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Limited Government, Politics, and Judicial Review:

Orin's latest post raises broad issues about the relationship between limited government and judicial review that can't possibly be dealt with in a blog post. Nonetheless, let me address a couple of points.

First, Orin distinguishes between his position based on notions of "legitimacy" and the "consent of the governed" and mine, which he describes as simply seeking to use the judiciary to promote libertarianism, thereby just being "politics by other means." I think this is a false dichotomy. Any theory of judicial review must be based in part on deeper political principles.

His particular notion of legitimacy and consent is no less a contested political proposition than my support for limits on government power. Orin's approach assumes that his interpretation of legitimacy and consent should take precedence over other values, such as individual freedom and happiness. That is no less "political" than the alternatives. Moreover, if we accept Orin's theory of legitimacy, then not just libertarianism but any approach that calls for invalidation of politically popular laws would be undercut. To my mind, the entire notion of a written Constitution enforcible by judicial review is based on the premise that there are certain areas where elected officials cannot be trusted and their power should be constrained.

Second, Orin claims to base his position on the Declaration of Independence, which states that governments "deriv[e] their just powers from the consent of the governed." I think Orin's argument overlooks the little part that says that all people have the right to "life, liberty, and the pursuit of happiness" and that the legitimate function of government is limited to "secur[ing] these rights." I also think Orin is wrong to assume that the Declaration's notion of "consent" is reducible to acceptance of whatever elected legislatures happen to enact.

Third, Orin asks what we should do if the public does not approve of libertarianism. Here, he seems to assume that I want judges to "force" libertarianism on an unwilling populace. I don't think that judges can or should create a completely libertarian society. I do, however, believe that judges can play a valuable role in imposing stricter limits on government power than would emerge from the political process by itself. They can do so by strictly enforcing the text and original meaning of the Constitution.

Neither do I believe - as Orin implies I do - that the voters would fully embrace libertarianism were they better informed. It is likely that most would not, though research by political scientist Scott Althaus shows that, controlling for other variables, increasing knowledge does tend to make voters more socially liberal and fiscally conservative (i.e. - more libertarian) than they would be otherwise. However, I do think that political ignorance reduces the quality of government decisionmaking relative to that of the private sector and provides a strong rationale for limiting the power of elected officials. I sketch out that argument in more detail here and here.

Finally, if we truly want a government that has the "consent" of the majority of the public - which seems to be Orin's objective - aggressive judicial review might well further that goal. In the status quo, legislative power is so broad that most voters have little or no knowledge of most of the legislation that is passed; there is just too much of it for rationally ignorant voters to keep track of. Limiting legislative authority - in part through judicial review - can help reduce the knowledge burden on voters and thus ensure that a higher percentage of legislation genuinely enjoys the informed consent of the majority.

Ultimately, my view is that the fact that the legislature enacts a law is a very weak reason for supposing that it is constitutional and that the judiciary should leave it alone. The fact that the majority of a rationally ignorant public approves of it (when it does) is an only slightly stronger reason. A society that promotes "life, liberty, and the pursuit of happiness" is an objective that should take precedence over the particular notion of legitimacy advanced by Orin. Strong judicial review can't achieve the former goal by itself or even come close to it. But it can help move us in the right direction.

UPDATE: Various commenters take me to task for breaking my commitment to let Orin have the last word. In my judgment, Orin's latest post opens up a new front in our debate rather than simply continuing the old one. Further he himself invites me to correct any inadvertent misrepresentations he made of my position (which he indeed did make, though primarily because I summarized that position in a very quick and non-nuanced way). Be that as it may, I agree that this debate is reaching the realm of diminishing returns. And Orin can still have the last word if he so chooses.

anon e mousey:
What happened to letting Orin have the last word? This is getting old.

In Ilya's last post
"In this post, I will simply summarize some key themes and leave Orin the last word, if he wants it."
1.28.2008 5:27pm
Drexel 1L (mail):
Not old at all. As someone who is itching to start Con Law (trimesters, have to wait until March), I'm quite enjoying this...
1.28.2008 5:31pm
gruest:
You guys should stop killing the blog, get together over some beers, come to an understanding, then give us one nice, neat post that tells us about it.
1.28.2008 5:34pm
alias:
Same comment as anon e mousey. You're just repeating yourselves now.
1.28.2008 5:52pm
Cato:
What if the constitution IS libertarian but the people want big government? Why should the constitution hold sway rather than the will of the people? After all, no living person voted for the constitution.
1.28.2008 5:53pm
Ilya Somin:
What happened to letting Orin have the last word? This is getting old.

