1/16/2020

Wanted: A republican Judiciary

"Professor Greg Weiner’s The Political Constitution: The Case Against Judicial Supremacy, is a new book in an emerging genre of constitutional literature that champions judicial restraint, the intellectual inheritance of James Bradley Thayer, and the late jurisprudence of Justice Felix Frankfurter. In taking aim at the libertarian school of adjudication now ascendant in originalist constitutional theory, Weiner frames the crucial contest of our day as between partisans of judicial restraint and partisans of “judicial engagement.” While appreciating the contributions of this readable, succinct, and thoughtful book, I want in this review to pick a few friendly fights with it.

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities."