Most people think of judicial review in the way that Justice Owen Roberts described it in a 1935 Supreme Court decision:
The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question.
It seems straightforward. A judge takes a law, sets it next to the Constitution, and determines whether the “latter squares with the former.”
In response to: How Constitutional Originalism Promotes Liberty
Ilya Somin’s thesis in his Liberty Forum essay is modest and hedged. Confining himself to “the circumstances of the United States for the foreseeable future,” he argues only that, among the “plausible competitors,” originalism is “likely to be” the theory of constitutional interpretation that best protects the components of “ ‘negative’ liberty defended by most libertarians: the right to be free of government interference with one’s economic and personal lives.” Given the robust competition among different concepts of liberty, and the intense disagreement over other values that constitutional interpretation should advance, Somin makes clear that he is not making the much more…
In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. Even though, as he said, they were “ignorant”—even though they had no formal education—they had the wit to see that the schemes of this crazy white man would not…
The point of Ilya Somin's able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity. It’s enough to say…
I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. I had planned to complete this reply much earlier. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original…
In his brilliant book The Ideological Origins of the American Revolution Bernard Bailyn wrote: “English law—as authority as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.” The Constitution itself was a product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment. Understanding the Constitution correctly depends on giving appropriate weight to its common law background.
The judicial duty of clarity along with judicial methods of clarification reflects the common law background of judicial review.
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.
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.