Democracy

Democracy Is Not the Central Value of the Constitution

Efforts on both right and left to make the democracy-promotion the key focus of constitutional law should be rejected.

|The Volokh Conspiracy |

There is a long history of efforts to show that the promotion of democracy is the main purpose of the Constitution, and should be the primary focus of constitutional interpretation today. On the right, the late Judge Robert Bork, among others, defended originalism in large part on the grounds that it supposedly conducive to democracy, or at least more democratic than living constitutionalism. On the left, the great constitutional theorist John Hart Ely argued that most, if not all, the major provisions of the Constitution, are there to promote effective democratic representation, and should be interpreted with that purpose in mind. More recently, Supreme Court Justice Stephen Breyer has argued that "making our democracy work" should be the main focus of judicial review (though his own jurisprudence is not always consistent with that theory).

In an insightful recent post, Northwestern law Professor John McGinnis takes issue with such claims:

The original Constitution, including the Bill of Rights, puts some very important rights beyond the reach of a representative federal government. The Fourteenth Amendment adds other important rights and puts them beyond the reach of state governments as well. Thus, it is hard to say as a general matter that the Constitution should be interpreted to advance representative government or to advance specified rights.

Some have argued, most famously John Hart Ely, that most of the rights provisions in the Constitution are democracy reinforcing, thus suggesting that democracy is the key concept for interpreting the Constitution. I do not believe this claim is right as matter of original understanding. Free speech is surely conducive to representative government. However, that does not mean it was meant to be instrument of it, rather than a protection of an individual right, as I have argued elsewhere. Free speech also appears in an amendment with the right of free exercise of religion, which is not democracy reinforcing but individually empowering. And other rights in the Constitution, like those guaranteed by the Contract Clause in the original Constitution and the Privileges or Immunities Clause in the 14th Amendment, protect rights that cannot be understood as designed to reinforce rather than to restrict democracy.

The danger of using democracy as a structural principle is that it will become a weapon to limit constitutional rights. Both right and left fall into this trap. Robert Bork used the democratic principle to limit the reach of the First Amendment to political speech. Liberal Supreme Courts justices today claim that considerations of democracy now can be used even to limit political speech. For similar reasons, the contentious question of judicial deference versus engagement cannot be resolved by appeals to democracy, even if it can settled in other ways, as I have discussed here.

In the same post, John also includes a helpful explanation of why the Constitution's guarantee of a "republican" form of government to the states should not be interpreted as a commitment to broad-ranging majoritarian democracy.

John's list of constitutional rights that constrain democracy at least as much as they reinforce it can easily be extended: the property rights protected by the Takings Clause, the Eighth Amendment's ban on "cruel and unusual punishment," various procedural rights for criminal defendants, Second Amendment protections for the right to bear arms, and a variety of restrictions on racial, ethnic, and religious discrimination that may be (and historically often have been) supported by democratic majorities. In addition to individual rights, a number of structural elements of the Constitution restrict majoritarian democracy, as well. The unequal apportionment of the Senate is an obvious example. Federalism may be another, in so far as it restricts the power of national majorities (though it also in many instances helps empower state-level majorities).

Conservative originalists who seek to defend originalism by reference to democracy are barking up the wrong tree, in so far as much of the original meaning actually restricts democracy, and in many cases was intended to do so by the Founders. This contradiction was a central flaw in Robert Bork's constitutional theory.

Living constitutionalists face fewer unavoidable contradictions in advocating a democracy-centric approach to constitutional law. But those who are political liberals must reckon with the fact that many of the court decisions, legal doctrines, and political institutions advocated by liberals are themselves at odds with such an approach. It's hard to argue that democracy is the central value of constitutional law, and simultaneously support decisions like Roe v. Wade, Obergefell v. Hodges, or even Brown v. Board of Education. All of these rulings—and many others like them—struck down legislation favored by democratic majorities for the (often-justified) reason that they violated individual rights that had, at most, only a very limited connection to democratic participation. While there is a non-trivial "democracy-reinforcement" justification of Brown based on the fact that African-Americans were not allowed to vote in most of the states that practiced school segregation, several key aspects of the decision are best understood as constraints on democratic majorities, not vindications of their power.

While the Constitution does empower democratic majorities in some areas, it also puts many constraints on them in order to protect individual rights, and mitigate the dangers of widespread voter ignorance and prejudice (a problem that was a major concern of many of the Founders). Countering these threats is, if anything, even more pressing in an era of resurgent demagogues exploiting political ignorance beyond previous limits, and growing partisan bias.

To adapt Nancy MacLean's now-infamous formulation, one of the purposes of the Constitution is to weigh down democracy with some chains. But despite MacLean's badly flawed attempt to paint this idea as some kind of pernicious aberration spread by radical libertarians supposedly committed to plutocracy, this is in fact a longstanding core element of liberal constitutionalism. As Thomas Jefferson put it, writing in protest of the democratically enacted Alien and Sedition Acts, "[i]n questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." Jefferson didn't always live up to his own principles in that regard. But he was right nonetheless.

