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"The Virtues of Judicial Self-Restraint" - William J. Haun in National Review
By The James Wilson Institute •
Posted on May 12 2025
William J. Haun argues that originalists have lost sight of proper judicial self-restraint. While originalists work to affirm the individual liberties guaranteed in the Constitution, recklessly striking down laws may encroach upon a community liberty that is too often ignored—the liberty to legislate. Moreover, this important liberty may be given more due within originalist framework because originalism is silent on a range of issues, such as stare decisis, that may restrain the judiciary.
Excerpts from the Article:
The modern conservative legal movement began with a principal focus on judicial self-restraint. Decades of a burgeoning federal criminal code, expanded delegation and deference to administrative agencies, and an increasingly prominent libertarianism within the conservative legal movement, however, have facilitated a shift in originalism's emphasis. Rather than focus on constraining the courts' interference with democratic choice, originalists now advocate empowering the courts to police the coordinate branches and the states. The main goal underlying this shift — protecting the individual liberty guaranteed by the Constitution — is a goal originalism rightly values. But this new focus does present the serious risk that the next generation of conservative legal minds will either not appreciate the role judicial self-restraint plays in originalism, or — if certain libertarian originalists have their way — the next generation will simply discard judicial self-restraint altogether.
… Judicial self-restraint's sensitivity to separating the exercise of judicial and legislative power gives originalism a principled incorporation of judicial precedent. … The American people have thus consented to the exercise of judicial precedent and stare decisis, in the same tacit way the American people today consent to the Constitution more than two centuries after its ratification.
Though originalists have been tempted away from self-restraint for understandable reasons, the counter-majoritarian difficulty remains endemic to judicial review in a self-governing society. Self-government may have been eroded by legislative decisions, but empowering courts to save self-government is incoherent. The judiciary is still structurally and procedurally distinct from the nature and process of democracy. And the judiciary, unlike the liberty to make laws, cannot give substantive voice to a community's various values and extra-rational attachments.
Read the full Article here.