Bench Memos

More on Will

In debates over judicial activism, “majoritarianism” is less often the standard raised by the critics of such activism than it is the bogeyman that the defenders are warning against. The anti-majoritarian features of American government to which Will points can therefore be viewed as bolstering the case against judicial activism. The consequence of a more restrained version of judicial review* is not unrestrained majoritarianism, since all kinds of checks on majorities remain–e.g., the two-chamber legislature, the division of power between the federal government and the states, the ability of intense minorities to punch above their weight.

*Note that on this blog, which I think represents conservative thought in this respect fairly well, nobody is simply against judicial review. Mark Levin, as he notes, has raised questions about its constitutional basis, and I take Matt Franck to be arguing for a version of judicial review more modest than the modern version. In Franck’s version, I take it, judges would be confined to setting aside laws that purport to require the judges to do something unconstitutional. This non-cooperation with unconstitutional laws would nullify laws to the extent that they require judicial cooperation to be effective. That kind of judicial review would have some real bite, even if it would be less expansive than the kind of judicial review to which we are accustomed.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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