As James Stoner of Louisiana State University has demonstrated, the considerable powers originally assigned to the American judiciary by the Founders presuppose the broad principles of liberal political philosophy set forth by Locke and Montesquieu and the common-law tradition inherited from England. Only on the basis of common-law assumptions about the role of the judiciary in articulating the community’s standard of justice, he argues, does Hamilton’s case for judicial review in Federalist No. 78 (refuting the Anti-Federalist Brutus’s case that it would amount to judicial supremacy) hold water.16 What particularly distinguishes the common-law method of reasoning is its empirical character: reasoning gradually from particular cases to broader principles, rather than the other way around. Not only does this approach respect the people’s right to self-government, which the conception of judicial review espoused by Parker and more prominent theorists of an activist judiciary does not; it recognizes the need to leave room for the exercise of prudence by the more overtly political branches of government (a need acknowledged by Chief Justice Marshall in his holding in Marbury v. Madisonthat “political questions” lie beyond the judiciary’s proper authority to resolve).
Neither common-law judges nor the great liberal political philosophers thought that the political realm could be subsumed under particular theoretical doctrines about morality. Hence, Locke’s teaching, reflected in the Declaration of Independence, lays out only a certain broad statement of the purpose of legitimate government— to secure men’s rights to life, liberty, and property—and an account of the sort of political institutions necessary to achieve that purpose (a separation of powers between legislature and executive, combined with regular elections of at least the former).
To think that considerations of political prudence—determining the particular policies most appropriate to securing the legitimate ends of Constitutional government— can or should be subordinated to “theories” of morality is one of the great academic and jurisprudential delusions of our time. It enables individuals whose schooling is limited to analyses of “moral” argumentation to claim a comprehensive authority that flies in the face of the original, consciously political, tradition. And it encourages judges not only to rewrite our Constitution but to announce, in the words of Justice Anthony Kennedy in Planned Parenthood v. Casey,that the American people’s very right to call themselves a self-governing people requires them to defer to the Supreme Court’s authority to “speak before all others for their constitutional ideals.” Criticism of judicial activism on behalf of a supposedly “living” constitution is necessary but not sufficient to remedy these tendencies. We must also challenge the authority of the “moral theorists” in philosophy departments and law faculties who equip our judges with their sense of supreme righteousness.