The Role of Judicial Reivew

If you have some time to read, over at The Volokh Conspiracy, Ilya Somin and Orin Kerr have been debating the proper role of judicial review in our republic.  It’s well worth a read.

I tend to side with Professor Somin in this instance.  The idea of legitimacy through “consent of the governed” has always struck me as problematic, because I think the purpose of government, first and foremost, has to be the mutual protection of rights.  A “consent of the governed” legitimacy model surmises that the democratic process offers any meaningful consent.  I did not consent to have John McCain and Russ Feingold limit my rights to speak out against them in any meaningful way, yet all three branches of the federal government have upheld this, despite the fact that I believe the majority of people would recognize it was a violation of freedom of speech if it were explained to them in detail.

I do think the judiciary needs to be true to the original meaning of the law, and not impose wild and inconsistent theories about legal interpretation.  I want to understand the biases and philosophies of the judges we put onto the bench, because I don’t think there’s any theory of legal interpretation that will act as a bulwark against personal bias that will still preserve the court’s role as a check against the other two branches of government.  The judiciary needs to have an active in here, and ought not make a presumption that those branches will enact constitutional laws.  I think conservatives need to beware in restraining the judiciary, they don’t go so far as to make it a gaggle of “yes” men.