Constitutional Clichés

AuthorRandy E. Barnett
PositionProfessor of Legal Theory, Georgetown University Law Center
Pages493-510

Page 493

CONSTITUTIONAL CLICHÉS

RANDY E. BARNETT*

Popular discourse on constitutional interpretation and judicial review tend to employ a series of catch phrases that have become constitutional clichés. Phrases such as “judicial activism,” “judicial restraint,” “strict construction,” “not legislating from the bench,” “Framers’ intent,” the “dead hand of the past,” and “stare decisis” so dominate public commentary on the Constitution and the courts that quite often that is all one hears. Unfortunately, even law professors are not immune. There was a time when each of these catch phrases meant something and, although each could mean something again, in current debates all have become trite and largely devoid of substance. In short, they have become clichés.

In this Essay, I explain why these clichés should be abandoned even in casual conversation. Somewhat surprisingly, it turns out that several of them are connected by a common thread: the apparent desire by commentators to avoid substantive constitutional argument in favor of a process-based analysis that can be easily leveled in the absence of any expertise on the issues raised by a particular case. In other words, at least some of the appeal of these constitutional clichés is that they enable commentators to criticize the Court or particular decisions without actually having to know much about the Constitution itself.

I. “JUDICIAL ACTIVISM AND “JUDICIAL RESTRAINT

Perhaps the most widespread constitutional cliché is that of “judicial activism” and its conjoined twin, “judicial restraint.” Nowadays, usage of judicial activism is associated with political conservatives,1but the term apparently first appeared in a 1947 Fortune magazine article about the New Deal Supreme Court by historian Arthur Schlesinger Jr., a nonlawyer and an ardent New Dealer.2In a piece directed at a popular audience,


Copyright © 2007, Randy E. Barnett

*Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center. I am grateful to Patrick Walling for his research assistance on this Essay. Permission to copy for classroom use is hereby granted.

1See, e.g., Rush Limbaugh, American Conservatism: A Crackdown, Not a ‘Crackup’, WALL ST. J., Oct. 17, 2005, at A18; Editorial, The Rehnquist-Roberts Court, WALL ST. J.,

September 6, 2005, at A28.

2See Keenan D. Kmiec, Comment, The Origin and Current Meanings of “Judicial Activism”, 92 CALIF. L. REV. 1441, 1445–50 (2004).

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Schlesinger categorized the New Deal Court into three groups: “judicial activists” (Justices Black, Douglas, Murphy, and Rutlege), “Champions of Self Restraint” (Justices Frankfurter, Jackson, and Burton) and a middle group (Justice Reed and Chief Justice Vinson).3Schlesinger distinguished the first two of these groups as follows: “One group [the activists] is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn.”4In sum, the first “group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse.”5

“Judicial activism” is a term notoriously devoid of any consistent meaning. Keenan Kmiec offers the following useful summary of meanings it has been given over the years: “(1) invalidation of the arguably constitutional actions of other branches, (2) failure to adhere to precedent,
(3) judicial ‘legislation,’ (4) departures from accepted interpretive methodology, and (5) result-oriented judging.”6Still, its origins in New Deal ideology make clear that it involves judicial interference with the will of the legislative branch by holding statutes unconstitutional.7Of course, such a term need not be pejorative and some have purported to use it neutrally,8or even positively.9But without its pejorative connotation,
3Id. at 1446. Schlesinger wrote:

The Black-Douglas group believes that the Supreme Court can play an affirmative role in promoting the social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-restraint. . . . In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system.

Arthur M. Schlesinger, Jr., The Supreme Court: 1947, FORTUNE, Jan. 1947, at 201.
4Schlesinger, supra note 3, at 201.

5Id.

6Kmiec, supra note 2, at 1444.

7See Schlesinger, supra note 3, at 201.

8See, e.g., CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING

COURTS ARE WRONG FOR AMERICA 42 (2005) (“On a different account, the word ‘activist’ is

purely descriptive, and a decision that is activist is not necessarily wrong.”).

