I have to disagree with co-blogger Orin Kerr’s claim that “conservative” principles of “judicial restraint” should “lead a truly consistent conservative judge to be inclined to uphold McCain Feingold.” Judicial restraint is not necessarily the same thing as upholding whatever statutes legislatures should happen to enact [update: this is poor wording – I should have said “not necessarily the same thing as granting a strong presumption of constitutionality to whatever statutes legislatures happen to enact”]. Rather, a properly restrained judge should vote to strike down statutes whenever they violate the text and original meaning of the Constitution, without giving the legislature any special deference. Failing to strike down an unconstitutional statute is no less a departure from the proper judicial function than wrongly striking down a statute that is constitutionally permissible. In an age where government – especially the federal government – has grown far beyond its constitutional bounds, striking down unconstitutional statutes may well be a more urgent judicial priority than upholding permissible ones.
As I discussed in more detail in this post, most conservative – and even more so libertarian – legal scholars recognize the need to strike down unconstitutional statutes and have long criticized the Supreme Court for being excessively deferential to legislatures in areas such as federalism and property rights. A few conservative legal academics – such as Robert Bork and Lino Graglia – do hold the view that judicial review should be severely truncated across the board. But that view has long been a minority one among nonliberal legal academics. Brad Smith, the scholar whose post Orin criticizes, is not a conservative but a libertarian. Libertarian academics, of course, have been even stronger supporters of judicial review than conservative ones.
Orin hints at some of the above when he notes that conservatives support “strict constructionist” jurisprudence. To the extent that “strict constructionism” is a synonym for textualism and originalism, it does not imply broad deference to legislative enactments. To the contrary, it requires judges to strike down as many as possible of the large and growing number of modern statutes that have expanded legislative power beyond the bounds of the Constitutional text and original meaning.
None of this settles the issue of McCain-Feingold’s constitutionality. It does, however, undercut the argument that consistency requires conservatives to oppose judicial invalidation of this statute because this outcome is dictated by “conservative” principles of “judicial restraint” that allegedly require broad judicial deference to anything enacted through the legislative process.
UPDATE: In the comments, Orin suggests that I misinterpreted his original post. Orin is the best judge of what he meant to say, so I defer to him on that and apologize for misunderstanding his meaning. I will, say, however, that it’s not clear how his argument – as elucidated in his comment – proves that conservatives who believe McCain-Feingold to be unconstitutional are “inconsistent.” If “conservative” principles of “judicial restraint” do not require broad deference to Congress’ enactments, then I don’t see why they should “lead a truly consistent conservative judge to be inclined to uphold McCain Feingold.”