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A Final Response To Ilya:
At bottom, it seems that Ilya and I diverge based on our comfort with democracy. I am very comfortable with it. Ilya is not. It certainly makes sense that our views of the proper judicial role would diverge based on that question. Finally, I would ask that readers who want to understand my view will focus on my posts rather than Ilya's characterizations of them. I don't want to waste everyone's time with long explanations of additional misunderstandings, but I do think the two are quite different. And with that, let's move on.
Ilya Somin:
Yes, let us indeed move on. Readers will decide for themselves who is closer to the truth and what mischaracterizations there may have been.

Here, I will only note that I have argued throughout that democracy and consensual government are better served by strong judicial review rather than judicial deference to legislative enactments. The difference between us is not just a matter of differing comfort levels with democracy, but a question of whether democracy itself is best served by judicial acquiescence to legislative power.
1.28.2008 10:48pm
OrinKerr:
Ilya,

If we can find someone who favors judicial acquiescence to legislative power, as compared to judicial modesty in the enforcement of constitutional guarantees, that would indeed be an interesting debate to have. I look forward to it.
1.28.2008 10:53pm
Dave Hardy (mail) (www):
I am comfortable with democracy so long as it yields results I favor. Hmmm... comfortable with judicial review on those terms, too. So much for consistency.

Randy Barnett's book, which I am skimming while brief-writing, probes some of these issues. Consent of the governed is interesting ... I don't know of a single person who expressly consented. Nobody asked my consent to the 3/5 compromise, certainly.
1.28.2008 10:54pm
OrinKerr:
Nobody asked my consent to the 3/5 compromise, certainly.

Dave, were you born before 1868?
1.28.2008 10:56pm
Ilya Somin:
If we can find someone who favors judicial acquiescence to legislative power, as compared to judicial modesty in the enforcement of constitutional guarantees, that would indeed be an interesting debate to have. I look forward to it.

I don't see much meaningful difference between judicial acquiescence to most (even if not quite all) assertions of legislative power) and "judicial modesty" defined as broad deference to legislative enactments with a strong presumption of constitutionality.
1.28.2008 10:59pm
OrinKerr:
Ilya,

That's part of the problem we've been having all along, unfortunately; you tend to reduce my argument to a caricature, a much more extreme version than I have in mind. (And when I try to point out the misunderstanding, your response is that you will let readers decide which of us is stating my view accurately.)
1.28.2008 11:04pm
Ilya Somin:
That's part of the problem we've been having all along, unfortunately; you tend to reduce my argument to a caricature, a much more extreme version than I have in mind.

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). I never said that you support upholding any and all legislative enactments. However, the combination of 1 and 2 above would still mean that the legislature could do almost anything it is actually likely to want to do. The invalidation of any legislation that is at all significant will necessarily require the application of reasoning that is bound to be contested and controversial.

Now, where is the above a wrong characterization of your position. Do you in fact reject 1) and 2) or either of them?
1.28.2008 11:10pm
Randy R. (mail):
I think it's a little unfair to say that he is 'uncomforable with democracy.' That's a loaded phrase. Of course, we all agree with and comfortable with democracy. I don't see how judicial review undermines democracy, but perhaps others disagree.

The question is whether a majority can or should rule with uncheckecd power. One can come with different conclusions and still be very pro-democracy.

Or, I could argue that the only real democracy is what the ancient Greeks had, which was direct vote from the citizens. We don't have that here, and I don't see anyone arguing for it, so I suppose no one here is 'comfortable with democracy?"

Enough with word games, okay?
1.28.2008 11:15pm
Dan Simon (mail) (www):
If we can find someone who favors judicial acquiescence to legislative power, as compared to judicial modesty in the enforcement of constitutional guarantees, that would indeed be an interesting debate to have. I look forward to it.

