If you were traveling during the holidays, you might have missed an interesting conversation between Professors Peter Lawler and Ilya Somin about the proper role of judicial review. This reasoned debate will be interesting to anyone concerned about the role that courts play in a democratic republic like our own.

The conversation began after Somin, a libertarian, reviewed a book by Reason senior editor Damon Root, Overruled: The Long War for Control of the U.S. Supreme Court. In his review, Somin noted some conservative-libertarian disagreement on judicial review:

Libertarians and conservatives have cooperated on issues related to federalism, gun rights, and property rights. But they have also sharply disagreed on the role of judicial review in protecting the rights of gays and lesbians, limiting wartime executive power, and constraining police and prosecutors. . . .
Root effectively traces libertarian-conservative disagreements over judicial review to their origins in the late nineteenth and early twentieth centuries, when Progressives attacked nineteenth century natural rights-based jurisprudence for what they regarded as unjustified judicial activism in protecting both economic liberties and noneconomic ones. As he notes, many early Progressives opposed not only the Court’s enforcement of economic freedoms in cases like Lochner v. New York, but also judicial efforts to protect free speech and enforce other noneconomic freedoms. For example, leading Progressive Justice Louis Brandeis praised the Court’s notorious decision to uphold mandatory sterilization of the mentally ill in Buck v. Bell as an example of cases where judges should give state governments free reign to “meet . . . modern conditions by regulations” (though he gradually came to support judicial protection of some other civil liberties).

In addition, Somin suggested that contemporary libertarian views on judicial review—with a strong preference for judicial protection of individual liberty—were on the rise.

Lawler then responded at the Library of Law & Liberty blog with a critique of libertarian notions of judicial review:

The libertarian innovation hidden in the appeal to originalism is the proposition that our Framers intended that their original or classically liberal principles would, by means of the Supreme Court’s jurisprudence, routinely trump legislative deliberation. To me it seems quite possible to be an originalist in the sense of being all for natural rights, and still doubt that judicial review was ever meant to be much more than an “auxiliary precaution” that would be rarely used. Liberty’s main defenses against “majority faction” and such, if the Federalist is to be trusted, are 1) the coalition-building process in the legislature of a large and diverse republic, and 2) the separation of powers’ checks and balances.
Assuming, of course, that we count the Bill of Rights as part of the original Constitution, we can see our Constitution, against the personal preference of Madison, as being very explicit about protecting the states against all three branches of an intrusive national government. The original design of our Constitution didn’t include a mandate to use high principle to transform every detail of state and local government, much less local life. We read Tocqueville to remember that part of the wisdom of our Framers was to leave the free institutions of local government pretty much alone.

Somin’s counter-response to Lawler is here.