The Virtues of Judicial Self-Restraint
The modern conservative legal movement began with a principal focus on judicial self-restraint. Decades of a burgeoning federal criminal code, expanded delegation and deference to administrative agencies, and an increasingly prominent libertarianism within the conservative legal movement, however, have facilitated a shift in originalism's emphasis. Rather than focus on constraining the courts' interference with democratic choice, originalists now advocate empowering the courts to police the coordinate branches and the states. The main goal underlying this shift — protecting the individual liberty guaranteed by the Constitution — is a goal originalism rightly values. But this new focus does present the serious risk that the next generation of conservative legal minds will either not appreciate the role judicial self-restraint plays in originalism, or — if certain libertarian originalists have their way — the next generation will simply discard judicial self-restraint altogether.
As early legal conservatives like Judge Robert Bork and Chief Justice William Rehnquist understood, originalism without judicial self-restraint is not originalism at all. Applying the original meaning of the Constitution's limits on power protects individual liberty, but those limits do not create a self-governing community or provide answers to every challenge self-government faces. Rather, those limits constitute the fundamental boundaries that no government committed to liberty can cross. Self-government is therefore facilitated by another, complementary form of liberty, the liberty that judicial self-restraint protects: the liberty to make laws.
As the guarantor of the liberty to make laws, judicial self-restraint is more than a critique of "judicial activism" or "legislating from the bench." It is the conclusion of deep insights into human nature and the nature of law. Writings from Yale law professor Alexander Bickel, who informed Judge Bork's articulation of judicial self-restraint, demonstrate that the liberty to make laws is what defines a self-governing people. Genuine communities are not sustained solely by ideological commitments to abstract theories of rights. Adherence to a certain conception of individual liberty depends not merely on philosophical principles, but on what Joseph Schumpeter referred to as the "extra-rational" attachments of family, neighborhood, religious associations, and interpersonal connections that build allegiance to a nation and its ideals. Individual liberty therefore depends upon the liberty of a people to create a community in law that reflects their values.
By confining judicial analysis to what the American people adopted in text when they originally made law (i.e., when they adopted the Constitution), judicial self-restraint ensures that courts cannot invalidate or impose upon the liberty to make laws. Judicial self-restraint's respect for the liberty to make laws also gives focus to the originalist inquiry. Since Alexander Hamilton responded to Brutus in the Federalist Papers, there has been a debate over the harmony of judicial review and self-government. By insisting on judges that are committed to an originalism that is explicitly informed by judicial self-restraint, the challenge presented by that debate can be met.
To succeed, the commitment to judicial self-restraint must be clear. Originalism alone, as the late Justice Antonin Scalia recognized in "Originalism: The Lesser Evil," is "not without its warts." It does not answer every constitutional question — let alone provide a clear answer to every such question. Nor, in certain instances, does it even tell one how to ask the question. (For instance, how should new phenomena that could never have been envisioned by the framers be analogized to the individual liberties protected by the Constitution?) Further, originalism does not provide a definite answer to how it should be reconciled with the principle of stare decisis (the notion that judges should respect the precedents set by past court decisions), or if it should be reconciled at all. Judicial self-restraint, given its regard for the liberty to make laws, aids originalism in addressing these challenges.
To be sure, some conceptions of judicial self-restraint do not accord with originalism. Still, early originalists recognized that, while not all the challenges to implementing originalism are resolved by judicial self-restraint, failing to incorporate it would give an incomplete account of the two forms of liberty protected by the Constitution: individual liberty and the liberty to make laws. And worse, originalism would risk becoming the sort of abstract theory that it initially criticized — enabling the very judicial supremacy it has sought to combat.
Unfortunately, the understandable shift in emphasis among many originalists today threatens this appreciation of judicial self-restraint. Recent Supreme Court decisions demonstrate the emerging divergence between originalism's traditional commitment to judicial self-restraint and the rising demand for an unrestrained originalism. Thankfully, the Court's conservative justices still retain a general commitment to originalism with judicial self-restraint; this is apparent especially when the judiciary is asked to create previously unidentified constitutional rights (as evidenced by all the dissents in Obergefell v. Hodges).
But several recent cases have tempted originalists to look past the lessons taught by judicial self-restraint. These have included cases where unrestrained originalists have urged the Court to command that the democratic process yield to their vision of individual liberty regardless of any other value, where the people's representatives acted against novel phenomena that could not have been envisioned by the founders, or where there was a desire to curtail administrative agencies. The Supreme Court in taking up these cases helpfully created opportunities — particularly in opinions by Justice Samuel Alito — to demonstrate how judicial self-restraint works with originalism to resist that temptation and protect the liberty to make laws.
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.