[Raising hand] Ooh, ooh--me! Me! Pick me!
1.28.2008 11:26pm
Dumb:
Dumb question, but is there an easy way for one or more of the Conspirators to arrange a page that presents the post in this thread, in order, on one page? I would love to be able to read the debate in a convenient format.
1.28.2008 11:30pm
Dumb:
Ah -- I guess my handle was well chosen, as there is a link permitting one to do precisely that. Never mind, move along, nothing to see here....
1.28.2008 11:31pm
randal (mail):
Orin, it seems to me that your concern is mostly a fear that an active judiciary is prone to inconsistency compared to a restrained judiciary. I suspect that's true, almost by definition - the more actions taken, the higher the chances of some being inconsistent with others.

To the extent that's part of your worry (and I don't think you've put it in those terms, so maybe I'm mis-analyzing), I think it is overblown. The judiciary has mechanisms for dealing with inconsistency when it arises; and it's not clear that inconsistency in this arena is even that bad (compared to, for example, sentencing, which is plainly unfair when inconsistent).
1.28.2008 11:34pm
Ilya Somin:
Ah -- I guess my handle was well chosen, as there is a link permitting one to do precisely that. Never mind, move along, nothing to see here....

Not a dumb question at all. It took me awhile to figure this one out myself, when I first needed to last year.
1.28.2008 11:35pm
OrinKerr:
Ilya,

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. But I'm mostly a stare decisis person, not some kind of radical majoritarian. That's the problem we've been having all along; I disagree with your version of me almost as much as I disagree with you. And yet when I point out your misunderstanding, you refuse to budge and insist that you are stating my view correctly! It's really extremely frustrating.
1.28.2008 11:36pm
2Hard4U2C:
Alright, so basically the argument boils down to the following:

Orin: "Judicial review is bad."

Ilya: "Judicial review is good, and I think your characterization of it as 'bad' is really incorrect. BUT I'll give you the last word."

Orin: "Judicial review is bad."

Ilya: "I just don't understand where you're coming from. You keep calling it 'bad,' when it isn't. Anyway, I've had enough of this. You can have the last word."

Orin: "Judicial review is bad."

Ilya: "There you go AGAIN, calling it bad, when it ISN'T. Judicial review is good. That's it. This is over. You get the last word."

Orin: "Judicial review is bad."

Ilya: Etc...
1.28.2008 11:37pm
OrinKerr:
2Hard4U2C,

That's a puzzling comment, given that both Ilya and I agree that judicial review is essential. Perhaps you should re-read the thread, so you can poke fun at it more thoughtfully?
1.28.2008 11:40pm
Thoughtful (mail):
I guess the question to ask Orin is this: in the late 18th century, a Constitution was enacted in "these United States" which included clear mechanisms on how to alter and amend it.

Almost 250 years later, this same document allegedly rules.

Recognizing that Orin is a scholar in law, not history, it doesn't seem to require an incredible depth of study to answer the question: is it reasonable to think that the men who established the Constitution, and the people who authorized it's acceptance in the several states, had this result in mind? Did they believe the federal government, for example, should make laws governing the running of state and local schools. Did they believe that raising grain on your own property and consuming it constituted a form of interstate commerce? Did they believe the federal government they were creating would require approximately 20% of the Gross National Product to run (far more than King George III ever took)?

If the answer is "No. This is a deviation from what any reasonable person would claim they envisioned as authorized by their document" then the question must be: were these deviations achieved in conformance with the established methods of modifying the document, or by other means? If Orin believes the former, I would think many people--people beyond doctrinaire libertarians; people well studied in this area--would seek an explanation from him as to why. If he thinks it was achieved by other means, wouldn't--independent of his arguments about "controversial" theories of Constitutional interpretation, and independent of the reality vs illusion as to what those we elect do in Washington vis-a-vis our democratic desires and interests--that require justices who have taken an oath to defend the Constitution to negate these laws? What is the point of having a written document if activist judges can change its meaning in ways other than laid down in the document itself? And if that WAS done, what is the point of seeking meaning in a written document if one cannot right such wrongs?

In other words, Orin's claims of judicial humility would have more force if this was a close call, but given the government we started with and the government we have, it strikes me as blind to think it is a close call. As Lysander Spooner put it, the Constitution either sanctioned what we now have, or was powerless to stop it. In either case, it is unfit to exist. (Well, that Spooner was a rabble-rouser...)

