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Conservative Legal Academics, McCain-Feingold, and "Judicial Restraint":

I have to disagree with co-blogger Orin Kerr's claim that "conservative" principles of "judicial restraint" should "lead a truly consistent conservative judge to be inclined to uphold McCain Feingold." Judicial restraint is not necessarily the same thing as upholding whatever statutes legislatures should happen to enact [update: this is poor wording - I should have said "not necessarily the same thing as granting a strong presumption of constitutionality to whatever statutes legislatures happen to enact"]. Rather, a properly restrained judge should vote to strike down statutes whenever they violate the text and original meaning of the Constitution, without giving the legislature any special deference. Failing to strike down an unconstitutional statute is no less a departure from the proper judicial function than wrongly striking down a statute that is constitutionally permissible. In an age where government - especially the federal government - has grown far beyond its constitutional bounds, striking down unconstitutional statutes may well be a more urgent judicial priority than upholding permissible ones.

As I discussed in more detail in this post, most conservative - and even more so libertarian - legal scholars recognize the need to strike down unconstitutional statutes and have long criticized the Supreme Court for being excessively deferential to legislatures in areas such as federalism and property rights. A few conservative legal academics - such as Robert Bork and Lino Graglia - do hold the view that judicial review should be severely truncated across the board. But that view has long been a minority one among nonliberal legal academics. Brad Smith, the scholar whose post Orin criticizes, is not a conservative but a libertarian. Libertarian academics, of course, have been even stronger supporters of judicial review than conservative ones.

Orin hints at some of the above when he notes that conservatives support "strict constructionist" jurisprudence. To the extent that "strict constructionism" is a synonym for textualism and originalism, it does not imply broad deference to legislative enactments. To the contrary, it requires judges to strike down as many as possible of the large and growing number of modern statutes that have expanded legislative power beyond the bounds of the Constitutional text and original meaning.

None of this settles the issue of McCain-Feingold's constitutionality. It does, however, undercut the argument that consistency requires conservatives to oppose judicial invalidation of this statute because this outcome is dictated by "conservative" principles of "judicial restraint" that allegedly require broad judicial deference to anything enacted through the legislative process.

UPDATE: In the comments, Orin suggests that I misinterpreted his original post. Orin is the best judge of what he meant to say, so I defer to him on that and apologize for misunderstanding his meaning. I will, say, however, that it's not clear how his argument - as elucidated in his comment - proves that conservatives who believe McCain-Feingold to be unconstitutional are "inconsistent." If "conservative" principles of "judicial restraint" do not require broad deference to Congress' enactments, then I don't see why they should "lead a truly consistent conservative judge to be inclined to uphold McCain Feingold."

MarkField (mail):
So, I guess striking down bans on gay marriage is now perfectly in line with libertarian principles.
1.23.2008 10:35pm
Ilya Somin:
So, I guess striking down bans on gay marriage is now perfectly in line with libertarian principles.

It is if such bans violate the text or original meaning of the Constitution. In my view, they don't violate the federal Constitution, but do violate a number of state Constitutions that have passed Equal Rights Amendments.
1.23.2008 10:36pm
OrinKerr:
Ilya,

If you read my post closely, I think you'll find that you're misreading it pretty substantially. (I'd rather not have to right a full post pointing this out, as I don't know how much readers would be interested in that sort of a post.)
1.23.2008 10:38pm
OrinKerr:
Er, make that "write," not "right"!
1.23.2008 10:43pm
Oren:
violate the text and original meaning of the Constitution.
According to the ghost of John Adams, McCain Feingold is unconstitutional but the Alien &Sedition Acts were gravy.
1.23.2008 10:59pm
Ilya Somin:
If you read my post closely, I think you'll find that you're misreading it pretty substantially. (I'd rather not have to right a full post pointing this out, as I don't know how much readers would be interested in that sort of a post.)

I have read it over several times, but don't see in what way I have misread it. Perhaps you can make the nature of my mistake (if mistake there was) clear.
1.23.2008 11:09pm
frankcross (mail):
I'm not sure there really is a "conservative" approach here.

Some conservatives, like Lino Graglia, are majoritarian, they would say the statute should be upheld. Not uncommon comments by conservative politicians about courts violating democratic will would suit this.

Some conservatives are originalist. I can easily see an originalist saying that such a statute should be upheld. I'd have to dig into the resources, but I doubt there's much First Amendment originalism to support striking it.

