Over at the Huffington Post, the Institute for Justice’s Evan Bernick jumps into an ongoing debate about the proper exercise of the judicial power. On one side, libertarian constitutionalists (like Bernick and Damon Root) disparage judicial deference and encourage judicial activism on behalf of (what they think are) constitutional rights. On the other side, conservatives (like me and Ramesh Ponnuru) contend that judicial deference or restraint is appropriate because it is the kind of exercise of the judicial power that the American founders endorsed.

Bernick’s defense of Root’s position adds a potentially helpful clarification of the issues. At the same time, however, I would say that his argument in the end simply adds more evidence that conservatives should reject the libertarian constitutionalists’ judicial activism as inconsistent with the Founders’ Constitution.

To review the argument: Root contends that the judicial deference championed by modern judicial conservatives can be traced to the Progressives of about 100 years ago, who also defended judicial deference. I, on the other hand, contend that judicial deference can in fact be traced to the Founders and can be seen, for example, in the great opinions written for the Supreme Court by Chief Justice John Marshall.

Bernick argues in defense of Root by way of a distinction. According to him, the specific kind of deference defended by conservative jurists (like Robert Bork) is actually rooted in the thought of Progressives like James Bradley Thayer, and not in the jurisprudence of John Marshall. Thayer held that the Constitution is often unclear, and that where it is unclear the Legislature has a right to adopt whatever interpretation it wants, so long as it is rational. In contrast, Marshall believed that the Court’s job was to try to render the Constitution clear through the standard tools of judicial interpretation.

This is a potentially helpful distinction because it may well be that the kind of judicial review advocated by Thayer is excessively deferential to the Legislature. Certainly I would agree with the idea that contemporary conservatives should take their understanding of the proper use of the judicial power from Marshall, and the founders more generally, rather than from the restatements of it (and perhaps reinterpretations of it) offered by later commentators like Thayer.

Nevertheless, this distinction does not take us as far as Bernick would like. In the first place, his argument still does not show the invalidity of a certain kind of judicial deference, properly understood. If Thayer argued for an excessive deference, it does not follow that there is not an appropriate kind of judicial deference or judicial restraint, such as is found in the work of John Marshall.

Bernick tries to discredit my claim that judicial deference can be traced to Marshall by noting that the same claim was made by Thayer. But even if Thayer did not understand Marshall as precisely as he should have, it is still the case that Thayer could make this claim precisely because there is evidence to support it. As I noted, and as Bernick notes in summarizing my argument, Marshall, in Fletcher v. Peck, said for the Court that judges should “seldom if ever” declare a law to be unconstitutional “in a doubtful case.” This is undoubtedly an endorsement of judicial deference, and Bernick does not even bother to deny it. In this passage, Marshall says that there will be doubtful cases, cases in which it may not be possible to render the Constitution perfectly clear, and that in such cases the Court should seldom if ever declare a law unconstitutional — which is as much as to say that the Court should defer to the interpretation of the Constitution on which the Legislature acted when it made the law unless there is a clear argument for doing otherwise.

Moreover, we should also keep in view that the libertarian constitutionalists are not merely criticizing judicial restraint but advancing an alternative: judicial activism in defense of a libertarian understanding of rights. This activism, they say, should be guided not by a presumption of constitutionality — the traditional approach associated with judicial deference — but instead by a presumption of liberty. But even if we were to grant that the progressives took a too narrow view of the judicial power, this would not do anything to justify the sweeping power for Courts that the libertarian constitutionalists want to unleash by positing a presumption of liberty. Every law impedes somebody’s liberty. Therefore, beginning from a presumption of liberty is the same thing as beginning from a presumption of unconstitutionality for every law that is passed.

I can see why, as a policy matter, libertarian constitutionalists would advocate this presumption of liberty. They want as little government as possible, and it would be hard to think of a better tool for accomplishing this than a presumption of liberty in the hands of judges. I’ll even agree that it would be good for legislators to keep this presumption in mind. They often seem to want to legislate just for the sake of being able to claim some political accomplishment. They should instead start from a presumption of liberty and ask whether society really needs the laws that they are often itching to write.