Admittedly, the term "democratic" is sometimes used as just a kind of synonym for "good" or "just," rather than in the more narrow sense of referring to governance by majoritarian political institutions. By that standard, such policies as school segregation, cruel punishments, and laws banning same-sex marriage are inherently "undemocratic," no matter how much political support they enjoy. Whatever the linguistic merits of this usage, it is not analytically helpful. If anything good is by definition also democratic and anything democratic is by definition also good, then democracy ceases to be a useful concept for constitutional theory, or any other type of intellectually serious analysis. Instead of saying that the Constitution is focused on promoting democracy, we could simply say that the purpose of the constitution is to promote good and minimize evil. That may be true, in a sense, but it provides little if any useful guidance on any specific constitutional issues.

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  1. A written constitution is inherently undemocratic — it is a representation of legal principals that are not subject to majoritarian whims. I think the document is better described as a tool to enshrine accountability and a balance of power (which also helps ensure accountability). Not only is this consistent with the complaints that motivated the revolution, accountability was a center piece of the a document heavily influenced by the constitution — the French “Rights of Man.”
    In addition, by leaving the issue of the franchise to the states, it promotes the active/passive citizen concept at the center of contemporaneous and subsequent revolutionary movements in Europe and South America.

    Finally, I would argue the adoption of the 17th Amendment served to upset the balance of power between the states and the federal government and was an essential step in massive growth of the federal government at the costs of the states.

    1. The direct election of Senators can be traced all the way back to the 1830s, primary elections for senate candidates were already being held by the 1870s in Nebraska and more states followed quite soon there after.

      Ballots for state legislators began to include information on whether they had pledged to support the winner of the popular elections (a pledge that unsurprisingly most took), in 1909 a Republican legislature in Oregon elected a Democrat to the senate who had won the popular vote, and by 1911 (before the 17th amendment was passed), the majority of the states were using the Oregon system or something similar (indeed a number of state constitutions actually required that their members elect the popular vote winner).

      So the 17th was really just a regularization of an existing practice that was already well on its way to becoming universal before the amendment passed (which mainly served to eliminate outliers).

      1. (continued)

        Further, even the narrower assertion that such direct elections were a prerequisite (or even catalyst) for the growth of federal power is a bit too blithe. The federal government had already grown massively as a result of the Civil War, and the ever increasing scale of commerce (also aided by improvements in transportation and telecommunications). Relatedly, the growth in the course of the 20th century corresponds with the world wars, depression, and other crises not with the passage of the 17th.

        Surveying the differences in voting patterns between direct and legislatively elected senators in the transition period its hard to discern any distinct trend to prefer the expansion of federal power by those directly elected. This lens is imperfect in many ways, lots of confounding factors and edge cases as to when states started direct elections (For just one example, after reconstruction, victory in the democratic primary was tantamount to election in the South, so it seems better to look at when direct primaries were instituted then direct general elections). Thus these inferences need to be treated with caution.

        In sum the available evidence suggests that the passage of the 17th was not particularly relevant in of itself, and is ambiguous as to whether direct elections themselves served to catalyze the growth of federal power, with no clear link either way.

        1. The chief thing the 17th amendment did was remove any lingering threat that a Senator might get in trouble for angering his state’s legislature; Prior to it, they had the statutory option of removing a Senator, afterwards, he was immune to state legislative ire.

          But I don’t see any going back, there are structural reasons we ended up adopting direct election of Senators. The best I could see us doing is taking some critical functions of the Senate, such as confirming appointments, and transferring it to some body made of state officers, such as a chamber composed of all the state governors.

          By keeping them primarily state officers, they’d retain a bias in favor of state interests.

          1. there are structural reasons we ended up adopting direct election of Senators.

            Does common sense fall into the category of “structural reasons?”

            The best I could see us doing is taking some critical functions of the Senate, such as confirming appointments, and transferring it to some body made of state officers, such as a chamber composed of all the state governors.

            Dumb idea. Just dumb.

          2. Prior to it, they had the statutory option of removing a Senator,

            No, they did not.

        2. My point with regards to the 17th Amendment is that it undid one of the primary tools in the constitution that sought to balance the power between the states and the federal government. The Civil War also upset that balance so it’s not surprising that that it too coincided with a growth of the federal government. The 17th Amendment was another step in the same direction. Of course the 16th amendment also played a central role in the growth of the federal government and I would argue (as others like Thomas DiLorenzo) that it is not an accident that these were enacted at the same time, suggesting at the time that some saw decreasing state powers as necessary to the growth of the federal government.

          1. And my point was that the balancing tool in question was already all but a dead letter, so the 17th amendment itself had minimal impact.

