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Brad Smith on John McCain:

Capital University law prof, former FEC Commissioner, and Romney supporter Brad Smith has this to say about why so few conservative law professors have jumped on the McCain bandwagon:

I think that conservative law professors, who as I say, probably care more about the issue of judges and are on average in a better position to consider the candidates on this particular issue than are most other conservative activists, don't like what they see in McCain. Some of it is the problem of McCain-Feingold. McCain is likely to make support for McCain-Feingold - an issue he has said is "of transcendent importance" to him - a litmus test for judges. It is very hard, however, to find judicial candidates who think McCain-Feingold is constitutional yet who are also are anti-Roe v. Wade and generally respectful of the Constitution. For anyone with a coherent judicial philosophy of federalism and limited government, the two just don't go together. When McCain says he wants to appoint justices like Thomas and Scalia, we must consider that Thomas and Scalia would overrule all of McCain-Feingold, indeed all pre-existing campaign finance law except perhaps some disclosure. It is almost impossible to believe that Senator McCain would appoint Thomas or Scalia to the bench, let alone the Supreme Court.

Of course, there was a time when conservatives were significantly less sympathetic to a broad interpretation of the the First Amendment than were liberals. Perhaps President McCain will regress conservatives to the historical mean.

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Conservative Legal Academics and the Constitutionality of McCain-Feingold: I find myself quite puzzled by Brad Smith's suggestion that conservative law professors are not likely to support John McCain because belief in the constitutionality of McCain Feingold is somehow inconsistent with "general respectfulness" for the Constitution. Maybe I'm missing something, but I thought that judicial restraint was one of the traditional core principles of legal conservatism. The notion, as I recall hearing someone say -- can't remember who -- was that judges should be "strict constructionists" who don't "legislate from the bench."

  Perhaps a foolish consistency is the hobgoblin of little minds, but I would think that this methodology as applied to campaign finance would lead a truly consistent conservative judge to be inclined to uphold McCain Feingold under old fashioned Thayeresque principles of judicial restraint, regardless of the merits of such legislation as a matter of policy. Of course, conservative legal thought comes in many diverse strands, so of course it's not the only result a conservative judge could reach. But if you believe that legal principles should be applied consistently, without regard to which party's ox is being gored, I would think this would be a strong and principled conservative approach.
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Conservative Legal Academics, McCain-Feingold, and "Judicial Restraint":

I have to disagree with co-blogger Orin Kerr's claim that "conservative" principles of "judicial restraint" should "lead a truly consistent conservative judge to be inclined to uphold McCain Feingold." Judicial restraint is not necessarily the same thing as upholding whatever statutes legislatures should happen to enact [update: this is poor wording - I should have said "not necessarily the same thing as granting a strong presumption of constitutionality to whatever statutes legislatures happen to enact"]. Rather, a properly restrained judge should vote to strike down statutes whenever they violate the text and original meaning of the Constitution, without giving the legislature any special deference. Failing to strike down an unconstitutional statute is no less a departure from the proper judicial function than wrongly striking down a statute that is constitutionally permissible. In an age where government - especially the federal government - has grown far beyond its constitutional bounds, striking down unconstitutional statutes may well be a more urgent judicial priority than upholding permissible ones.

As I discussed in more detail in this post, most conservative - and even more so libertarian - legal scholars recognize the need to strike down unconstitutional statutes and have long criticized the Supreme Court for being excessively deferential to legislatures in areas such as federalism and property rights. A few conservative legal academics - such as Robert Bork and Lino Graglia - do hold the view that judicial review should be severely truncated across the board. But that view has long been a minority one among nonliberal legal academics. Brad Smith, the scholar whose post Orin criticizes, is not a conservative but a libertarian. Libertarian academics, of course, have been even stronger supporters of judicial review than conservative ones.

Orin hints at some of the above when he notes that conservatives support "strict constructionist" jurisprudence. To the extent that "strict constructionism" is a synonym for textualism and originalism, it does not imply broad deference to legislative enactments. To the contrary, it requires judges to strike down as many as possible of the large and growing number of modern statutes that have expanded legislative power beyond the bounds of the Constitutional text and original meaning.

None of this settles the issue of McCain-Feingold's constitutionality. It does, however, undercut the argument that consistency requires conservatives to oppose judicial invalidation of this statute because this outcome is dictated by "conservative" principles of "judicial restraint" that allegedly require broad judicial deference to anything enacted through the legislative process.

