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When “Auxiliary Precautions” Undermine Republican Character

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?

Reader Discussion

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on April 16, 2018 at 08:44:15 am

This article a) suggests that judicial review might undermine republican vigilance and b) suggests two ways to that unfortunate end; i.e., judicial review might reduce republican vigilance and it might reduce incentives for republicans to be vigilant. The two paths to reduced republican vigilance are really one path and they both merely restate the premise that judicial review might reduce republican vigilance.

The article strikes me as tautology; it purports to answer its question (or prove its premise) by restating it. It is a question (or a premise) searching for an answer by chasing its tail.

And, after pursuing its verbal circularity several times I'm dizzy yet unable to fathom what the author means by this convoluted sentence:
"Even if there is ...an effective tradeoff between judicial review and republican character, 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?"

He seems to be asking whether our republican rights might still be secured by judicial review or "institutions like judicial review" even if they undermine both our republican vigilance and our republican character.

To which one might ask: 1) what "institutions like judicial review" do you mean? and 2) what's the use of being vigilant in defense of what we no longer possess and what we have lost a) because of our reliance on judicial review or "institutions like judicial review" and/or b) because of our lack of vigilance in defense of our republican character?

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timothy
on April 16, 2018 at 09:23:54 am

Recall that the infamous Alien and Sedition Acts were not overturned by SCOTUS—to my knowledge they were not even challenged as unconstitutional. They became the subject of partisan debate; Jefferson used them to his advantage in his 1800 presidential campaign; Congress ultimately repealed the Sedition Act; and President Jefferson pardoned those convicted under the law. If given the chance, the people can correct political mistakes through the political system.

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Mark Pulliam
on April 16, 2018 at 10:26:24 am

Interesting piece. I will reserve my judgement of this series until the after the second post has been presented, however, I think I am smelling a "deference defense" being cooked-up.

Therefore, although this speculation may be premature and ultimately unfounded, a quick observation, using the author's auto insurance example:

"[B]y 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."

.... It may also be observed:

"[B]y reducing the effective cost of auto accidents to drivers, [by offering policyholders uninsured/under-insured coverages] induces people [with limited/lack of means and/or sense of responsibility] to drive [without auto insurance] more miles and to drive more recklessly than they would with [ ] insurance."

Using this second example, not only does the certain knowledge that uninsured/under-insured auto insurance policy coverage reduces the likelihood of serious ramification for insured motorist from loss due to negligent uninsured/under-insured motorists, it also reduces ramification to those driving without insurance. This because, by shifting the burden onto the majority of law abiding insured motorist, it also shifts the burden away from, and provides increased incentive for, a minority of less scrupulous folks willing to risk motoring uninsured.

So, too, it may be expected that certain knowledge that legislative delegation to agency (burden shift), coupled with "judicial deference" (limited liability), reduces political costs in a manner that will incentivize reckless and dishonest behavior among members of legislatures, (as a group already, highly prone to the temptations of unscrupulousness and self-preservation).

It must be acknowledged, in fairness to the author, towards the end of his essay, he does allude to the particular challenges wrought by the current administrative state.

But, one final observation, it may be that what appears as a politically negligent citizenry, may actually be a politically disillusioned citizenry; one which has lost wholesale faith in a government that appears to do whatever it wants regardless of however loud the citizens may sound their views at the ballot box. Deference to unelected bureaucrats aggravates this disillusionment as much as judicial activism.

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Paul Binotto
on April 16, 2018 at 10:38:52 am

True, as you say: "If given the chance, the people can correct political mistakes through the political system."

But they very seldom do so.

How often has Congress actually impeached a bad Senator, federal judge or president? (Obama was unworthy of office but twice elected and fully deserving of but well beyond impeachment.) How often has Congress repealed a bad law, dismantled a useless or destructive or unconstitutional agency, withdrawn an overreaching delegation of power, killed a law that smothers liberty, undone a law that undoes federalism, neutered a law that is a gargantuan waste of money, held in contempt and seen prosecuted a criminally-contemptuous federal bureaucrat (say Deputy AG Rosenstein or AG Eric Holder?)

We know these questions to be rhetorical and the answer to all of them is "never or very rarely." (That would be a good book, if a depressing read, in American political history.)