            Further, no states had reversed course on popular elections once adopted, and as I previously mentioned, states were beginning to incorporate that procedure into their constitutions.

            Hence, adopting it as an effort to expand federal powers at the expense of states powers would have availed little, save for eliminating even the (minute) potential for reversions.

            The 16th was a rare case of the legislature striking back to overrule a supreme court decision (the 11th was another such example) it didn’t like (this was the proximal motive anyway).

            That said it certainly indirectly led to increased potential for expansion by allowing for new sources of revenue to be tapped in the long run, whether or not that was their immediate intent is debatable as the income tax remained quite modest until the US entry into the 1st world war.

            1. The main difference is that prior to the 17th Amendment, the States had options available to them whereas afterward they no longer had any options in regard to the behavior of their Senators.

              1. They never had any such options. I don’t know where people get the idea that they did. Senators were elected for six-year terms, just as they are now. They were not proxies of the legislatures that elected them, any more than they are now proxies of the people who elected them.

                1. I think the assertion of Flame CCT (and Brett Bellmore before him) was that State’s could have changed (through statute or amendment) how they selected their senators after enduring a misbehaver, and subsequently effected a removal at the next election.

                  This is highly unlikely (for reasons I’ve already explained), but its not completely impossible.

                  Now that said, I think those who regret the change don’t recognize either the very real issues that led to direct elections in the first place, nor that re-instituting such a system (even in limited form as advocated by Brett) would result in many of the same problems.

                  It’s probably to late in the game here to justify a long explanation, but put simply, the previous ‘prime minister’ method of selection (that run from the 1830s-1870s and gave us the Lincoln-Douglas debates) resulted in voters choosing state legislators solely on the grounds of who they pledged to support for Senate, rather than their other substantive positions, and direct elections neatly eliminated this problem (along with a few others). If we were to adopt something similar its highly likely that the old issue would resurface in even more virulent form (given the even more nationalized and polarized aspects of contemporary politics).

        3. The federal government grew massively as a result of the Civil War, but then it shrank down again. By 1910-1915, right before WWI, federal spending as a percentage of GDP was back down to the pre-Civil War average of about 2%. Much of the above-average spending during the decades prior to that was due to paying off war debt and pensions.

          1. Well it depends on how you measure the size and scope of government.

            This isn’t to say that GDP % is a bad way, it’s just not the only way. Government spending was in fact growing tremendously throughout this time (in inflation/deflation adjusted terms), but the economy (spurred along by the fruits of the 2nd industrial revolution that was soon to propel the nation to great power status) was growing even faster, indeed at rates then unparalleled in human history. Thus the spending as a % of GDP did in fact decrease. Certainly war debt played in role in the growth of outlays, but it was substantially less then other factors.

            From another perspective the government’s growth was quite notable. The groundwork for the modern bureaucratic state was laid and nourished during this time; government became deeply involved in the regulation of industry and finance for the 1st time, spurred along by railroad shenanigans and transgressions of the new massive trusts.

            So did the federal government grow? I guess it’s at matter of what measuring stick you prefer, and I’m not here to win over everyone to any one particular interpretation of facts, that said it strikes as misguided to suggest that the federal government was no more significant in 1915 than in 1855, but hey that’s just my 2?.

  2. This entire piece rests on the premise that “democracy” means “majoritarianism.” The guiding principle of democracy is not majoritarianism; it is political equality. Sure, that requires majoritarianism a lot of the time – as deviations from majority rule suggest that a minority group or viewpoint is being privileged – but not all of the time. The Alien and Sedition Acts were undemocratic, for instance, no matter how they were enacted, as are any laws that attempt to take away political power from some group or viewpoint.

    1. The entire piece rests on that premise because that is its actual definition. Yes, “democracy” means “majoritarianism” – not just a lot of the time but all the time.

      Your example about the Alien and Sedition Acts requires an arbitrary redefinition of “democracy” from “government of and by the people” to “government that protects people”. Protecting people is a proper goal of government and hopefully a government of the people will accomplish that goal most of the time but there is no guarantee that it will all of the time.

      1. Majoritarianism is not the definition of democracy provided in any mainstream Dictionary, nor is it the definition used by political scientists, nor is it the definition used by any political philosopher so far as I know, with the exception of those who define it that way specifically to argue against it, as Ilya does in this piece. It is a straw man.

        For evidence that ordinary people use the term “democracy” to mean something other than merely “majoritarianism,” consider the popular perception that wildly uneven spending on campaign media is undemocratic. Such spending does nothing to alter the fact that if a candidate or ballot measure has a majority of the votes, it will win, so how could it possibly be undemocratic? The issue, rather, is the perception that if those with a lot of money are able to dominate the debate, then that gives them a disproportionate share of political power, not because they get more votes, but because they get more influence.

