BOOKS SEPTEMBER 5, 2012
by J. Harvie Wilkinson, III
Oxford University Press, 176 pp., $21.95
JUDICIAL RESTRAINT—the view that judges should take special pains to save democratically enacted laws from unconstitutionality and invalidate them sparingly—has hit hard times. As a distinctive approach to constitutional law, judicial restraint enjoyed prominence in the late nineteenth-century writings of James Bradley Thayer, who once said that judges should wield their constitutional swords only to slay “monstrous” laws. In the first half of the twentieth century, judicial restraint attracted just a few scattered admirers—Justice Felix Frankfurter here, Alexander Bickel there. The latest sign that judicial restraint is dying off is the baffled reception for the Supreme Court’s recent health care decision in legal circles.
The Court saved the law from unconstitutionality on the basis of Congress’s taxing power in an opinion laden with the deferential language of restraint: “every reasonable construction must be resorted to,” any “fairly possible” interpretation must be accepted. But the ravening legal commentariat was generally perplexed, failing to recognize the Court’s judicial restraint for what it was. The Right speedily dismissed the opinion as politically craven, while the otherwise jubilant Left prickled at perceived insincerities and manipulations. From the get-go, the hunt was on for alternative explanations for the Court’s reasoning—strategic cunning, corrupt capitulation to improper forces; anything other than a hopelessly old-fashioned exercise of jurisprudential modesty.
What is killing judicial restraint? In J. Harvie Wilkinson’s view, constitutional theory is doing the job. Wilkinson is a longtime judge on the U.S. Court of Appeals for the Fourth Circuit, a prolific writer, and a well-regarded and moderate conservative. As he writes in his new book, the fall of judicial restraint (and the subsequent transfer of considerable power from the people to the judiciary) came with the mid-twentieth century rise of theories of constitutional interpretation. The presumption shifted: judges should no longer defer to legislative enactments; they should use constitutional theory to resolve constitutional conflict.
The “cosmic” theories after which Wilkinson has named his book seem intended to evoke an especially objectionable kind of concept-mongering, but unfortunately Wilkinson never explains the term. Presumably, he means that constitutional theories today are not simply sets of practical ideas or clusters of thoughts, informed by prudential and historical sensibilities, about sound interpretation. They are integrated credos. They are fighting faiths. And they display the system, the elegance, and the certitude of dogma. Cosmic theories, Wilkinson says, are characterized by “prearticulated frameworks that dictate unassailable results.” They are “cosmic” inasmuch as they trade in “grand and unifying constitutional visions.” And while they “make for fascinating reading” and are often deeply insightful, cosmic theories, according to Wilkinson, stimulate a promiscuous “judicial adventurism.” They lead to massive appropriation of contested social and cultural issues that would otherwise belong to democratic politics.
Wilkinson kicks off his catalogue of cosmic constitutional theory with “living constitutionalism”, in some ways the arch-villain of the book. The living Constitution is one which evolves to suit changing understandings of how the core principles of the Constitution (as perceived and articulated by the interpreter) apply to contemporary problems. Wilkinson’s brisk and readable account conveys the basic idea that an evolutionary theory of the Constitution damages democratic governance by vesting power in the judiciary to determine the pace, the justification, and the direction of change. The more aggressive living constitutionalists move from “abstract moral principles about political decency and justice” to self-assured single “right answers” about what the Constitution must demand. It is the role of judges to impose these right answers on the rest of us. “In its pure form,” says Wilkinson, “living constitutionalism is paternalism, premised on the belief that very few know what is best for very many.”
If living constitutionalism wears the black hat in Wilkinson’s account, originalism is the turncoat—a traitor to the ideal of restraint. Originalism is an umbrella designation for theories that rely on various historical materials from the founding period to discern the meaning of the Constitution’s provisions. Once, originalism was thought to be constraining: judges would be limited to a discrete body of interpretive sources and their authority confined to those circumstances where original meaning could be ascertained. Yet Wilkinson claims that originalism could not deliver on its promises to limit judicial power. Originalism pretends to certainty when an abundance of historical evidence supports multiple reasonable positions and when there is so little that the original meaning is ambiguous or even unknowable. The result is a lack of candor—“arrogance cloaked as humility,” in Justice William Brennan’s sharp phrase. Perhaps more than any other cosmic constitutional theory, originalism, says Wilkinson, “provides cover for discretionary interventions into the democratic process that might otherwise not take place.” Originalism’s great fault is deception.
If cosmic theory cannot replace restraint, then perhaps anti-theory can. Constitutional pragmatism—whose most prominent champion is the eminent Judge Richard Posner—is just such an anti-theoretical reaction to the perceived failures of interpretive theories. But pragmatism in law, which, in Posner’s account, draws from American pragmatism of the early twentieth century, has always been a slippery beast. (The intellectual historian Arthur Lovejoy once wrote an essay called “The Thirteen Pragmatisms.”) To say that pragmatism’s great advantage is its flexibility does not quite do it justice. Pragmatism is flexibility. It is an approachless approach—one that combines all conceivable doctrinal, institutional, empirical, and policy concerns and requires a judge to discern when one or another of these predominates.
The differences between Wilkinson and Posner appear stark: “feeling pragmatically led in one direction increases one’s willingness to stretch precedent or take an aggressive position—to abandon restraint,” writes Wilkinson. If cosmic constitutional theories “blind judges because they are too grandiose,” pragmatism “seduces judges by being much too casual.” Indeed, Posner has recently confirmed the apparent distance of his views from Wilkinson’s in an article claiming that judicial restraint is moribund. He would likely regard Wilkinson’s praise of it as an anachronism.
He would not be alone. Judicial restraint is so foreign to modern sensibilities that the conventional criticism of Wilkinson’s view attempts to absorb it by turning it into its own kind of constitutional theory. Despite his repeated protestations that he has no theory, Wilkinson is himself in the grips of a theory, and perhaps even a cosmic theory: the theory of judicial restraint. The criticism is simultaneously clever and hollow. It is clever because it claims that he has made a category mistake: Wilkinson can criticize the substance of a theory, but he cannot coherently criticize theory itself. It is hollow because it assumes that the methods of cosmic constitutional theory are indistinguishable from any other sort of clear thinking about the function of judges. In fact, all sorts of sensible judging might not involve faith in a unitary, premeditated system.
But the possibility of creedless judging is alien today, in part because the mood and music of judicial restraint has gone out of the modern era. Politicians and judicial candidates pay lip-service to restraint, but even then the subtext is one of ferreting out theoretical and ideological commitment. The reality is that judging without a theory is, as Wilkinson puts it, as peculiar as “travelling cross-country without a suitcase.” The judge who practices restraint is paradoxically accused of “results-oriented” judging by the very people to whom he has yielded constitutional authority. Keep it yourself, they say. And this raises an unsettling question about Wilkinson’s thesis: if the American people are largely content to leave constitutional governance to the astral appetites of the theorists—and they seem to be—are Wilkinson’s warnings about the loss of self-governance themselves anachronistic?
Marc O. DeGirolami is an associate professor at St. John’s University School of Law. His book, The Tragedy of Religious Freedom, is forthcoming from Harvard University Press.