Likewise, the Supreme Court would rather go without its annual 3 month vacation than throw out a bad precedent or strike down an unconstitutional overreach of Congress. The Court came close to tossing (Obamacare but acted instead to make it ObamaRobertsCare. And as precedents Dredd Scott, Plessy, Korematsu, Roe and Sibelius and many other deplorable decisions remain (disgraced in name only) as case law precedent. The Court came close in Casey to overturning Roe but failed (thank you "Jump Ball" Kennedy for the late switch that killed a million babies) and in Burwell actually compounded its failures in Sibelius.

Can we look to judicial or legislative sustenance of republican virtue? Hardly if history is our guide.

Only these will work: The unceasing public demand that the original constitution be dutifully enforced, that a conserving culture of morality be sustained and transferred one generation to the next, that civic education become the teacher's discipline and that our nation revere one's full freedom to believe and to live one's religious faith and to be respected not shamed for it.

These are the bastions of republican virtue and its vigilant defense. Look to restoring these bulwarks of liberty, not to professorial tautologies and platitudes.

"If men were angels no government would be necessary." But if men are not virtuous no democratic republic is possible and no government will protect even the angels among us.

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timothy
on April 16, 2018 at 12:39:45 pm

Recall that the infamous Alien and Sedition Acts were not overturned by SCOTUS....

Good illustration.

If I recall correctly, SCOTUS judicial review happened in Marbury v. Madison, and didn't occur again until Dred Scott. These were two famously corrupt cases--an astonishingly bad beginning for a now-beloved Supreme Court doctrine.

I am curious how well things work in Britain without judicial review. Does some other mechanism take its place?

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nobody.really
on April 16, 2018 at 13:05:24 pm

In further support of Rogers's/Pulliam's thesis on the power of judicial review to erode political mechanisms: I noted that the second time SCOTUS ever used the doctrine was in Dred Scott, when the court struck down the Missouri Compromise governing the expansion of slavery in newly-admitted states. In response to that decision, young Abraham Lincoln remarked in his Peoria Address of 1854:

The Missouri Compromise ought to be restored…. If … we omit to do this, what follows? Slavery may or may not be established in Nebraska. But whether it be or not, we shall have repudiated—discarded from the councils of the Nation—the SPIRIT of COMPROMISE; for who after this will ever trust in a national compromise? The spirit of mutual concession—that spirit which first gave us the constitution, and which has thrice saved the Union—we shall have strangled and cast from us forever.

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nobody.really
on April 16, 2018 at 14:12:59 pm

"Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change.

https://www.parliament.uk/about/how/role/sovereignty/

So Parleymint is Supreme, mate!!!!!!

Then again, the Brits have their own problems with moral hazard amongst the electorate.

Agree with you and Mark (and Lincoln, BTW) - some matters OUGHT to be resolved through the *political* process - not the judicial (although you and I would surely include / exclude different matters).

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gabe
on April 16, 2018 at 14:17:41 pm

Timothy:

While the words / phrases may be difficult, I "think" I know what Rogers is intimating.

An example from my past:

During the 60's I can recall many friends, fellow students and YEP, even this young knucklehead bellowing forth to those who disagreed with us that "The Supreme Court has ruled [thus and thus]....."

This was intended to end discussion - and sadly, for a period in my own life, end consideration of the meaning, import and effect of the Black Robes ruling(s).

I think I may finally be past that. Too many others ARE NOT!!!!

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gabe
on April 16, 2018 at 14:43:18 pm

I reject the tendency to peg judicial review as the culprit responsible for undermining our republican democracy by seeking to equate legitimate and constitutionally required independent judicial review with the specter of gross judicial activism; the Left does draws this connection by citing Dred Scott, and the Right, Roe.

These two rulings are indeed egregious (Roe the more-so because it denies life) examples of judicial activism at its worse, but any assertion which seeks to overly characterize or equate "review" and "activism" as merely the opposite sides of the same badly tarnished coin, in my view, is merely a dodge, if not disingenuous attempt, to preserve the unchecked power of the (unelected) administrative state.