UPDATE: In the comments, Orin suggests that I misinterpreted his original post. Orin is the best judge of what he meant to say, so I defer to him on that and apologize for misunderstanding his meaning. I will, say, however, that it's not clear how his argument - as elucidated in his comment - proves that conservatives who believe McCain-Feingold to be unconstitutional are "inconsistent." If "conservative" principles of "judicial restraint" do not require broad deference to Congress' enactments, then I don't see why they should "lead a truly consistent conservative judge to be inclined to uphold McCain Feingold."

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Legal Divide Rocks the Volokh Conspiracy!: As Ilya's update makes clear, I think he somewhat misunderstands my post on McCain Feingold; at the same time, his post clearly points out a pretty big divide between how he approaches constitutional interpretation and how I do.

  For my part, I tend to be highly skeptical of grand constitutional theories that would lead courts to strike down lots of laws. Human nature is fallible and highly imperfect: it's only natural to embrace theories that reach results you like while being deeply convinced that you are following principle and the other guy is being result-oriented. Thus, libertarians are drawn to libertarian theories, progressives are drawn to progressive theories, etc. In the end, it just so happens that everyone seems to have a Grand Theory of the True Constitution by which a lot of laws they don't like end up being unconstitutional. And yet no seems able to convince anyone else that their theories of constitutional interpretation are wrong. I fear that in result, if not in intention, such theories too often become politics by other means.
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Human Imperfection, Bias, and Theories of Constitutional Law:

Orin's most recent post cuts through some of the fog generated by previous exchanges and gets to the heart of what he correctly characterizes as a big disagreement between our respective theories of constitutional interpretation:

For my part, I tend to be highly skeptical of grand constitutional theories that would lead courts to strike down lots of laws. Human nature is fallible and highly imperfect: it's only natural to embrace theories that reach results you like while being deeply convinced that you are following principle and the other guy is being result-oriented. Thus, libertarians are drawn to libertarian theories, progressives are drawn to progressive theories, etc. In the end, it just so happens that everyone seems to have a Grand Theory of the True Constitution by which a lot of laws they don't like end up being unconstitutional.

What I find interesting about my disagreements with Orin is that I agree with his premises but disagree with the conclusions he draws from them. Here, I agree that "human nature is fallible and highly imperfect" and that people tend to "embrace theories that reach results [they] like." But I disagree that this means we should be unusually skeptical about theories that "would lead courts to strike down lots of laws." If human nature is fallible and imperfect, that applies to the nature of legislators and voters no less than to that of judges. If ideological bias affects people's preferences about constitutional theory, that applies to theories that would lead courts to uphold lots of laws no less than to those what would lead them strike lots of laws down. People who like the outcomes of the political process will be biased in favor of theories that lead courts to uphold most laws no less than those who dislike those outcomes will have a bias the other way. And all of this applies to "non-grand" theories of constitutional interpretation no less than to "grand" ones.

Thus, the existence of human imperfection and bias does not justify judicial deference to legislative power. If anything, it justifies at least some degree of aggressive judicial review. After all, if humans are biased, fallible and imperfect, we should not allow the biased, fallible, and imperfect humans who populate the legislature and the electorate to be the sole judges of the scope of their constitutional authority.

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Human Imperfection and Governmental Legitimacy: I think Ilya and I are nicely peeling away the layers of our differing views about the role of judges. We each think the problem is that human beings are fallible. I draw the lesson that judges should be cautious about imposing their fallible views on the legislature and the public. Ilya draws the lesson that we need to have fallible judges vigorously checking fallible legislatures acting on behalf of the fallible public.