This is very different, however, from saying that courts should start from a presumption of liberty when judging the constitutionality of laws that have been enacted. Their job, in constitutional cases, is simply to give force to the Constitution. And the Constitution is not designed to guarantee that libertarian policy preferences will prevail.

In addition, nobody can plausibly contend that the founders expected the courts to judge the constitutionality of laws on the basis of a presumption of liberty. This would, again, involve presuming laws to be unconstitutional, and, look as long as you like, you are not going to find the founders holding that the courts should have that kind of power. Indeed, you won’t find serious advocacy of any kind of judicial presumption of unconstitutionality until the middle of the twentieth century, and then only in certain kinds of cases.

All this being said, I also want to add that the progressives—whatever their errors in other areas—were not as wrong about the use of the judicial power as Bernick claims. Here is part of Bernick’s complaint about Thayer:
 
Thayer believed that the Constitution “often admits of different interpretations.” In such cases, Thayer argued, the Constitution “does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and whatever choice is rational is constitutional.” Thayer’s “clear error” rule in practice entailed reflexive deference to legislative judgments.

Yet we can find Alexander Hamilton — an excellent lawyer of the founding generation, one of the framers of the Constitution, and one of its most influential early expositors — saying just about the same thing. Advising President Washington on whether to veto the 1792 apportionment bill, Hamilton noted that the constitutional language at issue was capable of more than one interpretation. There was, he told the president, “no criterion by which it can be pronounced decisively that the one or the other is the true construction.” “Cases so situated,” he added, “often arise on constitutions and laws.”

Accordingly, Hamilton counseled Washington to defer to the constitutional interpretation Congress had acted upon in enacting the law: “In cases where two constructions may reasonably be adopted, and neither can be pronounced inconsistent with the public good, it seems proper that the legislative sense should prevail.” It is true that Hamilton was here advising the president on the use of the veto and not speaking directly to the question of how a court should judge the constitutionality of a law. There is no reason to doubt, however, that Hamilton would have held that the rule he put forward here was good for courts as well as executives.

Similarly, although there is much to criticize in the thought of Oliver Wendell Holmes, Jr., Bernick is excessively critical of him. In the first place, Bernick, in his complaint that Holmes was too deferential to the majority will, neglects to mention that Holmes was in his day a zealous defender of the freedom of speech. This shows that Holmes’s judicial deference was in fact compatible with the judicial defense of rights — so long as those rights are clearly rooted in the constitutional text, in this case the First Amendment.

Bernick goes on and criticizes Holmes for his dissent in Lochner v. New York (1905), holding that Holmes here acted on a kind of judicial deference that was alien to the thought of John Marshall. Here I would say not only that Bernick’s argument fails, but that it in fact brings to light much of what is wrong with the judicial activism that the libertarian constitutionalists are now advocating.

Bernick evidently thinks that Lochner, which struck down the maximum-hours provision of New York’s Bakeshop Act, was a proper use of judicial review, and that Holmes was failing in his duty to protect constitutional rights by not signing on to the majority opinion. But what “right” did the Court find the New York law had violated? Answer: “the liberty of contract.” And where is “liberty of contract” in the Constitution? Answer: It is not there, at least not in express terms. It was instead held to be an implication of the Fourteenth Amendment — much as a later Supreme Court held that the “right of privacy” protecting the “right” to abortion is an implication of various constitutional provisions. In both cases, the absence of a clear textual basis for the right asserted is certainly a good reason for a judge to decline to hold a law unconstitutional.

Bernick also complains that Holmes accepted as reasonable New York’s claim that the law in question was intended to protect the health of bakers, “even though it was in fact a nasty bit of protectionism that served no legitimate end.” “One searches in vain,” Bernick claims, “for such deference in the jurisprudence of Marshall, who in McCulloch v. Maryland (1819) insisted upon the judicial duty to determine whether ‘the end be legitimate’ and the means ‘plainly adapted to that end.’”

