Bench Memos

Law & the Courts

‘The Virtues of Judicial Self-Restraint’

That’s the title of this long and insightful essay by William J. Haun in the current issue of National Affairs, the outstanding quarterly journal founded and edited by my Ethics and Public Policy Center colleague Yuval Levin. Here’s an excerpt:

Originalism cannot give a full account of the Constitution without protecting both individual liberty and the liberty to make laws, nor can it combat the judicial supremacy that the founding generation plainly did not desire. It is therefore critical for conservatism — a project also committed to constitutional conservation — to appreciate the need for harmony between judicial self-restraint and originalism. An originalism (and more broadly, a conservatism) that myopically focuses on vindicating a theory of individual liberty misses the role of the people in addressing unforeseen changes, the different values beyond individual liberty that give life to a community, and the key insight that only the people — not the courts — can save self-government.

At this moment in American history, with conservative successes in judicial nominations and with some on the political left abandoning self-government, one can understand the temptation to view the judiciary as a better steward of the founding than the people. But early legal conservatives knew better. Their wisdom is confirmed by their understanding of the virtues of judicial self-restraint. Conservatives and originalists today would be wise to recall those virtues.

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