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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.
Gary Anderson (mail):
I think Ilya has the better argument, Orin. Your view seems hopelessly naive in these days when most Americans would agree that the Congress represents money, not the true yearning of the American people.

So long as our legislative system remains bought and sold -- and only panders to American voters on hot-button social issues -- judicial review becomes increasingly necessary.

Now if we could just blink our eyes, click our heels, and return to the days when elected officials actually represented the interests of the people, you might have a point. But sadly, most people know we're no only nowhere near that these days, but we're actually going further and further into the corporate "bought and sold" or "capture" theory of democratic lawmaking.

Factor in reality, and Ilya has you here, hands down. In theory though, some might still voice what you're saying, until they get a good look at the current American political system... (That's why theorists and academics can be smart as they like, but with no grounding in reality, they're ultimately useless. See the Bush administration promises and policies, for starters. Sometimes you really do need to listen to the people on the ground getting the work done, and not the "it should be like this" speculators who ultimately want to bear no responsibility for how things turn out.)
1.24.2008 10:54am
arbitraryaardvark (mail) (www):
In a democratic republic with a libertarian constitution, what you would want to have is legislature and executive and judiciary that each makes a good faith effort to stay within the constitutional constraints. In such a setting the judiciary could have a generally respectful attitude. Instead, we've got a sausage factory, and an active judiciary is one of the last lines of defense against the people just scrapping the system and starting over, e.g. by a constitutional convention.
1.24.2008 10:55am
OrinKerr:
Gary,

I'm curious -- are you assuming that judges would only strike down the laws that to you don't reflect the consent of the governed? What are the laws reflecting "hot button" issues that you think judges should invalidate? I don't mean to put you on the spot, but I'm interested in knowing your take on this.
1.24.2008 11:02am
Grange95 (mail):

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.

Kind of stacking the deck there, aren't you? Why not compare a system where judges act as rubber stamps for the legislature by upholding laws that flagrantly violate the Consitution, with a system where judges invalidate a significant number of laws using well-established legal traditions?
1.24.2008 11:03am
OrinKerr:
Grange95,

I think Ilya and I agree in complete agreement about what judges should do when the law is clear and uncontested. No one disagrees about that. The question is what to do when the legal theory used to strike down the law is highly contested and very controversial. I didn't mean to stack the deck; I just meant to identify the disagreement between Ilya and I, at least as I understand it.
1.24.2008 11:07am
MilesLegis:
I am inclined to suggest that this debate is inappropriate for our Constitutional order. The important thing is not the consent of the governed, but that the laws that are passed are within the legal framework of our system.

I am no lawyer, obviously, but isn't it possible that the governed consent to the Constitution and the Republican mechanisms of election and law?

I agree with Arbitrary - but I don't think our Constitution is libertarian. In the classical sense, the very presence of such an order is conservative, not libertarian. But your bona fide argument is the right one: where is the executive and legislative leadership on the issue of Constitutional restraint?
1.24.2008 11:10am
Cactus Jack:

In my view, we need to compare the democratic legitimacy of the law in two systems: [(1)] a system in which judges adopt a generally respectful attitude towards the products of the legislative process; and [(2)], 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.


What about the relative democratic legitimacy of a system (let's call it system (3)) in which (1) is true but judges apply highly contested theories of constitutional interpretation to accomplish (1)? This seems similar to situations Ilya (and others) are considering involving campaign finance reform, commerce clause cases or eminent domain.
1.24.2008 11:36am
wekt:
What I don't understand is how McCain-Feingold isn't a seens as a cut-and-dried violation of the First Amendment. An outright ban on political speech in ads that air 60 days before an election?!

Free speech isn't free of cost; restricting the means of disseminating speech is, IMHO, clearly an abridgement of the right to free speech.
1.24.2008 11:44am
Gary Anderson (mail):
What are the laws reflecting "hot button" issues that you think judges should invalidate?

Aha! You read much too much into this: "So long as our legislative system remains bought and sold -- and only panders to American voters on hot-button social issues -- judicial review becomes increasingly necessary."

