Stephen Bainbridge responds to my earlier post on The Founders on Democratic Majoritarianism with this revealing post:
I wonder what those founders would think of our modern Supreme Court as it happily goes about the business of, as Justice Scalia put it, “Day by day, case by case, … designing a Constitution for a country I do not recognize.” My guess is that many of them would agree with Judge Bork that the courts have taken sides in the “struggle between the cultural or liberal left and the great mass of citizens who, left to their own devices, tend to be traditionalists. . . .
As I read history, most of the founders were sensible and pragmatic men rather than visionary idealists. In their time, perhaps runaway democracy was the main problem. In our time, the main problem is undemocratic legislation by thin (often 5-4) majorities of the Supreme Court by which the justices impose their personal policy preferences on virtually every aspect of American life.
Channeling the framers is fun, in part because it is completely unfalsifiable. Surely, the Founders would be appalled by a popularly-elected Senate, a check on democratic majoritarianism and federal power they thought much more important than judicial nullification. In the absence of this check would they favor overriding the remaining ones? Who knows? It is beside the point for an original meaning originalist. I reproduced these quotes to demystify the founders as some sort of democratic majoritarians, and to explain how the checks on majority rule they wrote into the Constitution, the ones that judicial conservatives would wish away, got there in the first place. Far from a product of modern libertarian fantasy, they were the product of men who lived under majoritarian state governments and overcame great obstacles to alter their form of government. And the new system they devised was soon emulated at the state level as new state constitutions were swiftly adopted to eliminate state legislative supremacy.
And with extremely rare exceptions, courts are not imposing their preferences on individual citizens. They are stopping legislatures from imposing their preferences on individual citizens. When speaking of imposing one’s preferences, there is a huge difference between a court mandating gay sex–which no court has–and stopping legislatures from putting adults in prison (where they may well be raped) for engaging in consensual with an adult of the same in the privacy of their own homes, which has now been held unconstitutional.
It is becoming increasingly evident that Professor Bainbridge is not an originalist, which of course puts him in excellent company in the academic community. (Still, this is useful to know when he comments on originalist arguments such as those I have offered in defense of Lawrence v. Texas.) His last post reveals his support for a living Constitution that “sensible and pragmatic” judges can change to give more power to Congress and state legislatures–to reflect changing times. By any fair and neutral meaning of the term, this is clearly “conservative judicial activism.”
TOMORROW: I discuss Kurt Lash’s new paper on the Ninth Amendment.
Comments are closed.