Some conservatives are liberterian. They certainly don't think the statute should be upheld.

Group #3 has some advantage on principle. I suspect there are lots from groups #1 and #2 who think the statute should be struck but who would have trouble reconciling it with their methodology.
1.23.2008 11:11pm
Ilya Somin:
According to the ghost of John Adams, McCain Feingold is unconstitutional but the Alien &Sedition Acts were gravy.

John Adams - who, by the way, was not one of the Framers of the COnstitutioon - was grossly mistaken about the Alien and Sedition Acts. James Madison, among many others, pointed this out at the time. I have no idea what Adams would have thought of McCain-Feingold, and I don't think it matters much either way.
1.23.2008 11:14pm
Lee2 (mail):
I'm willing to give McCain the benefit of the doubt that he could have honestly thought BCRA didn't infringe the First Amendment. After all, SCOTUS didn't smack him down 9-0, or even 7-2.


STEVENS and O.CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O.CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O.CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II.A, and II.B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined
1.23.2008 11:15pm
arbitraryaardvark (mail) (www):
Lee, maybe I'm missing a joke, but it looks like section 318, rights of minors, did fall 9-0?
Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b).
And in WiRtL, 2 more justices piled on, so that would be 11-0 finding some part of McCain-F unconstitutional.
1.23.2008 11:30pm
OrinKerr:
Sure, Ilya, I'd be happy to. You write, in a section suggesting that you are disagreeing with me:
Judicial restraint is not necessarily the same thing as upholding whatever statutes legislatures should happen to enact.
Of course. But I didn't say anything to the contrary. This is a caricature, and I don't know of anyone who believes this.
Failing to strike down an unconstitutional statute is no less a departure from the proper judicial function than wrongly striking down a statute that is constitutionally permissible.
Of course. But I didn't say anything to the contrary. The disagreement between more restraint and more activist oriented approaches concerns how to determine what is constitutional, not what to do upon determining that a statute is constitutional or unconstitutional.
Orin hints at some of the above when he notes that conservatives support "strict constructionist" jurisprudence. To the extent that "strict constructionism" is a synonym for textualism and originalism, it does not imply broad deference to legislative enactments.
This is a bit beyond the misrepresentation issue, but I don't think strict constructionism is a synonym for textualism and/or originalism. Rather, my understanding is that the phrase has its origins in the Warren Court era, and in particular in Nixon's opposition to Warren Court activism (expressed in the 1968 campaign, for example) in which judges read their policy preferences into the constitution so as to strike down legislation. And of course that raises the interesting question of what the textualist/originalist case is against McCain Feingold -- not very clear, in my view, although I am no expert in these matters.
None of this settles the issue of McCain-Feingold's constitutionality. It does, however, undercut the argument that consistency requires conservatives to oppose judicial invalidation of this statute because this outcome is dictated by "conservative" principles of "judicial restraint" that allegedly require broad judicial deference to anything enacted through the legislative process.
This mistates my view in at least two ways. First, I did not suggest that there is a *correct* conservative result in the BCRA case; I wrote, "it's not the only result a conservative judge could reach." Second, I did not suggest that there is only one set of conservative principles that "dictates" anything; I wrote, "conservative legal thought comes in many diverse strands".
1.23.2008 11:30pm
Ilya Somin:
Orin,

You are the best interpreter of what you meant to say and I have to defer to you on that. I am sorry if I interpreted you to mean something you didn't intend. I will say, however, that my interpretation was consistent with the text of what you wrote (though perhaps I was also influenced by previous discussions we have had on related issues where you took the view that courts should defer to Congress to a very great degree).

In addition, I'm not sure that your argument - as presented in your comment - presents any meaningful criticism of Brad Smith and other right of center law professors who claim McCain-Feingold is unconstitutional. If you do not believe that conservative jurusprudence requires broad deference to Congress, then conservatives are not - at least under your argument - inconsistent for believing that the Court should strike down McCain-Feingold.

Of course. But I didn't say anything to the contrary. The disagreement between more restraint and more activist oriented approaches concerns how to determine what is constitutional, not what to do upon determining that a statute is constitutional or unconstitutional.

I don't think this is entirely correct. The "restrained" approach, at least as advocates of deference to the legislature define it, would require courts to uphold even unconstitutional statutes in some cases, so long as the the proof of unconstitutionality wasn't strong enough to overcome a powerful presumption in favor of the government.

Judicial restraint is not necessarily the same thing as upholding whatever statutes legislatures should happen to enact.

