On Wednesday, April 16th, Randy E. Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, spoke to members of Widener Law’s Federalist Society about ‘constitutional clichés’. After Professor Barnett’s talk, Widener Law professor Robert J. Lipkin offered a few counterpoints, and then Professor Barnett answered questions informally.
After an introduction from Federalist Society president Brian Kisielewski, Professor Barnett talked about how popular discourse on the Constitution has produced catchphrases that have become trite, and further, that “They enable commentators to criticize the court without actually knowing anything about the Constitution.” He went on to describe particular phrases that had been rendered cliché and articulated how the original meaning and context had been stripped away.
Professor Barnett described the term “judicial activism” as “notoriously devoid of any definition,” and noted that “Normally the term is used to criticize a court for being activist.” In essence, tagging a court or judge with the label of “judicial activism” becomes a way to avoid criticizing a court for being wrong by instead accusing them of overstepping their bounds. Such “activism” will then be ridiculed as “unelected and unaccountable judges overturning the decisions of an elected legislature.” Unfortunately, this becomes a means for critics of a judicial decision to avoid engaging with what exactly is wrong about the decision and undercuts the legitimacy of judicial review.
The talk also examined terms such as “strict constructionist”, “not legislating from the bench, “framer’s intent”, and “the dead hand of the past”. Unfortunately, different factions have appropriated these terms and have diluted the meaning of all of these phrases. If “not legislating from the bench” can be construed in the strictest sense to mean that a judge should merely interpret laws and not make them, what constitutes a judicial decision that is interpretation versus one that could be considered “legislating from the bench”?
“Debate merits rather than head off arguments with lazy assertions,” offered Professor Barnett in conclusion. Professor Lipkin answered Professor Barnett’s talk by noting that the problem with calling these phrases clichés is that clichés are such because they get at a truth. He also touched on the position of the United States as a republican democracy, the idea that activism should be divided into interpretative activism and institutional activism, and the idea that essentially contested concepts make discourse on these subjects difficult because intelligent and rational individuals can disagree on what a given concept means.
Professor Barnett spoke again after Professor Lipkin’s response, and he noted that the Constitution was also meant to protect the minority because “they haven’t consented to be ruled by the majority. Finally, he asserted that “Where there is a clear meaning of the Constitution, you have to follow it.”