In Ilya's last post
"In this post, I will simply summarize some key themes and leave Orin the last word, if he wants it."


I consider Orin's most recent post as opening up a new front in the discussion rather than rounding out the old one. Moreover, he himself invited correction by me in that post, if he had misintepreted my position.
1.28.2008 5:53pm
alias:
I consider Orin's most recent post as opening up a new front in the discussion rather than rounding out the old one. Moreover, he himself invited correction by me in that post, if he had misintepreted my position.

This is a stretch of the word "misinterpret."

I suppose we grouchy commenters are always free to ignore.
1.28.2008 6:01pm
OrinKerr:
Ilya,

Thanks for the substantive response -- I'll respond soon. (Also, I'm very glad to see that I am not misunderstanding your basic position.)

Gruest, Alias,

Sorry you don't like these posts. You are invited not to read them.
1.28.2008 6:03pm
ys:

What if the constitution IS libertarian but the people want big government? Why should the constitution hold sway rather than the will of the people? After all, no living person voted for the constitution.

Then it should be changed by living persons. It has been done a couple of times. In fact, there are quite a few living persons who have voted for changing (or for that matter not changing) it.
1.28.2008 6:04pm
AJS:
Mr. Somin,
Thank you for further elucidating your views. I must say, however, that I am quite appalled by your position.

"However, I do think that political ignorance reduces the quality of government decisionmaking relative to that of the private sector and provides a strong rationale for limiting the power of elected officials."

Huh? You are presupposing an outcome, i.e., that it is ignorant to believe other than you do.


"Finally, if we truly want a government that has the "consent" of the majority of the public - which seems to be Orin's objective - aggressive judicial review might well further that goal. In the status quo, legislative power is so broad that most voters have little or no knowledge of most of the legislation that is passed; there is just too much of it for rationally ignorant voters to keep track of. Limiting legislative authority - in part through judicial review - can help reduce the knowledge burden on voters and thus ensure that a higher percentage of legislation genuinely enjoys the informed consent of the majority.

I don't even know where to begin on this one. I thought a government that has the consent of its citizens is what a democracy is all about. Apparently, I am mistaken in assuming that we are all democrats here.

And "knowledge burden"? Gee, thanks so much for taking away my ability to render a policy choice! I thought libertarianism was all about allowing individual choice on everything, marketplace of ideas, yadda, yadda. I guess that that right should be limited to those who think the same way you do. I am apparently mistaken in assuming that this libertarian principle matters on this blog!

In sum, I am surprised to find a purported libertarian defense of the most rank elitism imaginable.
1.28.2008 6:15pm
GV:
I'd love to see a defense of originalism. This is especially so if you'll actually address many of the devastating responses much of the literature has made against originalism. See, e.g., here.
1.28.2008 6:16pm
Mr. Liberal:

His particular notion of legitimacy and consent is no less a contested political proposition than my support for limits on government power.


There is a huge difference between foisting an ever more limited government on an unwilling populace, which is what Ilya advocates, and having the people decide for themselves what sort of government they want, which is what Orin advocates.

Furthermore, Ilya's radical vision and Orin's mainstream vision are not equally contested. At most, you have only radical libertarians like Ilya contesting the legitimacy of the People, while moderates who are skeptical of large government like Orin are recognize the legitimacy of People, even when they make decisions that Orin personally thinks are unwise. Both mainstream liberals and conservatives agree that it is the People who should decide, charges of ignorance by elitist libertarians notwithstanding. So, it is false to say that Ilya's foisting of a more libertarian vision on an unwilling public "for their own good" (because they are too ignorant to realize that Ilya knows best) is not less contested than Orin's vision, which recognizes that sovereignty lies with the People, not with unelected judges, and not with libertarian elitists.

One last point. Libertarians think they are saying something new when they point out that people are ignorant and/or irrational. But, this was already recognized by the Founders, who nonetheless recognize the People as the ultimate source of authority, going so far as to go around the established government order in the Articles of Confederation and the states in getting the Constitution ratified. "We the people of the United States"

It was Alexander Hamilton who said that "man is a reasoning rather than reasonable animals."

