Somin and Kerr on judicial review

There’s been an interesting exchange at the Volokh Conspiracy about judicial review. I, perhaps predictably, side with Somin on this, but I was surprised he did not mention what I consider the best response to Kerr’s claim that judicial “restraint” is warranted because “the legitimacy of government is premised on the consent of the governed,” and while “legislatively enacted laws...reflect a process involving wide participation of those who will be governed by them through their elected officials,” judges who declare laws void are acting “on their own.”

But the principle underlying judicial review is that legislation does not in fact represent the consent of the governed—it represents the consent of their deputies; the consent of a particular legislature at a particular time. It may or may not represent the will of the people, which is expressed in the Constitution. When the courts find a law unconstitutional, therefore, they are—assuming they are correct—enforcing the overriding will of the people instead of the particular judgment of the people’s temporary deputies. That, at least, is the argument in Federalist 78, and it is why my hero Stephen Field declared the Supreme Court “the most Democratic of all” of the federal government’s branches: while the legislature enacts the desires of a particular legislative coalition at a particular time, the Constitution, and the limits it imposes on the legislature, represent the genuine consent of the governed.

I discuss this much more in depth in my article “The Wolves And The Sheep of Constitutional Law,” which you can read here.