The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.
