Resisting the Majoritarian Impulse: From Judicial Restraint to Responsible Judicial Engagement
The Historical Underpinnings of Judicial Engagement
Albert Einstein once said, “What’s popular isn’t always right, and what’s right isn’t always popular.” The Framers of the U.S. Constitution had strong reasons to endorse this sentiment. During the American War of Independence, the colonies united under the Articles of Confederation, which was largely designed to promote “minimal national authority”[1] in order to prevent the rise of a new form of tyranny similar to that endured under the reign of King George III. As a result, the Articles of Confederation established a governmental system which placed few checks on the excesses of majoritarian democracy. For example, the Articles established only a unicameral legislature, with no executive or judicial branches to compete with for power. At the same time, the Articles left state legislatures with vast amounts of power and near-complete independence from the federal government.[2] Given the absence of an executive or judicial branch, the limited activities of the federal government were dictated by legislative majorities — specifically, a supermajority of nine states out of thirteen.[3] However, the Articles of Confederation’s institutional structure produced a feckless federal government that was left unable to carry out basic tasks, such as collecting taxes or raising an army capable of quelling popular uprisings (most notoriously, the 1786 Shays’s Rebellion in Massachusetts).[4]
The failures of the Articles of Confederation led to the calling of a Constitutional Convention in 1787, which produced a Constitution that still endures today. In response to the demands of anti-Federalists, Congress and the several states ratified by 1791 a separate Bill of Rights, which included ten amendments designed to protect important individual liberties and to reserve state powers from undue federal encroachments. Although the Constitution established three branches of government — the Congress, Presidency, and Supreme Court — it took until 1803 for Chief Justice John Marshall to formally establish the principle of judicial review in Marbury v. Madison.[5] The intellectual genesis of judicial review, however, came much earlier, when Alexander Hamilton published Federalist No. 78 in 1788. As Hamilton explained in that paper, “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.”[6] As Hamilton illustrated, the proper role of the federal judiciary is to determine the constitutionality of laws and governmental actions. Judicial review properly executed — the scrupulous examination of laws and governmental actions to determine their constitutionality or lack thereof — is what I henceforth refer to as "responsible judicial engagement.”
The Federal Constitution, unlike the Articles of Confederation, was not founded on the principle of majoritarian democracy. Rather, the Constitution’s system of checks and balances and federalist architecture were designed to protect individual rights from the dangers inherent to majority rule. Responsible judicial engagement, a particular method of judicial review, is indispensable to the protection of individual liberty. Without judicial engagement, the task of protecting individual liberty is left entirely in the hands of legislative majorities — majorities which are formed and often controlled by the popular whims and passions of legislators’ constituents. Judicial restraint, on the other hand, is a school of legal thought sympathetic to majoritarianism, because it presumes that acts of legislative majorities — which purportedly reflect “the will of the people” — are prima facie constitutional. For that reason, practitioners of judicial restraint have a propensity to uphold laws — regardless of their constitutionality — by virtue of the fact that they were passed by democratically elected legislatures. While judicial restraint is rooted in a fundamentally democratic idea, it is important to remember that the Framers of the Constitution were particularly averse to the idea of unchecked democratic governance, especially having recently experienced the debacles of the Articles of Confederation. Therefore, through the Constitution, the Framers instituted a republic, or representative democracy — as opposed to direct democracy — which was designed to simultaneously preserve democracy’s virtues while discarding its potential ills.
The tension between promoting “the will of the people” and protecting individual liberties traces back to the early days of the American republic. In his first inaugural address, President Thomas Jefferson declared, “Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable...the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”[7] As President Jefferson illustrated, while the majority is powerful and deserves the attention of its elected representatives, its actions cannot be allowed to infringe on the constitutional protections of minorities. Unchecked democracy inevitably results in tyranny of the majority.
James Madison, the Father of the Constitution and fourth U.S. President, was also troubled by the potential problem of tyrannical majorities. In Federalist No. 10, Madison contended that by bringing together diverse factions across a vast stretch of American territory, the national architecture of the U.S. Constitution made it “less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”[8] While diverse factions certainly make it more difficult for tyrannical majorities to rise, it is not a full-proof preventative measure. Even in large, diverse nations like the United States, majorities still wield considerable influence over federal and state legislative agendas. And even in nations like the United States, legislative majorities sometimes exercise their power in ways that encroach upon the rights of minorities or step beyond the bounds of the U.S. Constitution. Therefore, it is the responsibility of the federal judiciary to use responsible judicial engagement to ensure that all governmental acts — which presumably reflect “the will of the American people” — are above all in accordance with their constitutional demands.
