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How Judicial Review Creates Incentives for Reckless Legislation

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.”

Reader Discussion

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on April 17, 2018 at 12:07:32 pm

The author should have quit at the initial post as this second one forces the reader, if he or she is to take it seriously, ti step so far out on a limb with “maybes” and “coulds” and “cans” that it is bound to break under the shear weight of its own conjecture, that I almost feel embarrassed to add to it by weighing in with commentary, but for this scenario to be even remotely plausible, it would also have to be presupposed that it was conducted within the confines of a unilateral legislature, populated by members elected out of a single party system, and an impotent Executive without will or way to veto egregious legislation - in short, the author would have to look outside the American system of government to find a model of government susceptible to gross abuse of the legislative process he imagines, and we find that he does just that.

Respectfully, the implausibility of the scenerio advanced in this post makes it difficult for this reader to accept as fully plausibility that the author really is in fact, as he says, "as fond of judicial review, and as devoted to the American separation-of-power system, as the next guy".

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Paul Binotto
on April 17, 2018 at 12:14:44 pm

1) Question for other readers:

Does ANYONE really moderate their driving behavior based upon the fact that they have auto insurance? Does anyone drive more recklessly simply by virtue of that coverage? Do you drive more or less - when shopping for groceries, do you go off on a hair raising jaunt around school speed zones at, say, 65 miles per hour?
The obverse of this may be true. WITHOUT insurance you may not drive as much as you otherwise would as the penalties may be quite severe.
So too with Rogers claim that judicial review may cause more unconstitutional legislation.
If there were no judicial review, it may be that legislators would be more *deliberate*, may exercise more restraint and may, by extension display more "republican character", albeit one that may not be foremost in their consciousness.
There is of course the example of the UK with its history of Legislative Supremacy (since modified in areas of EU legislation and certain Human rights treaties) that Rogers cites. Are we to believe that the absence of judicial review has made the UK a more *republican* regime. Look only to their present abuse of the citizens free speech rights, their innumerable violations of conscience with their "hate speech" laws, their denial of the citizens right to self defense (now to include "knife control")

As an example of how the LACK of judicial review has "bollixed up" British liberties, here is a samplinf from an Originalism Blog piece:

http://originalismblog.typepad.com/the-originalism-blog/2018/04/john-miller-on-joyce-lee-malcolm-and-the-second-amendmentmichael-ramsey.html

"Malcolm’s doctoral dissertation focused on King Charles I and the problem of loyalty in the 1640s, and much of her scholarship has flowed from this initial work. The Royal Historical Society published her first book, and she edited a pair of volumes for the Liberty Fund, totaling more than 1,000 pages, on political tracts in 17th-century England. As she researched and wrote on the period, she noticed something peculiar. “During the English Civil War, the king would summon the local militia to turn out with their best weapons,” she says. “Then he would relieve them of their best weapons. He confiscated them. Obviously, he didn’t trust his subjects.”

At a time when armies were marching around England, ordinary people became anxious about surrendering guns. Then, in 1689, the English Bill of Rights responded by granting Protestants the right to “have Arms for their Defence.” Malcolm wasn’t the first person to notice this, of course, but as an American who had studied political loyalty in England, she approached the topic from a fresh angle. “The English felt a need to put this in writing because the king had been disarming his political opponents,” she says. “This is the origin of our Second Amendment. It’s an individual right.”

So even here, we observe that Rogers is incorrect. The absence of Judicial review does not presuppose a tendency toward greater republican character. Then again, I also am incorrect in the (highly qualified0 assertion that i made that perhaps the lack of judicial review may lead to better outcomes.

2) Yes, clearly, our Legislative lacks republican character. Are we to attribute this to the Black Robes? while there is much to criticize our Begowned Masters for, I would not be so presumptuous nor so narrowly focused as to deny the role that other societal, political factors have played in the creation of our present difficulties with an unresponsive, non-virtuous Legislative Branch. Additionally, and these two factors may exhibit a certain symbiosis, there is also quite a pronounced lack of republican character in the citizenry. Fed for many long decades now on the promise of an unending cornucopia of government largesse, the citizenry has gleefully acquiesced in the diminution of both their rights and their *republican* responsibilities. The former puts on offer, promises of paradise while the latter seeks to ensure that such a promise is delivered, irrespective of the now unappreciated CONSTRAINTS and RESTRAINTS under which the government ought to operate.

3) meanwhile, the Black Robes enjoy the "love, affection and high honors" afforded them as they dispose of the peoples business, the responsibility for which is presently abdicated by the Legislative BUT not because of Judicial Review. Rather because it is politically unseemly to *deny* to the people that which a corrupted Legislative has previously promised. Institutionally, the Legislative has transformed itself into a runaway charity organization doling out benefits as quickly as they may be created.

And just like the auto insurance customer, it is unlikely that the insurance of judicial review plays a significant role in how well the Legislative drives the bus.

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gabe
on April 17, 2018 at 12:16:50 pm

Correction: Of course, I meant "Unicameral" Legislature.

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Paul Binotto
on April 17, 2018 at 12:27:57 pm

Some quick points:

Great Britain doesn't have judicial review. They also send people to prison for "hurtful" speech.

Republican oversight of the legislative authority and judicial review are different in kind. The US Constitution does not contain provisions for citizen referrenda. Judical review is specific; it considers a specific piece of legislation. The citizenry is limited to considering specific legislators and must weigh those legislators' votes on one subject against their entire body of work.

The greater threat to to a disciplined legislative branch is "career politicians" rather than a theoretical risk of unserious pandering with expectation that the judicial branch will cover for them. The latter breeds grandstanding, the former, corruption. Corruption is a far greater threat to a democratic republic.

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z9z99
on April 17, 2018 at 12:34:13 pm

Quite right, Mr. Gabe, and it is much more plausible that not better insurance against loss, but better, more fuel efficient cars, with much smoother handling at higher and higher speeds, and through more severe road conditions (bends, hills, inclement weather, etc.) is most responsible for causing motorists "to drive more miles...,and to drive those miles in a more reckless way".

And, it may also just be that government, like cars, when it is made to run smoother, faster, and more efficiently, it is also more likely to be run recklessly.

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Paul Binotto
on April 17, 2018 at 12:52:34 pm

Yep!

I had forgot to list the following in my earlier comments:

When one considers the actual nature of the "legislation passed by the Congress, we may find that the overwhelming preponderance does not reach constitutional issues. so much of it is for rather mundane matters, or on matters previously adjudicated (legally) or *settled* (politically).

As an example, I discovered yesterday that the US Tax Code encompasses 4,000,000 words. How much of a consideration was judicial review when this monstrosity was created? Nope, our Leaders are far more concerned with dispensing favors, carve-outs, excpetions, etc to even worry about the possibility of Judicial Review. After all, Pelosi expressed their lack of concern with judicial review when she asked ' Constitutional?, Are you kidding me?"
this would at a minimum indicate that the Congress is neither concerned with COTUS nor even envisions a *review* by the Black Robes on the preponderance of their legislation.

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gabe
on April 17, 2018 at 13:14:12 pm

"4,000,000 words"? Much more concise than I imagined....

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Paul Binotto
on April 17, 2018 at 14:04:16 pm

They had to be concise, after all they operated in trepidation of judicial review!!!

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gabe
on April 17, 2018 at 14:30:07 pm

It would seem reasonable for the public to insist of political scientists ( and similar pseudo- scientists, like sociologists and economists) that they first understand reality before fantasizing about what ails it and proposing speculative elixirs for its imagined maladies.

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timothy
on April 17, 2018 at 15:35:32 pm

Snicker, snicker....

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Paul Binotto

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