TWO FORMS OF LIBERTY
The modern conservative legal movement's emphasis on judicial self-restraint came from, as Bork put it in "Neutral Principles and Some First Amendment Problems," constitutional law's "persistently disturbing...lack of theory." The type of theory Bork referenced was not a theory of individual liberty alone. The Supreme Court under Chief Justice Earl Warren, a major impetus for the criticisms that Bork and other legal conservatives have levied against modern constitutional law, became well-known for deploying various conceptions of individual liberty to create new constitutional guarantees, overrule prior precedent, and otherwise restrict democratic choice. Constitutional law, in other words, was hardly short on ways to disrupt current law to achieve certain visions of individual liberty. What was lacking, early legal conservatives recognized, was, in Bork's words, a theory "derived from the Constitution, of the respective spheres of majority and minority freedom." The conservative search for "neutral principles" was an attempt to discern how the judiciary, when reviewing the constitutionality of democratic choices, could harmonize the Constitution's protection of two different forms of liberty: individual liberty and the liberty to make laws.
The Constitution's text reveals a commitment to both individual liberty and the liberty to make laws. Individual liberty is protected by numerous provisions of the Bill of Rights, as well as the separation of powers and federalism. But various constitutional provisions also demonstrate, implicitly, a concern for the liberty to make laws: the ability of a people, usually at the local level, to build a community that reflects their values and the lessons from their shared experiences.
For example, the Establishment Clause as an original matter, as Justice Clarence Thomas explained in Elk Grove Unified School District v. Newdow, does not protect individual liberty; rather, it "is a federalism provision intended to prevent Congress from interfering with state [religious] establishments." Prohibiting the federal government from establishing a national church ensured that states — and thus, the people working together — could manifest their own religious commitments (Massachusetts, for example, had an established church until 1833). Even if one accepts the incorporation of the Establishment Clause against the states, the clause's original understanding cannot be stretched to prohibit the people from making any distinctions that recognize religion as part of the public good, as then-Justice Rehnquist explained in his powerful Wallace v. Jaffree dissent.
The Tenth Amendment also reflects that, notwithstanding the Constitution's enumeration of rights, the states (and thus the people as a community) retain the "police power" to make laws that further their respective health, safety, welfare, and morals. More generally, an originalist understanding of the Constitution's individual liberties includes an acknowledgement that, in some respects, the people working through the democratic process can manifest their value judgments about related matters. For example, the freedom of speech, as I have previously written in this journal, was originally protected with the understanding that the people could regulate speech outside matters of public concern to facilitate the truth-seeking process or other public goods. The liberty to make laws, therefore, is as much a part of living in a free society as individual liberty: It is the liberty that allows citizens to build a genuine community.
By protecting the liberty to make laws, the Constitution incorporates a deep insight into human nature and law itself. Bickel, whom Bork heavily relied upon in articulating the modern conservative legal theory of judicial self-restraint, put the insight this way in The Morality of Consent:
Law is more than just another opinion; not because it embodies all right values, or because the values it does embody tend from time to time to reflect those of a majority or plurality, but because it is the value of values. Law is the principal institution through which a society can assert its values.
Bickel derived this view of law from what he called the "Whig model" of Western political thought, and he contrasted it with the "contractarian" view prominent among some liberals and libertarians. The contractarian, unlike the Whig, begins "with theoretical rights," not "a real society." He views human nature as bending to individual rights that have a "clearly defined, independent existence predating society and are derived from nature and from a natural, if imagined, contract." The Whig, by contrast, "assesses human nature as it is seen to be." The "people," according to the Whig view, do not begin in some imagined "state of nature," where they decide rationally that it is better for them to enter into a governing community and then contract away only certain rights. Rather, the Whig takes humanity as he finds it. He does not deny the existence of moral absolutes or extrinsic truths, but he refuses to reduce all human existence to only what can be reasoned.
Human beings are literally dragged into the world as babies, kicking and screaming. They are born into families, which are in turn connected to broader constituencies that Edmund Burke, from whom Bickel derived his Whig model, described as being "formed by habit, and not by a sudden jerk of authority." An individual's consent to political control comes not merely from reasoning that such consent is in his self-interest — no one, as Burke said, will ever "glory in belonging to the Chequer No. 71" — but begins in our "families...pass[ed] on to our neighbourhoods, and our habitual provincial connexions," and then to the nation.
The liberty to make laws gives expression to the Whig insight into human nature. When the liberty to make laws is exercised, man is not only engaging in a rational debate about abstract concepts of rights. He is also debating, as Bickel put it, his "culture," the limits of "time-and-place bound conditions," the wisdom of experience, and "the present state of values" — what Schumpeter characterized as the "extra-rational" forces that truly bind a people's commitment to otherwise individualistic concepts like individual liberty or capitalism. This may mean, as Justice Scalia put it in his United States v. Virginia dissent, that a prior generation's value choices appear "closed-minded" to a future one. But "every age is [closed-minded], including our own, with regard to matters it cannot guess, because it simply does not consider them debatable."
