Judge J. Clifford Wallace, in the Judges on Judging: Views from the Bench speaks about the concept of judicial restraint – precisely, its theory and practice as well as its philosophy. He argues that judicial restraint is concerned with uniformity, predictability, and judicial economy, as well as with liberal and democratic values. Wallace states that returning to the moorings of judicial restraint would be of benefit to the Republic.
The author starts by stating that the Constitution provides for various measures to protect citizens. For example, dividing the powers among the federal government and the states reduces the risk of the government violating rights since there is more than one power center. Wallace notes that the framers have developed a division of power between a few branches with the same goal in mind. The separation of powers itself diminishes the danger of oppression, as does the separation of powers between the federal and state governments.
In addition, however, the framers had in mind that the judiciary would have a particular role in the protection of the rights. One reason for this might have been mistrust of other branches of government. Judicial harassment of its powers did not arouse such fear among the framers, possibly because, in their experience, the colonial and state courts were relatively lenient. This may explain why the Constitution does not explicitly refer to the judiciary or restrict its authorities.
Wallace points out that the framers intended for the main forms of the federal government as well as the state governments to be essentially democratic. That is, decision-making responsibility was on citizens, whether they were about to make them directly or indirectly. Wallace himself believed that democracy is something inherently valuable. The opposite theory, however, is that democracy is merely an instrumental value. According to the instrumental theory, democracy is only valuable to the extent of it provides essentially better solutions than any other decision-making policy available. The author’s argument for democracy being legitimately valuable is that democracy is the expansion of liberty into the sphere of decision-making in society. In its turn, the assumption of liberty being intrinsically valuable is entirely consistent with American philosophy. Consequently, one cannot simultaneously believe that democracy is an instrument and that liberty has an intrinsic value.
Evidently, democracy and liberty can conflict with one another. There are laws that happen to restrict individual liberty unwisely – but the problem is defined unwisely. Wallace states that in such cases, judges simply cannot act as if they know better than the legislature does when it comes to the issues of policy, as they cannot be justifiably certain of being in the right even if they are. Thus, democracy’s intrinsic value gives a general theoretical basis for judicial restraint, which is not undermined by the possibility of other values being more important than democracy in a particular case.
According to Wallace, the concept of judicial restraint is that in order to to avoid the usurpation of the decision-making role of democratically elective agencies and officials, judges must always be hesitant in declaring statutes or actions of the government anti-constitutional and must be cautious in supplementing or amending statutes when interpreting them. Courts have to adopt as few social policies as possible that are consistent with the resolution of duly submitted disputes. Consequently, judges have to be acutely aware of the possibility that a dispute is not properly before them and have to avoid the temptation to go beyond the issue actually before the court.
Constitutional law seems to be the area in which the issues of judicial activism and judicial restraint are of greatest interest. In accordance with the foundations of judicial restraint, Wallace suggests following the principles he has established when construing the Constitution. He advises to adhere to the clear language of the Constitution and make attempts to explicate unclear constitutional formulations in accordance with the intentions of the Framers if these can be established with a reasonable degree of certainty. If these principles cannot be applied, ambiguous constitutional wording must be clarified by choosing the alternative that least confines the freedom of action of legislators and officials.
This view contradicts the popular interpretation of the “living” or “growing” Constitution, which rests upon modern social attitudes. Advocates for it assume that current viewpoints may be relevant when interpreting the Constitution. Wallace argues that he does not find any language in the document that enshrines modern attitudes in the Constitution. Nevertheless, he remarks that the framers may have anticipated that some specific sections of the Constitution or its amendments would be interpreted as containing variables that went beyond social relations. Therefore, as Wallace points out, judicial restraint is applied consistently throughout different phases of history. Its practice does not alter in response to changing trends among judges and legislators. It upholds the principle of uniformity, and, by contrast, judicial activism does not follow this sequence.
The author concludes by noting that judicial restraint rarely allows for the repeal of a law passed by activist judges. This is an advantage for such judges since even those who regret their innovations nevertheless often retain them, although rarely renew them. Left completely uncontrolled, intermittent activist interventions could erode quintessential studies and weaken the separation of powers, which should be prevented at all costs.