Will does little to resolve the tension between the libertarian model of constitutional theory and the conservative approach he purports to uphold.
Ask Americans today what serves as the primary protector of constitutional rights and liberties in the American political system, and, in my experience, most everyone will answer “the courts.” This answer sits in jarring contrast to the answer James Madison offered in Federalist 51, “A dependence on the people is, no doubt, the primary control on the government.” He adds immediately, however, “but experience has taught mankind the necessity of auxiliary precautions.”
To be sure, by “auxiliary precautions” Madison writes of the separation-of-power system in general. Yet that Americans so often point to courts as the primary guarantors of their constitutional rights and liberties raises the question whether these auxiliary precautions, judicial review in particular, however well intended, proved so successful that they actually undermined, rather than preserved, republican character in America.
Constituting something like an institutional insurance policy against unconstitutional legislation, judicial review can create what’s called a “moral hazard.” The term originally comes from the insurance industry, but has been broadly applied in economics, law and political science. The basic idea is this: insuring against the consequences of reckless behavior effectively subsidizes reckless behavior. Moreover, one gets more of whatever one subsidizes. Subsidize reckless behavior and one naturally gets more reckless behavior. For example, by reducing the effective cost of auto accidents to drivers, auto insurance induces people to drive more miles and to drive more recklessly than they would without insurance.
By insuring against the consequences of constitutionally reckless legislation, judicial review affects incentives for republican vigilance at two levels: in the legislature and among citizens themselves. I plan to write in my next post regarding how judicial review can affect the legislative calculus for enacting constitutionally reckless laws. This not only from increasing legislative negligence, but even more perversely, the existence of judicial review can sometimes induce legislators intentionally to support what they know are unconstitutional laws.
Today, however, I focus on how the existence of judicial review might affect republican vigilance, and specifically, how it affects the citizens’ calculus about participating in public life and can undermine the fitness of a people for republican government.
Madison’s observation that the people’s vigilance is the primary control on government stands in line with idealized forms of democratic theory. First the baseline. Let’s set this as a system of legislative supremacy (which exists in some robustly democratic countries like Great Britain). Now let’s introduce Madison’s “auxiliary precaution” of judicial review.
Judicial review might change the republican incentive structure facing citizens in at least two ways. First, it can change incentives that individuals have to be rationally ignorant about what’s going on in the legislature.
For some people politics is inherently interesting; politics is, as it were, their sport. (This inclination is not always virtuous; it is a part of the anthropological genesis of political faction that Madison so famously discusses in Federalist 10.) For many people, however, politics is a duty that requires the expenditure of effort, effort that could be devoted to other and, for them, more enjoyable activities. Political attentiveness is costly for these folks.
By insuring against unconstitutional legislation, judicial review effectively reduces the cost of political inattentiveness for many citizens. With the judicial safety net protecting us against unconstitutional legislation, the institution makes it safer for us to turn to the sports page and to ignore the front page.
Indeed, to the extent judges do protect us from legislative (and executive) overreach, we do in fact have less to fear, at least directly. The worry, however, pertains to unintended consequences. Resting confident in the protections provided by judicial guardians, habits of republican vigilance among citizens can atrophy. As with auto insurance and drivers, with legislative insurance and citizens, insuring against the consequences of our own negligence invites us to be more politically negligent citizens. This can result in more legislative accidents, even if we don’t bear their full cost.
The more important question, however, is whether becoming used to our judicial insurance coverage, and relying on it as a substitute for our own vigilance, in itself makes us less fit as republican citizens.
While the “auxiliary precaution” of judicial review might first supplement republican vigilance, the risk might be, that by becoming habituated to judicial oversight of the legislatures, the auxiliary precaution then comes to supplant the role of citizens as “primary control on the government.”
We come to think that issues of constitutionality are technical legal issues best decided by trained experts. They are issues for judges and lawyers, not for ordinary citizens. We cede responsibility and, consequently, come to think of ourselves as observers to the lawmaking process rather than responsible participants. Then, ultimately, we slip into thinking of ourselves as subjects rather than citizens. This process can be further exacerbated by the removal of decisions from representative legislatures to executive branch agencies that sit at one or more remove from democratic accountability.
To be sure, attentiveness to legislative activity is not an “on or off” matter. Indeed, incentives for political attentiveness might already be so thin in systems of modern mass democracy that the addition of judicial review might have little effect on an already denuded republican character.
The possibility remains, however, that even well-intended institutions, and institutional practices, can have unintended consequences. Might there be an effective tradeoff between judicial review and republican character? Even if there is, in today’s systems of mass politics, might we still locate effective security for our rights if they are protected through institutions like judicial review rather than through republican vigilance, even if those institutions result in undermining our republican character itself? Or is it possible that an institution created initially to protect our rights instead engenders a passivity that renders us no longer fit for the very liberties that institution was created to protect?