There is no "myth" about "rational voters" or "myth" of completely informed voters upon which our system depends. The Founders were very much aware of these problems when they decided to reject the more libertarian Article of Confederation (which would have guaranteed truly limited government!) in favor of our Constitution, which provides ample powers to a powerful central government. If anything, the problem of ignorance is much less serious now, in the Internet Age, than it was at the Founding. The construction of this myth is nothing more than a libertarian straw man. I guess libertarians do not have any real intellectual contributions to make without constructing straw man myths that can be easily defeated in their Quixotic quest to replace the Will of People with the Will of the Libertarians.

When we are interpreting our Constitution, we should not forget exactly what it is that it was designed to repudiate and reject. It was designed to repudiate and reject the Article of Confederation, a document that limits government in only a way that only a libertarian could love.
1.28.2008 6:29pm
Mr. Liberal:
My last post is an example of how editing can come in handy. But, alas, I am not really interested in wasting too much more time refuting fringe libertarian ideas.

Not even Bush was interested in appointing libertarian judges. That tells you something about how unimportant Ilya's radical and fringe point of view is.
1.28.2008 6:34pm
CrazyTrain (mail):
I also think Orin is wrong to assume that the Declaration's notion of "consent" is reducible to acceptance of whatever elected legislatures happen to enact.

Objection: Blatantly misconstrues Orin's post (and his point).
1.28.2008 6:36pm
alias:
Profs. Kerr and Somin, I apologize for the rudeness. In my partial defense, my words seemed less rude as I was typing them than they did when I read them later.

Mr. Liberal, I don't think President Bush's choices are very useful as a data point in determining how "fringe" or "important" a view is. Bush II may be a lot of things, but he's never pretended to be a libertarian. Reagan and Bush I, however, appointed a number of judges who feel a bit more strongly about limited government and civil liberties. Finally, there's an interesting post by Lyle Denniston at Scotusblog reviewing a book by Bob Levy. Among the points he makes is that in constitutional law, a view can move from fringe to orthodoxy, or vice versa, in the span of a generation if its adherents are persuasive and strategize well.
1.28.2008 7:06pm
Mr. Liberal:
alias,

You are right, George W. Bush is not a libertarian. Instead, he is a mainstream conservative. Not only that, he made it a point to appoint mainstream conservatives to positions of influence in determining judicial selection.

The fact that libertarian judges were not and are not being selected by Bush and his appointees demonstrates that, by the standards of mainstream conservatives, libertarianism is a fringe ideology.

That doesn't mean that mainstream conservatives politicians won't happily take libertarian votes. =)
1.28.2008 7:23pm
Kazinski:
Mr. Liberal,
When the founding fathers created the constitution they also created a framework for changing the constitution when necessary. The point of having a constitution is to have an difficult to change framework beyond the ebb and flow of party ascendancy. A court system as deferential as you would like would not have ruled as it did in Brown v. BOE, Roe v. Wade, United States v. Lopez. Such a court would not find a right to suicide, medical marijuana, uncensored internet access in libraries, and a host of other issues.
1.28.2008 7:30pm
Mr. Liberal:
Kazinski,

I never said I was against activism. I am not. I am only against libertarian activism. =)

That is not to say that I am worried about libertarian activism. That is only to say that I am opposed to it.

The Supreme Court is well within the control of the elected branches. If they fuck with the People, they are going to suffer. (Not as individuals, but institutionally, of course.)

I would say that it is important for the Supreme Court to exercise restraint not in order to protect the People from the Supreme Court. I would say it is important for the Supreme Court to exercise restrain in order to protect the Supreme Court from the People.

The fact is, the Supreme Court might be seen as legitimate in opinion polls now. But, if they started to get out of hand, that would change pretty damn quick.

Whatever happened to the Warren Court Criminal Procedure revolution? While it has had an effect, it has been significantly reined in. Because it was deeply unpopular, tough-on-crime Presidents could campaign on appointing judges who would reverse it. In contrast, court activism that is more popular is likely to endure.
1.28.2008 7:48pm
Doc W (mail):
"There is a huge difference between foisting an ever more limited government on an unwilling populace, which is what Ilya advocates, and having the people decide for themselves what sort of government they want, which is what Orin advocates. "

I was unaware that an ever-more-limited government was being foisted on anyone. The real question is to what extent if any the government should serve as a vehicle for some people to foist their choices on others (about how to live, how to allocate their own property to their own purposes, etc.).


