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What if The Public Doesn't Like Limited Government? A Response to Ilya:
A paragraph in Ilya's last comment brings out the real difference between our positions, in a way that he hasn't stated before. Ilya writes:
I want to emphasize that I do not myself believe that the justification of judicial review rests on "legitimacy," as Orin defines it. In my view, it rests on a more general need to enforce a written Constitution against a legislature and executive with very strong tendencies to increase their power beyond justifiable bounds. It rests, also, on my view of the shortcomings of the democratic process; the quality of the latter is often undermined by widespread political ignorance and interest group power. Judges, of course, have their own significant shortcomings. That is why the power of judicial review should, in my view, be limited to negating the actions of other branches of government, thereby leaving greater scope for individual freedom and the private sector. I am much more skeptical of the kind of assertions of judicial power where judges themselves take over and run complex institutions such as prisons and schools, though I recognize that the latter may be justified in extreme cases (notably the Jim Crow-era South).
  Now we're on to something important; this is truly a stark difference between us. As I have stated, my ultimate concern is the legitimacy of political power, independently of my personal policy preferences. I believe, as the Declaration of Independence put it, that "Governments are instituted among Men, deriving their just powers from the consent of the governed." Judges should be modest because it is too easy for them to substitute their will for the will of the people.

  Ilya's ultimate concern is very different. If I understand his position correctly, Ilya's goal is to further libertarian principles by limiting the power of the State. Thus he proposes what appears to be a one-way ratchet, in which the judicial role should depend on which approach furthers limited government. If the public prefers no action, then judges should be modest and generally (but not always) defer to that judgment. On the other hand, if one of the elected branches acts, then judges should feel emboldened to block that action. The end result is a theory of the judicial role designed to minimize government, "thereby leaving greater scope for individual freedom and the private sector."

  Here's the problem: What if The People want big government? That is, what if we fail to persuade the citizenry that limited government is desirable, and instead they decide that they really want government to be big and active? If I understand Ilya's approach, he believes that judges should try to force libertarianism upon them. Such an approach would be a good thing, because, well, I suppose because libertarianism is a good thing. If voters do not realize that, it is only because they are ignorant.

  I'm concerned that I may misunderstand Ilya's position, so I will be delighted to post a correction immediately if I am mistaken. But if I'm right about Ilya's view, it does strike me as simply politics by other means.
another anonVCfan:
"What if The People want big government?"

Then they should amend the Constitution to allow for it. In the meantime, judges should interpret the Constitution as written, establishing a government of limited and enumerated powers, not an all-powerful leviathan.
1.28.2008 4:52pm
Tracy Johnson (www):
If one uses the logical term of limited government there really is no difference between limited and big. The only logical difference can be one of three states, none, limited or total government. Because big is just a subset of limited.

I suspect there may be a few that want none, most want some form of government, but none I think, want the latter.
1.28.2008 4:54pm
Grant Gould (mail):
Interesting leap you made there, going from "consent of the governed" to "will of the people" without further note. I suspect that that unremarked-on jump conceals a fair amount of your disagreement with Ilya.
1.28.2008 4:56pm
OrinKerr:
Another anonVCfan,

Of course the Constutition provides for a limited federal government based on enumerated powers; this much is blackletter law. However, I don't think the Constitution provides for a limited government generally. (For example, what are the enumerated powers of the states?)
1.28.2008 4:57pm
OrinKerr:
Grant,

I'm not sure what you mean: Can you elaborate? I hope you will take the time to explain your view so we can benefit from it.
1.28.2008 4:58pm
Mike& (mail):
Interesting leap you made there, going from "consent of the governed" to "will of the people" without further note.


Why is that a leap?
1.28.2008 4:59pm
John Kindley (mail) (www):
Ilya said: "In my view, [judicial review] rests on a more general need to enforce a written Constitution against a legislature and executive with very strong tendencies to increase their power beyond justifiable bounds."

Orin said: "Judges should be modest because it is too easy for them to substitute their will for the will of the people."