As a community's extra-rational forces — its lived experiences, intuitions, traditions, sentiments, and habits — change (if they change at all), the community can exercise the liberty to make laws that reflect such changes. These changes, of course, must come through a prescribed process: a constitutional amendment or legislation at either the federal or local level, as appropriate. Employing this structure, as Bork put it in a 1984 speech to the American Enterprise Institute, exercises the liberty to make laws; it is "designed to achieve compromise, to slow change, to dilute absolutisms." And given the divisions of power and the counterbalancing of one interest with another, the structure "embod[ies] wholesome inconsistencies." The very nature of this process may "do things that abstract generalizations about the just society tend to bring into contempt," but this same process ensures that any changes will have the consent of the governed — not just rationally, but intuitively as well.
Yet as Bork's 1984 speech suggests, a tension exists between individual liberty and the liberty to make laws. The American founding was not, as Yuval Levin has argued in his book on the writings of both Burke and Thomas Paine, either fully contractarian or fully Whig. It has elements of both. The Declaration of Independence reflects the founders' attempt to harmonize both views. It begins with broad, general statements about the rights of all mankind that derive from "the Laws of Nature and Nature's God," but it then proceeds to list a series of specific indictments against the king of England. The Declaration's specific charges against King George III were not violations of natural rights per se, but the rights that Americans, as natural-born Englishmen, possessed. Indeed, the Declaration studiously avoids stating whether the society that Americans lived in before the king's abuses was a society fit for a free people.
To faithfully apply the original public meaning of liberty protected by the Constitution — to be a faithful originalist, in other words — one must acknowledge that both a contractarian view of individual liberty and a Whig view of the liberty to make laws were held by the founding generation. Or, as David Forte succinctly put it in his 1978 article "Ideology and History," "The eighteenth century values of natural rights never totally supplanted the seventeenth century American belief in a community held together by substantive values reflected in moral legislation."
The need for a judicial philosophy that accounted for both forms of liberty protected by the Constitution was acute because, as the founding generation recognized, one of the principal — if not the principal — threats to the liberty to make laws would be the judiciary itself. Unlike the other branches of the federal government, which are "checked" and "balanced" and publicly accountable by explicit constitutional constraints, the judiciary is independent and comparatively free from such controls. To Brutus and the other Anti-Federalists, this would enable judicial supremacy. Given the compromises and gradual changes required by the liberty to make laws, it can be very tempting for frustrated individuals to circumvent that political process with a judicial one. Moreover, it can be just as tempting for courts to make use of abstract theories to "find" new restrictions on democratic choice, to pre-empt the people in addressing novel phenomena, or to frame the interest in individual liberty at such a high level of generality that any exercise of the liberty to make laws would fall. As Brutus saw it, the Constitution could be interpreted according to its "spirit," rather than its words. With the Supreme Court free from the enumerated constraints imposed on the political branches, there would be no reason at all to presume judicial self-restraint. "Men placed [on the Supreme Court]," Brutus claimed, "will generally soon feel themselves independent of heaven itself."
One can hear an echo of Brutus's indictment that there is no reason to presume judicial self-restraint in Bickel's observation from The Least Dangerous Branch: "[N]othing...can alter the essential reality that judicial review is a deviant institution in American democracy." Indeed, an institution capable of invalidating the liberty to make laws with abstract theories could also command the direction of the democratic process, depriving the people of genuine self-rule. As Abraham Lincoln put it in his first inaugural address, the liberty to make laws, if it is to endure, cannot permit "vital questions affecting the whole people" to be "irrevocably fixed" by "ordinary litigation between parties in personal actions." Under such a system, Lincoln said, "the people will have ceased to be their own rulers."
Keeping "will" confined to the people and "judgment" to the judiciary, as Federalist No. 78 states, gives the people the foremost prerogative in preserving self-government. This delineation was critical to Hamilton's response to Brutus. Checks and balances and overt public accountability were needed for the political branches because of their factional character; those inclined to (and well-suited for) political office are responsive to (and rewarded by) factional, passionate concerns. By contrast, as Hamilton explains in Federalist Nos. 78 and 81, judicial independence is warranted because a judge's "long and laborious study" in the law — an institution, at the time, with its axioms and rules of construction firmly rooted in human nature and, as Hamilton says, common sense — would incline potential judges toward self-restraint. This training would teach judges to uphold enactments of the liberty to make laws unless they were, as he says in Federalist No. 78, at "irreconcilable variance" with the Constitution's text. And such an inquiry was, to Hamilton, fully textual: "[T]here is not a syllable in the [Constitution] which Directly empowers the national courts to construe the laws according to the spirit of the Constitution," Hamilton says in Federalist No. 81, nor would the qualities of those fit for judicial service permit such constructions. Moreover, a people committed to self-rule would punish extra-constitutional attacks on the liberty to make laws with impeachment.
Hamilton's description of the sort of judge contemplated by the Constitution would surely recognize that "the idea of progress," as Bickel put it in The Supreme Court and the Idea of Progress, "is common property." Yet Hamilton's reliance on personal characteristics, a judge's acculturation in self-restraint and textualism, and the public's esteem for these qualities all bespeak a disquieting reality: Preserving the distinction between "will" and "judgment" is an ongoing task for each generation, one that makes judicial self-restraint contingent on a society that wants the liberty to make laws. The liberty to make laws and judicial self-restraint therefore go hand in hand, and the latter's devolution into judicial supremacy will be avoided only to the extent that the former is valued by the people.
Beyond these structural and substantive tensions between judicial review and the people's liberty to make their own laws — what Bickel and Bork designated the "counter-majoritarian difficulty" — there is an institutional tension that is part of the difficulty as well. While the liberty to make laws respects all sorts of extra-rational attachments, the roles of the law and lawyers are decidedly rational, and often technical. Unlike "the rules of prudence" that, as Burke put it, govern so much of the liberty to make laws, interpreting the law relies on "the process of logic."
This shift from prudence to logic, from experience to syllogism, is necessitated by what is produced by the liberty to make laws: rules. "The rule of law," as Justice Scalia famously put it, is "a law of rules." Judges apply these rules not generally, as the liberty to make laws is exercised for the general welfare, but in the discrete context of a case or controversy litigating whether a rule has been violated in light of particular facts. Moreover, judges are not evaluating these rules on a blank slate. They have to contend with applicable precedents, procedures, and accepted rules of construction.
These structural, substantive, and institutional differences between the judicial process and the exercise of the liberty to make laws provide judges with a strong temptation to "fit" democratically enacted laws that come before them into abstract theories of individual rights. Such theories, which are inherently and solely rational, operate not in light of human realities but are defined by axioms, and are thus more susceptible to the judicial process. This has the effect, however, of morphing the Constitution's limits on power. These limits are altered from fundamental boundaries the people cannot cross when lawmaking into fundamental guideposts that must provide the basis for the people's value choices. Such a shift requires that every exercise of the liberty to make laws be reducible to a theory of individual liberty — undermining the distinct aspects of human nature and value choices that are reflected in the liberty to make laws. If this abstract approach is embraced, the judiciary, rather than the people, directs the liberty to make laws.
An originalism that is explicitly committed to judicial self-restraint resolves the counter-majoritarian difficulty. This originalism respects both individual liberty and the liberty to make laws, and thus is the only judicial philosophy, as Chief Justice Rehnquist put it in "The Notion of a Living Constitution," that is "consistent with [a] democratic philosophy of representative government." Under this approach, only the liberty to make laws (as exercised by the American people when they adopted a given constitutional provision) could invalidate a subsequent exercise of the liberty to make laws (by a subset of the American people in a statute or other legislation). Where the Constitution does not speak to an issue — because the controversy simply could not have been envisioned by the founders, or the closest historical analogue is too attenuated, or the power sought to be exercised is simply not the "judicial power" Article III vests in courts — the judiciary must let the people decide how to exercise the liberty to make laws.
This originalism therefore protects the liberty to make laws from judicial encroachment, while also preserving the integrity of the Constitution's individual-liberty guarantees by applying them as they were understood by the American people. Any other philosophy, Rehnquist observed, makes judges something other than "keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country."
JUDICIAL SELF-RESTRAINT AND ORIGINALISM
To early legal conservatives like Judge Bork and Chief Justice Rehnquist, an originalism without an overt commitment to judicial self-restraint was not a genuine originalism. Indeed, as legal scholar Keith Whittington put it in "The New Originalism," the "primary commitment" of early originalists "was to judicial restraint," and "[o]riginalist methods...were understood as a means to that end."
Without judicial self-restraint, originalism risks protecting only individual liberty — and not the liberty to make laws — because, as alluded to above, the Constitution is largely written in the form of limits on power. "These limitations, however," as Rehnquist wrote in "The Notion of a Living Constitution," "were not themselves designed to solve the problems of the future, but were instead designed to make certain that the constituent branches, when they attempted to solve those problems, did not transgress these fundamental limitations." The liberty to make laws is thus implicit in the Constitution's structure and in the Bill of Rights's guarantees. And as that structure and those guarantees would be interpreted by the judiciary, the very branch of government that can restrict the liberty to make laws, it was critical to early legal conservatives that originalism possess an explicit commitment to judicial self-restraint. Restraint is, in short, the guarantee of the liberty to make laws.
Were originalism severed from judicial self-restraint, it could come to resemble the very thing early legal conservatives invoked originalism to oppose: an abstract theory, divorced from the realities of implementing judicial power, myopically focused on vindicating a certain concept of individual liberty, and capable of being deployed at a high level of generality that is therefore insensitive to the actual workings of self-government. In a friendly critique of originalism offered by Columbia law professor Thomas Merrill in a 1996 article entitled "Bork v. Burke," the challenges faced by an originalism without judicial self-restraint become clear:
[O]riginalism by its very nature requires that the interpreter comprehend and adopt the values, aspirations, and linguistic conventions of a society several steps removed in time from our own. This exercise in historical recreation also involves a rather Herculean feat — one that requires both extensive historical knowledge and severe intellectual discipline. One can fairly question whether the average judge or lawyer — a member of a profession notorious for its obsession with the bottom line and with tendentious renditions of history — is capable of carrying off this kind of feat.