Where did I say I think "Judges should invalidate laws reflecting hot button issues?" I merely observed that the public is generally uneducated and not in the least a practical participant in influencing their legislators -- except perhaps on those hot-button social issues (figure it out yourself, not too hard) where the politicians tend to pander to this side or the other.

Now if you're making teh point that our judicial figures -- once thought to be shielded from political and financial pressures -- are no better in the "bought-and-sold" game than our more active legislative politicians, you might be more convincing in pursuing such angles.

As it stands though, the "legislative bodies represent the will of the people and therefore should be respected by the judiciary" is for naught -- that ship has sailed my friend, the bus has left the station, it's an idea riding on final fumes, etc.

I hope you get the idea without my going into further detail. Here, did you read this comment also, " Instead, we've got a sausage factory, and an active judiciary is one of the last lines of defense against the people just scrapping the system "

Of course, I'm curious your take on Bushv.Gore, or Gorev.Bush or whatever it was that had the Supreme Court fudging the rules in helping determine our current president. Should the Supremes have respected the state judiciary, which presumably was following Florida legislative rules set up as "the will of the people"?

See, when everybody knows legislature's but a behind-the-scenes money game and sees judicial review so inconsistantly applied, your argument about respecting teh will of the people just falls short, my friend. Reality is a b*tch like that, and there's nothing worse than urging trust in the legislative process when everyone pretty much knows the game as it's currently played is stacked.
1.24.2008 11:55am
Gary Anderson (mail):
OK: "I didn't mean to stack the deck"

INtentions, good or bad, are pretty much irrelevant to the final results on the ground. That lots of people have to live with, I might add.
1.24.2008 11:57am
guy in the veal calf office (mail) (www):
The general divide between assigning deference to a messy, inscrutable but more inclusive process and or to a select group of experts is a pretty common one.

In economics, do you give deference to the market or technocrat industrialists? In politics, do you give up freedom to the strong man with good ideas or take a chance on a representative form of government? Is history made up of great men present at great events, or the steady march of faceless popular movements?

I think deferring to judges or to legislative process falls within this timeless argument. I also think people generally have a bias against messy, inscrutable processes that defy easy description and easy manipulation.
1.24.2008 12:01pm
NI:
Let's talk about the facts on the ground for a minute. The governed want cradle to grave government programs but no taxes to pay for them. The governed want to use the government to run the lives and manage the property of everybody else but want freedom to do as they please for themselves. And while I agree that Congress is basically run by money, who exactly is it that keeps re-electing them? If the voters actually cared about such things they could fix it in one election cycle. (And why are we pretending that any more than a small percentage of the governed even care anything about their government except to the extent that a particular issue impacts on them personally?)

In other words, what the governed want is silly when not disastrous. There is a point (reasonable minds may differ as to where) at which responsible governing by all three branches consists of ignoring the wishes of the governed altogether. (I have argued elsewhere that service in Congress should be like jury duty: You get picked at random, you do it for two or six years, and then you go home.)

Given those facts on the ground, I think activist judges are the last line of defense against not only tyrrany but also lunacy. I admit to not being really sure how to translate that into a coherent constitutional jurisprudence.
1.24.2008 12:24pm
CrazyTrain (mail):
Orin's argument is the classic and intellectually-consistent "judicial restraint" argument. It is no way "conservative" however (in the way we understand "conservatives" today) -- nor is it "liberal." At various times in the last century, both liberal and conservative politicians and judges (who are, in many cases, just politicians in a lighter way) have latched on to the theory when it was politically feasible to them. Thus, liberals would have agreed with every word Orin wrote in the early part of that century. Conservatives would have agreed in the latter part of that century.