With all due respect to Ilya and Orin, I think Randy Barnett is the winner of this argument.
1.28.2008 5:08pm
OrinKerr:
John Kindley: Why?

(Oh, and points deducted if you yourself happen to agree with the political implications of Randy's argument. On the other hand, major points added if you are a statist and you hate the implications of the argument but feel compelled to embrace it because of its inherent persuasiveness.)
1.28.2008 5:11pm
Drexel 1L (mail):
Prof. Kerr,

Glad to see my favorite line from the Declaration of Independence quoted on the blog. I think you are right, in your comment, that the Constitution does not provide for limited government generally, i.e. the states and localities could institute "big government" if the governed give their consent. Even succeeding in an argument, if those sympathetic to libertarianism chose to take one up, that the Constitution stands for limited government in all its thousands of capacities in the U.S. would almost certainly be a Pyrrhic victory.

Of course, a limited Federal government like the one I believe the Constitution was intended to produce would necessitate transfer of a lot of present-day Federal government functions to the state and local governments. We would hope that competition between these government would show the superiority of libertarian governance, and lead to its wide-spread adoption. Bending the Constitution, or at least the "libertarian" interpretation of it, seems to be neither appealing or necessary.
1.28.2008 5:12pm
Brian Sniffen (mail):
If the people want a government without this limiting factor, then they should amend the Constitution to remove the bit establishing judicial review of congressional acts.

Can someone remind me where that bit is?
1.28.2008 5:12pm
Mike& (mail):
While I think Ilya Somin hasn't addressed your strongest arguments, there is one premise throughout your posts that I disagree with, namely, that laws represent the will of "the people." (What is "the people"? How can we define that concept? I'm not sure I know.)

I've found that most laws represent the will of a very small segment of society. Thus, we have all sorts of programs that harm "the people" but benefit a special interest group - farm subsidies and Medicare entitlement immediately come to mind.

Here is what I think would be helpful. What state and federal laws has the Supreme Court struck down in the past, say, 10 years. Have those laws been generally popular?

In recent memory, the Supreme Court struck down a ban on partial-birth abortion. This law was incredibly popular. And if "the people" has any meaning at all, sure "the people" supported this legislation. And while school prayer isn't a law (but rather an executive act), "the people" surely support it.

So there are two examples where the Supreme Court clearly overcame the will of "the people." People will debate whether those decisions were consistent with the Constitution.

I am not sure my comment contributes anything to the discussion. Over the years I've found this topic to be especially challenging. In a sense, Kerr's position has an appeal because it prevents judges from overstepping their boundaries. Then again, a critic might say that deferring to other branches of government is merely passing the buck. The counter would be that the buck should remain where it belongs - at the desks of people accountable to "the people."

Whatever the right answer is, I don't know it.
1.28.2008 5:13pm
happylee:
Professor Somin's position represents a more nuanced view of the reality of power. Of course it's "politics by other means." What else could it be? This isn't France or Krautland, where power is centralized...
1.28.2008 5:13pm
justanotherguy (mail):
"What if the people want big government?" leads to what if the people want to ___ (put whatever parade of horribles you want here.)

When the government is powerful and the form of government is close to a democracy then I think what is termed the tyranny of the majority or the passions of the mob rule exists and runs the government. As we have been getting closer and closer to a democracy how much does Orin really trust the judgment of the mob to decide major aspects of his life?
1.28.2008 5:15pm
Owen Hutchins (mail):

In the meantime, judges should interpret the Constitution as written,

Every time I read a statement like this, I can't help but think that what the writer actually means is, "interpret the Constitution as I think it was written".
1.28.2008 5:21pm
liberty (mail) (www):

As I have stated, my ultimate concern is the legitimacy of political power, independently of my personal policy preferences. I believe, as the Declaration of Independence put it, that "Governments are instituted among Men, deriving their just powers from the consent of the governed." Judges should be modest because it is too easy for them to substitute their will for the will of the people.

Ilya's ultimate concern is very different. If I understand his position correctly, Ilya's goal is to further libertarian principles by limiting the power of the State. ...
Here's the problem: What if The People want big government? ...If I understand Ilya's approach, he believes that judges should try to force libertarianism upon them.