        1. In fairness too the author “rule of the majority” is frequently given as one of democracy’s definitions (see for example)

          Of course democracy has many meanings and often people are using it in more than one sense when making various assertions (and there’s nothing wrong with this).

          So in a sense your both right, sometimes democracy means one thing sometimes it means another, as always context is key.

    2. So, “democracy is what I like”. Pretty sure Ilya covered that too. Did you read the entire article?

    3. Who is politically equal in your definition of democracy? Athenian democracy only allowed male citizens and ours was originally the same (though what a citizen was differs).

      1. You’ll find this unsatisfying, but the answer is political equality among the political community. Philosophers will disagree as to who rightfully belongs in that community, but they’ll agree that political equality within that community is the guiding principle of democracy. For myself, I suppose it’s something like “all competent persons who are indefinitely under the government’s jurisdiction.”

    4. #scioLink:link {
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      “The fish trap exists because of the fish. Once you’ve gotten the fish you can forget the trap. The rabbit snare exists because of the rabbit. Once you’ve gotten the rabbit, you can forget the snare. Words exist because of meaning. Once you’ve gotten the meaning, you can forget the words. Where can I find a man who has forgotten the words so I can have a word with him?”
      ? Chuang Tzu

      It’s usually a mistake to linguify debate.

      Like most words democracy (?????????? ? rule by people) assumes its meaning in context, and I think the intended meaning is clear in this case, allowing as to discuss the merits of his claims with a shared understanding of the definitions of the relevant terms (while remaining alert for attempts at equivocating by unstated slips between meanings w/in the course of a single discussion).

      1. Sorry for the css at top (I probably shouldn’t copy/paste from my text editor but it does improve my spelling).

      2. I agree with this comment. Perhaps what I should have said is that by equating democracy and majoritarianism, this article was attacking a straw man. It’s not that democracy has an inherent and unchanging meaning forever that I alone have discovered, it’s that no one actually supports unrestrained majoritarianism, and so arguing against it as a guiding principle is not helpful.

        1. Ya, I doubt there’s too much ground between us on that claim (although I’d probably emend ‘no one’ to ‘no serious scholar’ given the cranks here and elsewhere).

          That said, to me it seemed the author’s assertion was not merely that unrestrained majoritarianism is bad as a guiding principle, but that decision-making based on majoritarian principles is not the US Constitution’s central value (not that it is or is not the only value or that either of those would be a good or bad thing), and judging by the comments at least some of the people here disagree to varying degrees.

  3. Yes, individual rights are in tension with popular sovereignty, as they are with every other form of government.

  4. Guys, I know I missed a couple of meetings, but I thought we weren’t ready to go public yet.

  5. I don’t much like the premise. This ranking of which American principles are the numbah one is a bad idea.

    1. Something is not necessarily a bad idea because it makes you ask uncomfortable questions. Perhaps it should make you at least think about how to resolve those uncomfortable questions. Just a thought.

      1. Why would knowing how someone else–in this case dead people–ranked principles, affect the way I rank principles?

        1. A fair question, NToJ, and certainly one with a reasonable critique of originalism in it. On the other hand, you can reject over-reliance on other peoples’ principles if you want to, but that doesn’t necessarily make it wise to neglect their experience. In the case of America’s founders, what you find is a group who numbered many insightful and diligent students of government, at a moment when that kind of study proved most advantageous. Their personal experiences, coming from varied and diverse systems, and including study of history uniquely suited to educate them on the subjects they undertook, amounted to a body of exceptional wisdom held collectively.

          The proof is to be found in their invention of what has become one of the developed world’s two standard models for government, and arguably the more successful of the two?the other being a variation of parliamentarianism founded on rather similar principles.

          It would be foolish to suppose that work is now complete. Much remains to be improved. But for providing means tending toward improvement, I suggest we ought to a least tip our caps to America’s founders.

          1. “The proof is to be found in their invention of what has become one of the developed world’s two standard models for government…”

            If you’re talking about American democracy, it looks nothing like the one created in 1789. As to parliamentarianism, British Parliament predates the US by about 70 years. “No taxation without representation” presumes some sort of representative body you’re appealing to.

      2. The act of resolving these questions creates a bad outcome – i.e. the ranking of rights.

    2. American principles and U.S. Constitution principles are not equal sets.

      1. Concur. Neither set should be ordinal, however.

  6. Somin delivers yet another attack on the notion of majoritarianism?and like so many others, attempts to support it with a show of originalism. What Somin?along with others?ignores, is that America’s founding idea?ahead of every consideration of rights, or law, or constitutionalism?was popular sovereignty on majority principles. That, and not individualism, is the bedrock of the Declaration of Independence, and of the Constitution. Few who give historical attention to the founders’ writings?as opposed to philosophical or legalistic attention?will conclude otherwise.

    Nothing which purports to say what the founders meant should attempt the analysis while excluding that bedrock principle. The founders, unlike modern analysts, kept sovereignty always in mind.