"Gee, thanks so much for taking away my ability to render a policy choice!"

Tell you what--you choose for you and let me choose for me. Can't we try to operate as far as possible on that basis?


"The fact that libertarian judges were not and are not being selected by Bush and his appointees demonstrates that, by the standards of mainstream conservatives, libertarianism is a fringe ideology. "

Well, libertarianism isn't politically mainstream, that's for sure. Neither is obeying the Constitution, avoiding foreign interventionism.... But mainstreams change. That's how we got in the mess we're in. That's how we might get out.
1.28.2008 7:48pm
ReaderY:
Legitimacy means that the judiciary holds government to only those principles that the constitution-makers actually agreed to hold it to, not to principles of the judges own choosing. It's that simple. The Framers of the U.S. Constitution enacted some limits on government by creating a federal government of enumerated powers and state governments with enumerated limits. In some cases the limits they set happen to coincide with the principles of libertarianism. But in many cases they did not. Where governent was not limited by anyone's agreement, libertarianism is simply one philosophy among many that has to compete in the marketplace of ideas through argument, evidence, debate, persuasion, and voting, not through judicial fiat.
1.28.2008 8:13pm
Mr. Liberal:

Tell you what--you choose for you and let me choose for me. Can't we try to operate as far as possible on that basis?


Absolutely not. You cannot just do whatever you like, without considering the larger interests that you will inevitably impact with your individual actions.

There is of course a large area of life where this idea is perfectly appropriate, of course. Choice of mate. Choice of friends. Choice of hobbies. Choice of profession.

But individual choice, as opposed to the choice of the People does not and should not rule everywhere, even though it does and should have significant territory, as partially outlined above.

We affect each other. And, we are also responsible for each other. No one is an atom.

I do think there are those on the left who minimize the role and importance of choice. But, the attitute of libertarians towards choice is just perverse.

Price gouging, according to libertarians, is okay. If a hurricane comes, it is okay to sell bottled water for $5,000 a bottle. Even if the only reason there is a shortage is because the seller went to all the grocery stores and bought up all the available supplies, thereby cornering the market. See, these are all "voluntary" i.e. "chosen" transactions.

But no one chose to live in a world with a predator who would buy up all available supplies of water in an emergency, all for the purpose of price gouging. Everyone, even libertarians, accept that you cannot choose everything.

Basically, the problem with libertarians is that the choices that they want to protect are not truly freedom maximizing. Their ideology leads them to ignore certain very important restrictions on freedom, while obsessing with other minor restrictions, all based on top-down categorization.
1.28.2008 8:28pm
Duffy Pratt (mail):
As someone who actually likes these posts, I still think its worth wondering whether the best course was to devote seven different blog entries to the topic, all of them fairly lengthy. This blog necessarily pushes topics to the bottom. By devoting so many separate posts to this subject, you effectively knocked a bunch of other topics off the radar. As a practical matter, if one has to scroll too far, the subject tends to cease to exist. Thus, the manner in which you addressed one another had the effect of pushing aside other topics.

I'm not saying you are necessarily wrong to do this But I did find myself wondering why each reply had to appear as a separate blog entry, It's as if the two of you considered it beneath your dignity to talk to each other within the comments section. Maybe there's some nicety of blogging that I'm missing.
1.28.2008 8:32pm
Duffy Pratt (mail):
An illegitimate government, one that did not derive its powers from the consent of the people, is a government that is ripe for revolution. With that understanding, the best way to tell whether a government is legitimate or not is by seeing how close they are to revolt. Popularity, as judged by opinion polls, has nothing to do with it. So long as people aren't trying to overthrow the government, they are giving their "consent."

You might object that this is a peculiar notion of consent. I agree. It's simply another form of constructive consent. And if a person, or a group of people, truly refused to consent to our government, how could they manifest their refusal?
1.28.2008 8:45pm
Sebastian Holsclaw (mail):
The key insight that has been lost in talking about judicial review and our system of government is that the role of the judiciary is essentially small 'c' conservative. Judicial review is about maintaining fidelity to the old order until the rest of the government goes through the proper channels to change it.