[Keep in mind that Spooner was writing about what we had in the mid-to-late 19th century...some people are real purists.]
1.28.2008 11:41pm
Ilya Somin:
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. But I'm mostly a stare decisis person, not some kind of radical majoritarian. That's the problem we've been having all along; I disagree with your version of me almost as much as I disagree with you.

Now I'm really confused. I don't see what connection stare decisis (which I don't think has been mentioned in our debate even once until now) has to democracy and consent. Many of the Court's precedents are quite countermajoritarian.

I thought that you were arguing on the basis of the link between legislative power and democracy. Indeed, even in this post, you say that relative comfort level with democracy is at the heart of our disagreement. If you instead want to grant a high degree of deference to the COurt's precedents (whether or not those precedents are good for democracy), that is a wholly different argument.
1.28.2008 11:43pm
Thoughtful (mail):
I guess it is a measure of the level of Orin's frustration that he fails to appreciate the high humor in 2Hard4U2C's satire. Satire need not be highly accurate to be extremely funny. This is well within the ballpark, as evidenced by anyone who laughed at it rather than puzzled over it. Congratulations to 2Hard4U2C for his very funny post.

Orin, I give you the last word...

:-)
1.28.2008 11:49pm
George Weiss (mail):
orin- would you support slightly more deference when there is a highly suspicious "rational ignorance" situation-even if the constitutional theory is controversial-and then less if rational ignorance is less likely?

or should the presumption of constitutionality be exactly the same no matter how

example#1

congress puts in a statue something that says "this law authorizes the spending that comes out of the report language in conference committee. all of the decisions about spending are made in the conference committee..after the bill has passed both houses and before going to the president..there are no names on the conference committee report language line by line. President has a standing order to ignore report language and only carry out spending in the statutory language..the executive agency refuses to honor the earmarks. the beneficiary of the earmark sues and it goes to the court...

example 2

president passes a highly publicized law prohibiting certain abortions without certain notifications. doctors and patients sue.


should each of these situations get the exact same presumption of constitutionality by the courts? or does number 2 deserve more presumption of constitutionality?

IIya-
out of curiosity:

law schools generally cover the question of the importance deference to the legislature on matters of law that involve a statue or that would change longly held common law. I wonder, since George Mason has a Law and Economics bend-does it teach rational ignorance as a counter argument to this in the first year law and economics course which is mandatory?
1.28.2008 11:58pm
OrinKerr:
Ilya,

I'm not surprised you are confused; I think you have been missing my argument from the beginning, which is why I have kept objecting to your characterizations of it.

We have not been debating whether judicial review should exist; we both agree that it should and that it is essential. Rather, we have been debating how eager courts should be to strike down legislation. By view is that judges should be modest; they should presume laws are constitutional, and they should only strike them down if it is reasonably clear that the law is unconstitutional.

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. See, e,g, my many posts arguing that things are unconstitutional, such as my recent posts on Virginia v. Moore relying on United States v. Di Re.

The question I believe we have been debating is whether Courts should break from precedent and start to take a new and aggressive approach to judicial review in which courts start to invalidate a lot of legislation. My view is no, for all the reasons I have mentioned.

Perhaps our confusion is that I think it goes without saying that precedents are essential; they form the backdrop to every judicial decision by every judge and every justice. Perhaps this was something that was obvious to me but far from apparent to you, which could explain why you thought I was taking a very radical position.
1.29.2008 12:01am
Ilya Somin:
law schools generally cover the question of the importance deference to the legislature on matters of law that involve a statue or that would change longly held common law. I wonder, since George Mason has a Law and Economics bend-does it teach rational ignorance as a counter argument to this in the first year law and economics course which is mandatory?

