"Judicial Negation is Not Legislation": This slogan was suggested to me years ago by Leonard Liggio of the Atlas Economic Research Foundation and it captures nicely the analysis presented in a blog post by Jon Rowe on Judicial Nullification v. Judicial Supremacy...or, Sowell doesn't get it.

Much of what is termed "judicial activism" is simply the Court exercising its judicial review power to nullify a piece of legislation, usually a piece of legislation which impinges on liberty. Is that really "legislating"? In my eyes, judicial review is the very opposite of legislating. Legislatures, by their very nature, pass laws. Nullification is negating, or taking away, legislation. It's reverse legislating.

Regarding that Texas law to which Sowell refers, it was the sodomy law in Lawrence. A problem with the "if I were a member of the Texas legislature, I would have voted against the law," sentiment is that, by the very nature of the legislative process, it's quite easy to add a plethora of new (and mostly useless) laws every year to the record, but almost impossible to repeal old ones.

Finally, regarding the "nobody knows that they have violated the law until after the fact" assertion, Sowell's argument doesn't fit well to circumstances where courts exercise their judicial nullification power. Again, legislating, in my mind, is passing a command and control like rule which binds the people like "you can't drive over 55 mph." If, for instance, you were driving 60 in a 65mph zone and some court, after the fact, found you guilty of breaking the 55mph speed limit, then Sowell's argument would make sense.

Let's actually see what goes on with judicial nullification, using Lawrence as an example. . . .

Read the rest here. Civil comments only, please.

Legislative Restraint: In the thread about "judicial negation," a commentator raised the remarkably resilient myth that judicial review was created or invented in Marbury v. Madison. For those who are interested in the evidence on this question, I offered my article, The Original Meaning of the Judicial Power. Andrew Hyman of ConfirmThem.com agrees, offering Hamilton's argument from Federalist 78 that the evidence shows was a commonplace view at the founding:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Andrew then makes the following interesting observation:

Of course, the Supreme Court has long since abandoned Hamilton's test of "irreconcilable variance" in favor of a test resembling "plausible variance." In other words, it's not judicial review that's truly controversial, but rather the manner in which it's exercised.

While, there is much to be said about this, let me offer the following thoughts. First, though the evidence of this is far more fragmentary than that which establishes the power of judicial nullification, from my reading, judicial deference as exemplified by "Hamilton's test of 'irreconcilable variance'" was probably the dominant view. The fact that Jefferson too articulated this view as Secretary of State in the context of the debate over the national bank, which he opposed and Hamilton supported, is evidence that the view was commonly held. Second, while Hamilton's statement precedes the Constitution, after ratification, this degree of deference corresponded to lengthy and very serious debates in Congress over the extent of its constitutional powers--most notably during the first major constitutional controversy involving the first Bank of the United States. Third, judicial deference seems to have persisted up until the Progressive and Populist movements began to undermine the American commitment to broad liberties of the People and limited legislative powers. Fourth, when judges who had been trained in the previous culture of legislative restraint confronted manifestations of the new "Progressive" and "Populist" philosophies of agressive governmental solutions to "social problems" they resisted by becoming somewhat less deferential. Fifth, this less deferential stance by judges was overcome by the political triumph of Progressivism in the form of the New Deal, and judicial appointments by President Roosevelt, ushering in a period of judicial deference on matters of constitutionality in the face of legislative activism.

One way of framing the issue of judicial deference is to ask: "deference to what?" Many mean "deference to the policy judgment of the legislature." With that proposition few disagree. But what the debate is also about is deference to the constitutional judgment of Congress that a particular act is within its powers. When Congress was exercising "legislative restraint" by considering itself bound by limited and enumerated powers, its judgment on this question may have merited the deference showed to it by Hamilton, Jefferson, and others as well. But when Congress has abandoned any sense of constitutional limits, then there would seem to be no real judgment of constitutionality to which to defer. In this, Congress has been aided and abetted by the post-New Deal Supreme Court and by law professors who would take judicial power even farther than the New Deal justices actually did.

