Originalism vs. Judicial Restraint:

Jack Balkin responds to Matthew Franck's critique this morning here. (For a recap of what came before, see here.) In an effort to clarify their differences on constitutional interpretation, he notes that "judicial restraint" and "originalism" are not the same thing (though they may overlap).

Matt's originalism sounds very much like a theory of judicial restraint. Now I for one don't think that originalism and judicial restraint are the same thing. For one thing, judicial restraint is a theory of how judges should act, not a theory of how people in general should interpret the Constitution. Judges are not the only people with the right and the duty to interpret the Constitution. For another, judicial restraint might not be faithful to the Constitution in many cases, especially when the judge believes that the best reading of the Constitution is that certain activities of the other branches are beyond their powers or otherwise unconstitutional. However, in the brief discussion that Matt offers it seems he thinks that originalism and judicial restraint dovetail very significantly. I'd be interested in why that might be so. That would help us focus where we are in agreement and where we disagree.
I think this is an important point that is worth developing. To restate it: Originalism is a theory of constitutional interpretation; judicial restraint is a theory of how judges should act. Matthew Franck (like Judge Robert Bork) advocates both an originalist approach to constitutional interpretation and a very limited role for federal judges in correcting or second-guessing the other branches of government. [For an example of an alternative pairing — originalism and judicial "activism" — see the Roger Pilon op-ed I noted here.]

One justification for this approach is that the President and members of Congress are also oath-bound to support and uphold the Constitution, and both are ultimately accountable to the people if they should stray to far in their constitutional constructions. A possible rejoinder is that this crabbed view of the judicial function may be more limited than the original understanding of the judicial function at the time of the founding. One could argue, for example, that the Franck-Bork approach to judicial review is more limited than that elucidated in The Federalist and Marbury. One question for originalists, then, is what conception of the judicial role is itself compelled by the original meaning of the "judicial power."

Mark Field (mail):
The odd thing about Bork's particular view, of course, is that if his view of originalism were adopted consistently, it would, at least in the short run, lead to much less judicial restraint than exists now. Whatever its merits, I see nothing in the logic of originalism which imposes restraint; any interpretive theory, consistently applied, would restrain a judge.
8.10.2007 12:49pm
It was bad enough when lawyers would pretend to have an deep understanding of economics. Now we have to sit through lawyers pretending they know about philosophy?
8.10.2007 1:27pm
Speculation (mail):
It seems to me -- and I think Mark Field's comment illustrates this -- that there are (at least) two, quite distinct ways that people use the term "judicial restraint." One way refers to the role of the judiciary in our system of government. The other refers to the extent to which a judge adheres to a theory of jurisprudence that determines results in a predictable way.

For example, imagine a judge who says that he will invalidate any statute that seeks to regulate any activity that was not regulated at the time of the Founding. In one sense of the term, he is exercising judicial restraint, because the outcome in any given Commerce Clause case is predetermined, with no room for his own policies and preferences to factor in. But in the other sense of the term, he is exercising the very opposite of judicial restraint because he is giving no deference to the other branches of government and is willing to strike down a huge percentage of federal regulation.

Maybe it would be better to talk about limiting the breadth of case-by-case discretion, on one hand, and minimizing the role of the judiciary in our system of government, on the other. Hmmm -- actually, those terms aren't that catchy. But it would be nice if "judicial restraint" were discarded as a catchall term with multiple meanings.
8.10.2007 1:33pm
Crunchy Frog:
I've always interpreted a call for "judicial restraint" as, "Stop overturning laws we like." It usually has nothing to do with the (un)constitutionality of the laws in question.
8.10.2007 1:48pm
CrazyTrain (mail):
I think it is pretty clear from reading this exchange that Franck is way, way out of his league. It sort of reminds me of the Ponnuru/Goldstein debate where Ponnuru got destroyed four times over. The distinction between judicial restraint and originalism are so obvious that I am surprised that Adler is even responding to this clown. Balkin's originalism can be critiqued on many grounds by many people -- and as someone who doesn't agree with him, I'd like to see some critiqueing of his originalism --- but Franck is just making a fool of himself, and frankly (no pun intended) is only going to make Balkin's theories look more credible because he is taking this little boy to task.
8.10.2007 2:11pm
I can predict with some confidence that attempts at an originalist account of the original meaning of "the judicial power of the United States" will prove as futile as the hunt for original meanings of any other reasonably contestable clauses in the Constitution, with eminent contemporaneous authority and excellent contemporaneous arguments on all sides.
8.10.2007 2:12pm
It was bad enough when lawyers would pretend to have an deep understanding of economics. Now we have to sit through lawyers pretending they know about philosophy?

Feel free to stand up and walk about.
8.10.2007 2:14pm