Restrained Judicial Activism

In contemporary legal discussion, “judicial activism” is roundly condemned.  This behavior refers generally to any instance in which a court’s opinion is the product of the court following its personal policy preferences instead of the commands of the law.

The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference to the original intent of the lawgivers), “textualism” (respect for the language of laws), “self-restraint” (respect for precedent) , and “separation of powers” (deference to the prerogatives of democratically elected legislative bodies and/or the States).

The foundations of “judicial restraint” are originalism and textualism.  “Self-restraint” and “separation of powers” are secondary values. Precedent and legislative enactments are binding and commendable only when they are consistent with the original intent and text of higher law, which is not always the case. 

The words of any law (statute or a decision) are the best evidence of its meaning because it is presumed that the law’s Framers picked those words to efficiently describe what they intended the law to require or prohibit.  (For the sake of convenience I use “Framers” to refer to courts rendering a decision or legislative bodies drafting a statute.)  “Textualism” demands respect for the clear meaning of these words.  Unless there is some unavoidable flaw or ambiguity in the drafting which makes the intent of the Framers incomplete, incoherent, or ambiguous, courts should treat laws as meaning what they say they mean.

Textualism has its limitations. 

As history shows, the apparently clear meaning of text can be easily distorted or disregarded.  In numerous rulings after Plessy v. Ferguson, 163 U.S. 537 (1896), courts interpreted “separate” rigorously and “equal” with great imprecision.  In Slaughter-House Cases, 83 U.S. 36 (1873), the Privileges and Immunities Clause of the Fourteenth Amendment was summarily eviscerated.  Similarly, in D.C. v. Heller, 554 U.S. 290 (2008),**  the opening clause of the Second Amendment was voided.  In decisions such as Crawford v. Washington, 541 U.S. 36, courts have given open lists of factors to consider in certain situations, which list of factors lower or later Courts treat as if exhaustive requirements.   In any of these cases, activist implementation of personal policy preferences masquerades as “textualism.”  These behaviors could be called “pseudo-textualism.”

The value of textualism is also of no assistance when an issue or controversy arises regarding a matter not yet referred to directly by any law because the courts or legislative bodies remained silent on some now-controverted matter.

If the plain words of a law can be subverted to advance a personal agenda, think how much more difficult it is to faithfully adhere to the virtue of originalism.  How do we know what the “original intent” was of people long dead? 

If the Framers fully recorded their intent, then we can examine those records.  But all written records fall under the textualism paradigm, and all are equally subject to abuse as discussed previously.  Since the best and often the only record of the Framers’ intent is the words they used to write their law and those best word are subject to misuse, other written records are even more vulnerable to “pseudo-textualism.”  Court decisions usually present easier problems because courts usually explain their purposes in a decision.  However, faithful analysis of any written record of intent is guided by textualism, and is subject to the same historically demonstrated abuses of “pseudo-textualism.”

Where the laws are silent or records of intent are missing, courts must find other means to determine the intent of the Framers.  Determining the intent of an accused is a common problem when intent is an element of a crime, so at first blush determining the Framers’ intent in some law seems to be a manageable problem even without a written record of intent.  However, determining the original intent of laws decades or centuries old is more complex than determining the intent of an accused felon.  Intent can be surmised by analysis of circumstances surrounding the act in question.  When a jury is asked to render a verdict based on circumstantial evidence of intent, the jury examines the circumstances with their contemporary understanding of contemporary situations and contemporary expectations.

When attempting to apply this strategy to the intent of a law written long ago, the contemporary perspective is unavailable.  Which circumstances mattered at the time?  How would the Framers have reacted to the social and technological changes occurring since the law was given?  At this point, historical analysis must replace legal analysis.  But this is problematic because even historians disagree about the meaning of historical events and circumstances.  All historical analyses are fraught with investigative biases.  And these are the experts!  There is no reason to place any confidence in the ability of jurists acting as inexpert historians to do as well, much less to do a better job.

