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For Judicial Independence--and Against Elective Despotism: A Further Reply to Greg Weiner

The Huffington Post The Huffington Post 30/03/2016 Evan Bernick
CONSTITUTION © Tetra Images via Getty Images CONSTITUTION

Greg Weiner has a problem with authority--judicial authority, that is. In an incisive (and often quite amusing) reply to my critique of his recent effort to distinguish between judicial deference to Congress (which he lauds) and judicial deference to executive agencies (which he condemns), Weiner makes plain that he regards the federal judiciary as an ever-present threat to representative democracy. Drawing upon concerns expressed by "Anti-Federalist" opponents of the Constitution about the judiciary and conjuring up a nightmarish vision of black-robed philosopher kings exercising "unchecked power" to make the law in the image of their own ideals, Weiner offers a spirited challenge to my case for judicial engagement: an approach to judicial review whereby judges never systematically defer to government officials when those officials' actions are challenged in court.
Though spirited, Weiner's challenge is unsuccessful. Indeed, Weiner succeeds only in demonstrating his own misunderstanding of the function of the Constitution and the constitutional role of the judiciary. As a consequence of this misunderstanding, he ends up advocating an approach to judicial review that prevents the judiciary from fulfilling its constitutional role. In place of an engaged judiciary that independently and impartially evaluates government officials' assertions of power, he offers only an expression of faith in government officials' "constitutional judgment" that he gives us no reason to believe that officials consistently exercise today or will consistently exercise in the future if judges abdicate their constitutional duties.
Weiner begins by criticizing me for "pack[ing] immense political and constitutional content into the sparing words of Article III." In fact, the "sparing words" in question--Article III's provision that "[t]he Judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish"--contain "immense political and constitutional content." Those interested should consult Professor Phillip Hamburger's essential volume, Law and Judicial Duty, in which Professor Hamburger devotes more than 700 pages to an historical investigation of the duty of judicial review--which, as he shows, was considered to be part of the judicial office and entered the Constitution through "[t]he Judicial power." Hamburger persuasively argues that discharging the duty of judicial review entails independently and impartially investigating the meaning of the law of the land and determining whether government officials' actions are consistent with that higher law, without deference to those officials' beliefs or desires.
Further, one cannot understand Article III's "sparing words" without an appreciation of the immediate historical context in which they were set forth--a context in which judges were understood to be no less agents of the people than legislators and were regarded as an essential safeguard against unlawful legislative actions. As described by Alexander Hamilton in Federalist 78, an independent judiciary with a duty to engage in judicial review is not an anomaly in our otherwise representative democracy. Under the Constitution, judges no less than our elected representatives draw their authority from "We the People." We the People delegate power to our agents in the judicial, executive, and legislative branches to act on our behalf for limited purposes, through specified means. Hamilton explains that when judges fail to "keep [officials] within the limits assigned to their authority," the result is that "[officials'] will" trumps the genuine will of the people. In acting "as an intermediate body between the people and the legislature" and deciding cases in accordance with the law of the land rather than simply giving effect to the will of transient majorities, judges act as the people's true representatives--they are no less representative for being unelected. When judges fail to evaluate legislation independently and impartially, they defy the will of the people.
I have argued that the only approach to judicial review that adequately equips judges to discharge their Article III duties is judicial engagement. Whenever government officials bring coercive power to bear upon individuals, they implicitly assert that their use of coercive power is consistent with the law of the land. When those actions are challenged in court, an engaged judge will not assume the truth of such assertions--he or she will require that officials prove their truth. In evaluating officials' efforts to demonstrate the legality of their actions, an engaged judge will seek to determine whether officials are truly pursuing constitutionally proper ends through constitutionally authorized means, relying upon evidence in the record rather than crediting officials' beliefs about the constitutionality of their actions, accepting unsupported factual claims, or engaging in speculation.
