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Legal Divide Rocks the Volokh Conspiracy!:
As Ilya's update makes clear, I think he somewhat misunderstands my post on McCain Feingold; at the same time, his post clearly points out a pretty big divide between how he approaches constitutional interpretation and how I do.

  For my part, I tend to be highly skeptical of grand constitutional theories that would lead courts to strike down lots of laws. Human nature is fallible and highly imperfect: it's only natural to embrace theories that reach results you like while being deeply convinced that you are following principle and the other guy is being result-oriented. Thus, libertarians are drawn to libertarian theories, progressives are drawn to progressive theories, etc. In the end, it just so happens that everyone seems to have a Grand Theory of the True Constitution by which a lot of laws they don't like end up being unconstitutional. And yet no seems able to convince anyone else that their theories of constitutional interpretation are wrong. I fear that in result, if not in intention, such theories too often become politics by other means.
Ilya Somin:
For my part, I tend to be highly skeptical of grand constitutional theories that would lead courts to strike down lots of laws. Human nature is fallible and highly imperfect: it's only natural to embrace theories that reach results you like while being deeply convinced that you are following principle and the other guy is being result-oriented.

Fair enough. But why should we be any less skeptical of "non-grand" theories that "would lead courts to uphold lots of laws." If human nature is fallible and highly imperfect, that applies to the nature of those humans who enact statutes as well as those who might decide to strike them down. I agree with you that people tend to be biased in favor of theories that fit in with their ideological preferences. But that applies to theories that lead judges to uphold laws no less than to theories that justify their invalidation. It applies to non-grand theories no less than to grand ones.
1.24.2008 1:35am
Bruce:
This reminds me of Robin West's point about the constitutionality of hate speech laws:


The position that seems to have no adherents is that hate speech regulations are desirable ... but are nevertheless unconstitutional.... Instead, those who think hate speech regulations are a good idea generally think they are constitutional while those who think they are not a good idea generally find them unconstitutional. No one seems to find them both desirable and unconstitutional, and hence exemplary of a problem with the First Amendment.


Robin L. West, Constitutional Scepticism, 72 B.U.L. Rev. 765, 767-68 (1992).
1.24.2008 1:43am
CDU (mail) (www):
But why should we be any less skeptical of "non-grand" theories that "would lead courts to uphold lots of laws." If human nature is fallible and highly imperfect, that applies to the nature of those humans who enact statutes as well as those who might decide to strike them down.
One could argue that in the event a fallible legislature passes a bad law, it's relatively easy for a future legislature to repeal it. Under our system, if a fallible judge overturns a good law, it's generally difficult for a future judge to overturn that precedent (stare decisis and all that). Thus the consequences of a fallible judiciary tend to be more permanent and lasting than the consequences of a fallible legislature, so it would make sense to keep a closer rein on the former.
1.24.2008 1:51am
OrinKerr:
Ilya writes:
But why should we be any less skeptical of "non-grand" theories that "would lead courts to uphold lots of laws." If human nature is fallible and highly imperfect, that applies to the nature of those humans who enact statutes as well as those who might decide to strike them down.
Because we live in a democracy. Of course, based on your work on political ignorance, I gather that you are skeptical of democracy.
1.24.2008 1:52am
Ilya Somin:
Because we live in a democracy. Of course, based on your work on political ignorance, I gather that you are skeptical of democracy.

Exactly. Even more to the point, if voters don't know even know about much of what the legislature enacts, then it's work product is often not democratic in any meaningful sense.

In addition, I am skeptical of "Grand Theories of Democracy" because I know that human beings are highly imperfect and fallible, and the electorate is made up of such human beings.
1.24.2008 2:01am
Ilya Somin:
One could argue that in the event a fallible legislature passes a bad law, it's relatively easy for a future legislature to repeal it. Under our system, if a fallible judge overturns a good law, it's generally difficult for a future judge to overturn that precedent (stare decisis and all that). Thus the consequences of a fallible judiciary tend to be more permanent and lasting than the consequences of a fallible legislature, so it would make sense to keep a closer rein on the former.

I don't think this is necessarily true. Many flawed legislative enactments become highly institutionalized and are extremely difficult to repeal. Judges, on the other hand, overturn or limit precedents quite often. Moreover, new judges with different views can be selected to replace the old ones (and often are). I also think that the consequences of governmental overreaching beyond its assigned powers tend to be worse than those of denying government powers legimitately granted by the Constitution. However, I recognize that this point requires a much more extensive defense than I can give it here.
1.24.2008 2:07am
OrinKerr:
Ilya,

I hope you'll someday write a book about "judicial ignorance. I suspect it will be longer than your book on public ignorance,
1.24.2008 2:17am
CDU (mail) (www):
I also think that the consequences of governmental overreaching beyond its assigned powers tend to be worse than those of denying government powers legimitately granted by the Constitution.
Overturning a law is not necessarily synonymous with limiting governmental power. Take Marbury v Madison, the case that established judicial review in the U.S., for example. The law the Supreme Court found unconstitutional in that case limited government power by allowing the courts to issue Writs of Mandamus. Overturning a law can cut both for and against civil liberties. This is particularly true in our federal system, where overturning a federal law that places limits on state actions or waives sovereign immunity may result in a reduction of liberty for citizens at the state level.
1.24.2008 2:19am
Loophole1998 (mail):
Do conservatives like textualism because it makes sense, intuitively, and promotes a relatively ordered method for resolving disputes, OR do they like textualism because it helps preserve 18th century values?

Do progressives like a "living" constitution because they have great faith in the general wisdom of modern judges, OR do they like the "living" constitution because it aids in ignoring 18th century values?