This critique is indeed a friendly one, as no less an expositor of originalism than Justice Scalia made it — in an article with a title that says it all: "Originalism: The Lesser Evil." Judges are tasked with deciding discrete cases in the context of the record before them, within time constraints, and with only their law clerks as assistants. Thus, they lack the time and resources needed to determine, in every case before them, the original meaning of a constitutional provision that might be obscured by precedent, an unclear historical record, or a serious scholarly debate.
Originalism faces additional complications in practice. Absent a clear strategic or business advantage, clients are not likely to pay the high billable rates charged by top law firms to research and apply the original meaning of a given constitutional provision — especially when doing so requires resolving disputes about original meaning that have bedeviled scholars and courts for decades, if not centuries.
Of course, the challenges posed by an unrestrained originalism are not merely practical; they are doctrinal too. While originalism sometimes provides clear answers to legal questions, that is not always the case. It can, for example, offer substantial evidence to support divergent conclusions. Professors Michael McConnell and Philip Hamburger have demonstrated this in their efforts to determine whether the original meaning of the Free Exercise Clause authorizes religious-based exemptions to neutral laws of general application. Originalism also gives no definitive answer for what historical sources should be the most persuasive — as demonstrated by the disagreement between Justices Scalia and Thomas in McIntyre v. Ohio Elections Commission, involving the scope of original First Amendment protections for anonymous political speech.
Originalism can also produce different answers depending upon the originalist inquiry's level of generality. For example, does the void-for-vagueness doctrine possess originalist pedigree because it generally accords with the Constitution's understanding of due process, as Justice Neil Gorsuch recently argued in Sessions v. Dimaya? Or, as Justice Thomas explained in response, is the void-for-vagueness doctrine suspect as an original matter because of the longstanding judicial practice of construing vague laws, rather than striking them? Other examples abound, and these speak only to originalism's challenges in offering answers to questions the founding generation could have envisioned. When the questions are beyond what the founders could have envisioned, originalism's application is even murkier. Just as unclear is how originalism should account for longstanding precedent that might disagree with a constitutional provision's original meaning — or whether originalism is supposed to account for such precedent at all.
To be sure, these challenges do not cast doubt on originalism's legitimacy as a method of neutrally deriving the meaning of a given constitutional provision. As Justice Scalia would often say when defending originalism, "My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult." Rather, these challenges provide reminders of the integral role judicial self-restraint plays in preserving originalism's vitality. Judicial self-restraint provides the originalist judge with a principled basis, consistent with both forms of liberty protected by the Constitution, to manage these challenges.
The foremost practical and doctrinal benefit of judicial self-restraint is that it guides originalism, ensuring that it respects self-government and the constitutionally protected liberty to make laws. Because judicial self-restraint protects the liberty to make laws against abstract notions of individual liberty, it necessarily eschews defining the search for original meaning in a particular case at a high level of generality, or making attenuated analogies to forcibly fit a modern phenomenon into a practice the founders would recognize.
As Whittington put it in Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, judicial self-restraint ensures that "historically inherited restraints on current majorities do not exist" when the Constitution's original public meaning does not provide a definite answer regarding a particular phenomenon presented in a case. Instead, the people or their representatives, exercising the liberty to make laws, get to first determine "how constitutional meaning is shaped so as to accommodate contemporary political needs and desires." Then, in subsequent cases, the judiciary can refine that line depending upon whether a particular exercise of the liberty to make laws more directly implicates the original understanding of an individual liberty protected by the Constitution.
Restraint thus, Whittington notes, "alleviates the pressure on the judiciary to provide and account for all the flexibility that might exist in the Constitution" by leaving decisions to the people and their liberty to make laws. Judicial self-restraint's focusing effect on originalism also counteracts some of the practical challenges discussed above. According to this view, it would be inappropriate for a court to use the occasion of a case or controversy to resolve, once and for all, how the original meaning of a given constitutional provision applies to all conceivable cases.
Moreover, judicial self-restraint's sensitivity to separating the exercise of judicial and legislative power gives originalism a principled incorporation of judicial precedent. Article III of the Constitution vests judges only with the "judicial power," understood in Federalist No. 78 to make judges "bound down by strict rules and precedents." Those "strict rules and precedents" include those that predate the Constitution: namely, English common law, which was incorporated with appropriate alterations into the laws of the several states. By consenting to the continuation of these practices, the American people have thus consented to the exercise of judicial precedent and stare decisis, in the same tacit way the American people today consent to the Constitution more than two centuries after its ratification.
This incorporation of precedent is consistent with the virtues of stability and enduring constitutionalism that originalism promotes. It also accounts for the fact that some understandings of constitutional power derive not from a theory of individual liberty, but from the actual practices of Americans. Applying those practices as precedents reflects the people's enduring pre-eminence, afforded by the liberty to make laws.
