Donald Boudreaux: How restrained should Justice Kavanaugh be?

July 14, 2018

Anthony Kennedy’s retirement from the Supreme Court and President Trump’s nomination of Brett Kavanaugh to replace him reignites a debate on the role of the judiciary.

Conservatives call for judicial restraint. And so it’s unsurprising that they applaud Kavanaugh, who said when his nomination was announced that a judge “must interpret the law, not make the law” and “must interpret statutes as written, and a judge must interpret the Constitution as written.”

Such judicial restraint, conservatives insist, rightly gives voters and their representatives wide scope to choose the “laws” under which they live without courts second-guessing them.

Progressives fear such restraint. They worry that it unduly restrains government from creatively and flexibly dealing with social problems such as poverty, inequality and environmental degradation.

Neither side is correct.

Progressives in practice believe that the Constitution mandates that government do whatever progressives believe government should do to achieve progressive goals. And by calling it a “living document,” progressives thereby give to all three branches of government blanket permission to interpret the Constitution in whatever ways might be useful to pursue those goals.

As for conservatives, they allowed their wise opposition to the extreme judicial activism of courts under Chief Justices Earl Warren and Warren Burger to mutate into an unwise attachment to extreme judicial restraint. Eager to stop judges from conjuring constitutional rights out of thin air, too many conservatives want judges to stand idly by as government’s other two branches act in ways that violate genuine constitutional rights.

These conservatives diminish the “constitutional” part of the description of the United States as a “constitutional democracy.” Yes, the United States is a democracy. But this democracy is supposed to be constrained by constitutional rules. Ironically, a judge who reads the Constitution with excessive literalness or immoderate narrowness in order to uphold legislation is a judicial activist posing as a paragon of judicial restraint. Such a judge conjures for himself the authority to ignore the Constitution in order to defer to legislatures.

Of course, such a judge insists that he honors the Constitution. He justifies his deference to the legislature by asserting that the Constitution prohibits government from doing only a relatively small number things, all of which are written explicitly in the document.

This conservative judge overlooks the Ninth Amendment, which reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Here the Constitution’s framers declared that we the people possess rights that are not explicitly written in the Constitution. Therefore, a judge who strikes down only legislation that violates rights explicitly written in the Constitution ignores the Ninth Amendment.

Conservatives respond that judges cannot be trusted to identify rights that are not written. But the possibility that judges might abuse the power to protect unenumerated rights doesn’t justify judicial nullification of the Ninth Amendment. A judge is to use judgment to discern just what are the unenumerated rights that the framers had in mind. To exercise this judgment is not to create rights; it is to use the spirit and the historical purpose of the Constitution to discover these unenumerated rights.

My hope is that Kavanaugh, when interpreting the Constitution, will not be excessively literal.

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