This is what courts defer to?

So let me explain again how the “judicial restraint” approach to the Constitution is supposed to work. The Supreme Court is supposed to defer to Congress and uphold any law it enacts so long as the justices can imagine a possible reason why Congress might have enacted a law. If the Supreme Court does anything else, it is “judicial activism.” In turn, Congress then either (a) bases its assessment of “the constitutionality” of its enactments on its prediction of whether the Supreme Court will uphold the law or (b), like Congressman Hare, it simply cuts to the chase and ignores the Constitution altogether. To avoid future embarrassing video incidents like this one, someone needs to tell Congressman Hare about Option (a), which is much more respectable, but yields the same result. (H/T Glenn)

UPDATE: I received the following “more in sorrow than in anger” email from a reader:

Dear Professor Barnett,

Given how well-respected you are as a legal scholar, your decision to post the clip of Congressman Hare saying he doesn’t care about the Constitution on Volokh Conspiracy is surprising and disappointing. The Congressman obviously embarrassed himself, but why would you choose to make your point about the alleged unconstitutionality of the healthcare bill through an aggressive, unreasoned attack by someone clearly lacking legal sophistication? Why not make a reasoned argument where you actually explain the Commerce Clause and address the fact that it has been used hundreds of times by Republican-controlled Congresses as well?

I’m not suggesting that people like the Tea Partier with the video camera shouldn’t go and demand answers of their representatives, I’m just saying that posting that video seems like a foolish way for a scholar of constitutional law to make a nuanced point, especially on a legal blog.

If one reader had this reaction, the odds are that others did as well. So here is how I replied:

Thanks for your message. I do not believe I mentioned the health care bill in my post. The subject of criticism in my post was “judicial restraint” as embodied in the doctrine of judicial deference to Congress. This is a very important issue for constitutional theory and doctrine, to which the Congressman’s statements were directly relevant–though as my post also suggested, there is a less candid way to the same result.

Given that the video itself was about the health insurance bill, I can see why you formed this misimpression, but I was making a point about a more general and very serious deficiency in constitutional law.

We can call this the problem of “double deference.”

UPDATE II: Then there is this email:

Prof. Barnett,

I doubt that the slovenly, grumpy Congressman Hare’s off-the-cuff remark proves anything, other than the validity of Ilya Somin’s “rational ignorance” theories. We can accept there is a vast amount of ignorance about constitutional law (and lots else to boot) in Congress.

So what? One, or 100, Congresscritters who don’t think about such things invalidates our current approach to judicial review? Perhaps the less adept rely on the leadership of the brainiacs on their side of the aisle- or delegate research to staff or the congressional research service, or review in summary fashion the opinions of lawyers and law professors.

And what would replace our current approach to judicial review– courts have to rely on the legal justifications actually advanced by Congress at the time of enactment of a statute? That would probably not produce anything, but boilerplate legal memos cranked out by staff and law-school interns, throwing out every imaginable kitchen-sink argument, in deadly tedious detail, and appended to statutes or stuck in committee reports. Every statute would contain its own exhaustive brief in support of constitutionality.

And Congressman Hare still wouldn’t read a word of it.

This message seems to be making an empirical claim that “the slovenly, grumpy” Congressman Hare is not representative–though his very title is “representative” :-)–or that members of Congress defer to the leadership of their caucus or the leadership’s staff (!) when assessing constitutionality. So, on this defense of judicial deference, the Supreme Court is supposed to defer to congressmen who themselves defer to partisan leadership or to their staff’s interpretation of the Constitution–or even to unelected law professors. And this is the optimistic scenerio in which Congressman “I don’t care about the Constitution” Hare is not representative.

But this still entirely overlooks the problem of “double deference” in which the Supreme Court defers to members of Congress who assert Supreme Court precedent that defers to them as their constitutional defense of their enactments. Notice what is missing in all this: the Constitution. I explain how we got to this point at greater length in my article Scrutiny Land.

As for what would replace this finger pointing game, you do not have to go as far as my recommendation of a Presumption of Liberty whereby the burden of proof falls upon the government to defend the necessity and propriety of its laws. You can consider how the lower court in Williamson v. Lee Optical ( unfortunately not available on lineThanks to a reader for the Google Scholar link), which adopted a presumption of constitutionality, analyzed the rationality of statutory restrictions on opticians who were competing with ophthalmologists and optometrists. The lower court was then reversed by the Supreme Court in an opinion by Justice Douglas who adopted the ‘any imaginable reason’ theory of judicial review. This was in 1955. Even the New Deal Court never went this far.

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