Today, however, it seems that very few politicians actually believe what Orin is saying (some, perhaps many, judges do). When Republicans talk about "strict construction" and "not legislating from the bench", I think we all agree that that only applies when they disagree with the results. We can debate the intellectual dishonesty of Democratic politicians re judicial views, but Democratic politicians have not articulated any good soundbites for their views on judges. Rather, the deal seems to be that the base understands that judges will be appointed who believe in upholding Roe &Casey (for any reason -- it doesn't really matter) and the rest of their judicial philosophy can be whatever it wants to be. This is somewhat represented by the diversity of views of Clinton appointees who are all over the map. Compared to Carter appointees who seemed to be, for the most part, classic liberal judges in the Brennan mold (although most try/ied to stay constrained by Supreme Court precedent).
1.24.2008 12:25pm
CrazyTrain (mail):
I should add that my view of Democratic politicians' views of the deal with the base is not limited to Roe/Casey, but to all "privacy" cases that lay-people believe fall in the same line -- including Lawrence v. Texas. However, as to judicial philosophy, I don't think it is that important in Democratic politics why the politicians and or judicial appointees agree with this --- thus, if a judge just thinks Roe/Casey, Lawrence, etc. must be upheld on stare decisis grounds, I think that is OK with everyone.
1.24.2008 12:30pm
Brett Bellmore:

I think Ilya and I agree in complete agreement about what judges should do when the law is clear and uncontested.


But, in practice, a law doesn't have to be in any way unclear in order to be contested. All that is required is that somebody in a position to contest it see some gain in doing so. Perhaps because it clearly prohibits something they want done, or clearly authorizes something they oppose.

We need a definintion of "clear" that's more than just looking to see if people disagree.

For instance, the commerce clause is pretty clear, and pretty clearly does NOT say what the Court has read it to mean since Wickard. For that matter, it's fairly difficult to square the Sixth amendment's "all criminal prosecutions" with the Court's "petty offense" jurisprudence abolishing the right to jury trials in many such prosecutions.

Or coming from the other direction, we might note the eternal efforts of tax resisters to pretend that the 16th amendment doesn't really mean that their incomes can be taxed.

No, if the law were clear AND uncontested, we know what judges would do: Nothing, because the matter wouldn't be before them...
1.24.2008 12:42pm
marghlar:
Brett: you are assuming that the law of the constitution is always controlled by a literal reading of its text, even when that literalism seems to be different than what its authors would have intended, or when it leads to highly unpragmatic results. (At least, that seems to be an unstated assumption in your argument.)

That thesis is itself controversial. So your examples of "clearly wrong" doctrines are themselves both contested and contestable. That doesn't mean that you are wrong on what the law should be, but it does mean that things aren't as "clear" as you suggest.

At bottom, what results are "clear" or "uncontroversial" has to be a sociological fact. So, there isn't any other way to determine it than by looking for actual disagreement. And that doesn't make every constitutional case equally controversial, either -- there are plenty of cases with almost nobody on one side, and lots of people on the other, that still get litigated up to the top. Just because a party wants something, doesn't mean that the legal community in general respects their position.
1.24.2008 12:52pm
Kazinski:
Gary Anderson,


Of course, I'm curious your take on Bushv.Gore, or Gorev.Bush or whatever it was that had the Supreme Court fudging the rules in helping determine our current president. Should the Supremes have respected the state judiciary, which presumably was following Florida legislative rules set up as "the will of the people"?


Great example. The Florida Supreme Court reversed the trial judge and set up a new process with standards it created it order to resolve the election. There was no Florida law specifying any such procedures or deliniating any such standards. It really was a classic case of "legislating from the bench".

I certainly do not think Bush v Gore was a great decision, although the outcome was correct in that it left the trial judges decision intact applying the statutes as written and it left state law as enacted by the legislature as the controlling law. It also headed off a move by the State Legislature to use its plenipoteniary power under the constitution to directly select Florida's electors, thus nullifying the Florida Supreme Courts usupation of legislative power.
1.24.2008 1:14pm
Brett Bellmore:
OTOH, just because the legal community in general decides that, Humpty Dumpty like, they're going to 'pay the words' to mean what they want, doesn't mean that anybody outside the legal community ought to respect their position.
1.24.2008 1:17pm
John Kindley (mail) (www):
Since this is the current hot thread and the thread I was commenting on on this topic seems to already be relegated to obscurity, I'm reposting it here:

A commenter responded to my comment that "consent of the governed," per Lysander Spooner, is a total legal fiction, and that requiring a supermajority (along with bringing most government down to the very local level where "consent of the governed" actually means something, and Randy Barnett's/Lysander Spooner's "presumption of liberty" in the context of judicial review) is one legitimate response to that truth, thusly: "So do we need 90% of people to agree there's a self defense exception, because someone defending themself is going to deprive the attacker of his freedom by taking his life? Or do we need 90% of people to agree that there's no self defense exception, because we're going to take away the freedom of someone who kills in self defense as punishment?"