Weiner argues that I have read a judicial monopoly on constitutional judgment into Article III. (Thus, he amusingly terms my theory a "unitary judiciary theory.") Not so. All government officials are agents of the people. All government officials are charged with exercising the powers delegated to them (as Professor Robert Natelson has put it) "in good faith, with reasonable care, and with impartiality and loyalty towards [their] constituents." The people's agents in the legislative and executive branches are also obliged to engage in independent reflection concerning the constitutionality of proposed measures before casting votes in support of them or deciding whether to sign or veto them. To the extent that they do not--passing the constitutional buck to officials in the other branches--they betray the people's trust no less than do deferential judges.
But judges do have a unique role to play in preserving our constitutional architecture. The courts represent the last hope of redress (short of an "appeal to heaven") for individuals who are subjected to government power backed only by will. Judicial review can serve as a mechanism by which a single person whose rights would otherwise be trampled underfoot by a politically dominant faction that is unresponsive or even hostile to that person's interests can compel those in power to justify their actions in a neutral forum. Article III's provision for an independent judiciary embodies the Framers' conviction that the rule of law established by the Constitution will give way to the rule of men in practice absent "courts of justice" staffed by judges who conscientiously fulfill their "duty . . . to declare all acts contrary to the manifest tenor of the Constitution void."
Weiner's criticism of judicial engagement ultimately flows from a misunderstanding of the essential function of the Constitution and a consequent failure to grasp the importance of a truly independent judiciary. That misunderstanding is nowhere more evident than in his assertion that the "entire purpose of the constitutional project" is to "facilitate the rule of deliberate majorities." A government principally dedicated to majority rule has no need of an independent judiciary--nor, for that matter, a written constitution (consider the "pure" democracy of fifth-century BC Athens, which had no constitution), which can only serve (in Weiner's words) as an "obstruction" to the goals of "political actors." Our Constitution provides for limited majority rule as a means to an end: the protection of individual rights that precede government. The separation of legislative, executive, and judicial powers, the division of the national legislature into two houses, and the distribution of power between the federal government and the states all serve to prevent "political actors" from attacking individual rights unopposed. So, too, does the establishment of a truly independent judiciary--Hamilton presented an independent judiciary as a means of "guard[ing] the Constitution and the rights of individuals." The "radical separation between the people and their elected representatives" that Weiner rejects is a central premise of our constitutional order; the need for an independent judiciary to "protect us" from "men of our choice" when necessary follows from that premise.
The last several decades of constitutional law can be viewed as a kind of natural experiment--a test of whether the rule of law established by the Constitution can be maintained if judges systematically defer to government officials' assertions of power. The results of that experiment speak for themselves. In my previous reply to Weiner, I explained how judicial deference has facilitated the rise of the administrative state, thus effectuating what Professor Gary Lawson has rightly described as "nothing less than a bloodless constitutional revolution." Surely Weiner is aware that the only constitutional rights that are reliably protected today are rights that the Supreme Court has arbitrarily dubbed "fundamental" and which receive "heightened" judicial scrutiny. Under heightened scrutiny, unlike under rational-basis review (the default standard of review in constitutional cases), the government's actions do not receive the benefit of a presumption of constitutionality when they are challenged in court. If Weiner believes that the government's actions should consistently receive a presumption of constitutionality, he owes it to the rest of us to explain how the "fundamental" rights to speak freely, bear arms, and practice one's religion free of discriminatory legislation--all of which receive the benefit of heightened scrutiny at present--would remain secure when rights not deemed fundamental, like the right to earn an honest living, can be extinguished today at the will of the politically powerful, thanks in substantial part to rational-basis review's presumption of constitutionality.
Weiner accuses me of being "fundamentally hostile to majority rule," indeed, to "politics itself." In one important respect, his charge is accurate--I do not believe that the mere will of some men can justify the deprivation of others' freedom. But I also do not believe that the Constitution enacts a vision of government according to which majorities are entitled to rule simply because they are majorities. To put it bluntly, I do not believe that Weiner's understanding of "politics itself" is consistent with that of the Framers, and thus find it unsurprising that the judicial deference that he advocates has enabled unconstitutional government. An elective despotism was not the government that the Founders fought for; but it is increasingly becoming the government that we have. In demanding that the judges reflexively defer to legislators while lamely indicating that he "hopes" that legislators will consistently engage in careful constitutional reflection, Weiner has produced a formula for more of the same.

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