In a thoughtful recent post, conservative political theorist Peter Lawler comments on my review of Damon Roots new book on the conservative-libertarian debate over judicial review. Lawler argues that libertarians overemphasize the role of judicial review protecting individual rights against state infringement, that the Founders assigned a much lesser role to judicial review, and that many of the rights libertarians (and liberals) seek to protect through judicial review cannot be squared with originalism. There are some problems with his analysis on all three issues.

I. The role of Judicial Review in Protecting Individual Rights

On the question of the effectiveness of judicial review, few serious libertarian commentators imagine that the judicial intervention alone is enough to protect the individual rights. Rather, they recognize that the road to victory for constitutional reform movements usually involves a combination of litigation and conventional political action. That has been a successful winning formula for the civil rights movement, womens rights advocates, gun rights supporters, and most recently same-sex marriage advocates. It has also underpinned the recent progress made by property rights advocates. The Institute for Justices efforts to revive public use constraints on eminent domain has involved just such a combination. While it has not so far achieved anything like complete victory, it has managed to secure important gains.

As evidence against the utility of judicial intervention, Lawler claims that the Courts record on race has generally been terrible and cites this as proof that it is ridiculous to rely all that much on the Court to protect our rights. The Courts record on racial discrimination has indeed often been poor relative to the ideal outcome. But the more relevant question is how good its record has been relative to the political branches of government. The case for strong judicial review is not that the courts are particularly good, but that, in protecting some types of important rights, they routinely do better than the available alternatives. By that standard, the Courts record on racial issues since the enactment of the Reconstruction Amendments is actually far better than many imagine. During the Jim Crow era, for example, the Court issued a number of important decisions striking down forms of racial discrimination that had prevailed in the political process. For example, it invalidated peonage laws and laws mandating residential segregation.

Although its record during that period was far from perfect, it was, overall, much better than that of Congress, the presidency, and many state legislatures. More recently, courts have been more willing than legislators to curtail racial preferences in government contracting and college admissions. Supporters of affirmative action understandably view these decisions as a negative, but conservative opponents including Lawler surely do not.

II. Originalism, the Founders, and the Role of the Judiciary.

Lawler doubts that judicial review was ever meant to be much more than an auxiliary precaution that would be rarely used, citing the Federalist Papers in support. While the Founders probably did not intend judicial review to be the primary method for protecting individual rights, they did emphasize its importance as a tool for enforcing constitutional limitations on government power. As Alexander Hamilton put it in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

[emphasis added].

In addition judicial review may have a greater role to play in protecting rights today, than might have been supposed in the 1780s. In a world where the size and scope of government is vastly greater than it was 225 years ago, it is far more difficult for voters with limited knowledge and attention spans to police all the many different possible ways in which government threatens liberty.

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Volokh Conspiracy: Libertarianism, conservatism, and judicial review