Here we can clarify further where I — and, I think, the Founders — part company with the libertarian constitutionalists. Bernick fails to see that the law might be both constitutional because serving a legitimate end but, at the same time, a “nasty bit of protectionism.” The passage he quotes from Marshall in fact suggests that the Great Chief Justice would have sided with Holmes and the State of New York in this case. After all, the “end” that the law served — protecting the health of bakers — is clearly within the power of the state government, and the means chosen — limiting the maximum hours they can work — is “plainly adapted to that end.” Nobody can deny that excessive work hours can be damaging to the health of workers. Exactly how many hours they should be permitted to work is a judgment of prudence about which courts have no special competence, and is also the kind of judgment they are not empowered to make.

In saying that the law was in fact a “nasty bit of protectionism,” Bernick is just complaining that the economic self-interest of some constituencies was at work in getting the law enacted. This may be true, but it does not show that the state legislature here acted unconstitutionally. The question for courts is whether the legislature acted within its proper powers, not whether it was animated by pure motives. All legislation is going to be tainted by such self-interest. The founders clearly understood this. In Federalist 10, James Madison noted that the political activity of various groups tended to be driven by their self-interest. “The regulation of these various and interfering interests,” he added, “forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of government.” The founders, then, were perfectly well aware that a grubby spirit of self-interest would usually influence the making of laws. We will not find them, however, arguing that this commonplace fact empowers courts to strike down laws.

Finally, a closer look at Marshall’s opinion for the Court in McCulloch v. Maryland will show how far he was from supporting the kind of judicial activism libertarians want. In that case, Marshall was repudiating Maryland’s very narrow interpretation of the Necessary and Proper Clause. According to Maryland, that clause could not justify a national bank as a means to the end of exercising the government’s taxing and borrowing powers. For Maryland, the clause only authorized whatever was strictly necessary, in the sense of indispensable, for the exercise of the enumerated powers.

Does this sound familiar? To me it sounds like the kind of judicial review the contemporary libertarians want: a judicial review that will read the government’s powers as narrowly as can be so as to get as little government as possible. Marshall, writing for a unanimous Supreme Court, rejected this interpretation of the word “necessary” in the Necessary and Proper Clause. Necessary, he held, in this context merely means convenient or useful with a view to the constitutional end. In other words, Marshall opted for the interpretation that left Congress more latitude and discretion in choosing the means to ends—and he did this with no suggestion that the Court would have any authority to look into the political motives the legislators might have had in view when choosing the means that they did.

A final point is in order. Marshall chose the broader interpretation of the Necessary and Proper Clause in part because he thought the narrower one urged by Maryland forced the Court to exercise a kind of reasoning to which it was not suited. To ask the Court to figure out whether a law was indispensably necessary was to have it inquire into just how necessary it is. This is a question of degree of power, and it is the kind of question, for Marshall, that courts have no business asking. Here’s Marshall:

If, then, all the powers of the national government are sovereign and supreme; if the power of incorporation is incidental, and involved in the others; if the degree of political necessity which will justify a resort to a particular means, to carry into execution the other powers of the government, can never be a criterion of judicial determination, but must be left to legislative discretion, it only remains to inquire, whether a bank has a natural and obvious connection with other express or implied powers, so as to become a necessary and proper means of carrying them into execution.

For Marshall, the question for the Court is whether the government has the power to act in a given area. The Court is not to try to ascertain exactly how far the government can go. Libertarian constitutionalism continually asks courts to ask precisely this kind of question. Lochner v. New York is a good example. Bernick would not deny that the state has a right to legislate to protect the health of workers, or even that it has a right to limit their work hours. Nevertheless, in this case he wants the Court to say that the legislature went too far, and to make this judgment in part on the basis of the political motives of the legislators. This is a kind of judicial review that Marshall never exercised and would have rejected as illegitimate.

 - Carson Holloway is currently a visiting fellow in American political thought in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.