    Sovereignty mattered to the founders, because the age which preceded theirs was fraught with disputes over the source of sovereignty, the meaning of sovereignty, and practical questions about sovereign rule. The success of the American experiment largely put those questions to bed. Attention to sovereignty began to recede.

    Now, discussions of government which never mention sovereignty are familiar fare. But Trump?and movement conservative supporters?are pushing hard toward a crisis of sovereignty?a forced contest to decide who has absolute power to make government and rule. So ignoring the sovereignty question is no longer okay. Somin is unwise to do so.

    1. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

      “That to secure these rights, Governments are instituted among Men…

      I guess you and I are reading different Declarations of Independence, and Article I of the Constition, and Bill of Rights.

      1. That’s a fine quote, Rigelsen, but you’ve given it the wrong priority. You probably saw also, immediately following, this:

        That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

        See that “Right of the People?” That is a direct invocation of popular sovereignty. In point of history, it was the announcement of popular sovereignty to the world. And note, it is the announcement of a popular sovereign introduced in its constitutive role, as the creator of government, acting at pleasure, to create government of a sort, “as to them shall seem most likely to effect their Safety and Happiness.” There is no constraint there, no limitation, expressed or implied.

        That is the power the Declaration invokes. The government so vaguely referenced awaits creation, and insofar as the Declaration is concerned, could be any kind of government at all. It is the unfettered power of a new and independent sovereign which is being declared.

        And it is by laying claim to an independent and unfettered means that the founders intended to vindicate those capaciously described ends, the rights of Life, Liberty, and the pursuit of Happiness.

      2. As for the Constitution, look at the document. How can you miss it? “We the People,” right at the top, bigger than anything else. What do you make of that? Is it pointless ornamentation? It is not. It is a proclamation of power wielded as a matter of right, and free of restraint.

        It announces not only the power to create a government, but also the power to limit it. That’s what all those specific rights, powers, privileges and immunities amount to?delegations of power from a source that has all power. If you remain in doubt, look at the succeeding language, and count the “shalls.” They abound. That is the language of sovereign decree, at work limiting government by enumeration.

        To understand the Constitution as the founders understood it, you must understand that their aim was limited government, but their means was unlimited power. Of course they well understood the vices of unlimited power. Which is why they fashioned a notion of a dual role for citizens, having the character individually of subjects of government, but jointly as masters of government?a sovereign. In that way, any abuses of sovereign power which were harmful to subjects would inevitably redound to harm the sovereign itself. Thus did the founders contrive to encourage sovereign wisdom, and self-restraint in the use of sovereign power. It worked. No better means to accomplish that has yet been found.

        1. Steven, “we the people” isn’t pointless. It is propaganda. Advertising. Fraud.

          And the framers knew their were lots of dumb people in this country who would swallow it hook line and sinker.

          1. Dilan, you need to do some reading. Two books by the late great historian Edmund S. Morgan?sort of the opposite of a dumb person?will turn on some lights for you. Read, American Slavery, American Freedom, and also, Inventing the People. You will be both pleased to discover that Morgan shared some of your views, and confounded to learn the subtlety and complexity of the context in which he put them.

            Read those and get back to me. We will have something in common to discuss.

        2. The Constitution, even before any Amendments provided a number of instances in which “We the People” and our elected representatives were limited in what “we” could do: Titles of nobility; corruption of blood; bills of Attainder; No direct taxes except in proportion to state populations; no religious test to hold office, and that’s only a partial list I’d think if popular sovereignty were the over-riding principle these exceptions to majoritarian rule would have been left out. Many of the same people who supported adoption of the un-amended Constitution also supported further limitation of federal power in the adoption of the Bill of Rights, so majoritarian sovereignty must not have been the over-riding principle in their eyes.

          1. Your analysis is mistaken, Wahoo. The Constitution in no way restricted what “We the People,” could do. It restricted what government could do.

            When you say, “I’d think if popular sovereignty were the over-riding principle these exceptions to majoritarian rule would have been left out,” you are substituting your supposition for history. Popular sovereignty was the overriding rule, and the Popular sovereign in its wisdom, and at its pleasure, decreed in the Constitution what you say they would have left out. That is a fact of history. Because the People are sovereign, doing that did not in any respect limit the power of the People to say otherwise at some future time, for any reason, or for no reason.

            In the American system, the government, the Constitution, and the sovereign are separate entities, and must be interpreted according to different rules. No analysis of the American system can be accurate if it conflates any of those with the others.

            1. You say the People are “sovereign”, yet you have to make a distinction between “the People” and “the Government”. How does that work? Are the People “sovereign” or not? Or are you claiming that an elected government will operate independently from those sovereign People?