That is why even in policies I agree with, like gay marriage, courts are clearly not supposed to be the agent of change. This has gotten mixed up in recent decades, as people have started to think of the Court as one of the most important agents of change. At that point we have multiple competing agents of change in the government, and we then have to decide which decision is more 'legitimate'.

That isn't to say that all legislative change is Constitutionally ok. Not at all. But that the paradigm shifts are supposed to take place in legislatures or through the amendment process.
1.28.2008 9:07pm
OrinKerr:
Duffy,

I did initially try to clarify points in the comment section, but I had the initial (and subsequently, the repeated) problem of feeling that Ilya was not fairly presenting my views in his main text. It's hard to let someone misrepresent you in the main text and then hope that someone reads the comment thread just to understand that you mean something very different. To be fair, Ilya did add an update at the bottom of one post pointing out that I objected, but he didn't change the main text. I thought that responding with a main post was the only viable option at that point.
1.28.2008 9:23pm
Ilya Somin:
Huh? You are presupposing an outcome, i.e., that it is ignorant to believe other than you do.

I never said anything like that. Rather, I am relying on decades of public opinion data showing that most people know very little about the basics of politics and public policy. That is true of a wide range of voters of differing political views.
1.28.2008 10:50pm
Ilya Somin:
One last point. Libertarians think they are saying something new when they point out that people are ignorant and/or irrational. But, this was already recognized by the Founders, who nonetheless recognize the People as the ultimate source of authority, going so far as to go around the established government order in the Articles of Confederation and the states in getting the Constitution ratified. "We the people of the United States"

You are assuming that the Constitution the Founders created establishes the extremely broad legislative authority that exists today. They did no such thing, but instead sought to create a government with strictly limited powers. Not to be sure, as limited, as many libertarians would want. But far more limited than what exists currently.
1.28.2008 10:53pm
Ilya Somin:
And "knowledge burden"? Gee, thanks so much for taking away my ability to render a policy choice! I thought libertarianism was all about allowing individual choice on everything, marketplace of ideas, yadda, yadda. I guess that that right should be limited to those who think the same way you do. I am apparently mistaken in assuming that this libertarian principle matters on this blog!

Libertarianism is indeed about free choice in controlling your own life. Voting, however, involves controlling not just your own life but the lives of others.
1.28.2008 10:56pm
Ilya Somin:
Thanks for the substantive response -- I'll respond soon. (Also, I'm very glad to see that I am not misunderstanding your basic position.)

Thanks to you as well, Orin. I think you have represented important parts of my position correctly. However, you have also misrepresented other parts, some of which I tried to elucidate in this post.
1.28.2008 10:57pm
Clayton E. Cramer (mail) (www):

You are assuming that the Constitution the Founders created establishes the extremely broad legislative authority that exists today.
At what level? The federal government is certainly far more intrusive and powerful than the Constitution established.

On the other hand, the Court has largely emasculated state governments in a number of areas that were considered the very core of state authority in 1791. Take a look at all the laws that have been struck down over the last few decades: laws against obscenity; the Miranda decision; laws regulating private sexual behavior; laws defining marriage as "one man, one woman."
1.29.2008 12:43am
Thoughtful (mail):
In a subsequent post, which Orin has closed, he states, as his position:

"How does a judge determine if a law is unconstitutional? The primary tool used by all 9 Justices today are precedents. If precedents or other judicial authorities say that a law is unconstitutional, then it is, and judges must say so."

AIANAL, I *did* take a course in logic. The above principle immediately leads one to ask: How did the earlier justices, whose decision now constitutes precedent, come to their conclusions? If they could use non-precedential reasoning to come to a conclusion, why can't later judges? I understand the value of precedent, but am less clear on why some legal theorists seem to assign it an infinite weighting in trumping current decisions.
1.29.2008 12:54am
Maciej Stachowiak (www):
(Posting here since comments on the latest post are now closed.)

I have found this Orin/Ilya debate quite interesting, even though many of the commenters and indeed the posters themselves seem to be tired of it.

How much judicial deference should be shown to the legislature is a pretty big question in the conservativish libertarian to libertarianish conservative spectrum represented on this site.