You state your position by referring to the Declaration of Independence (where it says that government derives its powers from men) but you don't give Ilya credit for perhaps deriving his position from the Constitution, where it says that government is limited to certain well defined powers.

The legislature continually tries to expands its powers, but there are constitutional limits to what those can be. Just because one branch of government wants to keep expanding them does not make it constitutional. The reason for the judiciary in part is to keep a check on expansion of powers by the other branches (remember? Checks and balances?)
1.28.2008 5:21pm
Mike& (mail):
As we have been getting closer and closer to a democracy how much does Orin really trust the judgment of the mob to decide major aspects of his life?


This is a means-ends argument. And it's exactly what seems to be the problem Kerr has with some arguments. Here is what people are doing: "I don't like mob rule. Judges tend to mitigate the mob's damage. QED, judicial review is proper." It's the "QED" that is the problem.

Personally, I hate the mob. I moved far away from flyover country for a reason. So I don't defend the mob because it's wise.

But does is follow from my dislike of the mob that the mob should not be allowed to govern? Most likely the mob hates me and my lifestyle. I'm not gay; but I don't go to church, eat fast food, drink Budweiser, or watch "Friends." My gay friends are more hated. Most of the mob would not like a world I could create - one where TV is limited and where vending machines contained fresh fruit rather than garbage, and where gay people could marry.

At the end of the day, someone has to rule. To claim I am more entitled to rule than someone else is a very arrogant thing to claim. This is especially the case when the mob outnumbers me.

Why should an elite few be able to control the many?

When you have a strong judiciary, that is indeed what happens. Five people unanswerable to the electorate decides how 280,000,000 will live their lives.

At the end of the day, I like judicial review. It helps protect people from the mob. Blacks attend schools with whites - the mob be damned - because of judicial review. Gay people will eventually be able to get married because of the judiciary. (Indeed, this has already happened in Massachusetts.) But my like of judicial review a sentiment, not an intellectual argument.

Many people would be well-advised to recognize that sentiment and thought are not one-in-the-same. Many would be well-advised to not reason from, "I like x" to "X is therefore right."
1.28.2008 5:27pm
Mike& (mail):
the Constitution, where it says that government is limited to certain well defined powers.


The federal government. Read the Federalist Papers. The Founders thought the states could regulate just about anything they wanted to. The Constitution is not a libertarian charter.
1.28.2008 5:30pm
Dan Weber (www):
Does "consent of the governed" mean "consent of the majority of the governed?"

My biggest fear about democracy is that I'm the sheep watching two wolves vote on what's for dinner.
1.28.2008 5:33pm
liberty (mail) (www):

At the end of the day, someone has to rule. To claim I am more entitled to rule than someone else is a very arrogant thing to claim. This is especially the case when the mob outnumbers me.


Or, we could have limited constitutional representative government (instead of mob rule democracy).

Everyone could be gay or straight, eat fast food or be vegan and not have to worry that the mob will ban them or regulate them or tax them to death.

What a neat concept. Someone should start a country like that.
1.28.2008 5:33pm
EH (mail):
It seems to me since there is really no such thing as "total government" and "no government" (save rare and momentary exceptions), all government is limited government. The only question is "more or less?"
1.28.2008 5:33pm
liberty (mail) (www):
Mike&:

Are the legislature and executive trying to expand the regulatory power of the states?
1.28.2008 5:35pm
Clayton E. Cramer (mail) (www):

If the people want a government without this limiting factor, then they should amend the Constitution to remove the bit establishing judicial review of congressional acts.
No one is arguing against judicial review here. The argument is whether judicial review should defer to the people and their elected representatives in cases where the law is not clearly contrary to the Constitution.
1.28.2008 5:39pm
John Kindley (mail) (www):
Orin,

