Ross Douthat, the New York Times house Catholic conservative, in his June 26 essay “The Liberal Embrace of Judicial Restraint” gets the matter of conservatives and the Constitution flat-out wrong, in an instructive way.
“For decades,” he begins, “the idea that judges should show more deference to the democratic process was the province of social conservatives and right-wing populists.”
But don’t conservatives revere the Founders? Douthat’s idea is the opposite of what Alexander Hamilton and James Madison wrote in the Federalist Papers. They did not want judges to show any “deference to the democratic process” at all! They wanted them instead to interpret the law, and, in case of conflict between a law passed by the legislature and the Constitution, to insist that the law was subordinate to the straightforward meaning of the latter document. As Hamilton wrote in the Federalist Papers no. 78, “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.” As Madison wrote in Federalist Papers no. 41, “It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” That is not at all the end of Madison’s scorn for those who misinterpret, in his view, the plain meaning of the text of the Constitution. (Note, in the context of this quotation, that he assumes that the normal rules of construction and interpretation of a text apply to that document.) Hamilton in particular is quite clear that it is often precisely in being willing to overturn the result of “the democratic process,” as embodied in an act of legislation, that the courts fulfill their role of insisting on the primacy of the Constitution among our laws.
Douthat continues, “…conservative intellectuals complained that the Court’s approach to abortion (or civil liberties, or religious expression, or criminal justice — the list was long) amounted to a kind of ‘judicial usurpation of politics.’”
The point of the complaint, if it meant anything, was that the judges were misinterpreting the Constitution to find rights that were not there, not that they were “active” per se; and, conversely, that they needed to interpret it correctly, not “be restrained.” Those who let Dred Scott and Plessy v. Ferguson stand showed great restraint, but restraint is not what conservatives should stand for—it is simply allowing what is there to remain. If what is there should not be there, “activism” is precisely what is called for.
Douthat goes on to confirm his misunderstanding through his use of the “umpire” metaphor:
“In the first five years of Roberts’ tenure, the justices overturned an average of 1.6 precedents and invalidated an average of 3 laws per term. By comparison, the Warren Court overturned 2.7 precedents and 7.9 laws per term; the Rehnquist Court overturned an average of 2.4 precedents and struck down an average of 8.2 laws. (Those numbers make Roberts’ famous confirmation-hearing promise to be an umpire rather than a player look more convincing than his critics have allowed.)”
Umpires are “active,” we might say, when they call a foul. After all, the “restrained” thing to do is to let play continue. Why “actively” interfere? But that is the point: umpires are there to enforce the rules. Comparing the number of fouls called by one umpire with another is absurd unless we compare it to the actual number of fouls committed. Do we want the game played according to the rules? Then we want all serious fouls called. (Yes, it is possible to call too many fouls, but only by calling those that do not really affect play.) Do we want our legislation to respect the Constitution? Then if legislation does not, and if it affects American life at all seriously, we want the Supreme Court to overturn it.
Douthat’s conclusion: “…when the next confirmation hearing comes around, left and right will share one premise in common – that judicial modesty is one of the best possible qualifications for a position that offers so much untrammeled power and brings so much temptation along with it.”
That’s like insisting on a “modest” umpire: one who doesn’t call too many fouls, serious or not.
Activism/shmactivism, restraint/shmaint. I want legitimate interpretation of the Constitution. If we can’t have that, let’s laugh at the charade and admit that what Madison and Hamilton sold us is 99 percent gone. But we conservatives don’t call for an “original meaning” interpretation very often—we would rather go along and get along, take turns running the show as it is—and really applying the original meaning would upset the whole apple cart: undeclared wars, the New Deal, the Great Society, Social Security, Medicare and Medicaid—most of what the Federal Government does is unconstitutional, and we know it. The cry of “constitutional” is cheap rhetoric with us, not something we really want. “Activism/restraint” is a meaningless diversion from the real issues.