights by judges.” But what happens when originalism supports to some degree the recognition of a constitutional right (or of a limit on governmental power)? What standard of proof—what burden of certainty—must be met before a judge invalidates a democratic enactment that conflicts with that asserted right (or limit)?

Alicea rejects the opposite extremes of “Thayerian judicial restraint” (under which a judge may invalidate a statute only when its unconstitutionality is “so clear that it is not open to rational question”) and of Randy Barnett’s libertarian “presumption of liberty” (which would establish a rebuttable presumption that a law is unconstitutional). But I think it’s fair to say that the (inevitably imprecise) standard that he adopts—the judiciary should “strike down laws that, in the courts’ best judgment, violate the original meaning of the Constitution”—is much closer to Thayer than to Barnett.

My own position is probably even closer to Thayer’s (while still falling short of it), as I would expect a judge to have reached a firm conviction that a law violates the original meaning of the Constitution before he invalidates it.

Most Popular


It’s Time for Colin Kaepernick to Move On

Colin Kaepernick. Remember him? Below-average quarterback. Above-average poseur. Not “activist,” not really. Activists actually say stuff. Kaepernick almost never says anything. He’s like the Queen or most popes — you have to read the deep-background musings of supposed members of his inner circle to get ... Read More

What The 1619 Project Leaves Out

“The goal of The 1619 Project, a major initiative from The New York Times that this issue of the magazine inaugurates, is to reframe American history by considering what it would mean to regard 1619 as our nation’s birth year,” The New York Times Magazine editors declare. “Doing so requires us to place ... Read More
PC Culture

Courage Is the Cure for Political Correctness

This might come as some surprise to observers of our campus culture wars, but there was a time, not long ago, when the situation in American higher education was much worse. There a wave of vicious campus activism aimed at silencing heterodox speakers, and it was typically empowered by a comprehensive regime of ... Read More

Trump and the Black Vote

"Donald Trump is a racist, white supremacist, white nationalist. So are his supporters." Some version of that refrain is heard almost hourly somewhere in mainstream media. Democratic politicians seem to proclaim it more often than that. Listening only to the Left, you'd conclude that more than half a ... Read More

The Age of Miscalculation

On August 7, 1998, more than 200 people were killed in terrorist attacks on U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. Americans learned three names most of them never had heard before: Ayman al-Zawahiri, Osama bin Laden, and al-Qaeda. On August 20, 1998, President Bill Clinton ordered a ... Read More