I think Ilya and I are nicely peeling away the layers of our differing views about the role of judges. We each think the problem is that human beings are fallible. I draw the lesson that judges should be cautious about imposing their fallible views on the legislature and the public. Ilya draws the lesson that we need to have fallible judges vigorously checking fallible legislatures acting on behalf of the fallible public.

  Where Ilya and I differ, I think, is in the nature and importance of governmental legitimacy. I think the legitimacy of government is premised on the consent of the governed. Notions of legitimacy are complex, of course, and I don't want to oversimplify matters too much. But legislatively enacted laws generally deserve respect because they reflect a process involving wide participation of those who will be governed by them through their elected officials. In contrast, judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges. I think the closer connection to the consent of the governed of legislative acts relative to judicial ones provides an important reason judges should be reluctant to latch on to fallible and contested theories that would lead them to invalidate lots of legislation.