Steve Bainbridge takes issue with Richard Epstein’s op-ed piece, Live and Let Live, in today’s Wall Street Journal (available only to paid subscribers).
Generally–and here the illiberal FMA is a jarring exception–conservatives insist that most important structural questions in the U.S. should be decided through the democratic political processes. The libertarian wing regards democratic government as an imperfect means in service of the larger end of personal liberty, and thus strongly pushes the guarantees of individual rights to their logical conclusion. Both sides struggle to accommodate the rival impulse: All majoritarians recognize some limitations on government. All libertarians recognize that there are some inherently political decisions that no personal rights can trump. But how to draw the balance?
In his essay, Richard calls himself a “constitutional libertarian.” From our previous exchange, I have some inkling what Steve thinks of “constitutional libertarians,” which he again pursues in a blog post entitled, The Problem with Constitutional Libertarians: Groping Towards a Conservative Theory of Judicial Review. Richard responds here.
Steve’s final comment is illuminating:
But it also seems to me that ensuring judicial restraint is the key sticking point of any theory of judicial review. Indeed, the strongest argument for democratic majoritarianism may be the impossibility of achieving judicial restraint, as it is not clear to me that judicial restraint is any more easily obtained under a constitutional libertarian theory either.
It is good that Steve is wrestling seriously with how to limit judicial review and that he sees that the problem of limits affects all such theories. Any retreat to pure majoritarianism eliminates this problem but at a terrible price for liberty–a price neither the founders nor those who adopted the Fourteenth Amendment were unwilling to pay. The question then is whether the sort of mixture of judicial review/restraint that Steve favors (though he has yet to work it out) offers any advantages over an original meaning approach to textualism that sanctions considerably more constraints on legislative discretion than he wants. In other words, if it is difficult to draw any line, then where one chooses to the draw the line might make little difference, so you may as well draw the line at a place that is more protective of liberty. As I have argued in my amicus brief in Lawrence, if a naked legislative assertion of immorality is deemed sufficient to justify any legislative restrictions on liberty, then this justification knows no limits, and is supremely dangerous to liberty.
Richard concludes his essay with an observation that I wish conservative democratic majoritarians (and their democratic compatriots on the left) would take to heart:
The path to social peace lies in the willingness on all sides to follow a principle of live-and-let-live on deep moral disputes.
And the deeper the moral dispute, the more important that it not be enshrined by a majority into law.
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