I guess I will have to have points deducted, because I do happen to agree with the political implications of Randy's "Presumption of Liberty," but to my mind they're really two sides of the same coin: I agree with the political implications because I agree with the first principles enunciated by Lysander Spooner and developed by Randy. On the other hand, I think I can claim to have points added because, as someone who considers himself "pro-life" I have a long history of thinking very bad thoughts about Roe v. Wade and the judges who "enacted" it. Abortion remains very problematic even within a Spoonerite framework, and as someone who's only been a hardcore libertarian (I describe myself as a theoretical anarchist and a pragmatic minarchist) for a couple years I have yet to rethink deeply Roe v. Wade in light of, e.g., Spooner's The Unconstitutionality of Slavery. But again, I think I should get some "integrity/consistency" points because the "Presumption of Liberty" theory of constitutional interpretation and judicial review arguably would tend to support Roe v. Wade (which is contrary to my policy preferences) more than your view or Scalia's textualism (to which I formerly adhered).
1.28.2008 5:39pm
Stormy Dragon (mail) (www):
>What if The People want big government?

Do you mean from a pragmatic standpoint or from a moral one?
1.28.2008 5:40pm
Clayton E. Cramer (mail) (www):

But does is follow from my dislike of the mob that the mob should not be allowed to govern? Most likely the mob hates me and my lifestyle. I'm not gay; but I don't go to church, eat fast food, drink Budweiser, or watch "Friends." My gay friends are more hated. Most of the mob would not like a world I could create - one where TV is limited and where vending machines contained fresh fruit rather than garbage, and where gay people could marry.
I don't where you moved from, but I live in Idaho, and I'm glad that I don't live in that place you are describing.

But you are correct in observing that your love for judicial review is ends-based. Consider a society where judges used judicial review to find a "right to live in a homosexual-free society," and prohibited states from repealing their homosexual sodomy laws, or a "right to live in a society where everyone's morals are improved by mandatory church attendance laws" (such as the Mass. Const. of 1780 ordered the legislature to pass).
1.28.2008 5:41pm
Clayton E. Cramer (mail) (www):

Mike&:

Are the legislature and executive trying to expand the regulatory power of the states?
Partial-birth abortion ban being one example.
1.28.2008 5:42pm
Clayton E. Cramer (mail) (www):

Or, we could have limited constitutional representative government (instead of mob rule democracy).

Everyone could be gay or straight, eat fast food or be vegan and not have to worry that the mob will ban them or regulate them or tax them to death.

What a neat concept. Someone should start a country like that.
Countries require more than twenty people to be viable. Every few years, libertarian idealists get this notion that they are going to do this. For a while, there was a big effort under way to get libertarians to move to Alpine County, California, where the total population was only about 1000 people, since it would only take about 100 highly committed libertarians to take over local government and create a libertarian utopia.

It didn't happen. Why? Because libertarians talk a lot about entrepreneurship and capitalism--but darn few of them actually ran businesses that could just up and move to a new community. Even worse, Alpine County was largely owned by the National Forest Service, and most of the county's tax base comes from the evil of Big Brother!

Lately, the big talk is to concentrate in New Hampshire, because of its intrinsically libertarian style. But that's not apparently happening well, either, and for the same reason.

Of course, trying to organize this isn't easy, because "libertarian organization" is an oxymoron--a bunch of fiercely individualistic sorts trying to work together for the common good.

In any case, most Americans tend to regard what you do in private, whether it is eating vegetables or using your mouth for other activities as being none of their business. Where much of the upset comes is not from what consenting adults do in private, but when they insist that the rest of us better smile stupidly and say, "Yes, I appreciate your lifestyle choice and think the world of it" or we'll be fined or worse for failure to appreciate diversity. Of course, that's where a lot of the libertarian utopian stuff starts to fall apart--trying to ally with fundamentally totalitarian interest groups.
1.28.2008 5:51pm
liberty (mail) (www):

Where much of the upset comes is not from what consenting adults do in private, but when they insist that the rest of us better smile stupidly and say, "Yes, I appreciate your lifestyle choice and think the world of it" or we'll be fined or worse for failure to appreciate diversity. Of course, that's where a lot of the libertarian utopian stuff starts to fall apart--trying to ally with fundamentally totalitarian interest groups.
- Cramer

I don't know what libertarians you know. I don't know anyone who wants to fine you for not liking people who live differently. You can like or dislike as you please. I don't care for diversity for diversity's sake either. And I most certainly refuse to ally with totalitarians or really with any "interest group." Of course, that may be my problem - I'm not sufficiently politically savvy. I care too much about what I believe in: freedom.

