Once More on Judicial Review: John Hart Ely, Roe v. Wade and the awakening of Publius

Publius has published some thoughts on judicial review, Hamdan and Roe that are bound to annoy his liberal readership.

Publius has been pondering the lawless Bush v. Gore decision, and it has driven him to a concern about judicial tyranny. Publius recognizes that it is not enough for the left to say that judges should make more left-wing decisions: there needs to be a theory of what is a legitimate constitutional decision, and it needs to be distinct, at least in principle, from his own policy preferences.

If you are interested in this sort of thing, go read publius. If it helps, he is chanelling John Hart Ely. Basically, the idea is that the courts can legitimately help those, and only those, who are not adequately represented in the ordinary political process. And, to the extent possible, the courts should do that by improving the process so that they are better represented. For Canadian readers, Patrick Monahan in Politics and the Constituion argued that Ely's book was a better theory of Canadian constituional law than of American.

Anyway, I reproduce my response to publius in his comments box, because, like him, I have a mad ambition of coming up with a coherent way of thinking about constitutional law.

One thing that troubles me is your automatic democratic-nationalist assumptions. You start from the assumption that what the national majority wants, the national majority should get. Why? What is so special about that particular numerical majority?

I would prefer to invoke the concept of subsidiarity. The (local) state exists for a reason: to perform those coordinating functions individuals and the smaller institutions of civil society can't do for themselves because they don't possess coercive authority. The (national) state exists to perform those coordinating functions that the states can't because they don't possess authority over each other.

At each level, there is a practical judgment about what kinds of power are necessary to perform the requisite functions. These judgements cannot themselves be made democratically, because they are about which of equally democratic forms of decision -- individual, state or national -- should take place.

While I think this sort of framework is closer to the "framer's intentions" than an absolute democratic-nationalism, I don't pretend that the problems of every generation will be resolved for all time by the thinking of previous generations.

So what prevents judicial tyranny, the problem that bothers you? Nothing (other than perhpas the reality of power politics) prevents it if the judges lose all judicial virtues. But if they are minimalist -- willing to resolve only actual conflicts presented to them, and then only on the basis of case-specific reasons, then that tyranny can be mitigated.