Why Thayer is Clearly Mistaken about Judicial Restraint

James Bradley Thayer’s article on judicial review is one of the most renowned pieces of scholarship in American constitutional law. It is famous for the “clear mistake doctrine”—his notion that legislation should be struck down only if it violated what any rational person would believe the Constitution to mean.  “Clear mistake” thus embodies very strong judicial restraint.  My article, The Duty of Clarity, shows why “clear mistake” is itself clearly mistaken.

Thayer’s strongest originalist support for the doctrine comes from the many cases around the time of the Framing that state that judges should  invalidate legislation only when it is in clear or “manifest contradiction” with the Constitution. But Thayer misunderstands these cases because his own premises about law are so different from those of the Framers.  He quotes the words of law without understanding the accompanying jurisprudential music.

First, unlike those in the Framing generation, Thayer believes that constitutional law serves a political function that differs fundamentally from other applications of law. 

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Reforming Regulation: Eliminating Chevron Deference and Constraining Guidances

The words Court House outside the Supreme Court

In two prior posts here and here, I have been exploring possible reforms that Congress could enact to constrain executive power – asking whether such reforms would be desirable and whether a Republican Congress and President might enact them.

Another set of reforms involves shifts of power from the executive to the judiciary.  Here I will briefly discuss two such reforms: eliminating Chevron (and Auer) deference and subjecting guidance documents to increased judicial review.

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Civil Rights at the End of History: Hands Down, All Moot!


The celebrations of the Selma voting rights march 50 years ago noted how unthinkable it was that a Black President would be addressing them. Actually, it may have been no less unthinkable that a White Southern President seized the moment, a half century ago, to deliver the most stirring civil rights speech ever delivered to Congress.

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Clarifying Judicial Restraint

The notion that judges should uphold congressional legislation if it can be supported by a possible interpretation, even if not the best, of the Constitution remains evergreen in constitutional law. This conception of judicial deference, often referred to as judicial restraint, figures prominently in debates about recent important cases in constitutional law. For instance, some commentators believe that an obligation of judicial deference militated in favor of upholding the individual mandate in litigation over the Affordable Care Act,

I have recently posted a paper that provides an originalist resolution of this issue. Called The Duty of Clarity, the article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution.   That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision.  But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.

It thus rejects two common, but opposing views about judicial deference.  One is a no-deference view—the claim that no obligation of clarity should exist in judicial review: judges should invalidate their statutes if they think that there is conflict with the Constitution, even if they cannot come to a stable and clear view that there is such a contradiction. The other is the Thayerian deference view—the claim that a statute should be upheld so long a rational person could provide an interpretation of the statute that would uphold it.

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Is America in Retreat? A Conversation with Bret Stephens

america retreat

This edition of Liberty Law Talk discusses with the Wall Street Journal’s Bret Stephens his recent book, America in Retreat. Stephens argues that an America which declines to engage globally with its military is accepting a false promise of peace at the expense of rising disorder. The introduction chapter is entitled “The World’s Policeman” where Stephens quotes President Barack Obama’s proclamation in a 2013 speech: “We should not be the world’s policeman.” Similarly, Rand Paul states that “America’s mission should always be to keep the peace, not police the world.” “This book,” says Stephens, “is my response to that argument.” Our conversation focuses on…

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No to Common Core, Yes to State Competition in Education

There’s been some good writing on Common Core—e.g. by Richard Reinsch on this site and by my ex-colleague Rick Hess in National Affairs.  And there’s been a lot of hyperventilation over it, mostly in connection with de facto presidential contender Jeb Bush’s “doubling down” on his support for Common Core: can he really be a conservative? Isn’t Common Core a liberal conspiracy, hatched in D.C. to take over local schools? Etc. What’s been missing is the voice of a true education expert: me.

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Ted Cruz: A Probable Natural-Born Citizen of the American Republic

Senate Republicans Speak To The Press After Weekly Policy Meetings

In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States.  Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”

I write to note my disagreement with their certitude, but tentative agreement with their conclusion.

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The California Bar’s Self-Serving Proposals

Last week California followed New York in proposing a requirement of 50 hours of pro bono work for prospective lawyers.  Unlike New York’s existing rule, which requires lawyers to serve their time before admittance to the bar, the California proposal permits them to meet the requirement shortly afterwards as well.  California’s proposal also requires 15 “units” of “experiential learning,” within such activities as clinics or externships, that can be satisfied either during law school or separately in a private externship. This proposal is an unfortunate one–both protectionist and ideologically one-sided.

First, assuming that units translate to credits, the requirement of 15 credits of experiential learning —a significant proportion of law school coursework—will make some students’ legal education less valuable and likely make it more expensive for everyone.  Some students would benefit more from the additional course work crowded out by experiential learning.

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Reforming Regulation: Nondelegation and the REINS Act.

In my last post, I wrote about how the Congress might be able to limit executive power.  In the near future, the most likely possibility is that the Republicans would gain control of the Presidency, keep control of the Congress, and have an ideological commitment to constraining executive power.  Whether this is likely or not, it is certainly a real possibility.

In a recent concurrence, Justice Thomas wrote an opinion making the argument for a reinvigoration of the nondelegation doctrine.  If the Supreme Court were willing to agree with Justice Thomas and hold delegations to be unconstitutional, then executive power would be constrained.  But unfortunately this seems extremely unlikely.

Another way delegations would be constrained is if Congress were to return to a system of limited delegations by eliminating or constraining the various regulatory statutes that delegate broad legislative authority to the agencies.  Unfortunately, it seems obvious that Congress would be unwilling to do this and that the President would oppose it.

But there is yet another possibility: one could pass a cross cutting law that required congressional approval before agencies could adopt major rules.  This type of law – which is known as the REINS Act – would operate to significantly reduce delegations to the agencies.

Under the Act, major regulations would have to be approved by the Congress before they could be put into effect.  Each house of Congress would have an up or down vote on the regulation proposed by the agency.  To minimize the time for delay and debate, the vote would be on the proposed regulation rather than on amendments that either house might propose.

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The Conservationism You Can Believe In

River in forest

The words “conservative” and “conservation” are similar; surely their meanings overlap.  They do, says the English philosopher Roger Scruton, and conservatives need to think more seriously about conservation than they have hitherto.  To be a conservative is to value the cultural and political traditions we have inherited from the past, to hold them in trust, and to pass them along undiminished to our descendants.  To be a conservationist is to value our ecological heritage and to pass it along undiminished to our descendants.  By this telling, environmentalism ought not to have a leftish slant at all.

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