The Case Against Deference

The Weekly Standard ^ | June 10, 2013 | David Rivkin and Elizabeth Price Foley

[IndePundit]

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. 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.

[IndePundit]

We need to honor the the Constitution.

[loveliberty2]

The "living constitution" idea has influenced so much of America's departure from its founding principles. See and download a copy of Dr. Walter Berns' essay exposing the false foundations of that idea.

[supercat]

One of the more damaging ideas that has emerged over the ideas is that the Constitution and laws mean various things because judges say they do. While it is true that if honest judges do their job, the Constitution and laws will mean what the judges say they mean, the reason for that is that decisions by honest judges will naturally agree with what the Constitution and laws actually say. The idea that the Constitution must be interpreted to mean whatever judges have said it means stems from an inability to recognize a couple of concepts:

1. Not all illegitimate actions have a remedy; and its corrolary
2. The fact that no remedy exists for someone harmed by an action does not imply that the action was legitimate.

A Court which cannot accept the possibility of an illegitimate action not having a remedy, and recognizes that no remedy would be possible if any of its past decisions were found to be illegitimate, would be forced to accept as axiomatic the notion that all of its previous decisions were legitimate, and that as a consequence the Constitution and laws must say whatever they would need to say in order to justify all the Court's previous decisions. Such a viewpoint requires that the Constitution be regarded as a complex system emanations and penumbras that interact with each other in all sorts of tricky ways that can only be understood by the Men In Robes.

If one accepts the notion that the government may have performed some illegitimate actions for which no remedy exists, then one can accept a much simpler view of the Constitution, and say that in cases where the Court made a decision which was contrary to a plain reading of the Constitution, the earlier decision was illegitimate, but its illegitimacy does not necessarily imply that everyone who is harmed is entitled to a remedy. The question of whether a remedy is practical could thus be separated from the question of legitimacy, allowing the latter to be decided more honestly.