The Problem of Judicial Restraint
The crux of the problem with judicial restraint is that it does not adequately hold legislative majorities accountable to the legal limits of U.S. Constitution. Practitioners of judicial restraint believe that the Constitution is designed to protect the sovereignty of the collective community rather than the sovereignty of private individuals. For that reason, they erroneously believe that the legal burden falls on individuals to prove the unconstitutionality of disputed laws or governmental actions — rather than on the government to demonstrate the constitutionality of its laws and actions. As Hamilton made clear, the federal judiciary has a responsibility to scrutinize the content and application of laws to determine whether they are in accordance with the U.S. Constitution. By showing excessive deference to the acts of legislative majorities, practitioners of judicial restraint permit the encroachment of governmental power into the realm of individual liberties. Although practitioners of judicial restraint may rightly claim that they are upholding the “will of the people” — or the acts of democratically elected legislatures — by habitually deferring judgments of constitutionality to the legislatures themselves, it does not change the fact that this is a dereliction of judicial duty. Jurists who take judicial restraint to its logical extreme serve to sanction governmental actions that trample upon the rights of minorities. In this regard, judicial restraint wrongly places majoritarianism ahead of constitutionalism.
Perhaps the most well-known case illustrating the dangers of judicial restraint occurred in 1896, when the U.S. Supreme Court ruled in Plessy v. Ferguson.[9] In that decision, the Court upheld the Louisiana Separate Car Act, which required whites and African Americans to ride in separate rail cars, as constitutional under the Thirteenth and Fourteenth Amendments to the Constitution.[10] According to legal scholar Randy E. Barnett, this decision is emblematic of judicial restraint: the Supreme Court deferred to a state’s legislative majority (in the Louisiana legislature) that used its power to codify racial segregation.[11] While racial segregation laws certainly reflected the will of many American majorities during this period (and even long afterward), it was neither then nor is now the role of the federal judiciary merely to rubber-stamp majoritarian demands. In Plessy, the Supreme Court shirked its constitutional responsibility to strike down a law which violated the equal protection clause of the Fourteenth Amendment by segregating railroad passengers exclusively on the basis of race. Instead, the Court relied on the legally specious “separate but equal” doctrine to sanction a legislative majority’s infringement on the rights of individual minorities. Barnett argues that the U.S. Supreme Court’s 1954 ruling in Brown v. Board of Education, which overturned Plessy, marked an important turn away from judicial restraint and towards responsible judicial engagement.[12] Indeed, the Supreme Court’s ruling in Brown was unpopular nationally and overrode the preference of majorities in many states for racially segregated schools. However, the Court properly recognized that its role is not to uphold popular opinion — it is to uphold the U.S. Constitution.
Even in contemporary American jurisprudence, the philosophies of judicial restraint and majoritarianism continue to clash with judicial engagement and constitutionalism. In 1989, in Texas v. Johnson, the U.S. Supreme Court made perhaps one of its most controversial rulings in recent American history. The Court invalidated the Flag Protection Act of 1968 and flag protection laws in 48 states that criminalized the desecration of the American flag on the grounds that such laws violate the First Amendment’s protection of the right to free expression.[13] In this case, the Court demonstrated how responsible judicial engagement often requires that jurists make rulings that they — and presumably the entire national population — find disheartening and even morally repulsive. As Justice Anthony Kennedy wrote in his concurrence:
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision...It is poignant but fundamental that the flag protects those who hold it in contempt.[14]
As Justice Kennedy emphasizes, the federal judiciary has a responsibility to uphold the U.S. Constitution, regardless of how unpleasant or distasteful the outcome may be by doing so. Obviously, none of the justices who concurred with this opinion personally endorsed the desecration of the American flag — indeed, all of them, like the vast majority of the American people, considered such an action extremely offensive and contemptible. However, these practitioners of responsible judicial engagement properly recognized that the First Amendment’s protection of free expression supersedes the will of any popular majorities or personal preferences.
The dissenting opinions in Johnson illustrate how powerful the majoritarian impulse can be, even among distinguished jurists. For example, Chief Justice William Rehnquist argued that since the flag holds remarkable symbolic and historical importance in the collective American consciousness, it should override First Amendment protections of free expression. As Justice Rehnquist wrote, “The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation...Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.”[15]
Chief Justice Rehnquist is justified in asserting that the American flag is “the visible symbol embodying our Nation” and is revered by “[m]illions and millions” of Americans. However, by relying on such majoritarian arguments, Rehnquist overlooks the main question the Court is supposed to address: are laws which criminalize the desecration of the American flag constitutionally permissible under the First Amendment? In response to Rehnquist’s arguments, the majority opinion explained that there is no justifiable legal reason for the Court to make a First Amendment exception for the American flag. As the majority highlighted, there is “no indication—either in the text of the Constitution or in our cases interpreting it—that a separate juridical category exists for the American flag alone.”[16] Thus, although this decision may have resulted in a morally unsatisfactory outcome for the justices and for the vast majority of the American people, it was ultimately the decision that the U.S. Constitution required.
