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.