I tend to think most judges gravitate to the process that is most likely to yield the substantive right they desire. But it may simply be that conervative people are naturally attracted to formalistic rule-based systems while progressives are more likely to have faith in a people-oriented dispute resultion process.
1.24.2008 2:22am
Ilya Somin:
I hope you'll someday write a book about "judicial ignorance. I suspect it will be longer than your book on public ignorance,

Quite possibly. But the average judge likely knows a great deal more about public policy than the average voter. In any event, my voter ignorance argument for judicial review is not based on any claim that judges are highly knowledgeable. It only makes the narrower claim that voter ignorance shows that broad judicial deference to legislatures cannot be justified on the grounds that the latter's work product is likely to be good because it is "democratic."
1.24.2008 2:24am
OrinKerr:
Ilya,

How is one judge vs. one voter relevant? Single voters do not create laws; legislatures do. Isn't the relevant comparison a single judge or at most a panel of judges versus a legislature representing the diverse interests of the citizenry?
1.24.2008 2:45am
David M. Nieporent (www):
I tend to think most judges gravitate to the process that is most likely to yield the substantive right they desire. But it may simply be that conervative people are naturally attracted to formalistic rule-based systems while progressives are more likely to have faith in a people-oriented dispute resultion process.
I don't deny the first sentence of that paragraph, but I think the second sentence is also true.

It's why a case like Bush v. Gore was so contentious: liberals were arguing for a substantive outcome they preferred (Gore), but also for a squishy policy of counting votes that it would seem fair to them to count as votes (the voter 'intended' to vote for Gore, even if he didn't punch the chad or interpret the butterfly ballot correctly). Meanwhile, conservatives were arguing for their substantive preference of Bush, but also for bright line rules about how to count votes. Both sides could thus tell themselves that they were not acting out of mere partisan interest, but standing up for a reasonable principle.

(That having been said, these are only tendencies, not universal rules for being liberal or conservative. Take Bush's wiretapping, where conservatives are arguing for loose interpretations and liberals want to stick to the black letter of the statute.)
1.24.2008 3:07am
PLR:
It's why a case like Bush v. Gore was so contentious: liberals were arguing for a substantive outcome they preferred (Gore), but also for a squishy policy of counting votes that it would seem fair to them to count as votes (the voter 'intended' to vote for Gore, even if he didn't punch the chad or interpret the butterfly ballot correctly).

The Florida election supervised by Ms. Harris was marred by a little more than one county's ballot and some little rectangles of paper.
(That having been said, these are only tendencies, not universal rules for being liberal or conservative. Take Bush's wiretapping, where conservatives are arguing for loose interpretations and liberals want to stick to the black letter of the statute.)

What conceivable "loose interpretation" of FISA authorizes the data mining? Oh, never mind, it's classified, so we can ignore Bush's own admission that the administration didn't follow FISA.
1.24.2008 10:15am
Aultimer:

OK: How is one judge vs. one voter relevant? Single voters do not create laws; legislatures do.

He said "the average", not "one".

An "average" anything is a useful fiction. The average level of ignorance is entirely relevant to the policy implications since it stands in for the entire body, quite the opposite of any single member of the body.

I guess I was right to be skeptical of the quality of Science degrees issued by elitist liberal arts ivy league schools.
1.24.2008 10:55am
hey (mail):
While not a first amendment case, Thomas' position on Lawrence was the converse of the suggested impossible position. While there are many who question Thomas' sincerity in the position, there are a great many libertarianish conservatives - such as myself and Jonah Goldberg - who think that there are many things that are constitutional but bad ideas. Too many people use constitutional to mean good and unconstitutional to mean bad.

I think that there are many useful restrictions on free speech that the 1st Amendment prevents. This is especially true as interpreted, permitting exhortations to crime that aren't immediate and prohibiting far too much prosecution of speech acts by insurgents and saboteurs. So I'm the alleged impossibility, just not on this specific element.
1.24.2008 11:36am
Alex650 (mail):
Prof. Kerr-

I agree with most of your post but think the last sentence is a bit of a non seqitur. Sure, I'll grant that people pick theories to generally match their policy preferences. But that's not the end of the story. What distinguishes law from politics (or good law from bad) is the extent to which decisionmakers, having adopted a particular theory, are willing to stick with it when it goes AGAINST their policy preferences. That's why internal consistency is so important in law, politics, philosophy, and even theology. First principles are hard to argue about, but we can at least ask that theories be internally coherent.

We might think that formalism or textualism is good; we might think it's bad. But forcing someone to adopt and stick to a theory, even if that theory is adopted for results-oriented reasons, actually forces the person to be less results-oriented.
1.24.2008 4:41pm
OrinKerr:
Alex,

The difficulty is that, in my experience, decisionmakers generally don't stick to their methodology when the politics change. So you make a fair point in theory, but I just haven't come across examples of that in real life (and I should add that I have spent years looking -- i used to think I actually found one, but that person also proved not to be consistent on some really major issues). Unfortunately, it seems that constitutional theorists tend to be 100% committed to their theory only 50% of the time.
1.24.2008 9:05pm
Randy R. (mail):
Hey:" there are a great many libertarianish conservatives - such as myself and Jonah Goldberg - who think that there are many things that are constitutional but bad ideas."

True enough. But if you get too many instances of bad ideas that are consitutional, at some point you reach a tipping point, and people lose respect for the constitution, thereby undermining its legitimacy.
1.24.2008 10:10pm
Randy R. (mail):
Furthermore, I Jonah Goldberg isn't gay -- I don't know if you are -- but it's always very easy to live with a bad law that doesn't apply to you.

Others aren't so lucky.
1.24.2008 10:12pm