Should Courts Defer to Political Branches? [No. 86]


One popular notion about how to think about
the courts is the idea of judicial restraint. The idea here is that when interpreting the
Constitution, courts should be restrained and should defer to the judgments of Congress
or the President or the state legislatures. I do not think that the courts should defer
to the opinions of other branches about the meaning of the Constitution. But this is the way I think it should work
is that the legislative branches or the political branches are entitled to govern, unless what
they are doing violates the Constitution. And some things that they might do violate
the very words, I mean, you can just look at the text and what the Congress or the president
did just violates it and that’s the end of the matter. But sometimes the words are susceptible to
more than one possible interpretation. In which case I think that the courts look
to the original understanding, and that’s going to narrow the permissible range of meanings,
often quite considerably. Even then, sometimes there’s going to be a
legitimate range of interpretation either of the words themselves or the phenomenon
that is being evaluated. In which case, the courts then look to precedent,
that is past decisions of the courts, and also to long-standing practice. That is, the interpretation of that particular
problem by legislatures and common law courts and presidents and so forth over time. And sometimes that will provide an answer. Now, if in the end the court looks at this
and says, well, what the legislature has done or the political branches have done is not
inconsistent with the text as understood in light of historical meaning, it doesn’t violate
longstanding practice or precedent, some people say that we then defer to the political branches. I think that’s the wrong word. I don’t think you defer to the political branches. I think at that point what the political branches
have done is not unconstitutional.

Maurice Vega

3 Responses

  1. Is whether the govt, as a concept, is legitimate and moral a question a court could entertain? The Constitution notwithstanding.

  2. Do you think Congress has the ability or authority to "RESCIND" current legislation by voting to override Presidential Action from previous Administrations? If The Executive can rescind Executive Orders from previous Administrations why can't Congress "rescind" current legislation signed into law by PREVIOUS Administrations?

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