Of course, judicial self-restraint does not preclude disagreements over the best application of originalism. Some approaches to judicial self-restraint, such as in the writings of Bickel and 19th-century legal scholar James Bradley Thayer, predate modern understandings of originalism. Those writings also show that judicial self-restraint can prompt differences of opinion about when, exactly, a court should strike down a democratically enacted law. But the judicial self-restraint adopted by the modern conservative legal movement is not a free-floating abstract principle of judicial review: It is in service to the text, history, structure, and practices protected by the Constitution, including the liberty to make laws. Excising judicial self-restraint from originalism would excise the respect for self-government it provides to focus originalist analysis. This would reduce courts to always invalidating the liberty to make laws whenever, or however, they hypothesize originalism requires it.
ORIGINALISM UNMOORED
Judicial self-restraint still provides originalism with political talking points; selecting judges who will only "interpret the law, not make it," deriding "judicial activism," and admonishing judges that "legislate from the bench" are all part of our political lexicon regarding the role of the courts. But as discussed above, judicial self-restraint provides much deeper insights into human nature and the role of law than mere sloganeering. Those insights risk being discarded by the recent, considerable shift in originalist emphasis from constraining the judiciary to empowering the judiciary to constrain the other branches of government.
Several explanations have been offered for this shift. One reason is the supposed academic "turn" in originalism: the change from an approach appealing to the citizenry at large to one that is developed by academics, with their colleagues and judges as the primary audience. As Thomas Colby detailed in "The Sacrifice of the New Originalism," the approach to originalism articulated by Bork and Rehnquist in the 1970s and '80s underwent transformations in the latter decade that enhanced its intellectual appeal. Some of these changes improved originalist methods; perhaps the most widely accepted change was the shift from searching for the founders' "original intent" to the Constitution's "original public meaning." But, Colby argued, "[i]ntentionally or not," subjecting originalism to the academy made it more like an abstract theory that, in turn, "effectively sacrificed [its] promise of judicial constraint."
Another reason is the rise of libertarians and even liberals adopting originalist approaches, which is arguably connected to the academic "turn" given their prominence in academia relative to traditional conservatives. In an essay at the website Law and Liberty, law professor Jesse Merriam characterizes the critical turn in originalism as one that infused it with libertarian premises about the nature and source of rights (which are inherently contractarian). While some have disputed aspects of Merriam's account, it would be very hard to argue that the prominence of libertarian law professors and scholars in expounding originalism has not affected how originalists, especially younger college and law students, think about originalism.
This is especially true with respect to the liberty to make laws. The view of sovereignty espoused by some of these scholars, the corresponding "presumption of liberty" Georgetown law professor Randy Barnett encourages, and their explicit denunciation of judicial self-restraint as articulated by early legal conservatives, all cast serious doubt on whether a libertarian originalism even recognizes the liberty to make laws. Moreover, the influence of libertarians does not account for the influence of those who now deploy originalism to enshrine positive constitutional liberties associated with liberalism, such as Yale law professors Jack Balkin and Akhil Amar.
The most pervasive reason for the originalist shift in emphasis is the growth of the federal government — a chief motivation for libertarians in the academy and elsewhere. As the American Bar Association noted in 1998, more than 40% of the United States criminal code was enacted after 1970; a 2008 survey by Professor John Baker confirmed that the growth continues. The development of the U.S. code is nothing, however, compared to the expansion of the administrative agencies and their discretion to execute laws.
To illustrate the point, in 2016 Utah senator Mike Lee put two stacks of paper side by side: One stack, consisting of all the laws Congress passed in 2014, was 400 pages; the other stack, consisting of all the new federal regulations, was more than 80,000 pages and 11 feet tall. In addition to this regulatory overreach, the judiciary affords deference to administrative interpretations of statutory ambiguities, and, more controversially, to an agency's interpretations of its own rules. Witnessing this extension of the administrative state, conservatives might be forgiven for being less concerned about courts infringing upon their liberty. Conservatives, disturbed by Congress's apparent disinterest in guarding its legislative power, might also understandably look askance at a judicial philosophy that touts the liberty to make laws.
Though originalists have been tempted away from self-restraint for understandable reasons, the counter-majoritarian difficulty remains endemic to judicial review in a self-governing society. Self-government may have been eroded by legislative decisions, but empowering courts to save self-government is incoherent. The judiciary is still structurally and procedurally distinct from the nature and process of democracy. And the judiciary, unlike the liberty to make laws, cannot give substantive voice to a community's various values and extra-rational attachments. Supplanting nearly all agency discretion with judicial discretion, making the elimination of significant portions of the U.S. code a project for the courts and not Congress, and deploying the courts to decide whether every exercise of state police power is in the public interest, as defined by libertarianism, does not vindicate self-government. As Justice Scalia put it in a related context, all of this tells our judges to "govern us." That is not a solution to the counter-majoritarian difficulty, or to the erosion of self-government — it is acquiescence to both.
In recent Supreme Court cases that revealed this emerging divergence between originalism and judicial self-restraint, opinions by Justice Alito in particular highlighted the virtue of putting the American people — not the courts — in charge of reclaiming self-government. Relatedly, these opinions demonstrated the protection an originalism informed by judicial self-restraint affords both to individual liberty and the liberty to make laws.
Justice Alito's thoughtful dissent in North Carolina State Board of Dental Examiners v. Federal Trade Commission, for example, demonstrated the judicial role some libertarians have indulged simply to pursue a certain theory of economic liberty, and the associated challenges to state police power. There, the Supreme Court was asked to hold that a North Carolina board that governed dentistry practice should be subjected to antitrust liability, notwithstanding antitrust law providing an exception for anti-competitive "state action."
This case was not a constitutional one involving originalism, but many libertarians treated it that way; they view economic liberty, protected by the Constitution, as unjustifiably restricted by occupational-licensing laws. While this critique is not without merit, pursuing it through the federal courts was not without irony either. Rather than engaging the political process to modify or eliminate the North Carolina board, some friends of economic liberty advocated that a federal agency (the Federal Trade Commission) use the judiciary's enforcement of federal antitrust law to invalidate action taken under the state's police power. Judicially enforcing antitrust law in this way advances a post-New Deal understanding of the federal government's ability to regulate wholly intrastate commerce — an understanding that many libertarians and economic-liberty proponents typically reject.
The Court agreed with the Federal Trade Commission, but Justice Alito (joined by Justices Scalia and Thomas) dissented. The dissent rightly explained that it is unprecedented to apply antitrust law against states' "age-old practice" of enacting licensing requirements simply because those requirements are "not structured in a way that merits a good-government seal of approval." "Determining whether a state agency is structured in a way that militates against regulatory capture is no easy task" and lacks judicially administrable standards. Worse still, the Court's approach turned the legal question of antitrust liability into a policy question of whether the licensing regulation at issue promoted economic competition. This reduced a question properly left to the liberty to make laws — whether, as the dissent said, "[i]t is reasonable for States to decide that the individuals best able to regulate technical professions are practitioners with expertise in those very professions" — into a question that considered only one individual right (economic liberty). This "diminishes our traditional respect for federalism and state sovereignty," and, correspondingly, the liberty to make laws. The issue should therefore be left to the people of North Carolina.
Two additional recent cases can help highlight this point: Brown v. Entertainment Merchants Association (which raised freedom-of-speech issues) and United States v. Jones (which involved the Fourth Amendment's protection against unreasonable searches). Justice Alito's opinions in both reflected one of judicial self-restraint's benefits to originalism: avoiding the use of implausible historical analogies with regard to phenomena unknowable to the founding generation. These faulty analogies are often used as a pretext to pre-empt the people in exercising the liberty to make laws.
Arguments were made in both cases to analogize the conduct at issue to something the founders would have recognized. (This way, an originalist understanding of the individual-liberty protection at issue could cover the conduct.) In Brown, California's effort to restrict the sale of graphically violent video games to minor children was analogized to an attempt to regulate minors reading Grimm's Fairy Tales. And in Jones, the government's use of a GPS device to engage in extensive monitoring of an automobile was analogized to what gave rise in 1791 to a trespass to chattels claim (the use of property without the owner's permission). Rather than join in the respective majority opinions that used these analogies to find constitutional violations, Justice Alito concurred. While he shared the Court's bottom-line conclusions (in Brown, that the California statute was unconstitutionally vague; in Jones, that a search covered by the Fourth Amendment occurred), his separate opinions explained the unwise decision to rest constitutional holdings on, as he put it in Jones, "highly artificial" analogies to original meaning.
The opening of Justice Alito's concurring opinion in Brown highlighted the respect for self-government and the liberty to make laws that judicial self-restraint provides to originalism:
In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.
Indeed, as Justice Alito explained in his concurring opinion in Jones, resisting the temptation to constitutionalize every new technology allowed Congress to enact a comprehensive statute governing wiretapping in light of technological and privacy changes. This outcome was far superior to leaving "it to the courts to develop a body of Fourth Amendment case law governing that complex subject." Restraint respects the liberty to make laws because "[a] legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way."
To be sure, waiting on the people to exercise their liberty to make laws can be unsatisfying — just as it is unsatisfying for courts to be reduced, in the interim, to a body of law that is not responsive to modern concerns. But assuaging all that dissatisfaction with unpredictable, improbable historical analogies that shoehorn a novel concept into an individual liberty's original meaning raises the same doctrinal and practical problems that the "living Constitution" raises. Worse still, as Justice Alito put it in his concurring opinion in Brown, this approach "squelch[es] legislative efforts to deal with what is perceived by some to be a significant and developing social problem" — a problem that courts are designed to consider one case at a time, not once and for all.