To which I reply: You would need 90% of people to agree that there's no self defense exception, because the relevant question is what government proposes to do (in this case jail someone who's killed somone else in self-defense), that it really has no special inherent authority to do. (As Lysander Spooner argued in his "No Treason: The Constitution of No Authority," the government has no more inherent authority to enforce natural rights -- or to do anything else -- than anyone else in society.) I would have to say the same about the abortion question (even though I detest abortion), because the primary question is not the rights of the unborn child, but the government's proposal to put women and abortion doctors in jail for committing abortion. For that you should indeed need a supermajority (80% might work instead of 90%. Both numbers are just as arbitrary as 51%.) Of course, in determining whether they're going to put women and abortion doctors in jail for committing abortion by a supermajority vote, a primary question for voters should be the natural rights of the unborn child.
1.24.2008 1:54pm
Gary Anderson (mail):
So you're alleging, Kazinski, that instead of keeping the judicial power corruption as Florida's problem alone, it was best to spread it throughout the country via teh Highest COurt in the land? I don't think the loss of respect and legitimacy for that Court was worth it. Particularly when you see what the Court interferring on political grounds has wrought.
1.24.2008 1:56pm
marghlar:
True enough. Although ignoring the prevailing sentiments of the legal community regarding the content of the law is a time-tested method of losing lawsuits, and can even land you in jail. Just ask the tax protesters.
1.24.2008 1:57pm
marghlar:
(in case it was unclear, that last, like my previous comment, was addressed to Brett)
1.24.2008 1:59pm
Kazinski:
GaryAnderson,

I do think if a court is going to decide a presidential election that it should be the US Supreme Court, not the Florida Supreme Court. But I would have preferred that if it couldn't stay out of court at all, it at least stayed in the trial court. The trial court judgement left itself to applying the facts to state law, without trying to modify the law, inorder to resolve any questions about the election. The Florida Supreme Court took it upon itself to decide that existing law was inadequate, so it tore it up and wrote new law.
1.24.2008 2:21pm
Gary Anderson (mail):
And then the Supreme Court compromised its own integrity by breaking precedent in taking the case, and applying at best specious reasoning to justify their coronation of King George.

They should have kept their hands clean, and left it to Florida law to decide how to proceed...

Buy hey, it's all cool if you get the outcome you like, eh?
1.24.2008 2:26pm
CrazyTrain (mail):
Kazinski -- Florida law specifically delegated such authority to the Courts and gave the Court very broad authority to fashion equitable remedies of just about any character. The Florida Supreme Court may have been wrong in their understanding of the law and in reversing the trial judge in a 4-3 decision. But that was a matter of Florida law, not federal law. I know that it must blow your mind that legislators would actually pass the buck to judges to deal with individual problems in particular elections, but that was the case. No one seriously disputes that the main rationale for Bush v. Gore (the equal protection rationale) was silly and contrary to precedent, especially the precedent developed by the very judges who signed that "per curiam" opinion. The second rationale -- the one adopted by the Chief along with Scalia &Thomas -- at least has some superficial appeal. But that's about it -- the Constitution by delegating the choosing of electors to the state "legislatures" certainly does not preclude the state legislatures from their own law that mandates courts to apply flexible standards in individual cases. Query why AMK and SDO didn't sign that opinion -- because they knew that the argument was wrong. States rights, my ass.

