Will does little to resolve the tension between the libertarian model of constitutional theory and the conservative approach he purports to uphold.
People are (often) forward thinking. Adding protections that lessen costly outcomes in the future affect incentives people have to engage in risky behavior today. Auto insurance doesn’t simply lessen the cost of accidents to the insured. Its effect is not static. By decreasing the cost of putative accidents in the future, insurance can affect the way people drive today, and not in a positive way. Auto insurance induces people to drive more miles than they would without insurance, and to drive those miles in a more reckless way than they would without insurance. This effect is called “moral hazard.” Given that judicial review, as it were, insures our polity against unconstitutional outcomes, thereby lessening the cost of constitutionally negligent behavior for both voters and legislators, the institution might plausibly induce moral hazard for both these groups of individuals. I discussed possible effects on voters yesterday. Today I muse about legislators.
At the legislative level, rigorous judicial scrutiny can affect incentives for enacting unconstitutional legislation in several ways. Initially, per a standard moral hazard story, legislators may respond to judicial review as an insurance mechanism, enacting quantitatively more legislation and qualitatively worse, more constitutionally reckless, legislation.
That said, if the judiciary strikes down whatever unconstitutional legislation a legislature enacts, then perhaps there’s no real harm to the legislature enacting both more legislation, and constitutionally riskier legislation, than it would have enacted in a system of legislative supremacy.
Maybe. But the effects are not necessarily as theoretically clean as all that.
First, there is the possibility of a loss of republican character among legislators, and outcome analogous to the possibility I discussed yesterday, that the institution leads to the loss of republican character among common citizens. To wit, effective judicial review could immunize legislators from needing to think constitutionally when they legislate. This loss of republican, or constitutional, character among a nation’s political leaders is almost certainly a bad thing over the long run. It would presumably add to the erosion of republican character among the people, and engenders the belief that whatever the legislature can get away with is just fine. This is particularly worrisome given that so many Americans conflate legislation being constitutional with legislation being good, as in, “if the law is constitutional, then the law must be good.” (This brings to mind Justice Stevens’ quip that judges aren’t asked to decide whether a law is silly, or foolish or even asinine. They’re asked whether it’s constitutional, which is a different thing.)
Secondly, the possibility exists legislators won’t simply enact unconstitutional laws negligently because of judicial review, they will, occasionally, intentionally enact unconstitutional laws because of judicial review. My Texas A&M University colleague, Joseph Ura, in a working paper, provides evidence, both systematic (on congressional flag burning legislation) and anecdotal (on anti-abortion legislation), that some legislators sometimes vote for popular legislation they actually oppose knowing, if the law passes, the courts will strike it down.
Thirdly, as with the impact of insurance on increasing the amount of driving, as well as increasing the recklessness with which those miles are driving, judicial “insurance” against unconstitutional legislation could plausibly increase legislative productivity relative to a system of legislative supremacy. With the judiciary kicking out constitutionally reckless laws, legislators need not fear negligently drafting laws as much as they would without the judicial insurance policy. This allows them to increase legislative production relative to a system of legislative supremacy.
This increase in legislative production can have two effects. One is that the addition of the judicial veto point (as with the addition of non-judicial veto points as well), could cause an overall net increase in the number of constitutional laws enacted and implemented. The ironical result is that government could be larger, and society more regulated, with judicial review than they would be under a system of legislative supremacy.
Secondly, even if the judiciary were to catch and strike down all unconstitutional laws enacted by the legislature, it still takes time, often years, for challenged laws to work their way through the judicial system to a definitive answer. Unless enjoined at the start, unconstitutional laws will be on the books, and enforced, for months or even years before being struck down. After all, the only penalty placed upon legislators for enacting unconstitutional laws is that the laws are struck down and not enforced by the courts. There’s an opportunity cost for legislators to enact unconstitutional legislation. But not much more. And even the opportunity cost may not be realized for years until the challenge is definitively resolved in the courts.
As a result, given the larger incidence of enacted legislation induced by judicial review, the institution could have the ironic result of actually increasing the amount of unconstitutional legislation that is on the books at any given period time relative to a system of legislative supremacy, even though all of those unconstitutional laws are ultimately struck down by the courts.
Further, if the judiciary does not in fact catch and strike down every unconstitutional law, if some unconstitutional laws can slip through without being struck down, then, depending on how much more reckless legislation judicial review will induce legislatures to produce, and how many unconstitutional laws will be missed in the review process, there is the possibility the institution might result in a net increase in the quantity of unconstitutional laws that remain permanently on the books relative to unconstitutional laws enacted in a system with legislative supremacy.
These are, of course, only possibilities. There are a lot of “maybes” and “coulds” and “cans” in the above. Their realization depends on parameters in a given system.
The bigger theoretical point, however, the point of interest, is that there is no reason to think that the incentives legislators face when generating legislation are unaffected by adding a judicial veto (a.k.a. “judicial review”) to the legislative process.
Effects could be limited to the attentiveness legislators pay to constitutional principles and republican character, depending on whether they conclude, with judicial review, they can farm out issues of constitutionality to judicial experts. Or the results could be even more perverse, with society laboring under a net increase of implemented unconstitutional laws, whether temporarily or permanently.
I am as fond of judicial review, and as devoted to the American separation-of-power system, as the next guy, but I definitely would not recommend eliminating judicial review on the basis of theoretical speculation. On the other hand, nations such as Great Britain, seem to have robust republican institutions without the practice. So it’s a useful exercise to push against one’s commitments, and occasionally consider the mere possibility that an ostensibly self-enforcing separation-of-power system, one aiming to create and sustain a political invisible hand in which the self-interest of officials preserves rather than destroys liberty, is a product of the temptation T.S. Eliot decried in The Rock, of men who “dream of systems so perfect that no one will need to be good.”