  Where Ilya and I differ, I think, is in the nature and importance of governmental legitimacy. I think the legitimacy of government is premised on the consent of the governed. Notions of legitimacy are complex, of course, and I don't want to oversimplify matters too much. But legislatively enacted laws generally deserve respect because they reflect a process involving wide participation of those who will be governed by them through their elected officials. In contrast, judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges. I think the closer connection to the consent of the governed of legislative acts relative to judicial ones provides an important reason judges should be reluctant to latch on to fallible and contested theories that would lead them to invalidate lots of legislation.
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Judicial Review, Democracy, and Legitimacy:

Although Orin and I differ fundamentally over judicial review, we are united in our willingness to spend a sleepless night debating it. In his latest post, Orin claims that judges should be severely constrained in overruling legislatures because the latter more fully represent "the consent of the governed":

Where Ilya and I differ, I think, is in the nature and importance of governmental legitimacy. I think the legitimacy of government is premised on the consent of the governed. Notions of legitimacy are complex, of course, and I don't want to oversimplify matters too much. But legislatively enacted laws generally deserve respect because they reflect a process involving wide participation of those who will be governed by them through their elected officials. In contrast, judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges. I think the closer connection to the consent of the governed of legislative acts relative to judicial ones provides an important reason judges should be reluctant to latch on to fallible and contested theories that would lead them to invalidate lots of legislation.

I have many objections to the above, but will limit this post to the three most important ones. First, a high proportion of legislatively enacted laws do not in fact represent "the consent of the governed" in any meaningful sense because the vast majority of voters are ignorant about them - often not even knowing of their existence. Indeed, if we really want laws that reflect the informed consent of the governed, we should strictly limit the scope of legislative power so that the amount of legislation would be small enough for rationally ignorant voters to have at least a minimal knowledge of. I develop these points in much greater detail in this article.

Second, to the extent that "the consent of the governed" implies the actual support of the majority of the actual public, it turns out that judicial review has at least as much or more consent-based legitimacy as legislative power does. As political scientist Terri Jennings Peretti shows in her book on the subject, polling data consistently shows that the vast majority of Americans strongly support judicial review and that the Supreme Court generally enjoys a much higher approval rating than Congress despite the fact that it routinely invalidates a great many more laws than Orin probably considers justified. I don't claim that strong judicial review is desirable merely because the vast majority of the public approves of it. Their support could be the product of ignorance or miscalculation. However, consistently strong public approval does suggest that judicial power has at least as much "legitimacy" in Orin's sense of the term as legislative power. Quite possibly more.

Finally, I think Orin oversimplifies when he says that "judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges." In reality, judges' decisions are constrained by a political appointment process, by limits on their ability to implement decisions at odds with the views of other political actors, and by a highly institutionalized system of precedent and legal culture that make it difficult for any one judge or small group of judges to make radical changes "on their own."

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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.
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The Supreme Court's Approval Ratings and the Legitimacy of Judicial Review:

In one of the posts in my debate over judicial review with Orin Kerr, I made the point that the Supreme Court's approval ratings are consistently much higher than those of Congress; I also noted that majority public opinion is strongly supportive of the Court's role in invalidating congressional legislation that the justices believe to be unconstitutional. To the extent that the legitimacy of judicial review depends on public approval, that is important evidence in favor of judicial power.

However, University of San Diego law professor Michael Rappaport responds to part of my argument by suggesting that the Court's relatively high approval ratings may be due to the fact that it gets less public criticism than do other branches of government. As he puts it, "criticism of the Court before the public is generally muted by comparison with criticism of politicians." There is something to this point, but not as much as Michael suggests. The Supreme Court has gotten a great deal of public criticism in recent decades. Since at least 1968, conservatives have routinely made the Court's real and imagined liberal "judicial activism" an electoral issue. In more recent years, the Democrats have often attacked it for supposed conservative activism. Judicial nominations have of course been a highly controversial issue since at least the 1980s.

In one sense, the attacks on the Court have been even more thoroughgoing than those on Congress and the presidency. Many conservative and some liberals have argued that the Court's power as such is illegitimate and should be reduced. By contrast, attacks on Congress and the president usually focus on the supposed sins of incumbents, with less effort to claim that the powers of the institution as such should be reduced (the recent debate over George W. Bush's use of executive power may be a partial exception).

Michael is right to point out that the justices are rarely subjected to the kinds of personal attacks as individuals that elected officials face. However, public hostility to an institution can often arise even if the voters know little or nothing about the individuals who work there. Witness Congress' extremely low approval ratings, despite the fact that most Americans can't name their own congressman and know little or nothing about Nancy Pelosi and other top congressional leaders.

