Crouching Congress, Hidden Judges

One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion.

If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it.

Yet the judicial Minotaur does not differ from other variants of the all-consuming creature. Judicial power, like other kinds of power, is liable to abuse. Like all kinds, judicial power, having been forged for one hand to brandish, will ultimately be wielded by another. Like all power, judicial power, overly centralized or imposed, saps initiative and induces lassitude.

Tushnet alleged in his defensive-crouch post that liberal jurists and lawyers had been edgily peering over their shoulders for “several generations,” curbing their ambitions lest the right-wing appellate hordes reverse them. Barnett, recognizing the absurdity of the victim talk, notes that President Obama filled the same number of judgeships as President George W. Bush.

Still, Barnett sympathizes with Tushnet’s larger attack on stare decisis, arguing that Tushnet is correct on process, if not on substance, in saying that cases that were “wrong on the day they were decided” should be revisited and reversed.

This call to unleash the Minotaur, especially against precedent, reflects a deeper consensus, one based on a supreme confidence in discrete reason. Both Tushnet and Barnett would expel Edmund Burke’s definition of “the science of jurisprudence”—“the collected reason of ages”—from the Temple of Constitutional Reason.

Such is the essence of judicial supremacy. Barnett prefers judicial “equality,” arguing in Restoring the Lost Constitution (2003) that if courts lacked the power to nullify acts of the political branches, “the legislative and executive branches alone would decide on the constitutionality of their laws. Judges would have to merely take their orders. This would render the judiciary inferior to the other branches rather than their equal.”

This is persuasive as far as it goes, which is to say as long as it goes just as far for the other branches. Do they have merely to take the judiciary’s orders? The question here, in other words, is not whether to place judges in a position of equal authority (more on which presently), but whether to elevate them above a position of equality.  

James Madison, whose originalist credentials are generally respected, said a linear conception of the U.S. Constitution under which judges pronounced last in sequence on the permissibility of laws would do precisely that. It would, he wrote, make the judiciary “paramount in fact to the Legislature, which was never intended, and can never be proper.”

Moreover, there is simply no constitutional warrant for the idea that all three branches are equal in the first place. Madison said that in a republic, the legislature “necessarily predominates.” He described the executive authority as fundamentally derivative from the legislative authority.

Alexander Hamilton called the judiciary “incontestably . . . the weakest” of the branches, a description he used to assure the ratifying public that federal judges could never endanger “the general liberty of the people.” That phrase is twice inflected—“general” and “the people”—to indicate a reference to a shared authority of self-governance.

Barnett, by contrast, argues that all three branches of government must concur before a law is imposed. This is the language of those who, for noble reasons, oppose imposition and thus support barriers to it. It sounds entirely reasonable. It is also constitutionally baseless.

The constitutional process of lawmaking, with emphasis on the “making,” gives no role to judges. Madison wanted to give them one—a Council of Revision whose utility, significantly, lay in the fact that Congress could override it—but lost in Philadelphia. Judges provide what Madison called an “auxiliary precaution” after the fact in a fraction of cases.

Article I, rather than making room for a Council of Revision, conveys “all legislative powers herein granted” to Congress. It is true that the “herein granted” qualifies these powers. But the “all”—which, significantly, does not appear in the vesting clauses granting executive authority to the President in Article II or judicial authority to the Supreme Court in Article III—qualifies the authority of the other branches.

What, then, is the attraction to the authority of judges? It is inseparable from the authority of reason characterized by two qualities.

First, this conception of reason is discrete. It is to be exercised by the individual jurist, in individual cases, with individual confidence.

Second, it is instantaneous. It is to be exercised now, and is rooted in the past only insofar as a crease in time connects the individual jurist today with his analysis of the events of 1787 and 1788 or, in the case of the Fourteenth Amendment, 1866 through 1868. Whatever wisdom others have attained about those events or about constitutional meaning in the interim is irrelevant.

As Kevin Walsh noted in this space, Barnett tweeted that Adam J. White believed in “the judicial supremacy of dead justices.” White replied that while he rejected any judicial supremacy, he did, with Burke, recognize a measure of authority for the dead.

What is illuminating about Barnett’s tweet is that it dips into history only at particular moments: dead justices at the moment they ruled. The notion that dead generations might have something to say to us—much less some authority to impose—is entirely absent. Yet this is precisely what Burke called “the science of jurisprudence.”

Barnett had not, as of this writing, replied to White’s illuminating challenge: Would Barnett support a one-member Supreme Court if he got to pick the justice?

It would disrespect a theorist of Barnett’s standing to speculate on his answer. But it might honor his work to attempt to extrapolate from its premises. They do not seem to recognize the limits of judicial reasoning. But stare decisis does.

The primary function of stare decisis is the necessity of settled and predictable law, but an ancillary benefit is the respect it pays to the views of one’s forebears and the limits of one’s own reason.

Barnett’s method of judicial inquiry bears a close similarity to what Tocqueville called “the philosophical method of the Americans,” who, following Rene Descartes without reading him, “take tradition only as information.” Because, intoxicated with equality, he does not recognize intellectual authority, democratic man “withdraws narrowly into himself and claims to judge the world from there.”

Yet the result of this when bound to judicial power is a striking form of Progressive method. It is a judicial technocracy, a form of scientific legislation applied to legal questions, a judicial government of constitutional experts. Judicial supremacy—or co-equality, which is the same thing in practice—is Croly for constitutionalists.

