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Human Imperfection, Bias, and Theories of Constitutional Law:

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.

Kazinski:
Here's my theory of constitutional law: Judges of course should first try to interpret the constitution fairly, but when that is not conclusive they should lean to the side of personal freedom.

Breyer of course sees it differently, he would have judges lean to the side of collective freedom (what ever that means).

Of course not all constitutional issues fit that template, its hard to see how balancing the Presidents Art II. powers against Congress's Art I. powers comes down decisively on either side of the collective vs. personal freedom scale. Both Congress and the Executive have shown themselves pretty willing to squash personal freedom and push collective solutions, and rarely do their instincts lead the other way.
1.24.2008 2:15am
Greg D (mail):
Here's why you're wrong (yes, that was said half tongue in cheek):


When legislators screw up. we the people (you know, the ones who are supposed to be sovereign) can vote them out of office. Or we can pelt them with mail, and protests, and get them to change their minds (so that we won't vote them out of office).

When judges screw up, we the people can't do anything, we're simply screwed. (How many Constitutional Amendments have passed in the last 100 years? Compare that to how many laws have been overturned by legislative bodies.)

If you want to keep the cost of screwups down, then you put the decision making power in the hands of those most likely to be negatively affected by screwups. That's not going to be unelected, unaccountable, got-a-lifetime-appointment judges.

If you simply want to force your ideas on everyone else, regardless of whether or not the ideas are any good, and regardless of whether or not your ideas are what the Constitution demands, then you give more decision making power to "judges".
1.24.2008 4:44am
C Smith (mail):
As an undergraduate control systems engineer, one of the chief lessons of the entire curriculum was "less is more".
1.24.2008 7:40am
PLR:
If you want to keep the cost of screwups down, then you put the decision making power in the hands of those most likely to be negatively affected by screwups. That's not going to be unelected, unaccountable, got-a-lifetime-appointment judges.

From a risk management standpoint, I'd rather have a screwup from an appointed-for-life federal judge than a quadrennially elected executive who commands an army and controls law enforcement functions.

And that's not even a close call.
1.24.2008 11:13am
Mark Field (mail):

How many Constitutional Amendments have passed in the last 100 years?


12.
1.24.2008 11:18am
Ilya Somin:
When judges screw up, we the people can't do anything, we're simply screwed. (How many Constitutional Amendments have passed in the last 100 years? Compare that to how many laws have been overturned by legislative bodies.)

If you want to keep the cost of screwups down, then you put the decision making power in the hands of those most likely to be negatively affected by screwups. That's not going to be unelected, unaccountable, got-a-lifetime-appointment judges.


You're assuming that constitutional amendments are the only way to fix judicial "Screwups." In reality, you can also fix them by appointing new judges with different views, as happens quite regularly.

Furthermore, the effectiveness of elections fixing legislators' screwups is severely undermined by political ignorance (discussed in my next post in this series).
1.24.2008 11:58am
Greg D (mail):
PLR,

That's an amazing non-sequitur you emitted. Do you think about it at all before you wrote it?

Someone gets to decide if the US is going to go to war. Should it be an unelected "judge", or an elected President?

If you have any respect for the concept of democracy, you say it's the elected official. If you're simply a fan of dictatorship, or, even worse, you're one of those utterly amoral individuals whose only political "principle" is "whatever I want should happen", you go with the "judge" (at least, you do in the second case once you've decided that the voters so dislike your views that you're not going to win if you put it to a vote).

That fact that, for you, "it's not even a close call" tells us a lot about you. None of it good.
1.24.2008 8:28pm
Greg D (mail):
Ilya,

The major judicial screwups of our time are the ones where they invent a "Constitutional Right" and then force it on the rest of us. How many of those invented / discovered / Living Constitution "rights" have been overturned in the last 50 years?

As for lesser screwups, such as when they re-write a law to be what they want, instead of what was approved (see, for example, the "discovery" of racial quotas in the 1964 Civil Rights Law), a group of legislators may not have the power to get something enacted, while still having the power to keep the opposite from being enacted. So if legislators make a compromise to get a law enacted, and then "judges" change the terms of the compromise after the law is passed, those who made the compromise, and would have voted against the version of the law that the "judges" "wrote", often will not have the power to undo the judicial screwup, now that the law has been approved.

As for "political ignorance", I didn't say elections have a prefect record of undoing political screwups. I just said they're more likely to correct political screwups than they are to correct judicial screwups.

As for "just appoint new judges to overturn the acts of teh old judges":

1: That takes a lot longer then voting the bums out. Which means the mistakes have higher cost.

2: The people who are most in favor of giving all that power to "judges" tend to be the same people who scream the most loudly about stare decisis protecting the decisions they like, and screaming about how Presidents (that they don't like) shouldn't have "litmus tests" for judges, which is exactly what you're saying the President should have.


What it comes down to, when all is said and done, is the following question:

Who should have the power? Should it be "We The People", or should it be "you, the experts"?

Any and all human organizations are going to screw up. They're going to make mistakes. They're going to do things that others disagree with.

If you believe in democracy, then you have to believe it's the job, and the right, of "We The People" to decide what is a screwup, and how it should be dealt with. Letting unelected and unaccountable officials (be they called "judges", "justices", "the Junta of Compassion", "the Committee of Public Safety", "the Committee for the Promotion of Virtue and Prevention of Vice") is a direct attack on democracy.

It may be that "the People" are "too stupid" to know that they should agree with you, and that they'd be much better off if they just let you, and those who agree with you, run the show. It may also be that they're right, and you're wrong, and that they're much better off by ignoring you and all those who agree with you.

However that turns out, it's still their right to make the choices. When you free judges from being strictly bound by the laws and written Constitution, you are violating that right. You are supporting dictatorship over democracy. If you're going to do that, can you please at least be honest about it?
1.24.2008 8:56pm