However, counting the number of people who want to move someplace and start a Utopia as the only libertarians (or the only any-group) is just silly. I have no desire to move to New Hampshire or Oregon or anyplace in order to advance my cause. I am quite happy advancing it in a place where it is likely to matter: Washington.
1.28.2008 7:07pm
ras (mail):
What if The People want big government?

That's what federalism is for: so they can try it out in a few places and make their mistakes educational for everybody.
1.28.2008 7:33pm
Brett Bellmore:

No one is arguing against judicial review here. The argument is whether judicial review should defer to the people and their elected representatives in cases where the law is not clearly contrary to the Constitution.


I WISH we were today arguing about cases at the margins. The truth of the matter is that the genuinely hard cases are history, and today we're arguing about questions which should be easy:

The Constitution gives Congress the power to regulate commerce that crosses state boundaries; To what extent does this authorize Congress to regulate non-commerce, and commerce that doesn't cross state boundaries?

The easy answer would be: Not at all.

The Constitution lays out a process by which a law must be passed by both chambers of the legislature. What is the status of a proposed law which can be proven did NOT pass both chambers, but has both chambers' leaders willing to lie about it?

The easy answer would be: It's not a law.

The Constitution authorizes the taking of private property for public "use". What of cases where the government doesn't want to use the property itself, but just transfer it from one private owner to another?

The easy answer would be: It's not authorized.

The Constitution guarantees a right to trial by jury in all criminal cases. How serious must a criminal case be before this right must be respected?

The easy answer would be: If it's a criminal case at all. What part of "all" is vague?

The hot constitutional arguments today mostly are hard because, having decided that we're NOT going to simply enforce the Constitution, it becomes difficult to devise a principled rule as to how far the violations should be permitted to go. But that's not a problem with the Constitution, it's problem with having abandoned it.
1.28.2008 8:02pm
Zyzzogeton:
Orin,

What if "the people" through their legislators, amend the U.S. Constitution to institute slavery and genocide?

Consent of the governed? Apparently Orin has never read Nozick's Tale of the Slave in Anarchy, State, and Utopia.
1.28.2008 10:22pm
Zyzzogeton:
"The Tale of the Slave"
from Robert Nozick, Anarchy, State, and Utopia, pp. 290-292.


Consider the following sequence of cases, which we shall call the Tale of the Slave, and imagine it is about you.

1. There is a slave completely at the mercy of his brutal master's whims. He often is cruelly beaten, called out in the middle of the night, and so on.
2. The master is kindlier and beats the slave only for stated infractions of his rules (not fulfilling the work quota, and so on). He gives the slave some free time.
3. The master has a group of slaves, and he decides how things are to be allocated among them on nice grounds, taking into account their needs, merit, and so on.
4. The master allows his slaves four days on their own and requires them to work only three days a week on his land. The rest of the time is their own.
5. The master allows his slaves to go off and work in the city (or anywhere they wish) for wages. He requires only that they send back to him three-sevenths of their wages. He also retains the power to recall them to the plantation if some emergency threatens his land; and to raise or lower the three-sevenths amount required to be turned over to him. He further retains the right to restrict the slaves from participating in certain dangerous activities that threaten his financial return, for example, mountain climbing, cigarette smoking.
6. The master allows all of his 10,000 slaves, except you, to vote, and the joint decision is made by all of them. There is open discussion, and so forth, among them, and they have the power to determine to what uses to put whatever percentage of your (and their) earnings they decide to take; what activities legitimately may be forbidden to you, and so on.

Let us pause in this sequence of cases to take stock. If the master contracts this transfer of power so that he cannot withdraw it, you have a change of master. You now have 10,000 masters instead of just one; rather you have one 10,000-headed master. Perhaps the 10,000 even will be kindlier than the benevolent master in case 2. Still, they are your master. However, still more can be done. A kindly single master (as in case 2) might allow his slave(s) to speak up and try to persuade him to make a certain decision. The 10,000-headed monster can do this also.

