Smaller is smarter when political ignorance abounds

In "Democracy and Political Ignorance," author and professor of law Ilya Somin discusses the serious problem that political ignorance creates for modern democracy. Democracy means rule by the people. Elected officials run the day-to-day business of government, but if officials fail the people, voters "can 'throw the bastards out' and elect a set of 'bastards' who will hopefully do better." However, holding elected officials accountable is difficult if voters do not know who is responsible for what: Which official handles this? Which branch is to blame for that? Was it the state or federal government? Both?

In his book, Somin attempts to answer just how much voters need to know to make democracy function. Concluding that it is not likely there will be a significant increase in political knowledge in the "foreseeable future," Somin then addresses how to "reduce the impact of ignorance."

The following excerpt is from the beginning of Chapter Six, "Political Ignorance and Judicial Review."

"[J]udicial review is a deviant institution in the American democracy" - Alexander Bickel

Limiting and decentralizing government power can mitigate the problem of political ignorance. The institution of judicial review can also help with that task. By constraining the power of the elected branches of government, judicial review can reduce the complexity of the task facing voters, and also help empower citizens to "vote with their feet." Recognition of these potential advantages of judicial review also weakens the force of one of the main traditional objections to judicial invalidation of legislation: the so-called "countermajoritarian difficulty."

The countermajoritarian difficulty has long been considered the most fundamental issue in American constitutional law. It is "the central obsession of modern constitutional scholarship." As legal scholar Alexander Bickel famously put it in his classic work The Least Dangerous Branch, "the root difficulty is that judicial review is a counter-majoritarian force in our system."For Bickel and innumerable later writers, judicial review was an anomaly because it enabled an unelected judiciary to override the majoritarian will of the people represented by elected legislatures. Since Bickel published The Least Dangerous Branch in 1962, a vast academic literature has addressed the countermajoritarian difficulty.

Both conservative and liberal legal scholars have advocated the abolition or severe restriction of judicial review to prevent an unelected institution from overriding the will of a democratic majority. According to Robert Bork, the most prominent conservative critic of judicial review, the judicial invalidation of legislation is objectionable because it creates "new disabilities for democratic government." Neal Katyal, a leading liberal constitutional law scholar, echoes Bork's concern, expressing his fear that "[f]or those worried about the vigor of popular rule in America, there is much to fear from judicial interpretation [of the Constitution]."

The idea of the countermajoritarian difficulty rests on the premise that laws enacted by legislatures reflect the will of electoral majorities, which in turn relies on the assumption that the latter possess sufficient knowledge to control what their representatives do. Yet most of the vast literature on this subject ignores the relevance of political ignorance.

An understanding of the depth and pervasiveness of voter ignorance should lead us to reconsider the countermajoritarian difficulty in several fundamental ways. If most of the electorate has little or no information on politics and government policy, it is likely that legislative output does not represent the will of the majority in the way that Bickel and later theorists assumed. Judicial invalidation of such legislation is not nearly as "countermajoritarian" as generally supposed. This important point is only the first of several important implications for voter ignorance on the central question of constitutional theory.

This chapter does not provide a comprehensive solution to the countermajoritarian difficulty or address the full range of issues raised in the prior scholarly literature on the subject. It also does not address the full range of interactions between judicial decisions, government policy, and public opinion; for example, it does not take into account the danger that overly aggressive judicial review might undermine the judiciary's legitimacy in the eyes of the public. The analysis here focuses on the claim that judicial review is "countermajoritarian" because it undercuts popular democratic control of public policy. I hope to show that voter ignorance greatly weakens the validity of this claim, and in some cases turns it on its head by facilitating foot voting.

Excerpt reprinted with permission from "Democracy and Political Ignorance: Why Smaller Government Is Smarter," by Ilya Somin. Copyright (C) 2013 by the Board of Trustees of the Leland Stanford Junior University.