The next question is whether an originalist is committed to the attitudes of the founders towards judicial restraint, in the face of legislative activism that took 100 years to develop. The answer to this question is worth debating and raises tricky methodological issues. I, for one, do not think we are bound by such an unwritten doctrine. Deference is a prudential doctrine that assumes there is a judgment to which to defer. When that assumption proves false, the doctrine (which is really no where in the Constitution) may be altered. In my book, Restoring the Lost Constitution, I propose adopting a "presumption of liberty" by which the burden is placed on Congress to establish that its laws are truly "necessary and proper"—what it used to debate but no longer. I think experience with the scrutiny given laws governing the freedoms of speech and press strongly suggests that Congress will be more circumspect if courts are less deferential. Paradoxically, this would result in a congressional judgment of constitutionality to which courts could defer. But the New Deal experience teaches where courts give Congress carte blanche, it will push beyond any limits contained in the written Constitution. If this is right, then legislative activism is itself a product of judicial restraint on the issue of congressional power. The result of this judicial abdication is a fundamental alteration of our constitutional order without benefit of constitutional amendment. (Civil comments only please.)

Responses to Comments on "Legislative Restraint": After a few uncivil threads, I am really enjoying reading the exchange generated by the two previous posts. There is much I could comment on, but I will limit myself to a few points.

JunkYardLawDog: Yes, indeed courts can act unconstitutionally in their rulings. One virtue of originalism is that it provides a benchmark external to case law by which to judge judicial behavior. As the first sentence of Restoring the Lost Constitution states, "Had judges done their job, this book would not need to be written." Allowing precedent to trump original meaning (where that meaning is clear), which is supported by all ideological stripes when it is convenient, actually puts the rulings of judges above that of the Constitution.

SCOTUS lawyer: It is impractical NOT to have an external baseline against which to measure the constitutional performance of all branches and levels of government. Of course, any benchmark--including originalism--will not be implemented unless it is accepted by a sufficient number of decision makers. But to achieve this end, we must consider, debate, and eventually persuade enough people on the proper way to interpret the Constitution. That is the point of discussions such as these, and any claim of "unreality" simply misses the point of this particular discussion and constitutes a self-fulfilling prophesy. I do not claim it is likely that the original meaning of the entire Constitution will be restored. I claim only that knowing what that original meaning is (and its limits) is a prerequisite to its restoration. On the other hand, I believe it is highly unrealistic to expect much improvement from sloganeering about "judicial activism," "judicial restraint," or "not legislating from the bench." In the absence of some coherent view of constitutional meaning (such as that provided by originalism), these terms are simply too vacuous to accomplish anything.

Andrew Hyman: Whether or not the unenumerated rights to which the Ninth Amendment refers are enforceable is a legitimate debate that cannot settled by assertions on one side or the other. I comprehensively address the evidence of original meaning of the Ninth Amendment in an article, The Ninth Amendment: It Means What It Says forthcoming in the Texas Law Review. (A preliminary version can be downloaded here, but the paper has been substantially revised to respond to some valid criticisms of this version.) While that evidence is very clear on the meaning of "the rights retained by the people," there is little originalist evidence on the enforcement of ANY constitutional right, including those enumerated in the first 8 Amendments.

One way to approach the question of enforceability seems to emerge from the origins of the 9th Amendment: however enumerated rights are protected, so should unenumerated right. To do otherwise would be to "deny or disparage" the other rights retained by the people precisely because they were not enumerated. (Remember for 2 years after ratification of the Constitution NO rights were enumerated.) Here are the rules of construction that Virginia jurist and scholar St. George Tucker thought flowed from the Ninth and Tenth Amendments, as stated in his Notes on the U.S. Constitution published in 1802:

All the powers of the federal government being either expressly enumerated, or necessary and proper to the execution of some enumerated power; and it being one of the rules of construction which sound reason has adopted; that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it, in cases not enumerated; it follows, as a regular consequence, that [1] every power which concerns the right of the citizen, must be construed strictly, where it may operate to infringe or impair his liberty; and liberally, and for his benefit, where it may operate to his security and happiness, the avowed object of the constitution: and, in like manner, [2] every power which has been carved out of the states, who, at the time of entering into the confederacy, were in full possession of all the rights of sovereignty, is, in like manner to be construed strictly, wherever a different construction might derogate from the rights and powers, which by the latter of these articles; are expressly acknowledged to be reserved to them respectively. (numbers inserted in brackets)

And elsewhere in his treatise, he writes:

As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question.

This sentence is followed by a footnote citing the Tenth (twelfth) Amendment. The passage then continues by clarifying what are the rights of citizens:

as a social compact it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government.

This passage is followed by a footnote reference to the Ninth (eleventh) and Tenth (twelfth) Amendments. Sounds a lot like the Presumption of Liberty, doesn't it?

Finally, these passages concerning the proper construction of the 10th Amendment must be tempered by the change to federalism brought about by Republicans in the 39th Congress with the 14th Amendment, the original meaning of which gave a new jurisdiction to the federal government to protect the rights of citizens from being violated by their own state governments. But that is another story. (Civil comments only please.)