The great irony of it all is that Bush would have ended up winning Florida regardless, the Supreme Court had to basically act in an outrageous, lawless and absurdly partisan fashion for no reason.
1.24.2008 2:36pm
CrazyTrain (mail):
One more thing: if the roles were reversed in Bush v. Gore, and it was Gore advocating Bush's positions to the Supremes, we all know cert would never, ever have been granted. If you don't think that's the case, you live in fantasy-land.
1.24.2008 2:38pm
MilesLegis:
I believe the Supreme Court also instructed the Florida courts to go ahead and read the laws next time. And if you want to get into equal protection, there is a case to be made. Every time you re-canvass a districts votes, you find more votes. Assume you find them in equal proportion to the original. In this fantasy district, it is 55/45 for Gore. Every time you find another 100 votes that were previously discarded, you find 55 for Gore and 45 for Bush.

Well in that case, a district of similar population that is 55/45 Bush should also be re-canvassed over and over. But this is not what Gore wanted. He wanted to keep scouring the barrel for his own votes.

And the idea of an ordered system that protects liberties, especially the right to industry and property, is fundamentally conservative. Just because most self-proclaimed conservatives today have no appreciation of this fact has no more bearing on Conservatism the intellectual ideology than does Castro's Catholicism have on the atheism in Marxism.
1.24.2008 2:58pm
LLCoolBeans (mail):
It's been a while since ConLaw, but what of the countermajoritarian difficulty. Doesn't the structure of the constitution, specifically, the fact of an Article III branch, show that judges are sometimes not supposed to respect the legislative judgment, even over a debatable constitutional theory? Isn't the judiciary in part to protect the rights of those in the minority of the legislative process? Any constitutional theory is always going to be "debatable" in some sense. Who is to say where reasonable debate begins and ends? Will that change as the bench changes? If so, doesn't that just mean that the bench should just vote on the theory it thinks best, without specially accounting for the "debatability" of the theory?
1.24.2008 3:30pm
Laura S.:
Orin frames the debate as: "The question is what to do when the legal theory used to strike down the law is highly contested and very controversial."

first, lets emend that to include "or uphold the law".

"a system in which judges adopt a generally respectful attitude towards the products of the legislative process"

Such a system is itself controversial.

Randy Barnett framed the question nicely: should judges place the burden on the government to demonstrate that the law is constitutional or so should judges place the burden on the person to demonstrate that the law is unconstitutional.
1.24.2008 3:53pm
OrinKerr:
Gary,

I just read over your comment, but I can't understand it; the key lesson I have drawn is that you think you are grappling with reality, but that I am not.

In any event, yes, Bush v. Gore was wrongly decided. Yes, the Florida Supreme Court was being result-oriented and "legislating from the bench." Their decision was absurd. However, I'm not aware of a general principle of federal constitutional law that lets the U.S. Supreme Court reverse state law interpretrations of state law on that basis (although there are such Due Process limitations when this happens in the criminal law context, see Buie v. S. Carolina.) It's my view that Supreme Court decisions should be based on text, history, precedent, and legitimate sources of judicial power, and that under that traditional set of criteria Bush v. Gore was wrong. Of course, I understand if you disagree with these traditional criteria.
1.24.2008 6:38pm
MilesLegis:
Let's not forget that it was not the Constitution that provided for any judicial review at all... /ominous
1.24.2008 7:53pm
Gary Anderson (mail):
[Deleted by OK on civility grounds)
1.24.2008 8:17pm
OrinKerr:
Gary,

If you would like your privileges to comment restored, send me an e-mail and we can discuss this.
1.24.2008 8:51pm
John Kindley (mail) (www):
That is incredible. Commenting privileges revoked for THAT?

I guess me saying this might mean I'm next . . .
1.24.2008 9:02pm
rfg:
I'm not sure that either system is superior to the other.

First, let's define legitimacy as the willingness to accept as final and binding a decision that the person does not agree with.

I suspect that the legitimacy of a given judicial decision will rest on two things- first, the persuasiveness of the argument made in the opinion. Second, the perception that the court is fulfilling its function of judicial review in an orderly, predictable manner.

The legitimacy of the system as a whole will then be the sum of the legitimacy of individual decisions.

