Larry Solum weighs in on the Barnett kerfuffle, arguing that Barnett's critics' "posts do not provide evidence that they have even read the important secondary sources. They make sweeping statements and exaggerated charges on the basis of a very limited understanding of the issues they are discussing. This is simply irresponsible. Responsible blogging is not the same thing as responsible scholarship or legal advocacy, but we should not confuse standards that are appropriate to the medium with no standards at all. The debate over the meaning of the P or I clause is complex, serious, and highly dependent on the evidence." I think Prof. Solum has a valid point insofar as the discussion in the blogosphere focused on how one should interpret the 9th Amendment and the Privileges and Immunities clause. I think, however, that his chastisement overlooks the broader normative debate that is really going on here.
Should judges actively use the 9th Amendment or the P&I clause to strike down laws passed by Congress or state legislatures? The libertarian case for judicial activism claims that that those provisions incorporate the harm principle (e.g., Kennedy's opinion in Lawrence) or some modified and more modest version thereof (which I take to be Prof. Barnett's position).
As Solum's own post makes clear, however, that position rests on highly contested foundations. First, libertarian judicial activism purports to be based on an originalist approach to Constitutional interpretation. Yet, as Solum points out, there are multiple versions of originalism. And, of course, many critics reject originalism on various grounds. [Personally, I see the principal virtue of originalism as providing some ability to cabin judicial discretion where evidence of original intent is available and uncontestable. The problem with originalism, as I see it, is that evidence rarely meets those standards. Hence, I don't think originalism adequately prevents judges from simply acting on their own personal policy preferences.]
Second, the libertarian case for judicial activism claims to have identified coherent content for the 9th Amendment and the P&I clause. In contrast, Robert Bork famously referred to the 9th Amendment as an "inkblot," into which judges and justices read their own policy preferences. Solum's own post suggests, at least to me, that the P&I clause is just as much of an inkblot as the 9th Amendment. Solum identifies three interpretations of the P&I clause that "can be mixed and matched in various ways."
In sum, the libertarian variant of judicial activism is at least as contestable as the left-liberal variant. Yet, it provides cover from the right for judicial activists of all stripes. As such, it contributes to the current atmosphere in which no area of American life is immune from the personal policy preferences of a bunch of unelected old men and women in robes. And that is why I think it deserves criticism.
Update: Larry Solum offers up a typically nuanced and thoughtful reply to my comments of earlier today. To recap, I have frequently criticized what I call the libertarian variant of judicial activism. (Solum also has some very interesting thoughts on why the term "judicial activism" tends only to obfuscate.) This variant claims that the Ninth Amendment and the Privileges & Immunities clause of the 14th Amendment incorporate some version of classical liberalism's harm principle. Judges should invoke those constitutional provisions to strike down state and federal laws that violate the harm principle. (I associate this position particularly with Randy Barnett, who uses a very modified version of the harm principle.)
I've offered various criticisms of this variant of judicial activism, but ultimately my argument rests on two basic points. First, a strong presumption in favor of the legitimacy of democratic majorities. Second, any variant of judicial activism allows judges to impose their own personal policy preferences on society. As a result, the opinion of 5 legal elites on the Supreme Court - whose opinions and attitudes may well be far out of step with those of ordinary Americans - trumps that of legislative majorities, referenda, etc.
I take it from Prof. Solum's post that he agrees that judges should not be allowed to impose personal policy preferences, but rather should be constrained in some way or another:
I recognize that the ideal of a formalist constitution--a constitution that constrains judges as well as the political branches--has been eroded and degraded by the ascendancy of legal realism and the politicization of the judiciary. The downward spiral of politicization that has characterized both judicial selection and the practice of judging cannot be ignored. We are faced with choices. We can embrace politicization of the judiciary--Levinson and Balkin. We can attempt to confine politicization to the political branches by nullifying the written constitution and going for majoritarian democracy--Bainbridge. Or we can try to reinvigorate the idea of formalist interpretation of the written constitution. ...
And that leads me to the conclusion that our practices of judicial selection must be changed. For our constitutional system to work, judges must be selected for excellence (or judicial virtue) and not on the basis of their political ideology. In particular, judges should be selected for their possession of the virtue of justice--the disposition to decide cases on the basis of the rules laid down and not on the basis of their own theory of what the law should be.I want to be very careful here, both because I have a lot of respect for Prof. Solum and because I think he presents a very attractive vision of a depoliticized judiciary. Unfortunately, like a lot of attractive visions, I believe his solution suffers from what Harold Demsetz calls the Nirvana fallacy. Economist Demsetz developed the fallacy as a response to those who advocate government intervention whenever there is a perceived market failure. The fallacy assumes that government actors are disinterested, fully informed, and endowed with perfect foresight. Because these assumptions do not hold in the real world one cannot assume government intervention will be superior to imperfect markets.
Believing we can get to Solum's attractive vision of the judiciary requires us to assume that Presidents can be induced to make disinterested and fully informed decisions about judicial nominations - that they will in fact nominate judges who can be predicted with confidence to hold to the formalist approach. Then you have to believe that the incredibly broken Senate process of advice and consent can be reformed so that disinterested Senators will make fully informed decisions to approve only those judges who can be counted on (with perfect foresight) to adhere to the formalist approach. Finally, you have to assume that judges will be disinterested decisionmakers who can apply the formalist approach with perfect information and foresight.
I trust Prof. Solum will forgive me for believing that we cannot get there from here. We would not only have to fix the nomination process, his vision likely would require radical changes not just to politics but also to legal education itself. I believe it was Judge Richard Posner who claimed: we are all realists now. Legal realism is the sworn enemy of Prof. Solum's formalism, which is a problem for him because legal realism is the dominant model of legal thought in the academy and profession.
If we can't get there from here, I would prefer a parliamentary system in which democratic majorities acting through Congress and the President can trump judicial decisions. As imperfect as the political process is in a world of campaign finance abuses and gerrymandering, legislators are still more accountable than unelected judges.
Can we get there from here? I don't know. Congress and Presidents have learned that it is easy to duck hard questions and leave them to courts. Courts have learned that the people and their representatives will simply roll over and play dead no matter how much of American life is swept into the judicial arena. My guess, however, is that it would be easier to get to a quasi-parliamentary system than to a regime of legal formalism.
