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Will on Somin on Judicial Review

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George Will shines a spotlight on Ilya Somin's Democracy and Political Ignorance.  Highlight:

Political ignorance, Somin argues, strengthens the case for judicial review by weakening the supposed "countermajoritarian difficulty" with it. If much of the electorate is unaware of the substance or even existence of policies adopted by the sprawling regulatory state, the policies' democratic pedigrees are weak. Hence Somin's suggestion that the extension of government's reach "undercuts democracy more than it furthers it."

An engaged judiciary that enforced the Framers' idea of government's "few and defined" enumerated powers (Madison, Federalist 45), leaving decisions to markets and civil society, would, Somin thinks, make the "will of the people" more meaningful by reducing voters' knowledge burdens. Somin's evidence and arguments usefully dilute the unwholesome democratic sentimentality and romanticism that encourage government's pretensions, ambitions and failures.


COMMENTS (6 to date)
Bill writes:
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow (Madison, Federalist 62)

Regulatory uncertainty was a dangerous condition of which America's Founders were aware and tried to counteract. The concept of enumerated powers have nearly been rendered anachronistic under the weight of centuries of passes stamped upon laws under authority of a "necessary and proper" or "general welfare" clauses decoupled from any connection to those explicit powers given to the general government.

This is another point that supports my theory that the US Constitution has had at best a moderate and limited success in the advancement of a libertarian society it could have secured, and simply represents an important but currently unsuccesful step in the history of liberty.

Pajser writes:

Lack of knowledge may be argument against democracy, but not argument for market: quality of consumer's choice is equally affected by lack of knowledge. It can be only argument for technocracy. Not good argument, but a "straw man." Democracy is not popular because it produces smart decisions. Everyone knows it doesn't. The argument for democracy is that it allows peaceful resolution of disagreements.

Don Boudreaux writes:


You are mistaken that recognition of the limited knowledge of voters does not strengthen the case for the market. Voters are rationally ignorant - and, as Bryan explains in his superb 2007 book, also rationally irrational - because each person as a voter has too little influence on the outcome of events. Matters are quite different for choices made in markets, where each consumer and worker and investor and entrepreneur has a decisive say on each of a large number of matters.

Moreover, markets - daily, millions of times - not only allow, as you say about democracy, "peaceful resolution of disagreements," but, in addition, reduce the range of matters over which people have cause to disagree.

MingoV writes:

I am unconvinced that judicial review will solve any federal problem. Judicial review hasn't kept the NSA from illegally spying on Americans.

The most logical solution to the problem of ignorant voters is to keep them from voting. Voting tests can accomplish that. Potential voters must answer questions about all candidates and referendums on the ballot. They can vote only for the candidates and referendums about which they had sufficient knowledge.

TallDave writes:

The old joke goes that Greeks gave democracy such a bad name no one tried it again for 3,000 years. Of course that's not really accurate, but the use of "democratic" as a term of approbation rather than opprobrium is not an entirely salutary trend, though users usually connote "constitutional republic."

Lately I've become convinced the ideal republic would require supermajorities to authorize most coercive measures; indeed that may the only form that can survive the expression of de Tocqueville's famous warning.

Pajser writes:

Don Boudreaux, maybe there is something in that, however, it seems human knowledge isn't well correlated with such incentives. I think people know more about Obama than about, say, potato, although they consume potato by their own, very frequent decision. I agree that market has some advantages, of course.

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