In a recent column, George Will ruffled the feathers of some conservatives, like my friend Ed Whelan, when Will proclaimed, in the column’s title, that “Judicial activism isn’t a bad thing.” Will was commending a superb new book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, by Clark Neily. My Wall Street Journal review of the book is here (non-WSJ subscribers can Google: “WSJ Randy Barnett Clark Neily” to access the full text).
While the substance of Will’s column is great, the title is unfortunate. “Judicial activism” was devised to be pejorative, but it has little content. Most invocations purport to be condemning the judicial invalidation of a law that was enacted by the supposedly more representative and accountable legislators in Congress or state legislatures. Judges, we have long been instructed by progressives such as Teddy Roosevelt and conservatives such as Robert Bork, should not thwart the “will of the people” as embodied in the acts of legislatures. Yet, because almost everyone thinks that unconstitutional laws ought to be invalidated, what “activism” really means is improperly invalidating a law that is not really unconstitutional. So the real sin is not invalidating a “popularly-enacted law” — nearly everyone is for doing this sometimes — but misinterpreting the Constitution.
Neily (and Will) object to a philosophy of “judicial restraint” that adopts a rule of construction found nowhere in the Constitution requiring judges to uphold a law if they can make up any possible legitimate reason why a legislature might have enacted it, regardless of whether the law was enacted for such a reason or not. This modern “rational basis” review originated in the 1955 case of Williamson v. Lee Optical. According to this rule of construction, when a member of the sovereign people contends that his or her liberty has been unreasonably restricted by his or her “agent” or “servant” in the legislature, a judge (who is also merely an agent of the People) is supposed to automatically side with the legislature against the citizen in virtually every case. In his book, Neily explains at great length, and with numerous real-world examples, what an abdication of judicial duty this is.
I cannot offer a complete defense of Neily’s thesis here. You really need to read the book for yourself. My point is more limited. If “judicial activism” means improperly invalidating laws that are not unconstitutional, then Neily does not favor this, and neither do Will or I. For this reason, Neily and I call this approach “judicial engagement” not judicial activism. Similarly, if “judicial restraint” means only invalidating laws that are unconstitutional, then he and I both favor such restraint. What we reject is judges closing their eyes — or rewriting statutes such as the Affordable Care Act — so they may “defer” to legislative will and uphold legislation without assessing whether the legislation is properly within the power of Congress or state legislatures to enact. Instead of “judicial conservatism,” which admonishes judges to put their thumbs on the scale to uphold laws, we favor “constitutional conservatism” in which judges are restrained to follow the Constitution, whether this leads to upholding or invalidating legislation.
The real dispute between some judicial conservatives and us is over the proper scope of the enumerated powers of Congress and, especially, the unenumerated police powers of states. Also in dispute is the original meaning of such “lost” clauses as the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment, which were written in general terms precisely because the rightful liberties of the people are so capacious they cannot all be enumerated or listed. We believe that both of these lost clauses are expressions of popular sovereignty in which the “rights . . . retained by the people” are to be protected against unreasonable restrictions from the federal government, just as the “privileges or immunities” of citizens are to be protected against the states, by adopting implementing doctrines like those that courts today use to protect the natural right of freedom of speech. Those who reject implementing these provisions because these clauses don’t meet their standards of specificity would disregard the written Constitution in the name of their own conception of “the rule of law,” just as surely as others reject the written Constitution because it does not comport with their own conception of “social justice.” Both positions should be rejected by constitutional conservatives.
The debate over the original meaning of the Ninth Amendment and Privileges or Immunities Clause should be decided by evidence, not label-mongering. For a summary of this evidence see my book, Restoring the Lost Constitution. For a more detailed scholarly evaluation of the available evidence see my articles here and here. In the appropriate forum, I am happy to debate the original meaning of these terms with anyone who is willing to consider seriously the evidence of original meaning that exists, not merely assert ex cathedra what they “must” mean, or who shift the subject to judicial role rather than original meaning.
Clark Neily and George Will are advocating that the judiciary, as a co-equal branch of the federal government, should be “restrained” to follow the Constitution, properly interpreted, whether that leads to upholding or invalidating legislation. Given its origin and common usage,”judicial activism” is an unfortunate choice of terms to describe this. “Judicial engagement” is both a less pejorative and more accurate label for how a constitutionally conservative judge should act.