In addition, the misinterpretation and misapplication of the principle of equal access to the courts to bring suit, not only wreaks havoc on the economy of the court system when standing is too broadly assigned, and when absurdly wide discretion finds merit in the substitution of possible and potential harm for that which is plausible and probable, but the resulting docket burgeoned of spurious litigation, by shear volume, only increases the odds that there will also be increased opportunity for judicial activism.

In any event, judicial review, per se, shouldn't be seen as offender, but as the abused.

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Paul Binotto
on April 16, 2018 at 17:20:39 pm

Professor Rogers latest commentary supports certain of my prior observations about certain of his other commentaries on this web site, that he is prone to muddled analysis which confuses more that it clarifies. I spoke earlier this morning of those qualities of illogic and ambiguity that characterize Rogers' speculations as to the adverse civics consequences of citizens relying on judicial review.

Professor Rogers has promised a sequential analysis of the impact of Congress' reliance on judicial review, as to which I suspect he will say that the modern Congress (since it abjures absolute standards, should it not be dubbed "postmodern"?) punts (Harry Reid/Chuck Schumer/Nancy Pelosi-like) to the federal courts, rather than confronts (statesman-like) its constitutional responsibility. To paraphrase Reinhold Niebuhr's observation about original sin and the Christian faith, for one to say that Congress might pass the buck of constitutional responsibility at every opportunity is to make an empirically and historically verifiable assertion. To which I say in advance, "Tell me something I didn't know."

Nevertheless, others have responded to Rogers by arguing that "... judicial review, per se, shouldn’t be seen as offender, but as the abused." (Paul Binotto;) that Supreme Court decisions may (as Lincoln said of Taney's Dredd Scott) suppress republican virtue if they are misused to end political/moral and constitutional debate by "...bellowing forth to those who disagree... that “The Supreme Court has ruled [thus and thus]….." (Gabe;) that judicial review may a) obscure the constitutional reality that "...some matters OUGHT to be resolved through the *political* process." (nobody.really and Gabe;) and by quoting Lincoln on Taney's Dredd Scott in "...​ further support of (the) thesis on the power of judicial review to erode political mechanisms."​ ( nobody.really.)

I agree with Gabe that the Left (as did the slavocracy abuse Dredd Scott) has misused Supreme Court decisions (e.g., Roe and a host of similarly bad decisions on myriad matters) to lend rhetorical authority to untenable constitutional and moral outcomes. But, while I cannot prove my assertion, I doubt seriously that that kind of rhetorical abuse of logic and law has contributed one iota of force to undermining republican virtue among the citizenry at large.

I also agree with Gabe and Mark Pulliam that "... the people can correct political mistakes through the political system." But to say that political redress has worked (and will work) to repair some of the damage of unconstitutional behavior is not to say that resort to the constitution (judicial review) undermines reliance on and public support for republican virtue (as Rogers suggests it does.)

More generally, for me Rogers' assertion that reliance on judicial review undermines public support for and resort to republican virtue is a proposition that is a) speculative, empirically-unverifiable, factually undemonstratable and beyond even the magical capacity of economists to model and measure but rather, that is b) strongly counter-intuitive, clearly unlikely and contrary to common sense.

Further, to say (as I do) a) that reliance on the process of judicial review has not demonstrably undermined public support for republican virtue (as Rogers suggests it has) but b) that the Court has unconstitutionally undermined federalism and expanded the powers both of Congress and the bureaucracy beyond their constitutional limits is clearly not to say c) (as I do not say) that judicial review isinherently destructive of republican virtue, unworkable and should be avoided.

That would be tantamount to the absurdity of saying that the constitutional remedy for unconstitutional behavior is less constitutional governance.

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timothy
on April 16, 2018 at 21:50:32 pm

I am skeptical that the moral hazard of insurance coverage is analogous to that of judicial review. Imagine if you were involved in an automobile accident and, upon making a claim against your policy, were denied on grounds of "evolving standards," and be informed that your policy is a "living document" that may have protected your interests when you purchased it, but is no longer in tune with the times.

The concept of judicial review only functions as proposed by Professor Rodgers when the risk reducing device, r.g. insurance or arguendo judicial review, is perceived as 1.) reliable, and 2.) predictable. I am not convinced that this the case with jurisprudence that consists of any number of 5-4 decisions, post-hoc rationalizations and, in Scalia's words,"the mystical aphorisms of the fortune cookie."

