One Last Response to Ilya:
Readers will be greatly relieved to know that Ilya and I can't keep up our exchange forever; I'll be on a plane all day, so this will be my last post until at least tonight. But I did want to emphasize one quick point in response to Ilya's take on democratic legitimacy. Notions of democratic legitimacy must be relative, not absolute. Ilya is correct that legislative lawmaking does not reflect the perfectly informed consent of all of the governed. But that's not the relevant question, I think. In my view, we need to compare the democratic legitimacy of the law in two systems: first, a system in which judges adopt a generally respectful attitude towards the products of the legislative process; and second, a system in which judges use highly contested theories of constitutional interpretation to strike down lots of laws. In my view, the democratic legitimacy of the former system is very likely to be significantly greater than that of the latter.
All Related Posts (on one page) | Some Related Posts:
- A Final Response To Ilya:
- Limited Government, Politics, and Judicial Review:
- What if The Public Doesn't Like Limited Government? A Response to Ilya:...
- The Supreme Court's Approval Ratings and the Legitimacy of Judicial Review:
- One Last Response to Ilya:
- Judicial Review, Democracy, and Legitimacy:...
- Conservative Legal Academics, McCain-Feingold, and "Judicial Restraint":
- Conservative Legal Academics and the Constitutionality of McCain-Feingold:
- Brad Smith on John McCain: