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The Case Against Deference

Judges should be unafraid to review government actions

Jun 10, 2013, Vol. 18, No. 37 • By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY
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For at least half a century, judicial restraint has been the clarion call of the conservative legal movement. After the Warren Court era, Roe v. Wade, and very nearly a “right” to welfare benefits, it was not surprising that conservatives would seek to rein in judicial self-aggrandizement.

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The principal conservative response was to promote judicial deference: Judges should resist the temptation to legislate from the bench and “defer” to the political branches. Unfortunately, time has shown that this response was too blunt. Particularly in constitutional cases, judicial deference has led to a steady expansion of government power. This, in turn, has undermined the delicate constitutional architecture, which calls for a federal government of limited and enumerated powers.

Fortunately, a younger generation of conservative lawyers has come to recognize that there is no principled distinction between inventing new rights, unmoored from the Constitution’s text or history, and refusing to uphold constitutionally anchored limits on government power. In both instances, judges are ignoring the Constitution and engaging in​—​for lack of a better term​—​judicial activism. Judicial deference may have reined in judicial power, but at an unacceptable constitutional price. For both doctrinal and pragmatic reasons, the concept needs rethinking. 

First, the “counter-majoritarian difficulty” that lies at the heart of judicial restraint has been oversold. The label itself suggests that judges should esteem current majoritarian preferences and be loath to overturn them. But why, when the Constitution instructs otherwise? Article VI declares that the Constitution is the “supreme law of the land,” and trumps conflicting ordinary laws. Judges take an oath to “support this Constitution,” reflecting their duty to heed the constitutional language. Enforcing the written Constitution​—​not reflexively deferring to extant legislative majorities​—​was (and still is) the will of We the People. If the people desire constitutional change, Article V provides the mechanism, allowing every generation to put its stamp on our fundamental legal charter.

In Federalist 78, Alexander Hamilton described the crucial judicial role in ensuring that the Constitution reigns supreme, explaining that judicial independence was “peculiarly essential in a limited Constitution,” where the government possessed only enumerated powers. In such a government, he observed, “[l]imitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Hamilton and other Framers understood that robust judicial review was essential to enforce limited and enumerated powers.

Second, the virtues of judicial deference have declined over time. Early Supreme Court decisions justified deference as necessary to ensure that the newly established federal government could fulfill its essential responsibilities. As Chief Justice John Marshall explained in the famous 1824 case Gibbons v. Ogden, a “narrow construction” of government powers “would cripple the government, and render it unequal to the object for which it is declared to be instituted.” Accordingly, the Court concluded “we cannot perceive the propriety of strict construction, nor adopt it as the rule by which the Constitution is to be expounded.”

Deference to exercises of government power arguably made more sense in the republic’s early days, to ensure that federal power could accomplish the Constitution’s basic, enumerated ends. But as the administrative state has matured, the sheer weight of government has grown exponentially, and every new accretion weighs more heavily on individual liberty. Complex statutory frameworks increasingly operate at cross-purposes, and statutes rarely get repealed, with new regulations being piled on top of old ones. Today, the cumulative reach of government power is far more than adequate to counsel judges against knee-jerk deference to all exercises of government power. The unfolding IRS scandal, accompanied by the Obama administration’s remarkable claim that the president should not oversee the federal government’s law enforcement activities, makes the need for vigorous judicial review of governmental actions all the more apparent. The courts must unapologetically enforce constitutional boundaries to facilitate trust in, and accountability of, government.

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