Real Judicial Restraint

JOEL ALICEA
NATIONAL AFFAIRS 17, Fall 2013

The conservative legal movement stands at fork in the road. Largely defined by the principles of originalism as taught by Robert Bork in reaction to the excesses of the Warren and Burger Courts, it now confronts a rising challenge from a more activist wing of the movement. This libertarian wing, led by Randy Barnett, also considers itself to be operating under originalist principles. However, where conservative originalists emphasized restraint, perhaps overly so, the Barnett originalists begin with the presumption of liberty, or really the presumption of unconstitutionality of laws unless the law can be demonstrated to prohibit wrongful action or regulate rightful action. The standards for regulating wrongful or rightful action come from the unenumerated rights or privileges implicit in the 9th and 14th Amendments. What textual warrant mandates applying these Amendments in such for forward-looking manner as to invalidate legislation almost presumptively? Alicea argues none, it’s a test invented by Barnett to incorporate the Amendments in a liberty-presumptive manner. Alicea notes that if Chief Justice Roberts erred in taking restraint too far in the Obamacare decision, failing to uphold the balance the Constitution provides between majority and minority rights by striking down legislation that is unconstitutional, Barnett’s theory also fails. Alicea’s standard comes from Bork and Keith Whittington’s work, which notes that the people are sovereign in enacting and ratifying the Constitution, as opposed to the ordinary work of politics and representation producing laws. The Court has a constitutional judicial review power to ensure that the latter work of politics stays within the bounds of what the people as the sovereign power delegated to the Constitution as their supreme binding document. Barnett would undo this work by having the Court go beyond its constitutional role of granted powers to review actual cases and controversies. Instead, the Court would have a springing power to strike down legislation, a power itself predicated on a wide reading of the 9th and 14th Amendments.