Finally, Justice Alito's opinion in Perez v. Mortgage Bankers Association provided a helpful framework for employing originalism, informed by judicial self-restraint, to confront the expansion of administrative power. There, Justices Alito, Scalia, and Thomas all expressed a willingness to revisit the judiciary's deference to an agency's interpretations of its own rules — a practice that raises substantial separation-of-powers concerns. There are related concerns regarding, as Justice Alito put it, "the aggrandizement of the power of administrative agencies," including Congress's practice of "delegat[ing] to agencies...huge swaths of lawmaking authority" and agencies' exploiting "the uncertain boundary between legislative and interpretive rules."
As the separate opinions of Justice Scalia and Justice Thomas demonstrated, there is uncertainty about how much the judiciary can do to solve the legislative abdication of power to administrative agencies. For example, Justice Scalia's opinion noted that while at least some applications of judicial deference to agency interpretations of ambiguous statutes (known generally as Chevron deference) have abdicated the judiciary's authority to say what the law is, there is historical pedigree for some form of deference to the executive branch when it applies an ambiguous law to particular circumstances. Moreover, as Justice Thomas's opinion pointed out, it is unclear whether the Court's deference doctrines are entitled to stare decisis in the same manner as other judicial precedents, or whether they are mere interpretive rules.
Further cases have also demonstrated that, though some conservatives and libertarians seem intent on dismantling the administrative state altogether, the use of ordinary statutory-construction tools can cabin the use of Chevron deference without eliminating all deference. Indeed, this was the approach taken by all of the conservative justices this past term in Epic Systems Corp. v. Lewis. There, the Court did not afford the National Labor Relations Board's particular interpretation of the Federal Arbitration Act Chevron deference because multiple "premises" of such deference were simply nonexistent.
In Perez, Justice Alito helpfully distinguished the challenges posed by the administrative state between "matter[s] that can be addressed by" the Supreme Court and matters that must be addressed by Congress — and further, between matters that require overhauling the law and matters that require simply vindicating traditional judicial tools. Once again, this demonstrated judicial self-restraint's benefits to the rule of law. As a guarantor of self-government, judicial self-restraint, employed alongside originalism, ensures that the people are left with the liberty to keep, and, as needed, reclaim, self-government. Conservatives would benefit from preserving the connection between originalism and judicial self-restraint as they continue to confront challenges to self-government.
A REPUBLIC, IF WE CAN KEEP IT
In a Heritage Foundation speech promoting his book Our Republican Constitution, Randy Barnett sought to use Chief Justice John Roberts's opinion upholding the Affordable Care Act's constitutionality as a basis for discrediting judicial self-restraint altogether. Barnett's thesis, echoed by Ilya Shapiro in a separate op-ed, was that the chief justice's opinion exemplified judicial self-restraint's supposed willingness to not enforce constitutional limitations so as to empower the political process. Their argument went further: The chief justice's opinion, Barnett and Shapiro separately claimed, enabled the rise of a populism that is destructive to constitutional norms. His opinion effectively told everyone who cared about the Constitution that the Supreme Court will never stand in the way of what the legislative process produces.
Among the difficulties with this argument — which is itself a good reflection of the common libertarian objection to judicial self-restraint informing originalism — is that the Court's other conservative justices disagreed with the chief justice precisely because of their commitments to judicial self-restraint. They criticized the chief justice's opinion for the Court, which reframed the act's individual mandate as a tax, for (as Barnett has also put it) "escap[ing] what Congress enacted": in other words, the very sort of legislating from the bench that judicial self-restraint has long eschewed.
The relevant point here is not to re-litigate the Affordable Care Act's constitutionality, but rather to demonstrate judicial self-restraint's potent insights into human nature and the nature of law — even if those insights are now twisted into criticisms of judicial self-restraint itself. The subtext of the libertarian critique reflects some of the foundations of self-government that are protected by the liberty to make laws: Genuine self-government requires faith in our institutions; the rule of law requires the people to understand the rules and consider them deserving of compliance; and faith in our institutions requires the people to not only rationalize that their individual self-interest is better off for it, but also to believe that those institutions act legitimately. Judicial self-restraint is not some rote refusal to invalidate the democratic process; it appreciates these insights into human nature and law because judicial self-restraint is the guarantor of the liberty to make laws that an unrestrained originalism puts at risk.
"The liberty to make laws," as G. K. Chesterton put it, "is what constitutes a free people." The courts cannot purport to preserve self-government if something other than the people's exercise of the liberty to make laws — whether it is in the Constitution's original meaning or in the practices the people have adopted as precedents — can displace a subsequent exercise of the liberty to make laws in legislation. By limiting itself to an originalism informed by judicial self-restraint, the judiciary plays its part in ensuring we remain a republic, as Benjamin Franklin put it, if "we," the people, keep it that way. Conservatives should therefore do their part by keeping originalism moored to judicial self-restraint.