The Problem With Judicial Activism
When jurists take the power of judicial review to the extreme — to the point of effectively promulgating legislation to achieve desired social or public policy aims — they are no longer practicing responsible judicial engagement. Instead, when they reach this point, they are engaged in irresponsible judicial engagement — that is, judicial activism. Critics often justifiably assert that judicial activists are engaged in “legislating from the bench,” or using the judiciary to advance a particular legislative agenda. Judicial activism is just as dangerous and problematic as judicial restraint: instead of showing excessive deference to legislative majorities, judicial activists use their seats on the bench to usurp the constitutional authority of democratically-elected legislators. Just as practitioners of judicial restraint fail to resist the majoritarian impulse, so judicial activists fail to resist the temptation to legislate from the bench.
A paradigmatic case of judicial activism occurred in 1965, when the U.S. Supreme Court issued its landmark ruling in Griswold v. Connecticut. In that case, the Court struck down a Connecticut law, known as the “Comstock law,” which criminalized the use of contraceptives as a violation of the “right to marital privacy.”[17] However, in articulating the existence of this right, the Court relied on tenuous constitutional justifications. For example, Justice William Douglas argued that the right to marital privacy was derived from the “penumbras” and “emanations” of the Bill of Rights. As Justice Douglas explained, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance,” and that certain “guarantees create zones of privacy.”[18] However, nowhere in the Constitution do the words “marital” or “privacy” appear, and it requires the performance of convoluted logical gymnastics to justify the existence of new constitutional rights using tenuous “penumbras” rather than the actual text of applicable law. Such a broad reading of the Constitution devalues its meaning and opens the door for the endless creation of rights whenever courts deem appropriate.
This does not mean, however, that the Comstock law was a lawful application of state police power. Instead of relying on tenuous legal reasoning and a far-fetched constitutional “right to marital privacy” predicated on constitutional “penumbras,” the Court’s majority should have taken a more focused approach in its opinion. According to Daniel Henninger of The Wall Street Journal, the Griswold ruling is a “classic case of right result, wrong reasons.”[19] Henninger explains that “the court should have noted first that the state enacted [the Comstock] law under its basic police power — its power, mainly, to protect the rights of its citizens.” If the Supreme Court simply had asked Connecticut to answer the question, “Whose rights is this law protecting?,” the state “would have come up empty-handed.” Since the burden is always on the state to demonstrate that its law is a lawful use of police power, “there’s no need here to speak of ‘privacy’ or to discover rights.”[20] As Henninger demonstrates, an overzealous and results-oriented Supreme Court in Griswold resorted to judicial activism, essentially fabricating a right for which there was no clear constitutional basis. Instead, the Court could have reached the same conclusion if it had adopted a more measured approach, as responsible judicial engagement requires.
Striking the Proper Balance: Responsible Judicial Engagement
The federal judiciary has an ostensibly simple yet challenging task: it must closely examine the content and application of laws to determine whether they are constitutionally permissible. In American jurisprudence, jurists are often characterized as proponents of either judicial restraint or judicial activism, and these labels frequently correspond with political ideologies. However, both schools of thought pose distinct problems for American constitutional government. Therefore, the best jurists are those who use the power of judicial review to hold legislative majorities accountable to the Constitution without stepping beyond constitutional bounds themselves. Put simply, the best jurists are practitioners of responsible judicial engagement.
[1] Eric M. Freedman, “The United States and the Articles of Confederation: Drifting Toward Anarchy or Inching Toward Commonwealth?,” Scholarly Commons at Hofstra Law (1978), 142.
[2] Mark G. Spencer, “Articles of Confederation,” The Bloomsbury Encyclopedia of the American Enlightenment (2015).
[3] Ibid.
[4] Merrill Jensen, The Articles of Confederation: An interpretation of the social-constitutional history of the American Revolution 1774-1781 (The University of Wisconsin Press, 1940), 5.
[5] Joel R. Paul, Without Precedent: Chief Justice John Marshall and His Times (2018), 26-27.
[6] Alexander Hamilton, The Federalist Papers: No. 78, https://avalon.law.yale.edu/18th_century/fed78.asp.
[7] Thomas Jefferson, “First Inaugural Address,” 1801.
[8] James Madison, The Federalist Papers: No. 10, https://avalon.law.yale.edu/18th_century/fed10.asp.
[9] Plessy v. Ferguson, 163 U.S. 537 (1896).
[10] Ibid.
[11] Randy E. Barnett, Our Republican Constitution: Security the Liberty and Sovereignty of We the People (Broadside Books, 2016), 160-161.
[12] Ibid., 161.
[13] Texas v. Johnson, 491 U.S. 397 (1989).
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Griswold v. Connecticut, 381 U.S. 479 (1965).
[18] Ibid.
[19] “Correcting the Record on Judicial Activism,” The Wall Street Journal, July 9, 2018.
[20] Ibid.