7. Though still not having the vote, you are at liberty (and are given the right) to enter into the discussions of the 10,000, to try to persuade them to adopt various policies and to treat you and themselves in a certain way. They then go off to vote to decide upon policies covering the vast range of their powers.
8. In appreciation of your useful contributions to discussion, the 10,000 allow you to vote if they are deadlocked; they commit themselves to this procedure. After the discussion you mark your vote on a slip of paper, and they go off and vote. In the eventuality that they divide evenly on some issue, 5,000 for and 5,000 against, they look at your ballot and count it in. This has never yet happened; they have never yet had occasion to open your ballot. (A single master also might commit himself to letting his slave decide any issue concerning him about which he, the master, was absolutely indifferent.)
9. They throw your vote in with theirs. If they are exactly tied your vote carries the issue. Otherwise it makes no difference to the electoral outcome.

The question is: which transition from case 1 to case 9 made it no longer the tale of a slave?
1.28.2008 10:23pm
OrinKerr:
Zyzzogeton,

Both Ilya and I are talking about options for an institutional player working inside the system. In a case where the state legalizes slavery and genocide, a judge should resign his position immediately and declare the state his enemy. I'm not sure how this relates to the scope of judicial review, though. (Oh, and sorry I don't have time to read or understand your long hypo; I did want to respond to your short question, though.)
1.28.2008 10:38pm
Zyzzogeton:
Orin,

Even an institutional player inside the system, who is wedded to mob rule, ahem---democracy, justifies partially enslaving some people just because they're outvoted by others.

I invoked slavery as an extreme example. But a system that seize x% of one's efforts renders one x% a slave.

The only proper way to interpret law, is not by hoisting a false "consent of the governed" to justify the mob's rule over a minority, but through the prism of liberty.
1.28.2008 11:21pm
Runnin fast:
I like this blog poster...Zyzzogeton
1.29.2008 12:05am
Gramarye:
To those asking if the Constitution could countenance slavery, I simply point out that it did, for a long time. The Constitution is a charter of our rules of government. It's at least one degree of separation removed from our moral tenets, to the extent that "we" have them.

I'll also give a big +1 to Owen Hutchins:

Every time I read a statement like this, I can't help but think that what the writer actually means is, "interpret the Constitution as I think it was written".

People who say that constitutional interpretation is easy scare me. It's easy to have the clarity of certainty--if you ignore every detail of law and history that might sully the conclusion that you personally want to reach at the outset.

The job of a judge is not to legislate from the bench. That includes legislating libertarian doctrines into law every bit as much as it includes legislating socialist or collectivist doctrines into law. (Do we really need to revisit the whole Lochner debate?)

Most libertarians are disenchanted with the concept of majority rule precisely because they so seldom command one. Nevertheless, if libertarianism fails to persuade, then it fails to govern. I personally think that is as it should be. Normative opinions aside, it's certainly true in an empirical sense.
1.29.2008 12:13am
OrinKerr:
But a system that seize x% of one's efforts renders one x% a slave.

If that same system gives you lots of free stuff in exchange, does it also render you a King?
1.29.2008 12:24am
Clayton E. Cramer (mail) (www):

I don't know what libertarians you know. I don't know anyone who wants to fine you for not liking people who live differently. You can like or dislike as you please. I don't care for diversity for diversity's sake either. And I most certainly refuse to ally with totalitarians or really with any "interest group." Of course, that may be my problem - I'm not sufficiently politically savvy. I care too much about what I believe in: freedom.
I was actually responding to a liberal. Liberal ideas matter, because they are widely held. Libertarian ideas--at least at the level of radicalism of Professor Somin--really don't matter, because so few people buy into them (at least, once they get out of college).
1.29.2008 12:47am
Clayton E. Cramer (mail) (www):

