Unleashing the "Least Dangerous" Branch: Quis Custodiet Ipsos Custodes? *

By Pulliam, Mark | Texas Review of Law & Politics, Spring 2018 | Go to article overview

Unleashing the "Least Dangerous" Branch: Quis Custodiet Ipsos Custodes? *


Pulliam, Mark, Texas Review of Law & Politics


[I]n a government in which [the different branches] are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution^]···

Introduction

In recent years, a schism has developed on the Right between libertarian and conservative legal scholars regarding the role courts should play in conducting judicial review of laws challenged as unconstitutional.1 Many libertarians have coined the term "judicial engagement" to describe the heightened scrutiny they advocate.2 Many conservatives, in contrast, embrace a more limited approach to judicial review: the traditional doctrine of "judicial restraint" espoused by Robert Bork3 and Justice Antonin Scalia,4 among others.5 These phrases and labels tend to obscure the real issue, which is, "What role did the Framers envision for the federal judiciary in our system of government?" Or, more fundamentally, "Who determines public policy in our constitutional republic?"

Debates regarding the role of the courts used to be waged primarily between conservatives, who were opposed to judicial activism, and liberals, who contended that the Constitution was a "living" document susceptible of a flexible and "evolving" interpretation.6 The Left favored an expansive judicial role as a way to circumvent the "unenlightened" political process.7 Writing in the Texas Law Review in the mid-1970s, Justice William H. Rehnquist aptly described the notion of a "living Constitution" as

the proposition that federal judges, perhaps judges as a whole, have a role of their own, quite independent of popular will, to play in solving society's problems. Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution that the people adopted, ajudiciary exercising the power of judicial review appears in a quite different light. Judges then are no longer the keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country.8

In his influential 1971 article, Neutral Principles and Some First Amendment Problems,9 Bork directly challenged this "noninterpretive" theory of constitutional law, declaring that the judiciary's power is legitimate only to the extent that its decisions are rigorously derived from the text of the Constitution.10 If the Supreme Court is merely imposing its own predilections, as Bork argued the Court did in Griswold v. Connecticut11 by recognizing an unenumerated (i.e., unwritten) right to sexual privacy, "the Court violates the postulates of the Madisonian model that alone justifies its power."12

Bork's critique of judicial activism formed the basis for the now-dominant theory of originalism, and his call for fidelity to constitutional text inspired conservatives to embrace the cause of judicial restraint in the 1980s and 1990s.13 Ironically, despite the rise of the conservative legal movement, the Supreme Court's opinions have continued to recognize rights that are not grounded in the text or history of the Constitution, such as the rights to obtain an abortion,14 to engage in homosexual sodomy,15 and to marry persons of the same sex.16

Even as the Supreme Court has disappointingly deviated from constitutional text, in recent years libertarian scholars, such as Georgetown Law professor Randy Barnett17 and the Cato Institute's Roger Pilon,18 have shifted the course of the debate over judicial review by arguing (with some ingenuity) that the Constitution contains both enumerated and unenumerated rights, which federal courts have the obligation to enforce against both the federal and state governments. Barnett, and like-minded libertarians at the Cato Institute and the Institute for Justice, claim that laws should enjoy no presumption of constitutionality and that the government should have the burden of justifying all challenged laws as necessary and appropriate. …

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