Of course. But I didn't say anything to the contrary. This is a caricature, and I don't know of anyone who believes this.


My orginal formulation went too far here. I should have said: "judicial restraint is not necessarily the same thing as giving strong judicial deference to whatever statutes legislatures happen to enact." The latter, I think, is required by your position that courts should accord congressional enactments a strong presumption of constitutionality. Or have I once again misinterpreted you.

This is a bit beyond the misrepresentation issue, but I don't think strict constructionism is a synonym for textualism and/or originalism. Rather, my understanding is that the phrase has its origins in the Warren Court era, and in particular in Nixon's opposition to Warren Court activism (expressed in the 1968 campaign, for example) in which judges read their policy preferences into the constitution so as to strike down legislation.


Not true, the term "strict construction" was regularly used in the nineteenth century, and dates back at least to the Jeffersonian criticism of the Federalists for interpreting federal government power with excessive looseness, enabling Congress and the president to go beyond their enumerated powers. It is true that Nixon used the term in a partly different way. But today's conservative academics are no more bound by Nixon's use of the term than they are bound by his advocacy of socialized medicine and a guaranteed annual income.
1.24.2008 12:00am
MarkField (mail):

I don't think strict constructionism is a synonym for textualism and/or originalism. Rather, my understanding is that the phrase has its origins in the Warren Court era, and in particular in Nixon's opposition to Warren Court activism


The phrase actually has its origins in the late 18th C and early 19th, when Jefferson's party took the position that the Constitution must be "strictly construed". Link. It was a mainstay of Southern political discourse from then on, with particular prominence during the Civil Rights era.

I'm sure conservatives would be happier with a pedigree going back to Jefferson than with one going back to Nixon. Of course, nowadays they might prefer to skip over some in the middle.
1.24.2008 12:06am
Mr. Liberal:
Of course libertarians would be in favor of activism, I am sure all in the name of "original meaning" of course.

According to DavidBernstein, isn't Lochner a correct understanding of the constitution? Isn't it funny how the "original meaning" of the constitution so often appears to be exactly the same as exactly whatever one wishes it to be. I think this is especially true among libertarians, who tend to think the founders were libertarians or that the Constitution is libertarian.

Overall, of course libertarians are going to favor activists courts. That is because libertarians know that their radical ideas have no chance of being enacted into law via the popular branches.

Basically, when it comes to democracy, libertarians are losers and they know it. =)

One major difference between Orin Kerr and Ilya Somin is that the moderate ideas that Kerr prefers actually have a snowballs chance in hell of being enacted.
1.24.2008 12:09am
OrinKerr:
Ilya,

It's late, and maybe we're both seeing things with tired eyes, but it seems like you're saying that while I didn't actually state those positions in the post, others have, or you think that I might have said or hinted at that position some other time. I suppose I would prefer that the post make that clear, given that it turns out my position is pretty different.
1.24.2008 12:12am
Mr. Liberal:

John Adams - who, by the way, was not one of the Framers of the COnstitutioon - was grossly mistaken about the Alien and Sedition Acts. James Madison, among many others, pointed this out at the time. I have no idea what Adams would have thought of McCain-Feingold, and I don't think it matters much either way.


First, last time I checked, Madison's views of how the constitution should be interpreted actually evolved over time.

Second, the Congress that passed the Alien &Sedition acts included many of the very same founders and ratifiers of our Constitution.

Third, the Federalists and the Republicans, the first two political parties, both had very different views about the meaning of the Constitution. Why we should favor the Republican view of James Madison over the Federalist view of Alexander Hamilton baffles me. Oh wait! I get it, the real reason we should favor the Madison view because that is more congenial to libertarianism! Of course.

The idea that McCain-Feingold is unconstitutional according to the original meaning of the Constitution is completely bogus. The idea that money rather than people have First Amendment rights is a thoroughly modern invention.
1.24.2008 12:17am
tvk:
Ilya,

Doesn't your theory that "a properly restrained judge should vote to strike down statutes whenever they violate the text and original meaning of the Constitution" make "restraint" impossible to measure as a practical matter? We can objectively measure the number of times a judge strikes down legislation. We cannot objectively measure the number of times that a judge correctly strikes down legislation, because that opens the entire can of worms regarding what is "correct." Obviously, no judge is going to admit that he did something that was incorrect.