The hot constitutional arguments today mostly are hard because, having decided that we're NOT going to simply enforce the Constitution, it becomes difficult to devise a principled rule as to how far the violations should be permitted to go. But that's not a problem with the Constitution, it's problem with having abandoned it.
Exactly. If you start reading the cases that make up strict scrutiny, and then the "heightened scrutiny" decisions, then "rational basis"--you quickly see that these lying pieces of trash that have sat on the Supreme Court just decided that some rights weren't important, and some rights were, and they weren't ever going to adopt a consistent standard because that would not allow them the freedom to be unelected superlegislators. U.S. v. Carolene Products (1938) n. 4 at least articulates some actual standard from which strict scrutiny could have been derived, but liberals just decided that they would rather privilege some constitutional rights (the right to wear a "Fuck the Draft" sign in a courthouse, the right to smear chocolate sauce all over a naked body and call it art, the right to wear black armbands to school and call it political speech) while ignoring rights that they didn't consider important (such as the right to run political advertising within 60 days of a general election, the right to wear T-shirts that disapproved of homosexuality in a public school--when the other side's position was actively promoted by the teachers, "the right of the people to keep and bear arms").

I am so sick of liberalism's utterly hopeless dishonesty and its dominance of the courts.
1.29.2008 12:53am
Brett Bellmore:

People who say that constitutional interpretation is easy scare me. It's easy to have the clarity of certainty--if you ignore every detail of law and history that might sully the conclusion that you personally want to reach at the outset.


I in fact gave several examples of issues where constitutional interpretation IS easy. Easy if you're approaching the Constitution in a good faith effort to determine it's meaning, rather than with a fixed determination to extract a meaning you find congenial, whether or not it's really there.

There are hard questions, but far too many of today's live issues of constitutional interpretation aren't hard questions. They're easy questions somebody doesn't like the answer to.
1.29.2008 7:41am
Aultimer:
Until Prof. Kerr says something about countermajoritarian decisions or the judiciary's role in preventing tyrranical majorities (other than they're "generally" bad), then Prof. Somin wins the debate.
1.29.2008 9:25am
ReaderY:
It's worth taking a look at other countries where a national institution exists to uphold the ideals of the country against the wishes of the electorate and a nominally elected government -- the Politboro in China, the council of Ayatollahs in Iran, the military in Turkey. Do we want to be a country like them and to have an institution like theirs?

If there were a monopoly on truth and we could be certain of it, such institutions are very efficient ways of governing. But if we can't be certain that Confucio-Communism, Islamic fundamentalism, or secular nationalism is always correct, how can we be so certain of libertarianism?

And how can we be sure an unaccountable institution limited only by its own interpretation of an ideal will avoid becoming corrupt?
1.29.2008 9:55am
Aultimer:

And how can we be sure an unaccountable institution limited only by its own interpretation of an ideal will avoid becoming corrupt?


Our tripartite system limits the ability of the judiciary to go too far off the reservation. Bush's expansion of the exective power and Congressional overreaching like McCain-Feingold are just awaiting correction, rather than being proof that the systems doesn't work.
1.29.2008 10:34am
Clayton E. Cramer (mail) (www):

What if "the people" through their legislators, amend the U.S. Constitution to institute slavery and genocide?
If 2/3 of both houses of Congress approve this, and 3/4 of the state legislatures ratify it, the Supreme Court isn't going to be very successful at stopping it. Your only resort at that point is to arms. Oh, whoops! The same crowd that believes so strongly in unlimited judicial review also believes that the masses should be disarmed, so that won't be an option, I guess.
1.29.2008 12:29pm
Gary McGath (www):
If The People want to run my life, the key point is not that they are ignorant -- they may very well know what they are doing and calculated just how much loot they will get. What is important is that they are violating my rights when they act on that impulse.

"Forcing libertarianism" on people is an oxymoron. If someone tries to rob me and I defend myself, I am not forcing anything on him. I am defending myself against his attempt to rob me.

You appear to be defining force subjectively: If someone wants to do something, and he is frustrated in his attempt to do so, then others are "forcing" him. But desires are not rights. The mere fact that people want to do something does not mean they are entitled to do it.
1.29.2008 12:54pm