“When was the last time you heard of any government or ex-government official being described as dishonorable?”

The late Judge Laurence Silberman posed that question fifteen years ago, in a speech titled, simply, “On Honor.” Before an audience of law students, he reflected on the decline of “honor” as a guiding principle in our understanding of public service.

I’ve always admired Silberman’s argument. As I’ve written elsewhere from time to time, we need a renewed vocabulary for the qualities of character—the republican virtues—essential for constitutional government.

The Founders saw the importance of republican virtue, with an eye to each branch of government. When Madison wrote of the “qualities in human nature which justify a certain portion of esteem and confidence,” and that “[r]epublican government presupposes the existence of these qualities in a higher degree than any other form,” he was writing first and foremost of Congress. Similarly, when Hamilton argued for our Constitution’s judiciary, emphasizing that our judges’ need for life tenure “is deducible from the nature of the qualifications they require,” his “qualifications” were particular qualities of character, because a good judge is a judge who does not wield “arbitrary discretion” but rather binds himself down “by strict rules and precedents.” The rule of law depends, at bottom, on judges having a certain kind of republican virtue.

But republican virtue is particularly important in the part of government that Judge Silberman’s speech focused on: the executive branch. The Founders knew that good execution needs a genuinely good executive. The fact that our Constitution requires each president to swear the constitutional oath is the stark reminder that a president must be the kind of person who would bind himself with a solemn oath to “faithfully execute the Office of the President,” and then go on to “take Care that the Laws be faithfully executed.” 

I have been thinking of this since last winter, when an AEI conference in honor of Judge Silberman spurred me to go back and watch his 1987 remarks on the then-new doctrine of Chevron deference, at the Federalist Society’s first National Lawyers Convention.

Silberman appeared on a panel with Sen. Orrin Hatch, Prof. Laurence Tribe, Judge Frank Easterbrook, and especially Justice Antonin Scalia. The subject was statutory interpretation, and Judge Silberman rounded out the discussion with reflections on Chevron deference. But instead of focusing on courts and agencies, he started with Congress—more specifically, Congress’s essential character as a legislative body.

“[T]he Constitution deliberately made the passage of legislation very difficult,” he observed. “[A]nd that has certain implications, it seems to me, with respect to statutory interpretation.” Most importantly, we must recognize that most legislation is inevitably a consensus, a compromise, and thus those interpreting a law—courts and agencies—must try to understand the “implications” of Congress’s compromise.

A court “does its job,” he argued, when “it enforces the compromise.” If judges make “an honest effort” to interpret a law’s text faithfully “to effectuate that compromise between the legislators,” they will “yield a more objective, a fairer, and a more constitutionally sound method of statutory interpretation.”

But the new doctrine of Chevron deference gave him pause, because he recognized that administrative agencies are inclined not to neutrally administer Congress’s compromises, but rather to “choose up sides between the two wings of this compromise,” Silberman warned, “and say well we like the policy of that side and there’s enough ambiguity here—we’ll run with it.” That would be illegitimate, he urged. Yet under Chevron, courts would largely defer to it.

Judge Silberman cast his prescient remarks as a friendly challenge to his compatriot and fellow panelist, Justice Scalia. In hindsight, I wonder if Justice Scalia’s own famous Duke Law Journal article on Chevron, originally a January 1989 lecture, was itself a response to Silberman’s speech, for Scalia’s article offered an alternative theory of Congress, courts, and agencies. 

If so, then it was an enormous success. Just a few months after Scalia’s speech, Judge Silberman would tell an ABA audience that Chevron was an appropriate note of judicial restraint, a recognition of agencies’ superior policymaking role, and—now echoing Scalia—a new baseline rule for Congress to legislate upon: “In any event, Congress, now aware of the Chevron rule and perhaps distrustful of executive branch interpretation, is thereby led to greater specificity in drafting. Such specificity is all to the good.”

Silberman even integrated his original concerns into Scalia’s theory: “Chevron thereby induces more concrete reconciliation of differing policy views during the legislative process[.]”

That was the hope, anyway. Still, once one hears Silberman’s original focus on congressional legislation as a body of compromises, and its implications for statutory interpretation and Chevron, certain phrases start to stand out more clearly in Silberman’s early Chevron-era opinions cases where his majority opinions deferred to an agency’s interpretation because the agency “arrived at a reasonable accommodation of the conflicting policies set out in its governing statute” (see here and here), or where he rejected an agency’s interpretation because it failed to take Congress’s compromise seriously (see here).

Needless to say, Scalia’s and Silberman’s early hopes for Chevron eventually were dashed by the institutional incentives that Chevron unleashed. But, of course, both of them knew from the start that Chevron entailed some serious downsides. Even Chevron’s best advocate, Justice Scalia, recognized that the doctrine attempted to strike a prudential balance. For Scalia, Chevron’s biggest problem was perhaps the costs of constant agency flip-flops. (“[A]t some point, I suppose, repeated changes back and forth may rise (or descend) to the level of “arbitrary and capricious,” and thus unlawful, agency action,” he conceded.) It was a prescient concern, to say the least.

But in hindsight, Judge Silberman’s original concerns may have been even more prescient. Chevron deference, a laudable attempt at judicial self-restraint in an era of broadly delegated regulatory powers, led us to eventually forget the entire point of Congress as the Constitution’s legislative body: to deliberate and eventually settle questions of public policy, not by unilateral fiats but by legislative compromises, as my colleagues Yuval Levin and Philip Wallach have eloquently written.

And, in turn, Chevron caused us eventually to forget the point of our constitutional executive—not to make laws, but to administer them faithfully.

The end of Chevron, by Loper Bright, is a new opportunity to re-learn faithfulness and honor in constitutional self-government. Presidents and their agencies will be responsible as always for faithful execution of the laws, but now they will do it under greater scrutiny from the courts. Judges, in turn, will need to work harder to resolve disputed questions of statutory interpretation, and when they wade into legislative history (which they almost certainly will do more often in the post-Chevron era), they will have to do so honestly. And legislators, to the extent that they genuinely intend to legislate, will have to relearn a kind of legislative “faith”—faith in their institution, and in one another, as genuine partners in the legislative process.

These are stark challenges, to say the least. But Constitution Day is the best day to re-read Judge Silberman’s speech, and to re-learn the notion of constitutional “honor.”

Adam J. White is a senior fellow at the American Enterprise Institute, with the Laurence H. Silberman Chair in Constitutional Governance; and he directs the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.