Orin's most recent post cuts through some of the fog generated by previous exchanges and gets to the heart of what he correctly characterizes as a big disagreement between our respective theories of constitutional interpretation:
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.
What I find interesting about my disagreements with Orin is that I agree with his premises but disagree with the conclusions he draws from them. Here, I agree that "human nature is fallible and highly imperfect" and that people tend to "embrace theories that reach results [they] like." But I disagree that this means we should be unusually skeptical about theories that "would lead courts to strike down lots of laws." If human nature is fallible and imperfect, that applies to the nature of legislators and voters no less than to that of judges. If ideological bias affects people's preferences about constitutional theory, that applies to theories that would lead courts to uphold lots of laws no less than to those what would lead them strike lots of laws down. People who like the outcomes of the political process will be biased in favor of theories that lead courts to uphold most laws no less than those who dislike those outcomes will have a bias the other way. And all of this applies to "non-grand" theories of constitutional interpretation no less than to "grand" ones.
Thus, the existence of human imperfection and bias does not justify judicial deference to legislative power. If anything, it justifies at least some degree of aggressive judicial review. After all, if humans are biased, fallible and imperfect, we should not allow the biased, fallible, and imperfect humans who populate the legislature and the electorate to be the sole judges of the scope of their constitutional authority.
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