The persuasiveness of the opinion is dependent on the writer. Many of the practices of the courts (such as stare decisis, the black robes, etc.) are designed to encourage respect for the system.

Remember, all court decisions are by their nature contested, and only the most difficult ones tend to make it to the Supreme Court. Any rationale for a given decision is sure to be highly contested at the time.
1.24.2008 9:11pm
OrinKerr:
John,

My usual approach is that when a commenter directly insults me, I temporarily revoke privileges until we can discuss it and get to the bottom of it. In my experience, this works well; if it's just a misunderstanding, we quickly get to the bottom of it and move on, and privileges are quickly restored. On the other hand, if the commenter feels that he has a right to continue to insult me as much as he wants -- which happens, unfortunately - then I think it's appropriate to keep the privileges revoked. I'm certainly willing to spend a lot of my personal time working through these issues to make sure I'm not acting unfairly as to any one commenter. On the other hand, I don't think that hosting a blog and a comment thread should come with a duty to be subject to insults in your own comment thread.
1.24.2008 9:14pm
Mr. Liberal:

In my view, the democratic legitimacy of the former system is very likely to be significantly greater than that of the latter. (bold added)


I don't understand why it is only "very likely" to be more democratically legitimate. Why can't you just say that it is more legitimate, period.

If Somin had his way 10 times, and you had your way 10 times in random trials, would it turn out that in some cases, Somin's system would be more democratically legitimate? If so, when and why? If not, shouldn't you ditch the qualifier "very likely"?
1.24.2008 9:50pm
John Kindley (mail) (www):
Orin,

Fair enough. I did think his comment was mildly insulting, and was a slight overreaction to your own comments. But mild insults get traded around here all the time. I myself agree with the view he expressed in his original comment: "...[M]ost Americans would agree that the Congress represents money, not the true yearning of the American people." It's a view that lends itself to some legitimate anger and resentment, which understandably might be carried over to those who insist the contrary.

But I agree that as the hoster of this blog and comment thread it's your judgment call. I trust you'll do the right thing.
1.24.2008 9:57pm
Paul Allen:

However, I'm not aware of a general principle of federal constitutional law that lets the U.S. Supreme Court reverse state law interpretrations of state law on that basis


Orin, isn't that a bit hasty? Certainly there is a specific rule: I point to the 'text' of Article II, Section I that creates a Federal Constitutional requirement that the electors be appointed in a manner prescribed by the state legislature.

This is precisely the argument made by the Bush team


start on page 28 and follow the argument in detail
1.24.2008 10:22pm
OrinKerr:
Thanks for the thoughtful comment, John.

I certainly have no problem at all with the substantive position; I am an enthusiastic proponent of having blog commenters disagree with me on the merits and to explain why they think I am wrong. Indeed, these are normally my very favorite comments to read, as these are the posts that I hope to learn from the most. But questions of tone and style are nonnegotiable for me.
1.25.2008 12:30am
LLCoolBeans (mail):
Orin,

Let me refine my point. You seem to be saying that (1) where the constitutional theory is well-accepted, the Court should just apply it as normal but (2) where the constitutional theory is debatable, there should be an extra deference to the legislature, such that even a majority view supporting the theory that leads to invalidation should not justify the majority in voting for invalidation. Is that right?

If so, I wonder where you draw the line between "debatable" and "not debatable." Does the deference attach if the vote, on the Justices' views of the merits, would be 5-4 but not 9-0? What about 8-1? What about 8-1 with a prior composition of the Court but now 9-0? What about 9-0 but there is much academic literature to the contrary? What about 9-0 but there is some academic literature to the contrary?

My point is that we can't meanigfully find some special deference that attaches only when a constitutional theory is debatable and we therefore suspect the view is policy driven. That means that the Justices should just vote in accordance with the theory that they find meritorious.

Of course, the Justices can factor other Justices' views into what they find meritorious. And the political question is itself a theory that a Justice may find meritorious and finds to counsel against invalidation. But I didn't read your post as making the simple point that standing doctrines are passive virtues. Is that all you were saying?
1.25.2008 12:45pm