The latest entry in an ongoing debate between libertarians and conservatives over how the judicial power should be exercised: at the website of Reason magazine, Damon Root replies to my reply to his reply to my review of his book.

Before I turn to the substance, let me clear up one possible misunderstanding. Root refers to me as “National Review’s Carson Holloway.” I see no need to complain about this characterization—I’ve been called a lot worse! Nevertheless, Root is here bestowing on me an honor to which I am not entitled. I am not on NR’s staff, and I certainly don’t speak for it institutionally. Ramesh Ponnuru, who has weighed in on this debate more or less on my side, is a National Review writer, but I don’t think that justifies Root’s suggestion that the arguments we have made are supposed to put forward the truth of the matter “according to National Review.” I don’t know if National Review has an official editorial position on the proper use of the judicial power, but I rather doubt that it does. By providing spaces where people can blog about these questions it is simply facilitating a debate about a question of interest to conservatives and libertarians.

Now, as to the substance of Root’s latest arguments:

He begins by mischaracterizing the conservative position on the question. According to Root, I (and presumably Ramesh Ponnuru) hold that “the founding fathers consistently embraced the philosophy of judicial deference, which says that the courts should rarely—if ever—strike down statutes enacted by the democratically accountable branches of government.”

This is, of course, a straw man argument, and it reenacts the strange absolute dichotomy that Root puts forward in his book: either you are for judges defending our rights, or you are in favor of judicial deference. You can, it should go without saying, be in favor of both. This is what I think is the conservative position, and what I know is my position. Courts should generally defer to the determinations of the political branches of government, but nevertheless have an obligation to strike them down when they clearly violate the Constitution. Root’s formulation (“courts should rarely—if ever—strike down statutes”) suggests that he is arguing against somebody who says that courts should maybe never declare a statute void. Nobody that I know of has maintained that view.

Root goes on to discuss John Marshall’s opinion for the Supreme Court in Fletcher v. Peck (1810), which I had earlier invoked as evidence that Marshall supported judicial deference. There—as I quoted him, and as Root quotes me quoting him—Marshall said that judges should “seldom if ever” declare a law unconstitutional “in a doubtful case.” This may be where Root got the “seldom if ever” language that I noted a moment ago. If so, he has overlooked an obvious distinction. There is a world of difference between saying simply that judges should seldom if ever strike down laws—as Root suggested wrongly that I have held—and saying that judges should seldom if ever strike down a law in a doubtful case. The former is a de facto denial of judicial review that nobody is putting forward. The latter is a straightforward affirmation of judicial deference, which is what Marshall was doing.

Root, however, suggests that Marshall was not really exercising judicial deference in Fletcher. The words I quoted were, according to Root, merely a “nod in the direction of judicial restraint.” Let’s stop for a moment and ask why Marshall would include such a “nod” in his opinion for the Court. The obvious answer is that the judicial deference expressed by those words was an uncontroversial position that represented the legal common sense of the time.

Nevertheless, Root suggests that Marshall did not really mean it. “But guess what else Marshall did in that case?” Root asks. “He ruled the actions of a state government to be unconstitutional. In fact, Fletcher v. Peck is one of the first cases in American history where the U.S. Supreme Court overruled a state legislature on constitutional grounds. Not exactly a shining beacon of judicial deference.”

This, again, just begs the question. No one is arguing that courts have no business invalidating laws. The question is how they should approach the task. In fact, and contrary to what Root implies, Marshall’s invalidation of the law in question is perfectly compatible with judicial restraint. In that case the state of Georgia had sold some of its public lands in a transaction that was widely known to be corrupt. A later legislature tried to repeal the sale. Marshall held that the repeal was unconstitutional because it was a violation of the Contracts Clause of the Constitution, which prohibits the states from making any law “impairing the obligations of contracts.” The original sale had been accomplished by a grant made pursuant to a law enacted by the legislature. Marshall held—relying on Blackstone—that a grant is a kind of contract. He also held that there was no reason in the absolute and general words of the Contracts Clause to think that it provided an exception to its rule in the case of contracts entered into by the state itself. In sum, Marshall was able to affirm judicial deference and still invalidate the law in question because he thought the law amounted to a rather clear-cut violation of a provision in the text of the Constitution.

Root’s uses of Robert Bork are similarly unconvincing. Root reiterates his point that Bork—one of the last generation’s most influential conservative legal thinkers—learned his judicial deference from earlier progressive thinkers. I will reiterate, then, my point, which is that I think this is irrelevant. Root insists that I have left untouched his claim that legal progressivism exerted some influence on contemporary legal conservatism. I don’t mean to deny it, but to deny its relevance to the main issue. Conservatives and libertarians can agree that the progressives were wrong about many things, but it does not follow that they were wrong in advocating judicial restraint and claiming that the founders believed in judicial restraint. On the contrary, the evidence suggests that the progressives were correct in holding that the founders believed in judicial restraint.

Root also contends that Bork, in his book The Tempting of America, was himself critical of John Marshall as “an activist judge” and specifically of Marshall’s opinion in Fletcher v. Peck. Root’s arguments, however, are misleading. On Marshall generally as an activist judge, here is what Bork actually said in his book (on page 21):

An explanation of some sort is required, for even those of us who deplore activism admire Marshall, and it is clear that he was, in some respects, an activist judge. But his activism consisted mainly in distorting statutes in order to create occasions for constitutional rulings that preserved the structure of the United States. Although he may have deliberately misread the statutes, he did not misread the Constitution. His constitutional rulings, often argued brilliantly, are faithful to the document.

If you read all of what Bork wrote, then, you can see that he held that Marshall was not a constitutional judicial activist. Needless to say, Marshall and his contemporary defenders would deny that he deliberately misread any statutes. I don’t think Bork is correct in saying this, and I can’t see how he could present any evidence—other than an outright confession by Marshall, which does not exist—that Marshall read statutes wrong on purpose, as opposed to making an error in their interpretation. But even if Marshall did deliberately misread statutes, his behavior would be indefensible from any point of view and could provide no support for the kind of constitutional judicial activism that Root supports.

Root also points out that Bork was critical of Marshall’s opinion in Fletcher v. Peck. Here again he does not tell the whole story. In The Tempting of America (interested readers can look this up on pages 25-26), according to Root, Bork speaks of Marshall’s “remarkable performance,” in which he “had to go well out of his way to float the idea that a court might strike down a statute even where the constitution is silent.” It is true that in this opinion Marshall mused on the question whether a court might strike down a law on general principles of justice instead of on the basis of the constitutional text. But the reason Bork said that Marshall had gone “well out of his way” in offering such musings is that in the end (as we have discussed above) Marshall did not rest his opinion on any such unwritten principles but instead on the written text of the Contracts Clause. Marshall may have mused on the possibility of a non-textual judicial review, but he did not do it in Fletcher or any other case.

—​ Carson Holloway is currently a visiting fellow in American political thought in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.