Abstract
This chapter develops an intellectual framework that will support principled judicial restraint. It contains two elements. The first is an elaboration of the idea of positive constitutionalism. The Constitution is not primarily concerned with individual liberty from government. Rather, it is an instrument of government, designed to maximize liberty in all its aspects. Government is given the power to address public problems in whatever guise they arise, with liberty guaranteed chiefly by checks on how government exercises power. The second was best articulated by James B. Thayer, when he argued that the issue before the Supreme Court in a case involving a federal statute is not whether the justices think it is constitutional, but whether a reasonable argument can be constructed that it is constitutional.
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Notes
The standard critique of judicial capacity is Donald Horowitz, The Courts and Social Policy (Washington: Brookings, 1977).
See Ross Sandler and David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (New Haven, CT: Yale University Press, 2003)
Richard Gambitta, et al., eds., Governing through Courts (Beverly Hills, CA: Sage, 1981). This is not to say, of course, that some terrible conditions in jails and mental hospitals were not cured through judicial action.
Sotirios Barber and James Fleming, Constitutional Interpretation: The Basic Questions (New York: Oxford University Press, 2007), 46.
Quoted in David B. Robertson, The Original Compromise (New York: Oxford University Press, 2013), 26–27.
Stephen Breyer, Active Liberty (New York: Knopf, 2005).
On the concept of autonomy see Richard Dagger, Civic Virtues: Rights and Republican Liberalism (New York: Oxford University Press, 1997)
Philip Petit, Republicanism: A Theory of Freedom and Government (New York: Oxford University Press, 1997).
Louis Fisher, Defending Congress and the Constitution (Lawrence: University Press of Kansas, 2011), 103.
Jerold Waltman, Religious Liberty and Contemporary American Politics: The Saga of the Religious Land Use and Institutionalized Persons Act of 2000 (New York: Continuum, 2011).
Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press, 1999).
Robert Morgan, James Madison on the Constitution and the Bill of Rights (Westport, CT: Greenwood, 1988), 131.
Michael J. Perry, Constitutional Rights, Moral Controversy, and the Supreme Court (New York: Cambridge University Press, 2009), 90.
Sanford Gabin, Judicial Review and the Reasonable Doubt Test (Port Washington, NY: Kennikat Press, 1980), 46.
See Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (New York: Henry Holt, 2006).
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© 2015 Jerold Waltman
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Waltman, J. (2015). A Constitutional Theory of Judicial Restraint. In: Principled Judicial Restraint: A Case Against Activism. Palgrave Pivot, New York. https://doi.org/10.1057/9781137486967_4
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DOI: https://doi.org/10.1057/9781137486967_4
Publisher Name: Palgrave Pivot, New York
Print ISBN: 978-1-349-69647-5
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