Judge Posner provides a characteristically thought-provoking analysis of judicial restraint. Unfortunately, by attributing the origin of the doctrine to James Bradley Thayer, Posner misunderstands the concept. For Thayer was not making a new argument. He was, rather, reasserting an older, Jeffersonian notion that primary authority to interpret the Constitution lies with the people and not with courts. The replacement of this concept of popular constitutionalism with the modern doctrine of judicial supremacy—a change that took hold only in the 1960s—changed the political debate from one about who should interpret the Constitution to one about how the Constitution should be interpreted. More important, acceptance of judicial supremacy left protecting judicial authority (by not acting so frequently or aggressively as to produce a political backlash) as the only justification for restraint—a justification that, ironically, grows weaker in direct proportion to supremacy’s acceptance. Not surprisingly, then, and as Posner notes, judicial restraint today has decayed to the point where it is little more than a rhetorical tool used opportunistically by both sides in constitutional debate. But the culprit for this development is not, as Posner suggests, the development of theories of constitutional interpretation. It is, rather, our embrace of the notion that deciding the ongoing meaning of a democratic Constitution is a task best left entirely to judges.
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