To supplement an inconclusive record of intent, courts have analyzed closely related activities or enactments by those who were contemporaries of the Framers.  In the recent Heller decision, the Court examined firearms ordinances contemporary to the Second Amendment on the presumption that these would illuminate what the Framers intended by the Second Amendment.  In Crawford, the Court examined the history of the confrontation right.  In both of these cases, the Court majority and dissenters examined the same history and came to contradictory conclusions.  How can we understand this except that in each instance, historical examinations aimed at finding the Framers’ intent resulted in something else?  The jurists found historical evidence inconclusive, while others “found” it supporting their own personal policy agendas.  This latter behavior could be called “pseudo-originalism.”

The apparent objective nature of “judicial restraint” is a mirage.  Except in those rare instances where the law is blessedly clear, courts, especially at the appellate level, examine challenged laws in the course of their duty.  Even if they do their work by the standards of “judicial restraint,” they must apply their own sense of what proper policy and standards apply at each stage of the analysis.   When the words of the challenged law are not precisely on point or the intent of the Framers is unclear, the values of judicial restraint provide only a non-exhaustive list of factors to consider.  They are not a complete exposition of how to arrive at a proper decision.

When examining the rationale for a law, what does restraint require when the Framers’ rationale or premises are found faulty?  Does “restraint” mean adhering to the result however faulty its derivation?  Or does “restraint” mean adhering to the reasoning process, but taking into account updated facts, and adhering to the outcome even if the Court doesn’t like it?

The ambiguous guidance of “judicial restraint” is not commanded by the text of the Constitution.  Worse, the Ninth Amendment makes no sense except to command protection of individual rights enumerated nowhere in the Constitution.  It is a law whose narrow reading compels a broad interpretation of individual rights.  But how do jurists find these rights?  MORE IMPORTANTLY, how did the Framers intend us to find these rights?  In the rights the Framers recognized in 1790?  Or in the rights the Framers would have reasoned to if they knew what we have since learned about the human condition?  However we answer this question, our answer both informs and is informed by our personal beliefs.  We must at least flirt with “activism.”

Here is the crux of the problem: “judicial restraint” is a policy position.  How much respect is “sufficient” for precedent and legislative prerogatives?  Which of several textual interpretations is controlling?  And why?  What facts are most persuasive regarding the Framers’ several possible or likely intentions?  None of these questions have strictly objective answers; all require a court to make judgments about history, language, political or social theory, or legal philosophy.  Whenever human beings make decisions like these, with the weight and impact of judicial decisions, they necessarily must employ their own personal moral compasses to evaluate the weight and implication of the evidence.  They must be guided by their own personal beliefs.  They must flirt with “activism.”

Bald-faced disregard of law is not a behavior the courts should ever engage in.  But laws will always be flawed; they will be incomplete, incoherent, or ambiguous.  Courts may endeavor to achieve faithful interpretation and enforcement under the banner of “restraint,” but inevitably they will come to situations where familiar landmarks fail.  At that point, courts must either duck the issue or find just, equitable solutions.  To avoid negligence, courts must give regard to their own sense of right and wrong.   They must flirt with “activism.”

Some may say this puts us on the slippery-slope to ruin.  To this I can only say: life is lived on the slippery-slope to ruin.  Every day.  Whenever a court does as they all eventually must do, and makes a difficult decision, there will be those who will disagree with the court.  This is always so because any decision at the juncture of power and propriety will annoy someone.  And some of those so annoyed will complain of “judicial activism.”

** In the interests of full disclosure, I do believe in an individual constitutional right to keep and bear fire arms, based not on the Second Amendment, but on the Ninth.  My complaint with Heller is not with the result, but with the implementation by the Justices of their personal agendas; my complaint is with their activism.

This Post Has One Comment

  1. Ed Fallone

    I cannot let this thoughtful piece go any longer without a comment. It will come as no surprise to any of my students that I agree with the critique of textualism presented here. I would go farther, however. Textualism as a means of deriving original intent is not a “mirage,” it is a mask designed to hide the political and social assumptions being employed by the judge. In this regard, it is infintely worse than an appeal to legislative history that forces the judge to deal with their assumptions openly and to justify their interpretation of the law on that basis. At least when the judge deals honestly with their underlying assumptions, the general public can see and evaluate the strengths and weakenesses of each argument. By perpetuating a myth of objectivity, textualism actually undermines the reasoned development of legal doctrine. What do my colleagues who study the judicial process say?

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