an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
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.