Wednesday, February 15, 2012

The Cosmic Theory of Judicial Restraint

Gerard N. Magliocca

I highly recommend Judge J. Harvie Wilkinson's book on "Cosmic Constitutional Theory." It provides a lucid and accessible discussion of the four leading schools of interpretation: (1) living constitutionalism; (2) originalism; (3) political process theory; and (4) pragmatism. In each of these four chapters, the advantages and disadvantages of the model under consideration are examined with care. The chapter on pragmatism (in other words, what Richard Posner says) is especially compelling because Posner's constitutional approach is not usually examined with the same rigor that is applied to his other views. Furthermore, I enjoyed the book because I share Judge Wilkinson's skepticism about normative constitutional theory.

Nevertheless, I do have a bone to pick. Wilkinson introduces and concludes his analysis by advocating judicial restraint as superior to any comprehensive system of constitutional interpretation. This raises a question--why isn't judicial restraint also a cosmic theory? After all, that approach has its own pros and cons if it is treated as something more than a presumption. Judge Wilkinson is aware of this weakness, but his response is not persuasive. I was particularly struck by this passage, which responds to the point that some activist decisions of the past have stood the test of time:

"Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born."

Unfortunately, this sounds a lot like the infamous quote from the United States Patent Commissioner in the late nineteenth century that everything that could possibly be invented had already been invented. A presumption in favor of judicial restraint is fine, but when that becomes dogma implausible conclusions must be drawn to keep the faith. Judicial restraint is no exception.


My comment on an earlier thread at this Blog:

"Off topic [or is it?], the post on Judge Wilkinson's new book "Cosmic Constitutional Theory" provides welcome commentary concerning originalism v. non-originalism. If my library doesn't get this book, I just may be compelled to buy it. I eagerly await reviews as it may lead to a "constitutional great awakening." If it takes a theory to beat a theory, then the search for the Holy Grail of constitutional interpretation/construction will continue.
# posted by Shag from Brookline : 10:30 AM"

is now "on topic." I haven't read the book as yet, in the hope that one of my local libraries will soon have it. As to Gerard's bone-picking, I have a bone to pick with many good books and articles on constitutional interpretation/construction: their conclusions. I don't ignore the conclusions nor dwell on them IF the authors make reasoned arguments. The search for that "Holy Grail" will continue but may never be satisfactorily concluded. And what is wrong with doubt? The problem with conclusions is that too often they are predictive, perhaps because editors insist upon such. With the benefit of the Internet and legal blogs like this, older books, articles, theories are constantly being challenged. So what? That happens with true sciences all the time. And the law is not a true science.

So one can enjoy the meat and discard the bone - unless it's filled with marrow, in which case we can chew on it for awhile. Perhaps when Gerard gets through with Rep. Bingham, he can help us with a theory on judicial restraint.

As a follow up to my earlier comment, consider originalist Mike Rappaport's 2/15/12 post at the Originalism Blog:
"The principal comments on Tim Sandefur's essay on substantive due process are in. From an originalist perspective, the comments by Ryan Williams and Gary Lawson are particularly instructive. Williams uncovers new evidence of the understandings of substantive due process at the time of the 14th Amendment's framing. Lawson relies on new evidence concerning the powers of Congress under the Necessary and Proper Clause -- evidence that the Congress was a fiduciary and therefore bound by the limitations of a fiduciary. (Lawrence Rosenthal's comments are also interesting, but do not reflect new evidence on the original meaning, which is my focus here.)

What this new evidence shows is that our understanding of the original meaning of the Constitution's clauses is in a pretty elemental state. The reason for this is that for the last 75 years or so, when academic work was conducted, academics have not been very interested in the Constitution's original meaning. Taking their lead from the legal culture and the Supreme Court's nonoriginalism, legal academics looked at other matters. Consequently, we have very limited knowledge of the original meaning of many of the Constitution's significant clauses.

The nonoriginalism of this period is a genuine tragedy. Most importantly, as I have argued elsewhere, it has deprived the nation of the constitutional amendments that would have been passed had the Court not engaged in judicial updating. But also important is that our understanding of the original meaning has been impoverished because of this neglect of originalism. We are now learning things at a very fast pace, but we still have 75 years to catch up on."

Yes, "new evidence" continues to (conveniently) crop up. Yet we may never catch up. Alas, the "new evidence" always seems to support the discoverer's preconceived (biased?) views. This is a version of "law office history" utilized by legal academics. Yes, let's Restore that lost Constitution, Rehabilitate and seek Redemption, the current 3-Rs of constitutionalism. These academics treat such "new evidence" as the "smoking gun" - but it's full of blanks.

Let's hear it from the originalists on Judge Wilkinson's new book.

I should have countered Rappaport's:

"The nonoriginalism of this period is a genuine tragedy."

by pointing out that the tragedy of originalism through its phases from Ed Meese to date has turned originalism into farce.

Judicial restraint is the worst form of conservatism because it gives no fidelity to the Constitution. In a cycle between common law constitutionalism and judicial restraint, common law majorities of the judiciary rewrites the Constituion and the judicial restraint majorities cement the common law rewrites by refusing to revisit them. The O'Connor position on abortion is a perfect example of this problem.