I don't teach that course, so I'm not sure. But probably not. However, I would note that the two norms you mention cut in opposite directions. Deference to statutes cuts against the canon of interpretation that holds that statutes should not be interpreted as displacing the common law unless the intent to do so is extremely clear.
1.29.2008 12:03am
George Weiss (mail):
Deference to statutes cuts against the canon of interpretation that holds that statutes should not be interpreted as displacing the common law unless the intent to do so is extremely clear.

thats a fascinating point that i don't think is made often enough
1.29.2008 12:05am
George Weiss (mail):
Deference to statues cuts against the canon of interpretation that holds that statutes should not be interpreted as displacing the common law unless the intent to do so is extremely clear.

thats a fascinating point that i don't think is made often enough
1.29.2008 12:05am
2Hard4U2C:
Feel free to substitute "green" for "good" and "blue" for "bad." I was only using "good and "bad" to represent two differing views, not the actual substance of the argument. Sorry about that...
1.29.2008 12:05am
AF:
I have enjoyed following this conversation. Given that a huge amount of literature has been published on the question of judicial review and its relationship to democracy and constitutional structure, perhaps it would be helpful for Ilya and Orin to cite to articles or books with which they largely agree (or wrote), which lay out their views at greater length? I take it that Ilya agrees with much of what Randy Barnett has to say in Restoring the Lost Constitution. Or have I missed something? Orin, is it fair to say that you agree with the types of arguments made by Cass Sunstein in One Case at a Time?
1.29.2008 12:07am
George Weiss (mail):
on the other hand-what i was orionally referring to was the idea that a court in a state with the common law of contributory negligence say-would be loath to overturn that and begin a regime of comparative negligence without legislative action. (like CA in li vs yellow cab)..this cuts in a similar way to deference to the legislature on matters of statute in the question of judicial review for constitutionality
1.29.2008 12:09am
George Weiss (mail):
sorry i mean it cuts the same way as aggressive/non deferential judicial review.
1.29.2008 12:19am
randal (mail):
Orin, the problem has been with your phrase "lots of legislation." Even under existing precedent, doesn't the amount of legislation that gets invalidated depend principally on the character of the legislation, not the attitude of the judges? I think Ilya's (and my) problem is that if it's per-se wrong for judges to invalidate "lots of legislation", then legislatures can effectively change the constitution by passing lots of laws which ought to be invalidated but can't be due to your restrained judges.

If you're just saying that the Supreme Court should continue to invalidate pretty much the same kinds of laws that it has been recently, and that if the legislature passes more of that kind of law, the justices should invalidate all of them, even if it's "lots of legislation" - I think that's very different.
1.29.2008 12:19am
Ilya Somin:
We have not been debating whether judicial review should exist; we both agree that it should and that it is essential. Rather, we have been debating how eager courts should be to strike down legislation. By view is that judges should be modest; they should presume laws are constitutional, and they should only strike them down if it is reasonably clear that the law is unconstitutional.

The above is EXACTLY what I have been arguing against, particularly the part about presuming that "laws are constitutional." I also disagree with your second notion: that laws should only be struck down if their unconstitutionality is "reasonably clear" (though a lot depends on what is meant by "reasonably").

Indeed, the above two claims are not much different from my characterization of your position as stating that courts should "1) extend a strong presumption of constitutionality to all legislation, and 2) only invalidate it if its unconstitutionality is unmistakably clear." The sole noteworthy difference between the two formulations is the word "unmistakably" vs. "reasonably."

The part about precedent is one that you have not raised before in our debate. Instead, while not even mentioning precedent, you relied on what you claim is a strong relationship between legitimacy, democracy, consent, and deference to legislative power. I don't see what connection adherence to precedent has to the above. Many of the Court's precedents are quite counter to democracy as you defined it in your posts. I'm glad that you have now made your position more clear. But if adherence to precedent were your main concern, it would have helped to at least mention precedent or stare decisis at some earlier point in the discussion.
1.29.2008 12:20am
Ilya Somin:
I take it that Ilya agrees with much of what Randy Barnett has to say in Restoring the Lost Constitution.

I agree with much of what Randy says (especially about limited powers jurisprudence), but don't fully endorse his theory of "the presumption of liberty." In my view, judicial review should be more closely tied to specific constitutional text than some of Randy's arguments suggest.
1.29.2008 12:27am
OrinKerr:
Ilya,

I give up. I never defined democracy or legitimacy in that way; you defined it for me, over my repeated objection. I'm closing the comment thread to keep me from pulling out the few remaining follicles of hair I have.
1.29.2008 12:28am