If memory serves, President G. W. Bush tepidly opposed McCain-Feingold, but signed it anyway, with the expectation that the Supreme Court would invalidate it. So much for insurance.

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z9z99
on April 17, 2018 at 08:32:20 am

I agree with the main point of the article, although I think the premise is wrong. The lack of republican vigilance does not stem from trusting in the courts "insurance-wise", but from generalized mediocrity and its corollary disregard of how terribly the judiciary operates.

I doubt that people engage in some conscientious process that leads them to regard the judiciary as the undoer of unconstitutional legislation. The greatest problem here is that the masses don't yet realize all the corruption that runs amok in the judicial system. We don't conceive its magnitude and ramifications until after we're in front of the corrupt officer who wears black robes exercising his/her judicial debauchery.

Every person disengaged from learning about legal/judicial issues presents one of three attitudinal features: unawareness, negligence, and (as Paul Binotto mentioned) disillusionment. The first two entail a component of apathy and manipulation of the masses. As for disillusionment, I could understand it only from the perspective of some of the exhausted litigants who have endured the judiciary's perversity. Other than that, people's instantaneous suggestion [to each other and for anything] to "get a lawer" contradicts the notion of disillusionment. The suggestion to "get a lawyer" reflects the [mistaken] belief that a lawyer as intermediary will 'ultimately' lead to justice being served.

The common and belittling phrase "he who is his own lawyer has a fool for a client" epitomizes the pretext and intimidation under which many people delegate to a lawyer the pursuance of their own rights. The cost of that negligence is much greater than people imagine because (1) lawyers bill very dearly for work that the client could easily do on his own, and (2) many lawyers are more interested in milking their client than in curing their mending their legal malpractice. Trying not to sound too harsh, it is true many people cannot afford to undergo the nerve and learning curve at the time their rights are injured ... but that still underlines the importance of proactive self-education as a principle.

Likewise, if people really considered the courts as the "primary protector of constitutional rights and liberties", then people wouldn't see the need to hire a lawyer. Using the analogy and rationale in this article, hiring a lawyer is tantamount to insuring [through the lawyer] against the insurer [the court], which (1) leads the client not to scrutinize the judge's performance and (2) incentivizes judge's negligence. This process of retaining a costly vigilant of the court contradicts the article's premise that courts are believed to be "the primary protector" of rights.

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Iñaki Viggers
on April 17, 2018 at 08:37:09 am

Errata: In 2nd-to-last paragraph wrote: "in curing their mending their legal malpractice"
Should have written: "in mending their legal malpractice"

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Iñaki Viggers
on April 17, 2018 at 09:22:53 am

You contribute some interesting insights. To expand on my assertion of how disillusionment towards government is precipitated amongst citizens, I would suggest (that in addition to your observation) it also derives from a citizenry that becomes frustrated by participating with their "voice consent" at the ballot box only to witness: 1) Congress failing to advance the agenda they ran & won on, 2) a duly elected Executive have his policy directives unabashedly undermined and circumvented by entrenched and unelected low-level bureaucrats who defiantly resist any course of action contrary to their own deeply held philosophical and ideological tendencies', and, 3) lower level Article III courts casting the appearance that they are more determined to do the bidding of a single party, under very highly specious legal grounds and maneuverings, than to reach unbiased adjudications that do not exhibit a complete disregard for the Constitution or the Executives powers contained therein - this when they are all but certain their rulings will be ultimately be reversed on appeal, suggestive of a concerted effort not to vindicate the law, but to harass by delay-tactics, an Executive they find distasteful and whose policy they find repugnant, not because it is illegal, but because it is contrary to their own, (again with total disregard for the popular will of citizens as expressed at the ballot-box).

This unresponsiveness, in my view, greatly undermines faith and commitment for our Republican Democracy amongst the citizenry, and I can imagine this kind of disillusionment is not all that different than that experienced by the founders in response to King Geo's politics.

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Paul Binotto
on April 18, 2018 at 07:53:39 am

Paul,
Thank you for your kind words.

And yes, I only focused on the judicial aspect, but you are right in that the effect of societal disillusionment encompasses all three branches of power.

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Iñaki Viggers

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