The idea that judges should not unduly interfere in decisions made by the political branches is a familiar trope in both popular discourse about the Constitution and in constitutional theory. One aspect of this idea connects with the notions of "judicial activism" and "strict construction" that are discussed in a previous Legal Theory Lexicon entry. Another aspect of this discourse concerns the ideas of judicial restraint and constraint.
One of the difficulties with discussion of restraint and constraint is that these ideas have been imprecise and ambiguous. Is restraint simply inaction? Or does constraint have to do with the idea that courts should be bound by the constitution? These two notions are not the same. The constitution might require action that interferes with the political branches, but it might require inaction as well.
Thomas Colby has made a metalinguistic proposal to sort out the potential confusion. Here is the way he put the suggestion:
(“[A]lthough originalism in its New incarnation no longer emphasizes judicial restraint--in the sense of deference to legislative majorities--it continues to a substantial degree to emphasize judicial constraint--in the sense of promising to narrow the discretion of judges. New Originalists believe that the courts should sometimes be quite active in preserving (or restoring) the original constitutional meaning, but they do not believe that the courts are unconstrained in that activism. They are constrained by their obligation to remain faithful to the original meaning.”).
Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011). Colby's idea is that we can stipulate that "restraint" refers to deference and that "constraint" refers to the a requirement of consistency with the constitutional text.
The remainder of this Lexicon entry develops Colby's proposal.
The Restraint-Constraint Distinction
Let's begin with stipulated definitions of "restraint" and "constraint." We can stipulate as follows:
- Restraint: A judicial decision is stipulated to be “restrained” if and only if the decision defers to decisions made by executive officials or statutes enacted by a legislative body.
- Constraint: Constitutional practice (by judges or other officials) is stipulated to be “constrained” if and only if the actions taken by officials are consistent with the communicative content of the constitutional text.
Notice that only judicial decisions can be restrained in the stipulated sense, but that the actions of any official can be constrained by a requirement of consistency with the communicative content of the constitutional text. We can represent the possible interactions between constraint and restraint via the following table:
The stipulated version of the restraint-constraint distinction allows us to disentangle some of the confusions in discourse about the proper role of the courts. Critics of the Warren Court were especially concerned about cases that they saw as properly classified in the lower-right quadrant of the two-by-two matrix. For example, some critics of the Warren Court may have believed that the Court's privacy decisions (e.g., Griswold v. Connecticut) were cases in which the had acted in a way that was both unrestrained (interfering with an action by the state legislature) and unconstrained (not based on the constitutional text). But what about actions that fall in the lower left quadrant--cases in which the Court upholds legislation but in a way that is inconsistent with constitutional text? For example, some constitutional lawyers believe that many of the New Deal cases should be classified as restrained but unconstrained. The decision in Wickard v. Filburn might be an example: the Court deferred to Congress but acted in a way that is inconsistent with the constitutional text--by assumption for the purposes of the example. On such cases, critics of the Court may split, with some agreeing that these New Deal cases are praiseworthy because they illustrate judicial restraint, but others complaining that these decisions are contrary to the text and hence unconstrained.
Connection with Judicial Activism
The restraint-constraint distinction enables us to understand why "judicial activism" became an ambiguous concept. "Activism" became a contrast word for both restraint and constraint and sometimes for just a lack of restraint or just a lack of constraint. When applied to cases in the lower right quadrant of the matrix (unrestrained and unconstrained), everyone could agree that the label "judicial activism" properly applies, but when the case fell into either the upper right quadrant (unrestrained but constrained) or the lower-left quadrant (restrained but unconstrained), the ambiguity in the meaning of "judicial activism" is revealed.
This leads to a proposal for the disambiguation of "judicial activism": we can reserve this term for decisions that unrestrained and hence are in the left-hand column of the two-by-two matrix. This would end confusion about the meaning of "judicial activism" and hence improve the quality of discourse about constitutional theory.
Stipulation versus Metalinguistic Negotiation
So far, I have been suggesting the constitutional theorists stipulate the meaning of "judicial restraint" and "judicial constraint" along the lines suggested by Colby. So long as the stipulations are clearly presented and understood, that should be sufficient to reduce the level of confusion in academic writing about constitutional theory. But we can go one step further and engage in what philosophers of language have called "metalinguistic negotiation." That is, we can try to change the way that the words are used so that the stipulated definitions become the accepted meanings.
Engaging in explicit metalinguistic negotiation requires that we present reasons for our metalinguistic proposal. Why should we use the phrases "judicial restraint" and "judicial constraint" in the way that Colby proposed (and I endorse)? That is, we need to advance arguments of conceptual and linguistic ethics--arguments about what concepts we should employ and what words we should use to represent those concepts. The conceptual advantages of the restraint-constraint distinction have already been explored: the distinction makes debates in constitutional theory clearer and more precise. And I think there are linguistic advantages as well. The ordinary meaning of "constraint" is well adapted to the role that word plays in the concept of judicial constraint that Colby proposes. The ordinary meaning of "restraint" serves well to express the deference-related concept of judicial restraint.
As always, this entry in the Legal Theory Lexicon is addressed to students (and especially first-year law students) who are interested in legal theory. There are many further complications that take off from this introduction, including conceptual issues about the precise definitions and possible variations of restraint and constraint and theoretical issues about the very idea of metalinguistic negotiation. But I hope that this simplified introduction is sufficient to enable readers to think further about these issues.
One final point. Constitutional theory is a highly impacted field of discourse. I do not know for sure that Thomas Colby was the first to use the restraint-constraint distinction, but I think he was. We all owe him thanks.
Related Lexicon Entries
- Legal Theory Lexicon 035: Strict Construction and Judicial Activism
- Legal Theory Lexicon 071: The New Originalism
- Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).
- David Plunkett and Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response in Pragmatism, Law, and Language 56-75. (G. Hubb and D. Lind eds. 2014).
(Last revised, April 23, 2017)