9See, e.g., CLINT BOLICK, DAVID’S HAMMER: THE CASE FOR AN ACTIVIST JUDICIARY, at x (2007).

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“judicial activism” adds little or nothing of substance to the more neutral term “judicial review.” Normally, however, “judicial activism” is used to criticize a judicial practice that is to be avoided by judges and opposed by the public.10It is in this pejorative sense that “judicial activism,” I contend, is an empty constitutional cliché.

This is so because nearly everyone thinks that judges should sometimes invalidate unconstitutional laws.11Consequently, unless one rejects judicial review entirely, “judicial activism” cannot refer simply to striking down a statute; it must instead refer to improperly striking down a statute. But this means that, before one can level a charge of judicial activism, one must provide an argument for why a particular invalidation is improper.

Such a charge of impropriety requires one to identify and advocate a method of constitutional interpretation and an account of how a particular decision striking down a law is improper according to one’s favored method. “Judicial activism” is just a label to stick on the end of a methodological and substantive analysis of a particular decision. This, in turn, entails that the epithet “judicial activism” means nothing more than that a court is incorrect in its ruling.12

10See, e.g., Charles Krauthammer, The Constitution is Whatever Sandra Day O’Connor Says It Is, TOWNHALL.COM, July 4, 2003, http://www.townhall.com/

columnists/CharlesKrauthammer/2003/07/04/the_constitution_is_whatever_sandra_day_ oconnor_says_it_is (“The argument against judicial activism is that it impedes, overrides and in effect destroys normal democratic practice.”).

11The evidence that the original meaning of the “judicial power” in Article III includes the power to invalidate unconstitutional laws is overwhelming. See Randy E. Barnett, The Original Meaning of the Judicial Power, 12 SUP. CT. ECON. REV. 115, 121–32 (2004)

(citing records of the Constitutional Convention, materials from the ratification conventions, and writings immediately following ratification showing that the original meaning of the “judicial power” included the power to invalidate unconstitutional laws).

12Cf. SUNSTEIN, supra note 8, at 42 (“When people criticize judges as activist, they mean just this: The court is not following the right understanding of the Constitution. To label a decision ‘activist’ is to label it wrong.”). Although I avoid using the pejorative term “judicial activism,” when compelled by circumstances to do so—for example, when participating in a symposium devoted to the topic—I define it this way:

[I]t is activist for courts to adopt doctrines that contradict the text of the Constitution either to uphold or nullify a law. In sum, it is activist for courts to substitute for the relevant constitutional provision another provision that they think, for whatever reason, is preferable. According to this definition, it is not judicial activism to strike down a statute that violates the text of the Constitution. To the contrary, it would be

(continued)

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However, this is not at all what those who use the term “judicial activism” hope to accomplish by its use. They wish to avoid discussion of the correctness or incorrectness of the substance of a court’s ruling invalidating a law in favor of accusing a court of somehow exceeding its proper role. In other words, the charge of judicial activism is meant to short circuit any discussion of substance by shifting analysis to process or the judicial role. The gravamen of the complaint of judicial activism is that (unelected and unaccountable) judges are somehow interfering with (elected and accountable) legislatures, not simply that the judges have reached an erroneous conclusion about the Constitution.13

Such a charge is an easy and therefore appealing device for legal “pundits” to use on short notice in the absence of studying a particular decision closely or having an informed opinion on its substantive correctness. Even where a commentator is informed about the substance of a particular decision, the process objection of “judicial activism” can resonate with popular audiences and help the commentator avoid the difficult task of explaining exactly why a particular decision was incorrect.

But, to repeat, unless one opposes any and all judicial review of legislation, the charge of judicial activism—and the correlative term “judicial restraint”—is no substitute for a substantive critique of a court’s decision and accomplishes nothing short of undermining the legitimacy of an independent judiciary whose appropriate role is to place the requirements of the Constitution above that of any statute. For some, this may well be its desired effect.

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