To reiterate, I don't believe that strong judicial review of statutes can be justified merely on the grounds that it is popular with the public. Neither do I believe that judicial review becomes illegitimate if the laws it invalidates have strong public support. However, for those who do believe that the legitimacy of judicial review depends at least in large part on the degree to which it has majoritarian support, the Court's very high approval ratings relative to those of the president and Congress are not easy to dismiss. As I argued in my earlier post, they undercut arguments such as Orin's, which hold that judicial review must be strictly limited because legislative enactments have a degree of popular "consent" that the courts lack.

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Supreme Court Approval Ratings and Judicial Review: In his post below, my co-blogger Ilya writes:
[F]or those who do believe that the legitimacy of judicial review depends at least in large part on the degree to which it has majoritarian support, the Court's very high approval ratings relative to those of the president and Congress are not easy to dismiss. As I argued in my earlier post, they undercut arguments such as Orin's, which hold that judicial review must be strictly limited because legislative enactments have a degree of popular "consent" that the courts lack.
  Well, I wouldn't want to "dismiss" any arguments, but I do disagree with Ilya about the relevance of the Supreme Court's current approval ratings to the debate he and I have been having.

  The key problem is that modern U.S. Supreme Court has acted as a highly majoritarian institution. No matter what power the Supreme Court has in theory, it has very rarely invalidated politically popular laws. This was particularly true in the last decade, when Justice O'Connor was the "swing vote" in most cases. As my colleague Jeffrey Rosen has pointed out, Justice O'Connor's approach was very majoritarian: for the most part she kept the Court's decisions exactly on track with American public opinion. When the Supreme Court effectively "follows the election returns," it is bound to be pretty popular.

  "But wait," you're thinking, "how can the Supreme Court strike down laws and yet also be popular if the people aren't somehow 'consenting' to their laws being invalidated?" There are several reasons, but one is that public opinion polls are national whereas most laws struck down by the Supreme Court are (and traditionally have been) state or local. If a law is very popular in one state or region but unpopular nationwide, striking down the law will both thwart state and local preferences and be popular in national polls. To my mind, this doesn't show that "the people" effectively "consented" to their law being struck down. Rather, it mostly shows that in a federal system, state and national opinion can and often do diverge.
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Supreme Court Approval Ratings and the Legitimacy of Judicial Power Revisited:

In his latest post, Orin argues that the Supreme Court's high approval ratings don't have much relevance to our debate over the legitimacy of judicial review because the Court rarely strikes down popular laws and in particular rarely strikes down federal laws. Therefore, he claims:

If a law is very popular in one state or region but unpopular nationwide, striking down the law will both thwart state and local preferences and be popular in national polls. To my mind, this doesn't show that "the people" effectively "consented" to their law being struck down. Rather, it mostly shows that in a federal system, state and national opinion can and often do diverge.

To my mind, this is a significant revision, or at least clarification, of the position Orin staked out earlier in our debate. At that time, he argued that legislative enactments in general - not just federal laws - deserve heavy deference from judges because they have a special "legitimacy" derived from having a "closer connection to the consent of the governed." For this reason, among others, he argued that we must reject theories of constitutional interpretation that would lead judges to invalidate "lots of laws."

Now, Orin seems to be arguing that only federal laws, and perhaps only popular federal laws, deserve such deference. Thus, at least in so far as "legitimacy" is concerned, he should not object to the judiciary striking down "lots of laws" so long as those laws are either state laws or federal laws that lack strong majority support. This is an extremely important point. As I explain in this article, widespread political ignorance ensures that the majority of the public doesn't even know about most of the laws that legislatures pass, much less strongly support them. Orin may well be right to argue that the Court's popularity would decline if it started striking down very popular federal laws. However, the vast majority of legislation doesn't fall into that category. Orin's latest post thus implies that there is no harm to democratic legitimacy from striking down the vast majority of laws (though such invalidation might, of course, still be undesirable on other grounds).

I also disagree with Orin's implication in the latest post that striking down federal laws (as opposed to state laws) will necessarily undermine the Court's perceived legitimacy. The Court's approval ratings have not declined significantly over the last 15 years, despite the fact that the Court struck down many more federal laws during this period than did its immediate predecessors. With the exception of a few extremely important statutes, the majority of the public is unlikely to care much more about the invalidation of federal laws most of them have never heard of.

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Correcting Ilya's Misimpression: In his latest contribution to our exchange, my co-blogger Ilya credits me with creating a novel new theory of judicial review, and after so crediting me, concludes that my new theory is interesting but inconsistent with my prior posts. However, I am afraid he misunderstood my last post; I did not mean to suggest such a position. In this post I want to clarify my views just to make sure there is no misunderstanding.