Now, you do put out a paradigm with a theoretically objective answer of what is correct--the text and original meaning. But this has all the problems that liberals love to bash: (1) the text and original meaning are not necessarily the same thing; (2) it is kind of hard to determine with passage of time; and (3) you can cherry-pick history almost as easily as you can cherry-pick foreign law. And I am not even going into the real reason why liberals love to bash originalism, which is that it leads to policy results that are politically unacceptable. Courts are not insulated from political pressures in the long run, and so originalism must bend to reality, at least sometimes.
1.24.2008 12:29am
Duffy Pratt (mail):
I agree with Ilya. We should go back to the original intent of the Constitution, and restore the Louisiana Purchase to the French.

The one thing I've never understood is how far the originalists want to stuff the cat back into the bag. Do we scrap the whole incorporation doctrine? Reverse incorporation? Put some teeth into the commerce clause? Or do we go back further and get rid of the horrible reading of the habeas clause in light of the Fugitive Slave Acts? Do we scrap the perverse readings of the 11th Amendment? Maybe put some teeth back into the necessary and proper clause (where everything started to go off track with that "living constitution" crap)?

Even if one is an originalist, only an insane person would want to undo all of the non-originalist interpretations that have become part of our nation. But how do you decide what to scrap and what to keep? You can't depend on either the text or original intent for that. So you've got to look somewhere else. But I never see anyone explain where they get that part of their jurisprudence.
1.24.2008 12:30am
wekt:
Mr. Liberal said:

The idea that McCain-Feingold is unconstitutional according to the original meaning of the Constitution is completely bogus. The idea that money rather than people have First Amendment rights is a thoroughly modern invention.

Free speech isn't free of cost. Wouldn't you agree that it is unconstitutional for the gov't to prohibit you from buying paper and ink to print your own political pamphlets?
1.24.2008 12:46am
Francis:
As far as this liberal is concerned, any idea that original meaning interpretation, strict construction or even textualism actually have any credibility (as opposed to being a tool to beat people who like Roe v. Wade) was laid to rest once and for all in Raich.

C'mon, Scalia wrote his own separate concurrence upholding the Controlled Substances Act. "Conservatives" are just as results-driven as "liberals"; they just usually hide it better.
1.24.2008 12:54am
Ilya Somin:
Doesn't your theory that "a properly restrained judge should vote to strike down statutes whenever they violate the text and original meaning of the Constitution" make "restraint" impossible to measure as a practical matter? We can objectively measure the number of times a judge strikes down legislation. We cannot objectively measure the number of times that a judge correctly strikes down legislation, because that opens the entire can of worms regarding what is "correct." Obviously, no judge is going to admit that he did something that was incorrect.

Just because we can measure something doesn't mean that it is a good metric of proper judicial restraint. However, I do agree with some of the above, which is why I have argued that "judicial activism" (and restraint) is not an analytically useful concept for analyzing the validity of court decisions.
1.24.2008 1:15am
Ilya Somin:
Some commenters are mistakenly assuming that this post was intended to provide a complete defense of textualism and originalism. It was intended to do any such thing, but merely to indicate that judicial overruling of legislation is perfectly consistent with textualism and originalism and therefore that it isn't inconsistent for originalist and textualist "conservative" academics to support aggressive judicial review.
1.24.2008 1:17am
Ilya Somin:
According to DavidBernstein, isn't Lochner a correct understanding of the constitution? Isn't it funny how the "original meaning" of the constitution so often appears to be exactly the same as exactly whatever one wishes it to be. I think this is especially true among libertarians, who tend to think the founders were libertarians or that the Constitution is libertarian.

The Founders were not pure libertarians. That's one of the reasons why the Constitution permits many nonlibertarian policies, such as tariffs and high income taxes. However, it is true that the Constitution is far MORE libertarian than modern Supreme Court precedent or than the post-New Deal activist state.
1.24.2008 1:20am
Sasha Volokh (mail) (www):
Duffy Pratt: It's not that hard to find articles where originalists argue about how far to go.

Scalia believes in stare decisis, which he says limits how far he'd go with originalism. See his short book "A Matter of Intepretation," or the article "Originalism: The Lesser Evil"; or see Randy Barnett's criticism of Scalia in his article called, I think, "Scalia's Infidelity."

Thomas is much less in favor of precedent; I'm not sure where he says this, but Michael Stokes Paulsen, an originalist, argues forcefully that stare decisis is illegitimate as to constitutional decisions one believes were wrongly decided. Paulsen says this in several places, but in particular check out his article "Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twenty-Third Century."

