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.