  First, let me back up to make sure we're all on the same basic track. I believe the basic question in our exchange boils down to how eager courts should be to invalidate legislation. Ilya and I both agree with the sound principle of judicial review: If a law is contrary to the Constitution, then it is is void. The question is how judges should approach the question of determining whether a law is unconstitutional. On my end, I argue that judges should approach this question with humility. They should presume that properly enacted laws are constitutional, and they should not strike down laws unless it is clear that the law crosses the line and is unconstitutional. If I understand Ilya correctly, he believes that judges should be bold in striking down legislation. They should not presume laws are constitutional, and they shouldn't hesitate to strike down laws if they have a theory, personally persuasive to them even if not widely held, that the law is unconstitutional.

  In our series of posts, Ilya and I rooted our approaches in different views of legitimacy. I argued that judges should approach their role with modesty because constitutional theory is too often cover for political views: Libertarians have libertarian theories, progressives have progressive theories, etc. No one can agree on the right theory, and everyone seems to have a theory that matches up very nicely with their political views. In light of this, an aggressive judicial role based on controversial theories would often end up imposing the judge's policy preferences over that of the people. Ilya countered by pointing to the Supreme Court's relatively high popularity ratings. To be candid, I'm not entirely sure of why Ilya considers the Supreme Court's approval ratings to be relevant. But as best I can tell, the idea is that If the Supreme Court is more popular than the elective branches then it must mean that "the people" actually like its decisions and want it to take an aggressive role.

  In my last post, I pointed out what I think is a pretty basic error with Ilya's reliance on the Supreme Court's approval rating in his argument: The Supreme Court we have is not the Supreme Court that Ilya wants. That is, my understanding is that Ilya wants the Supreme Court to change course. He wants the Court to start to take on an aggressive judicial role, rather than have the generally deferential and majoritarian approach it usually employs now. If that's right, then I don't know why the Supreme Court's current approval rating is supposed to support Ilya's claim of public support for the role he would like them to take. To the extent the Court's approval ratings reflect agreement with the Court's decisions as policy — which I think is true only modestly, for reasons suggested below — the Court's approval ratings presumably reflect in part its majoritarian role. If you change that role, as Ilya would like, then the Court's approval ratings would presumably change.

  Just to be extra clear, though, I didn't mean to suggest that I agree with Ilya's notion that approval ratings are sign of whether a legal institution reflects the consent of the governed. I made the narrow point I did in my last post to point out that even if you accept Ilya's assumptions that this is true, reliance on the Court's current approval ratings can't make the point Ilya wants. Unfortunately, I must have made this point poorly, because Ilya read this as an acceptance of his assumptions and then the creation of a novel new theory in which state and federal laws should receive different degrees of deference. To the contrary: I do not think a legal institution's popularity reflects whether its decisions are consistent with the consent of the governed.

  In the case of the Supreme Court, for example, very few people have any idea of what the Supreme Court does. And among that small group, only a very tiny minority has any understanding of why it does it. Given that, approval ratings will tend to reflect a lot of stuff beyond whether the public agrees with the Court's decisions as matter of personal preference. There is presumably some connection between the Court's popularity and public agreement or disagreement with its decisions. If the Court started striking down a lot of popular laws, then I would expect its popularity to drop. But that connection is indirect at best. And more broadly, as I suggested in my last post, there are lots of ways that the Supreme Court can thwart preferences of minorities while being popular with the majority.

  In any event, I don't know how many readers are particularly interested in this thread, but I did want to correct Ilya's misimpression about the point I was making. And I hope Ilya will correct me if I am misinterpreting his.
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Summarizing Our Debate Over Judicial Review:

I don't know if it's desirable to continue my debate with Orin over judicial power much further. In this post, I will simply summarize some key themes and leave Orin the last word, if he wants it.

As I see it, the main issue under dispute is how much judges should defer to the legislature in cases where they believe that a law it has passed is unconstitutional. In my judgment, no special deference is due. Judges should not give legislatively enacted laws any particular deference and should vote to strike them down in most, if not all, cases where they believe those laws to be in violation of the Constitution. Orin, by contrast, believes that judges should give legislation a strong presumption of constitutionality and only strike it down if its unconstitutionality is overwhelmingly clear; and perhaps only on the basis of theories of interpretation that aren't too controversial.

