WASHINGTON -- Debate about the role of judges in American governance is a hardy perennial, arising from the tension between judicial review -- the invalidation of laws enacted by elected representatives -- and popular government. This is what the late Alexander Bickel of the Yale Law School called the ''countermajoritarian difficulty.'' But it should not be an agonizing difficulty for conservatives, who should cast a cool eye on any sentimental celebration of unchecked majorities.
Today the debate is colored by the fact that the more conservative party controls the presidency and both houses of Congress. Convinced that popular sentiment is with them, some conservatives fan the flames of resentment of judicial review, calling for judicial ''restraint.'' They do so in the name of dogmatic majoritarianism -- the right of majorities to have their way. There are, however, impeccably conservative reasons for regarding judicial review as a valuable restraint on majorities, and hence for having high regard for some judicial activism.
The conservatives' party, the Republican Party, was born in reaction against repeal of the Missouri Compromise -- against, that is, the right, established by Congress in 1854, of Kansans to own slaves if a Kansas majority approved of that. The first Republican president was propelled to greatness by his recoil against allowing popular sovereignty to decide whether slavery should expand into particular territories.
Lincoln's greatness was inseparable from his belief that there are some things that majorities should not be permitted to do -- things that violate natural rights, the protection of which is the Constitution's principal purpose. As Chief Justice John Marshall said in Marbury v. Madison, the theoretical foundation of judicial review, "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written."
In their book "Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations," Daniel Farber and Suzanna Sherry of the Berkeley and Vanderbilt law schools, respectively, note that judicial review amounts to blocking a contemporary majority in the name of a past majority -- the one that produced the Constitution through democratic ratification conventions. Americans rightly regard this as an especially dignified majority -- one owed special deference because it was the product of an unusually deliberative moment, the founding.
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