Perhaps the evidence for originalism is similar to the iceberg, of which 1/7th is above water. But defying physical laws, originalists "discover" "new evidence" as more is exposed. No, this is not a commentary on global warming. But originalists will have to act quickly, just in case, to justify their responses to challenges of originalism as their theory may just melt away. Consider the view of many originalists regarding disincorporation of the First Amendment's Establishment Clause. [Justice Thomas included.]

Of course what is supposed to constitute "new evidence" today to support originalism may turn out to be erroneous with "newer evidence."

Our yodeler posits:

"Judicial restraint is the worst form of conservatism because it gives no fidelity to the Constitution."

Does this suggest that judicial activism is the best form of conservatism?

By the Bybee [expletives deleted], proving that a commenter is not a robot imposes burdens upon us senior, senior citizens. Or is that the goal?


Judicial activism is shorthand for courts writing rather than following the law - thus my term common law constitutionalism.

Judicial activism is not reversing past common law cases to make them comform to the Constitution as written.

Not on the substance:

The famous patent office quote is purely fictitious, as stated in a book I have titled "They Never Said It".

Our yodeler leans on common law constitutionalism all of a sudden. I wonder if he has read Strauss' book. Our yodeler is blind to the Rehnquist Court activism that has continued with the Roberts Court. I guess it all depends upon whose bush is being gored or vice versa. So perhaps we can expect disincorporation of the Establishment Clause so that a state may establish a religion just like Justice Thomas might think.

Our yodeler over the years has described himself as a textualist when it come to the interpretation/construction of the Constitution. Over at Larry Solum's Legal Theory Blog, he provides a link to Stephen Durden's "I Am Textualism" that is just over 3 pages in length. Solum's editorial comment is: "NOT!" which I take to mean he is not a textualist. Yes, Durden's essay is tongue in cheek. But being cheeky can help make a point.

Durden's snark is actually aimed at academics who manufacture variations on legal theory to get published.

Our yodeler in reading Durden's essay (assuming he actually read and understood it) concludes:

"Durden's snark is actually aimed at academics who manufacture variations on legal theory to get published."

demonstrates that our yodeler cherry picks to avoid being a subject of "Durden's snark." Obviously our yodeler's "law office history" technique (aka cherry picking-and swallowing the pits!) suffers from second-hand DUI fumes.

The essay is so short, I do not wish to convenience those too lazy to download and read the essay by quoting from it, especially the concluding paragraph.


Durden may have been aiming at textualism, but what he hit was academics who manufacture variations on legal theory to get published.

You could apply Durden's snark to almost any academic field.

Contrary to our yodeler, Durden hit his targets, including the bullseye on our yodeler.

Gerard's quote from Judge Wilkinson's book:

"Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born."

came to mind when I read the actions taken by SCOTUS on the Montana decision "repudiating" Citizens United. If the 5-4 Citizens United majority justices have their way, the Montana decision will be stillborn. But Justice Ginsburg makes the point of new evidence on potential corporate corruption flowing following Citizens United decision. Perhaps we can expect cert to issue at some point, which the Citizens United five (5) cannot stop; but this would not happen until after the November elections.

Citizens United helps make Judge Wilkinson's case for judicial restraint.

The decisions listed were not full "success stories" in the least

[see, writings by Yale Kaminer or Charles D. Weisselberg such as]

and what of cases like Lawrence v. Texas about "foundational" principles such as equality and privacy protections?

Any "school" will have failures and successes, so CU only takes one so far, though the best path combines various approaches. Breyer cited various things he uses and some might treat him as but "one" school. Someone listed six schools once, in practice various ones used at once.

Anyway, Judge Kavanaugh had an amusing allusion to Posner in his dissenting opinion (he would toss it out on standing) in the PPACA case about most people not going (I perhaps paraphrase) "full Posner."

I also am interested in the breakdown of the schools. Where does, e.g., Breyer fit?

Ken Kersh adds his "review" of Judge Wilkinson's book which rambles on as, after all, Ken notes that this is only a blog!

Here's Joe's interest:

"I also am interested in the breakdown of the schools. Where does, e.g., Breyer fit?"

Maybe Justice Breyer can categorize his "school" without the need of our actually reading his book on the subject. Ken provides some names, e.g. Jack Balkin, Keith Whittington, etc, recommending different of their books. Jack and Keith describe themselves as originalists, but they are not peas in the same originalism pod. One need only to peruse The Originalism Blog to understand that not all originalists are alike.

I referenced Durden's essay on textualism. Surely not all textualists are similarly peas in a textualism pod.

There are a lot of schools but a tag may not really be descriptive of one's school. Going way, way back to the beginnings of the Constitution, there have been issues of what it means, how is it to be interpreted construed. New theories emerge from time to time. Yet the "Holy Grail" of constitutional interpretation/construction remains elusive as searches go on. Perhaps creative destructionism applies to constitutional theories and not just capitalism.

I have not read Judge Wilkinson's book as yet but may have to break the retirement bank and buy it if my library doesn't. [My zip code is 02446 in case of a donation.] In the meantime, my "school" remains the "horseshoe theory of constitutionalism": close enough wins; there's always another game, sometimes with new players.