In our initial exchange, Orin argued that his position is justified on the basis of human fallibility and bias. He claimed that such fallibility cuts against theories of interpretation that would lead courts to strike down "lots of laws." In response I pointed out that fallibility and bias apply just as much to the legislature as they do to judges. Therefore, general flaws of human nature can't justify judicial deference to the legislature, which is also run by fallible humans. In later posts, Orin instead sought to justify his position on the grounds that legislation enjoys superior "legitimacy" because it has the "consent" of the people. Legitimacy, as defined by Orin, has therefore become the crux of the debate. In my view (elaborated most fully in this post), there are three crucial flaws in Orin's legitimacy argument:

1. Widespread political ignorance ensures that most legislatively laws don't actually enjoy any meaningful "consent" from the majority of the people.

2. The majority of the people actually approve of the Court's role in invalidating what it sees as unconstitutional legislation. Indeed, the Court enjoys much higher approval ratings than Congress.

3. Judicial invalidation of legislation does not merely represent the unsupported opinion of a handful of judges, at least not to the extent that Orin assumes.

Orin's latest rebuttals focused on Point 2 above (which is not to say that he agrees with 1 and 3). He argued that the Court is popular primarily because it has not acted to strike down popular legislation very often and that its high approval ratings are largely due to this fact. If it were to play the more aggressive role I envision, its popularity with the public would decline. My answer is that this argument rebuts Point 2 only with respect to rare, highly popular legislation. The vast majority of legislation does not fall into this category. Thus, the logic of Orin's answer is that Point 2 does rebut his conjectures about the Court's legitimacy with respect to the vast majority of laws that don't enjoy any great degree of popularity. Indeed, the majority of the public probably has not even heard of most of those laws.

This is where, Orin claims, I misunderstood his argument. Perhaps I should have made clear that, even though Orin subjectively may stick to his original view that nearly all legislation deserves a high degree of judicial deference, the logic of his latest response gives away a large portion of the game. That is what I meant when I wrote that it is an important "Modification" or "clarification" of his theory; but I admit I should have made my point clearer. My bottom line on this issue is that the Court can indeed strike down "lots of laws" without impairing its "legitimacy" as Orin defines that concept.

In closing, 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).

I recognize, of course, that the last paragraph is very general and fails to address a host of details and possible counterarguments. In this debate, I have mostly focused on criticizing Orin's position on internal grounds. Perhaps I erred in not doing more to advance my own approach to judicial review. That, however, will have to wait for another time.

UPDATE: I should take note of one other point Orin made in his last post. He claims that public approval of the Supreme Court doesn't necessarily reflect support for its decisions because:

[V]ery few people have any idea of what the Supreme Court does. And among that small group, only a very tiny minority has any understanding of why it does it. Given that, approval ratings will tend to reflect a lot of stuff beyond whether the public agrees with the Court's decisions as matter of personal preference.

I agree that very few people actually know much about what the Court does. But the same can be said for legislatures. However, my point was that these approval ratings and other survey results do show that the vast majority of the public approves of the Court's institutional role in invalidating legislation it believes to be unconstitutional, even if it doesn't know much about the specifics of individual decisions. The majority of the public does not seem to endorse Orin's highly deferential view of judicial power. Perhaps they would agree with him more if they knew more about the Court. But if popular "consent" only matters in Orin's theory if it is backed by extensive knowledge, he would have to accept my point that widespread political ignorance ensures that most legislatively enacted laws also lack such consent.

UPDATE #2: I probably should have paid greater attention to Orin's statement in his last post that he "do[es] not think a legal institution's popularity reflects whether its decisions are consistent with the consent of the governed." I would think that an institution's popularity is at least to a large extent based on whether people agree with its decisions or not, or at least with its role in the decisionmaking process. Perhaps I erred in assuming that Orin's emphasis on "consent" implies a need for actual agreement by the majority of the public with an institution's decisions, or at least acceptance of its institutional role. If Orin has some completely different and more idiosyncratic definition of consent in mind - one that has no connection to agreement - he may have to explain it and also explain why it is that the legislature embodies it more than the courts.

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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.
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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.

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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.
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