The Jurisprudence of Judicial Restraint: A Return to the Moorings
J. CLIFFORD WALLACE Judge, United States Court of Appeals, Ninth Circuit
My purpose here is to sketch the theory and practice of, and argue for, a philosophy of judicial restraint. The opposite of judicial activism, judicial restraint has sometimes been referred to as "strict constructionism" or "interpretivism." 1 "Strict constructionism" or "interpretivism," in the natural meaning of those terms, is, as will emerge later, part, but only part, of judicial restraint.
Judicial restraint, as I will use the phrase, is not tied to any narrow sectarian politics, but rather is based upon concerns of legal predictability, uniformity, and judicial economy, and most importantly, upon values of liberty and democracy that are widely shared by our American citizens. Indeed, judicial restraint is dictated by the Constitution. My argument is that our Republic would be best served if the judiciary returned to those moorings.
Although the language of the Constitution is not as reminiscent of John Locke as is that of the Declaration of Independence, the substance of the Constitution shows the influence of Locke's theory that the central purpose of government is the protection of individual rights such as life, liberty, and private property. This purpose establishes one element of any judicial philosophy. The courts must protect constitutional rights against infringement, even infringement by the legally elected representatives of the majority. This, then, is one respect in which the Constitution is not entirely democratic. There are limits on what the majority may do.
For example, the representatives of the majority may not, without going through the amendment process, pass a bill of attainder, establish cruel and