The problems are the same as those that inhere in legislative technocracy. Even if one takes the substantial leap required to have faith in the technocrats, their authority leads to lassitude in the disempowered citizenry. Even perfectly rational legislation would not be worth the cost in terms of self-government.

Thus Burke, prefiguring Judge Learned Hand’s preference for self-government over even well-chosen Platonic Guardians:

It is better to cherish virtue and humanity, by leaving much to free will, even with some loss to the object, than to attempt to make men mere machines and instruments of a political benevolence. The world on the whole will gain by a liberty, without which virtue can not exist.

This, fundamentally, is the problem with the call to abandon “defensive-crouch” constitutionalism, whether of the liberal or the conservative variety. Its latent assumption is that constitutionalism is the exclusive business of judges. Yet judges, too, abuse power—especially, as Brutus noted, when it is absolute. As the narrow miss of Tushnet’s vengeance ought to have warned, power changes hands. It will again, and aggressive use today would help to legitimate its similar use by the other side.

Most important, when judges assume final authority for constitutionalism, the evidence is overwhelming that the constitutional muscle of the other branches, especially that of Congress, atrophies. Congress, bullied by the President, runs to the skirts of judges, suing rather than counterpunching. Even members of Congress have adopted the language of three “co-equal branches of government,” a construction under which, significantly, they must protest that they are one. What is needed is not for liberal or conservative judges to emerge from a defensive crouch, but rather for legislators to emerge from theirs.

Greg Weiner

Greg Weiner is a contributing editor of Law and Liberty.

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  1. Devin Watkins says

    You do have somewhat of a good point about if/when the other branches need to take orders from the judiciary. Clearly there must be a limit here. If the judiciary starts ordering the executive to arrest and prosecute people (taking the power of the sword), or if the judiciary starts ordering the legislature to spend money (taking the power of the purse like some of the state court judges have done), then yes the other branches should refuse to follow the orders of the judge. To believe otherwise would raise judges above the other branches. Instead the power of the judges to order is limited to prohibiting actions by the other branches (not compelling them), and sometimes in areas where the other branches have no discretion (some ministerial acts). So they can order a person released from jail, but not order the prosecution of a person.

    But the rest of it is just wrong, wrong and more wrong. Madision was talking about the proposed counsel of revision in the Virginia Constitution and it’s ability to declare acts of the legislature invalid and unconstitutional. This was not enacted in the Virginia or the federal constitution (although Madison advocated for it). That’s why the judiciary is not “paramount, in fact to the legislature” and instead a co-equal branch. That’s why at the convention when pushing this provision he says “Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.” Yes, the legislature naturally predominates if it is not constrained, but that is not a good thing! Hopefully they prevented that, or at least that was the way it was designed (Today we have the legislative power being done by the executive, so all the power is going to the executive instead).

    Clearly the Constitution gives no role to judges in “making” laws, but that isn’t what is being argued. But judges are not asked to make laws in judicial review, they are asked if the statutes enacted are actually laws, if they are consistent with the Constitution. This is well within the judicial power, and not the legislative power at all.

    Yes, we can, and should, learn from the judges of the past. But it does not control us today. Those decisions of past judges that are appropriate should be left alone, but those that are wrong should be overturned. By appropriate I mean those consistent with the original meaning of the words they are expounding. The Court doesn’t get to change the Constitution.

    I, nor Prof. Barnett, give to judges “final authority for constitutionalism.” Judges are but one branch of our system, and each of the three branches has a duty to decide for itself what is, and what is not constitutional. I would love to see legislatures re-assume their role in deciding constitutional questions. But that doesn’t mean that judges need to stop doing their job as well.

    • gabe says

      Really?

      Clearly the Constitution gives no role to judges in “making” laws, but that isn’t what is being argued. But judges are not asked to make laws in judicial review, they are asked if the statutes enacted are actually laws, if they are consistent with the Constitution. This is well within the judicial power, and not the legislative power at all.

      Funny, isn’t it how “review”, aka “interpretation,” so readily morphs (purposefully?) into legislating. I suppose it all depends on what “is” is, doesn;t it? Or how a tax is not a tax for purposes of Anti-Injunction Act, but several pages later in the *review* by the Black Robes, voila!, it is now a tax and falls squarely under the congress’ (seemingly) unlimited taxing power.

      Well they may not be asked to *make* laws BUT they sure seem to do a heck of a job at it!

      • gabe says

        Oops. forgot the link on the O-care excretion of the Black Robes:

        https://spectator.org/35243_supreme-court-wimps-out-obamacare/

        BTW: Weiner is spot-on with argument that constitutional interpretation has fallen into the hands of a technocracy populated by the fevered minds of the legal clerisy – all at the expense of the common citizenry.
        This has a distinctly deleterious effect upon the notion of “consent” and is a far cry from the engaged citizenry contemplated by the Framers AND the system of governance they bequeathed us.

        • Derek Simmons says

          WHAT HE SAID:
          Weiner is spot-on with argument that constitutional interpretation has fallen into the hands of a technocracy populated by the fevered minds of the legal clerisy – all at the expense of the common citizenry.
          This has a distinctly deleterious effect upon the notion of “consent” and is a far cry from the engaged citizenry contemplated by the Framers AND the system of governance they bequeathed us.

  2. Paul Binotto says

    Excellent essay!

    A reading of Justice Don Willett’s concurring opinion in Robinson v. Crown Cork & Seal might offer a glimpse as to his own view on this subject.

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