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Should Courts Defer to Political Branches?

Professor Michael McConnell reminds us that it is the job of all branches of government to act in accord with the Constitution. The important question for a court is not whether to defer or not to defer to the Legislative or Executive branches, but simply to evaluate their actions in light of the Constitution. It is a legitimate function of the court to consider text, meaning, and precedent when issuing a decision but that does not automatically mean deference to another branch. https://youtube.com/watch?v=QW5WcKYZuCk


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.

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