Unfortunately, I still don't think I clearly understand Ilya's and Orin's positions and the nature of their difference. It seems they are talking past each other.

In my own view, robust judicial review is part of what the governed have given consent to. In a representative democracy, the legislature represents the will of the people at best indirectly. You may not like a specific law, but you only get to vote at the granularity of a whole term of office, not every single congressional vote. Thus, we have a judiciary with the task of providing a check on this and invalidating individual laws when they go beyond some basic ground rules, namely the Constitution. Unlike the voting, they have the time and attention to study questions of constitutionality. Thus, we rightfully expect them to be more concerned with and attentive to such issues than voters or the legislature.
1.29.2008 1:05am
LLCoolBeans (mail):
Ilya said:
As I understand it, your view is that judges should 1) extend a strong presumption of constitutionality to all legislation, and 2) only invalidate it if its unconstitutionality is unmistakably clear (perhaps only if it is clear on the basis of a noncontroversial theory of constitutional interpretation).

Orin said:
No, that's not correct: I reject both (1) and (2). I think judges should be modest in their use of judicial review, and that they shouldn't rely on highly contested theories to strike down lots of laws.

Question for Orin:
Can you define with more precision to what extent you reject #2?

You say that judges should not rely on "highly contested" theories to strike down "lots of laws." In your view, is there an articulable principle that divides such an undesireable approach from the approach of a judge acting on the constitutional theory that is most persuasive to him or her (after considering all of the theories and their bases)?

Maybe there is an "I'll know it when I see it" idea at work. But without some principle separating no-no "highly contested theories" from acceptable "somewhat contested" theories, and so on, it is hard to understand what you mean.

Likewise, it is hard to understand how you reject Ilya's characterization when he says you think judges should strike down laws only based on noncontroversial theories. Perhaps he should have said based on "mainstream" theories, but is he not correct that in your view theories with a certain degree of acceptance are a more acceptable basis for invalidating legislation than theories with a lesser degree of acceptance?
1.29.2008 9:27am
John84:
It must be noted first of all that there is no explicit textual authority for judicial review. In Marbury v. Madison, it was argued that without judicial review, the Constitution is deprived of its status as supreme law. Legislators are less equipped than the judiciary to faithfully observe the limits laid down in the Constitution . This assumption is justified both by the supposed insulation of the Judiciary from political pressures, and its legal expertise. I am not persuaded. What is indisputably clear to the Judiciary--the plain meaning--is also, it could reasonably be supposed, indisputably clear to the legislature. As to what is not indisputably clear--the broad, open-textured clauses in the constitution--it is highly debatable that the rationales for judicial review apply. Because these clauses call for policy judgments, the judiciary's insulation is a handicap and its legal expertise irrelevant. The legislature is better suited to make policy judgments precisely because it is responsive to the political will.
1.29.2008 12:16pm
Clayton E. Cramer (mail) (www):

In a representative democracy, the legislature represents the will of the people at best indirectly. You may not like a specific law, but you only get to vote at the granularity of a whole term of office, not every single congressional vote.
Not always. The courts have shown considerable willingness to overturn initiatives, including state constitutional amendment initiatives. In Romer v. Evans, the Supreme Court decided that the vote of the people of Colorado was just bigotry and irrational, and substituted the judgment of a majority of the Court for that of the millions of Colorado voters who approved a constitutional change. A change, by the way, that limited governmental power--but I rather doubt that Professor Somin disapproved of the Court's decision to limit governmental power.
1.29.2008 12:19pm
Mr. Liberal:

They did no such thing, but instead sought to create a government with strictly limited powers. (bold added).


The Articles of Confederation created a government with strictly limited powers.

Our Constitution, with its necessary and proper clause and general welfare clause is not "strictly" limited, but instead grants the Federal government the power to both regulate and to tax and spend on an huge number of subjects.

I think you are confusing the Constitution with the Articles of Confederation.

Oh, I should point out one more thing. It seems that you would be more comfortable with the Articles of Confederation for another reason. It starts out with, "We the undersigned Delegates" instead of "We the People." I think with your massive distrust of the People, you would like that.

See, not only is the Article of Confederation basically libertarian, it also is quite elitist. I would think you would love it. =)
1.29.2008 1:07pm