Balkinization  

Tuesday, October 08, 2013

Political Ignorance and Judicial Review

Ilya Somin

In addition to its significance for the size and and centralization of government, political ignorance also has important implications for judicial review - the focus of Chapter 6 of Democracy and Political Ignorance. Perhaps the most common objection to strong judicial review is the "countermajoritarian difficulty": the idea that judicial invalidation of legislation is suspect because it is antidemocratic.Both liberals and conservatives have often advanced this argument as a criticism of judicial decisions they oppose.

I. Easing the Countermajoritarian Difficulty

The reality of widespread political ignorance undercuts this traditional critique of judicial review in two major ways. First, if the public is ignorant of large areas of public policy, many of the laws enacted by legislatures may not represent the will of the people  in any meaningful sense. Given the size and complexity of modern government, many of the laws it enacts are ones that most voters have never heard of.  Even with laws they have heard of, the voters often have little idea of  what they do, or what their effects are likely to be. This diminishes the extent to which striking down such laws is countermajoritarian or antidemocratic. Obviously, some major laws really do enjoy broad popular support, and  sometimes the public really does have a good understanding of them. Political ignorance does not completely negate the countermajoritarian difficulty. But such cases are likely to be the exception rather than the rule.


II. Standing the Countermajoritarian Difficulty on its Head

Second, political ignorance actually enables judicial review to strengthen popular control over government in some important ways. In John Hart Ely's famous terminology, when it mitigates the impact of public ignorance, judicial review can be "representation-reinforcing." Judicial enforcement of constitutional limits on federal power leaves more issues under the control of state and local governments, which in turn increases the range of  questions on which the people can vote with their feet as well as at the ballot box. And, as discussed in  my last post, foot voters have much better incentives to become informed about the decisions they make than ballot box voters.

In  many cases, of course, judicial invalidation of legislation leaves more issues under the control  of private individuals and institutions, rather than state and local governments. That is what happens when, for example, courts strike down laws that violate freedom of speech, freedom of religion, privacy rights, or property rights. In these cases, judicial review facilitates foot voting in the private sector, which also usually leads to better-informed decision-making than ballot box voting. In addition, reducing the range of issues under government control also reduces the knowledge burden on ballot voters, by  cutting down the range of political issues they need to keep track of.  At least at the margin, that makes it easier for rationally ignorant  voters to monitor government, and thereby enhances democratic accountability.

III. Implications

None of this proves that judges should be able to strike down legislation whenever they want. The countermajoritarian difficulty is just one of several  factors  that are relevant to the appropriate scope of judicial review. Courts might also justifiably decide to uphold laws based on respect for the original meaning of the Constitution, adherence to precedent, deference to the superior expertise of other branches of government, and various other reasons. Recognizing the importance of political ignorance does not by itself tell us what theory of constitutional interpretation judges should follow, such as originalism or living constitution theory (I explore the implications of political ignorance for originalism in this article). In addition, the political ignorance critique of the countermajoritarian difficulty  usually does not apply to cases where   judicial review does not diminish the scope or centralization of government, but merely reallocates power among different branches of the same level of government (e.g. - separation of powers cases).

But recognition of the implications of political ignorance does weaken and in some cases reverse one of the most  influential critiques of  strong judicial review. It also suggests that judicial review can sometimes play a valuable role in facilitating better-informed decision-making through foot voting.

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