              1. Sovereign power is limited only by geographic extent. The defining power of sovereignty is the power to create, without limitation or constraint, the kind of government the sovereign prefers. To do that, the sovereign must have powers greater than government’s powers. A government, whether elected or not, is never independent of its sovereign, but always under the sovereign’s power, and functioning at the sovereign’s sufferance. At any time, a sovereign can step in to alter the government, abolish it, or replace it.

                A constitution is never sovereign, in of itself. It is a decree of sovereign will, establishing and limiting the sovereign’s government. In America’s case, the Constitution includes prescribed procedures for its alteration. Their inclusion has confused many about the structure of sovereign power, because they conclude mistakenly that the Constitution limits the sovereign People, and constrains their ability to modify the Constitution. It does not. The Constitution constrains only government, and limits government initiative to change the Constitution to procedures which put the ultimate choice back into the hands of the People themselves.

                The People themselves, so long as they remain sovereign, can modify the Constitution by any means they are able to accomplish.

                Hope that answers your questions. If not, I will try to address whatever you ask.

    2. Sounds like standard “sovereign citizen” crap to me, gussied up to appeal to liberals instead of just crackpots.

      1. Read history, gormadoc. And political philosophy. I’m not inventing anything here. Just passing along what you would already have been told if there were real substance to the originalism jag.

        You don’t have to be an originalist, of course. I’m not. But if you claim to be one, and don’t like what I’m telling you, then you are going to have to invent some alternative history?something to replace what actually happened with notions more congenial to whatever ideological preferences you suppose originalism is intended to advance.

        And by the way, I acknowledge that the stark outline I presented is, of course, less than a complete appreciation of the founding era. It largely depicts the views of the victors in the constitutional debate, the federalists, while slighting their opponents?the anti-federalists. I get that libertarians feel more comfortable with the anti-federalists, and cite them constantly. That doesn’t justify the hocus pocus necessary to make out the anti-federalists historically as the nation’s true founders. But they were instrumental in creating the Bill of Rights, which is pretty big. The tension that puts in the American system is a big part of American greatness, so I’m not trying to deny that.

        1. I think it is more important that you completely ignore black people. Your version of history is incredibly racist- “popular sovereignty” means “white male property owners run everything and turn their guns on the rest of America”.

          1. I’m wondering if this is actually Dilan Esper, folks.

            There was a previous instance, not long ago, where a name previously active on this blog, and then lapsed, suddenly reappeared, seemingly speaking in unaccustomed tones which sorted poorly with the name’s previous commentary. This looks like it might be another of that sort.

            If that’s you Dilan, come off it. You know better.

    3. As the late Prof. Jaffa would say, you neglected the part about the “laws of nature and of nature’s god,” which are superior to, and provide the ultimate grounding for popular sovereignty, so, no, popular sovereignty is not ahead of every other consideration.

      1. Came here to make sure someone had mentioned Harry Jaffa, was not disappointed.

    4. Steve, you are a rube who believed the framers’ con.

      The non-negotiable principle of America’s founding was slavery, not the non-existent idea of “popular sovereignty” (the entity with the guns is always the sovereign, then and now).

      The bedrock of the Declaration of Independence was Independence from Britain. The stuff about liberty and equality were deliberate lies to get easy marks like you to support a government that would perpetuate slavery. And the bedrock of the Constitution was that rich whites who raped their slaves would control the government over ANY claim of civil liberty or democracy.

      I would like you to go back in time to a maggot infested crowded slave cabin and explain to those people how America was ahead of other nations in recognizing that they are the sovereigns.

      1. Talk about propaganda. You know about as much as about the founding as you know about economics, namely, very little.

        1. I agree. In both fields, my ignorance is far greater than my knowledge.

      2. Dilan, judge history any way you like, including by social standards current now. Do it that way, however, and you cut yourself off from opportunities to learn by reading history. Insights into past events can rarely be had by imposing on historical figures standards of judgment which were out of their contemporary mainstream. That means, for instance, that if you want to know whether the framers were running a “con,” it’s pointless to judge that question against a 21st century standard of racism, to which few if any of them subscribed.

        Instead, evaluate them against standards of their age, if you know them, and by noting what they said publicly, and most particularly by evaluating what they said privately, in their correspondence, diaries, and notes. If they were running a “con,” evidence of it would be found when statements at variance with their public positions on key questions were contradicted by private utterances to the contrary.

        Judged that way, evidence in the historical record for your claim of a “con,” with regard to slavery is thin and equivocal at best?and not applicable at all to most among the northern founders. It’s a complicated picture which your blanket condemnation mis-describes.

  7. Maybe the issue is with the meaning of majoritarianism, but as I understand it, it means the will of the majority rules and a written constitution that cannot be changed by a bare majority is anything but majoritarianism.

    Popular sovereignty can be equated with majoritarianism, but it can also be seen as a tool of accountability — when the franchise is greatly limited or non-existent, government is not accountable. The founders were little “r” republicans who wanted to make government more accountable, but much of the constitution is designed to thwart majority rule.

