Objections to RJR

Having answered the obvious objection only takes us so far. We need to consider more serious objections to RJR. In what follows, I will consider four main argu­ments purporting to show the superiority of CJR: the argument from public percep­tion, the argument based on the rule of law, the argument from incentives and the social consensus argument.

Let me begin with the problem of public perception: I would not deny the allega­tion that RJR is not going to be popular with the general public. People would find it very difficult to accept, as a matter of political legitimacy, any system of constitu­tional review that is so overtly random and, thus, arbitrary. We would like to think that the boundaries of political legitimacy are not set by a computer program that strikes down, randomly, some democratic decisions as legally invalid. In short, it is difficult to imagine that anything like an RJR system would be socially and politi­cally acceptable. And, of course, I am not claiming that it is a realistic, feasible scheme that can be implemented. But the question is whether this is a serious worry in the dialectical context of the argument, and I do not quite see how it would be, for two main reasons: First and foremost, because the point of the thought experiment I suggest here is not to convince us that we could actually replace our constitutional law with something like RJR. Since the argument is not based on the actual feasibil­ity of RJR, the fact that it would be unlikely to be accepted by the public is neither here nor there. The second problem is that the public-perception argument does not go very deep. It does not give us any substantive reasons to prefer CJR over RJR, apart from the fact that CJR looks better, so to speak. Looking morally better does not make something morally better; it just makes it easier to live with it.

Perhaps a more serious objection to RJR can be drawn from the ideal of the rule of law. The rule of law means a lot of different things to different people, but at least we all share the view that it purports to capture the idea that it is good to be gov­erned by law. I would not want to deny that this is a commendable ideal and that governance should always be subject to law and constrained by it.^[12] The question is why would RJR violate the rule of law? Surely RJR does not violate it simply on grounds of employing a randomized mechanism for yielding some legal results. Various randomized mechanisms for allocating burdens or entitlements are often employed by legal systems in ways that are largely deemed fair and proper. Lotteries, of various kinds, are legal in many jurisdictions, and even if we have all sorts of reservations about some of them, violation of the rule of law is not one of those qualms. More to the point, licenses for various scarce resources, for example, are sometimes allocated on the basis of a lottery system, and often that is precisely the fair and equitable way of reaching the relevant outcome. For example, a munici­pality that allocates, say, some building permits, or taxicab licenses, on the basis of a fair lottery would clearly not violate the rule of law. So it is not the randomization element, per se, that would seem to violate the rule of law in RJR.

Perhaps the problem is not randomization, per se, but the sense that randomizing legal outcomes in such a way amounts to a form of arbitrary decision-making; the thought might be that RJR is overtly not responsive to reasons, legal or other, whereas CJR, even if random to some extent, and not quite constrained by law, is at least responsive to reasons.

But now you might think that another worry comes to the surface: what my daughter loses with the veto-machine is her right to be heard, that is, her right to present her arguments and make her case for her choices and preferences. And this sounds like a serious concern. Many people regard the right to have one’s day in court, or the right to judicial hearing, as one of the central principles of the rule of law. And perhaps it is. So now the question becomes whether RJR violates the rule of law because it denies the relevant parties, that is, the parties to a potential consti­tutional litigation, the right to hearing, that is, the right to present their case and make reasoned arguments in a court of law.^[14] The answer is tricky: of course that in an obvious technical sense, RJR denies this right; you don’t get your day in court, the randomizing computer is doing the work for you. But the real question is whether the relevant parties to constitutional litigation have the kind of right that is claimed to be violated here. I would not want to deny that in countless types of cases, generally speaking, the right to have one’s day in court is a very important one. Surely we could not imagine a fair and sensible system of criminal and private law without due process and full implementation of the right to hearing. It is not the general justification of such a right that I would like to call in question. The perti­nent question here is whether denying parties a right to constitutional litigation is denying people a right that they have. There cannot be a simple answer to this ques­tion. To begin with, we wouldn’t want to say that in a country like the United Kingdom, where there is no written constitution, and where constitutional litigation, though gradually developing perhaps, is still very limited, people’s right to consti­tutional litigation is violated; if there is no judicial or quasi-judicial decision to be made, you don’t have a right to present your case in court.

In other words, there is a serious moral-political question about the right to con­stitutional litigation. Remember that a constitutional challenge is a legal challenge to a democratic process; what parties litigate in constitutional cases are decisions that resulted from democratic procedures. Of course people should have the right to challenge any public decision, whether democratically made or not. The question is why should they have such a right outside the ordinary democratic processes and institutions? Why should one have a right to challenge a decision that has been reached by democratic means in ways that are essentially non-democratic? Of course this is precisely the question that goes to the heart of the justification of con­stitutional judicial review. So once again, just assuming that CJR is preferable to RJR on grounds of the right to hearing, is putting the cart in front of the horse in the dialectics of this argument. If and to the extent that CJR is preferable to RJR, then people’s right to have their day in court is one that should be respected. I don’t see how one can justify the rationale of having a judicial, as opposed to a democratic decision, on the grounds that one has the right to present one’s arguments. Arguments can be presented in a democratic process just as well. What calls for justification here is the exception to democratic procedures, namely, the removal of a decision from it and handing it to the courts, and I fail to see how we can justify this removal by appealing to a right to hearing. First we need to show that there is a justification for removing a certain decision from the ordinary democratic processes by handing them to a court, and then we can talk about the right to hearing and its proper implementation.

Perhaps the most plausible concern about the rule of law with RJR is the concern about fair warning: Presumably the idea is that, under a system of RJR, legislatures and the law’s subjects would have no way of knowing in advance which laws and regulations might be struck down as unconstitutional and thus legally invalid. The question is, how is that different from the same problem we have with CJR? Constitutional uncertainty is something we have lived with for a long time. In countless cases, legislatures have enacted laws and government agencies have implemented policies that have later been found unconstitutional, sometimes much later, by the Court. If there is a problem of fair warning here, and there probably is, the difference between CJR and RJR is only quantitative, if that. Perhaps somewhat greater uncertainty is to be expected under RJR compared with CJR. But even so, remember that the numbers here are very small. Only a very small number of laws and regulations get struck down as unconstitutional every year; it amounts to a tiny fraction of legislative and administrative output. Furthermore, even if the level of uncertainly with RJR is somewhat higher, we gain something in terms of fairness. Thus, overall, it is not clear that RJR fares much worse compared with CJR on the overall metrics of the rule of law. Perhaps to the contrary: If some random element in a system allocates legal rights and entitlements, ideals of the rule of law would counsel us to make those elements overt and fair, rather than conceal them under high-minded judicial practices.

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