And that's just a small sample of what originalists have written on the limits of originalism in light of contrary precedent. You might also try entering {originalism "stare decisis"} into Google Scholar. But in any event, it's not like they haven't thought about the issue.
1.24.2008 1:20am
Sasha Volokh (mail) (www):
Francis: Scalia may be one of the most vocal originalists, but many originalists think he's not the best example of originalism in practice. (In fact, many originalists consider Thomas (who, incidentally, was on the opposite side from Scalia in Raich) to be a better originalist than Scalia.)

As I suggested in a comment above, Randy Barnett, an originalist, has argued in "Scalia's Infidelity" that Scalia has too many goals -- only one of which is originalism -- which allows him to improperly pick and choose which principle he wants to follow in each case.

Just like the practice of imperfect Christians/Jews/Muslims doesn't discredit Christianity/Judaism/Islam or the practice of imperfect liberals/conservatives doesn't discredit liberalism/conservatives, the practice of imperfect originalists doesn't discredit originalism.
1.24.2008 1:25am
Kazinski:
Mr. Liberal,
The idea that money rather than people have First Amendment rights is a thoroughly modern invention.

I don't think it has anything to do with money, I didn't remember any thing in BCRA that put spending, rather than content restrictions and timing limits on the ads. The fact that BCRA bans issue ads that mention a candidate within 90 days before an election should be is unconstitutional. The fact that a candidate could run the same ad, or a television station or newspaper run the same content, regardless of how much money it cost them, means that it is censorship not a spending limit.

Why should NRA or Sierra Club members with a keen interest in the issues and a candidates position on those issues, have fewer rights than a corporation that happens to be a newspaper or chain of radio stations? Especially when that corporation may well have business reasons for supporting or opposing a candidate?

I thought liberals were for the little guy not the corporate fat cats, or the rich guys shelling out $2000 for themselves and another 2k for the wife to their candidate.
1.24.2008 1:30am
arbitraryaardvark (mail) (www):
It might be worth noting that McCain-Feingold is back before the court. http://www.scotusblog.com/wp/uncategorized/ swift-ruling-sought-on-campaign-ads/
Because it's only an interlocutory appeal of the denial of an injunction, I'm not sure the court will hear it, but it would be interesting to know McCain and Romney's views on the case (or even Obama's; the case is about a film which is very negative about Hillary, without expressly saying don't vote for her.)
1.24.2008 1:36am
Patterico (mail) (www):
I think that if Ilya misread Orin's post, Orin is to blame for lack of clarity, because I read it the same way. This snarky reference:

Maybe I'm missing something, but I thought that judicial restraint was one of the traditional core principles of legal conservatism. The notion, as I recall hearing someone say -- can't remember who -- was that judges should be "strict constructionists" who don't "legislate from the bench."


Is an obvious little swipe at Bush. Orin follows it up with this:

Perhaps a foolish consistency is the hobgoblin of little minds, but I would think that this methodology as applied to campaign finance would lead a truly consistent conservative judge to be inclined to uphold McCain Feingold under old fashioned Thayeresque principles of judicial restraint, regardless of the merits of such legislation as a matter of policy.


What about those of us who think it's not "legislating from the bench" to rule unconstitutional a law that we think is, ya know, unconstitutional?
1.24.2008 2:03am
OrinKerr:
Patterico,

Are you proposing a subjective test for the meaning of the term "legislating from the bench"? That is, if Stephen Reinhardt subjectively believes that he is interpreting The True Constitution, would you conclude that he is not legislating from the bench because he thinks the law is, ya know, unconstitutional?
1.24.2008 3:33am
Mark Field (mail):

It was intended to do any such thing, but merely to indicate that judicial overruling of legislation is perfectly consistent with textualism and originalism and therefore that it isn't inconsistent for originalist and textualist "conservative" academics to support aggressive judicial review.


I agree. In fact, I'd go further and say that aggressive judicial review is inherent in and necessary for originalism (and possibly textualism as well).
1.24.2008 11:26am
Patterico (mail) (www):
Are you proposing a subjective test for the meaning of the term "legislating from the bench"? That is, if Stephen Reinhardt subjectively believes that he is interpreting The True Constitution, would you conclude that he is not legislating from the bench because he thinks the law is, ya know, unconstitutional?


Nope. An objective test. Under which McCain/Feingold is unconstitutional.
1.24.2008 8:55pm