    This is why the concept of active and passive citizens is useful to interpreting the writings of the founders. They believed every citizen was entitled to equal civil rights but no necessarily equal political rights.

    1. “Popular sovereignty” isn’t a helpful construct. The folks who run the government are sovereign. Periodic elections don’t change that, because “the People” can’t directly overrule anything the government does. Indeed, government officials can repeatedly completely ignore public opinion, and the only punishment they face is possible eventual replacement.

      Our system has democratic aspects and counter-majoritarian aspects.

      1. The folks who run the government are sovereign.

        If that is so, then no power limits government, and government can’t be limited. Some of what happened in the past?the failure of FDR’s court packing plan, for instance?becomes inexplicable, and a great deal of what doesn’t happen now in the way of government abuse is equally so.

        You are of course correct to insist that sovereignty is about power. You are mistaken to suppose the government in America wields all power.

  8. “Free speech also appears in an amendment with the right of free exercise of religion, which is not democracy reinforcing but individually empowering.”

    While this works for the free exercise clause, the establishment clause serves to restrict the rights of the individual by preventing the individual from using government to further one’s own religious beliefs. And I think it is reasonable to assume the two clauses were serving a common goal, and a common goal with the remained of the amendment.

    And it is possible to look at both religion clauses as protecting the interest of democratic rights by ensuring that an unworldly power is not used to influence government. This aligns the religion clauses with the remaining clauses that all serve to protect the right of the individual to influence government.

    Religion on the other hand can be used as a tool manipulate people to act in ways that might not necessarily be in their best interests (either because of the influence of a higher power or a fear of the beliefs of others).

    1. The founders clearly feared majority (mob) rule. Pick your personal most scary politician and then be grateful for the Constitution.

      1. What if the so-called “mob” is actually the victim?

        1. No need to be a victim there is Constitutional protection, be grateful.

        2. Right… The “mob” is actually the victim…

  9. The broken premise here is the insistence that the founders feared majoritarianism because they supported individual rights. The reality is that they opposed both. Majoritarianism might interfere with their rights, but they were also very eager to use majoritarianism to suppress the rights of others (which they loved to do).

    1. “The reality is that they opposed both. ”

      Yes, they opposed individual rights. That is why they did such things as banning Bills of Attainder, confirming Writs of Habeas Corpus and quickly including a Bill of Rights. Because they opposed individual rights.

      1. The Bill of Rights didn’t guarantee individual liberties against government infringement. It simply prohibited the feds from interfering with those rights. States remained free to infringe on individual liberties all they wanted–and they did! Which doesn’t even address the slavery/women as second-class citizens/etc.

        And if we’re so focused on what they did legislatively, what’s your take on the individual rights protected by the Alien and Sedition Acts?

  10. The Constitutional limits on government power are about preventing the slide into dictatorship by preventing those in power from abusing their power to harm political opponents.

    They can’t abuse it if they can’t use it.

    This principle has nothing to do with democracy. Democracy is an abstraction of might makes right, and should be treated as such. Simple majorities to wield fearsome powers like censorship are small bars for the nascent charismatic demagogue to leap.

    And there is no historical reason to believe pure unrestricted democracy, sans constitutional limits on those powers, can survive long term. What limited examples we have (ancient Greece, Rome, 1930s Germany) demonstrates this. And one need only look at the nominal democracies of Russia, Venezuela, and Turkey to see demagogues solidifying control “needing” emergency powers.

    1. This comment, like so many others here, conflates the government with the sovereign. No one who does that understands the American system of government, which is founded on the principle that the government and the sovereign are separate entities which work by different rules. That’s why Somin’s OP gets his analysis wrong?he too conflates the government and the sovereign.

  11. I find it ironic in a post about originalism that the different individuals commenting provide different meanings of the word democracy. Given that a premise of the current iteration of originalism is that there was a “public meaning” of words used as the time of the founding, but that my eyes tell me there is no “public meaning” of the word democracy today (when every commenter has access to a dictionary online) I am doubtful of this premise having actually existed in fact. It seems more a fiction.

    That aside, in D.C. v. Heller Scalia uses Samuel Johnson’s 1773 dictionary, Timothy Cunningham’s 1771 legal dictionary, and Webster’s 1828 dictionary. So, what do they say?

    Democracy – One of the three forms of government; that in which the sovereign power is lodged in the body of the people.
    – Samuel Johnson’s 1773 dictionary

    Democracy – [Gr. People, and to possess, to govern.] Government by the people; a form of government, in which the supreme power is lodged in the hands of the people collectively, or in which the people exercise the powers of legislation. Such was the government of Athens.
    – Webster’s 1828 dictionary

    There is no entry for democracy in Cunningham’s 1771 dictionary.