By the Bybee [expletives deleted], it would be nice if Ken emulated Gerard by accommodating comments.

Karen Armstrong, the religion writer, was on C-SPAN last night and called herself a free range monotheist or some such thing.

Find truth where you can, the best you can. Thanks for the .02.

As a follow up to my most recent comment, take a peek (a long one) at Larry Solum's 2/19/12 "Legal Theory Lexicon: Originalism" with links of related Lexicon Entries on Textualism and other interpretation/construction methods, plus an extensive bibliography on Originalism and links to papers on originalism available online. We'll have a quiz on this next week.

Ken Kersh's post today (2/20/12) on "American Exceptionalism? ...." poses a query but fails to provide an opportunity to respond. So why ask?

This comment has been removed by the author.

I'm not sure of all the places where she takes the idea, but this paper on "corruption" by a professor with a great name who was recently on the very good Up with Chris Hayes show might be of interest to some.

Thanks for the link. The article was published in 2009 so it preceded Citizens United. Footnote 1 refers to the author's book forthcoming in 2010 titled "The Meaning of Corruption." I have not downloaded this 74 page article as yet, although a check of the table of contents suggests it is interesting. But Citizens United poured quite a bit of dilution on corruption over the political dam. Since then with the SuperPACs, we have some new evidence of potential corruption. I haven't checked as yet to see if the author's new book was published in 2010 and if so whether Citizens United was included.

Joe, any thoughts on this? If I decided to read the article, I would of course be thinking of Citizens United and its after effects. Hopefully the author may have some follow up.

Thanks again.

I should have Googled first but I'm a former Luddite turned geezer. I came across Zephyr Teachout's "Facts in Exile: Corruption and Abstraction in Citizens United v. Federal Election Commission" available at:

that runs 32 pages. So I downloaded the paper and hopefully will get through it today or tomorrow.

I checked & it does not seem like she made her publishing deadline for her book. As to CU, the article notes "corruption" was undersold before then. If you wish, she talked about the ruling with Bill Moyers:

Her hope is that society will push for a change of mentality, as Jack Balkin notes, an ultimate source of change of law.

I just finished reading Prof. Teachout's Essay on Citizens United. She is very critical of Justice Kennedy, especially on his application of Judicial Notice in the opinion he wrote for the majority and the "facts" and "negative facts" outside the record the record of the case. Here's a quote at page 325:

"For corruption, Kennedy seems to have said: the life of the law is logic, not experience."

She had earlier pointed out that none of the members of the Citizens United court had run for elective office. She contrasts this with the life experiences of the members of Congress as their evidence for enacting the legislation struck down by Citizens United. Here's footnote 107 on page 326 for this point:

"107. David Donnelly alerted me to this when, in talking about trying to lobby for campaign finance reform, he said that lobbying for public funding is unlike lobbying for anything else, because every member of Congress is an expert in campaign financing."

I assume that her book project on corruption will provide much more on Citizens United.

AMK's father was a lobbyist. In fact, AMK HIMSELF was one:

Kennedy joined a San Francisco law firm, but he returned to Sacramento in 1963, when his father died, to take over his father's practice. Despite his inexperience, many of his father's clients remained with the firm while Kennedy honed his legal and political skills. He socialized with politicians, entertained clients with lavish parties, and made large donations to state politicians on his own and his clients' behalf. During this period he met Ed Meese, a fellow lobbyist, and they became close friends. Meese later went to work for California Governor Ronald Reagan, and in 1973 he brought Kennedy on board to help draft a ballot initiative to cut taxes and government spending. Kennedy impressed Reagan, who recommended him to President Gerald Ford for a vacancy on the Ninth Circuit Court of Appeals.

It sort of amazes me that this fact is not found in more accounts. It would be like if Ginsburg's history of gender equality activism was not mentioned.

So perhaps Justice Kennedy considered himself an expert on campaign financing from his experiences, including as a lobbyist, described in Joe's recent comment. Perhaps CJ Roberts well knew Justice Kennedy's experience in assigning the opinion to him; but what does this say about the other four in the majority in Citizens United?

Maybe someday in the future someone will write a book on "Rehabilitating Citizens United" and include this background on Justice Kennedy. Any suggestions, Joe, who might write that book?

Your title suggests the author.

A post at the Legal History Blog furnishes a link to Prof. Zephyr Teachout's 2011 article "The Unenforceable Corrupt Contract: Corruption and Nineteenth Century Contract Law" with comparisons to Citizens United. Prof. Teachout suggests that Austin was not an "outlier" relative to 19th, early 20th centuries law, claimed by Justice Kennedy. Prof. Teachout is not a soft, gentle breeze (zephyr) when it comes to corruption. Of course, defining corruption can be difficult. Some might compare corruption to pornography, knowing it when they see it, or applying the smell test. It is possible that Kennedy ignored the line of cases in the 19th, early 20th centuries discussed by Prof. Teachout, particularly the case involving lobbying (Trist v. Child, 88 U.S. 441 (1874)).

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