    Looks like that is what the “public meaning” of democracy was at the time of the founding. The end.

    1. Thanks for looking the “public meaning” up. It seems a democracy is a form of government, where at any given moment, whatever has the support of 51% rules . . . fundemently mob rule.

    2. “that in which the sovereign power is lodged in the body of the people.”

      That is the key, the power rested in the people but it would be exercised thru their representatives, most selected indirectly. They were not “democrats” in any 21st century meaning.

  12. I agree that claiming that originalism is superior because it allows more decisions to be made by normal democratic majorities isn’t quite right.

    However, even granting that the Constitution constrains normal democratic majorities more than someone like Judge Bork believed, those broader constraints are ultimately justified by the people’s authorization of them in ratifying the Constitution and subsequent amendments, and to the extent that originalism adheres to those constraints and does not impose additional constraints without such authorization, originalism is more “democratic.” Hamilton’s whole defense of judicial review rested on that (limited) authorization to restrain majorities.

    1. A small point but important. Judicial review is not actually authorized in the text of Constitution.

      Not that this text does not have its own problems anyway, both given the process by which the Constitution was ratified and the further problem that future generations have not been given an equal position to influence the content of our Constitution.

  13. There is a simple reason that the Constitution MUST be interpreted in a democracy-reinforcing manner. And that is, because the Constitution simply is not legitimate otherwise.

    Furthermore, the words of the Constitution are inherently democratic. The Constitution was adopted by “We the People” not “We the Framers who have special power to dictate the law to everyone else and rule them with an iron fist”

    As far as the anti-democratic “intent” of some of the Framers, this is about as relevant as their intent to use the Constitution to protect slavery. Just was we have rejected slavery, it is imperative that we reject rules that elevate a minority over the ability of a majority to govern itself.

    1. Here is a simple fact. The Constitution purports to be adopted by “We the People.” And yet, not a single living person has truly consented to it.

      If the Supreme Court were to decide to move away from democratic interpretations of the Constitution, then the President would be right to start disregarding the Supreme Court altogether. The President, after all, has every much a right to interpret the Constitution as the Supreme Court. That the Supreme Court gets any deference from the President, who controls an equal branch of government, is based on persuasion, not force. We are right to defer to the Supreme Court to the extent that it brings stability to our lives while not undermining our ability to democratically determine our future. As soon as the Supreme Court moves away from democracy-respecting interpretations of the Constitution, it will have lost its legitimacy.

      1. The overall problem with Somin’s argument is that it assumes the legitimacy of the Constitution rather than asking how the document is relevant and legitimate in our own time. The Constitution is only legitimate, even though we did not have the opportunity to consent to it, just so long as its interpretation does not stifle democracy, which is the vehicle by which “We the People” are able to govern ourselves and determine our own fates as well as the fate of the nation.

        To put it another way, moving away from democratic interpretations of the Constitution is nothing more than asking for a dangerous and unpredictable constitutional crisis. And that is all the argument we need against it.

      2. “And yet, not a single living person has truly consented to it.”

        I’d say we consent to it daily.

        We abide by the Constitution (i.e. follow the law), and some of us have sworn or affirmed to uphold/defend it (the President, military oath, etc.).

        We (taxpayers) send money to ensure the Constitution is paramount in govt and legal proceedings.

        Everybody pleads the 5th.

  14. Democracy may not be the central value of the Constitution, but it is a core value.

    Speaking of political ignorance…

    1. We are rarely on the same page, but we share this one.

  15. The argument simplifies ‘democracy’ into black/white, yes/no, up/down which is wrong.

    First, some things are left to simply majority decisions (e.g. elections); while other things require supermajorities (e.g. amending the constitution [2/3s, 3/4s]).

    Second, our federal system has two separate relationships (meaning both the 3-branches and the federal/state breakdown), means there is no blanket democracy; each relationship has its own processes and goals.

    It’s easy to determine what the purpose of the Constitution is—just read the preamble.

  16. The 14th amendment is a latecomer. The 10th amendment plainly states that what is not specifically authorized to the federal government is for the states or the people. This amendment gives teeth to the phrase “the people”, unfortunately it has been ignored.

    The tenth amendment:
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

  17. The Framers feared democracy so it could not be the central value of a Constitution they wrote. QED

    They considered a republic different from a democracy.

    They did not equate “We the People” with democracy, just that the people as a whole were sovereign.

  18. They did not equate “We the People” with democracy, just that the people as a whole were sovereign.

    Which, in the founders understanding of sovereignty, meant the People held all power, and were free to exercise it at pleasure, without constraint or limitation. On that the founders largely agreed.

    You need to check among the founders separately to see which ones nuanced that this way, or that way. Madison, for instance, presumed, and said, sovereign power was to be exercised as a matter of pure democracy, but failed to carry the day with that interpretation when it came to ratifying the Constitution. Hence state ratifying conventions.

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