The debate over judicial activism continues with Larry Solum’s latest lengthy reply to Stephen Bainbridge, Majoritarianism, Formalism, and the Feasible Choice Set. What I find most interesting about Professor Bainbridge’s latest reply to Larry is how candidly he admits his preference for a parliamentary system.
. . . I would prefer a parliamentary system in which democratic majorities acting through Congress and the President can trump judicial decisions. As imperfect as the political process is in a world of campaign finance abuses and gerrymandering, legislators are still more accountable than unelected judges.
The question is how far Professor Bainbridge and other judicial conservatives can get towards this goal using the Constitution as currently written, and the answer is: Not far enough to suit them. Those who favor a more democratic majoritarian form of government must advocate ignoring various provisions of the Constitution that stand in the way. This is something properly called judicial activism by the definition I offered earlier.
So what did the framer’s think of democratic majoritarianism? I discuss this in Restoring the Lost Constitution in Chapter 2, but here are some of their views:
Madison in the Constitutional Convention:
Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.
Madision in the Federalist #10:
In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The Holders of one species of property have thrown disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure.
Madison in the Virginia ratification convention:
[O]n a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism.
Elbridge Gerry, Massachusetts, to the Constitutional Convention: “The evils we experience flow from the excess of democracy.”
Roger Sherman, Connecticut, to the Constitutional Convention: The people “immediately should have as little to do as may be about the Government.”
Edmond Randolph, Virginia, to the Constitutional Convention:
“[T]he general object was to provide a cure for the evils under which the U.S. laboured.” And that “in tracing these evils to their origin every man had found it in the turbulence and follies of democracy.”
“The democratic licentiousness of the State Legislatures proved the necessity of a firm Senate. The object of this 2d branch is to controul the democratic branch of the National Legislature.”
Gouverneur Morris, Pennsylvania, to the Constitutional Convention:
Every man of observation had seen in the democratic branches of the State Legislatures, precipitation—in Congress changeableness, in every department excesses against personal liberty private property & personal safety.
Even those who remained more amenable to democracy, like George Mason of Virginia, “admitted that we had been too democratic” in forming state governments though he “was afraid that we should incautiously run into the opposite extreme.”
One thing is certain: These men did not care for unchecked democracy, having experienced it first hand, and they wrote a constitution with multiple checks on majority will includng separation of powers, federalism, limited enumerated powers, express prohibitions on federal and state powers, express protections of rights,and co-equal judiciary with a “judicial power” that included judicial nullification of laws that violated these restrictions.
Trying to get a democratic majoritarian form of government from the original Constitution, as amended by the Fourteenth Amendment, requires that various provisions limiting the power of democratic majorities to enact their preferences into law (to paraphrase Robert Bork) must be redacted. And since the Roosevelt New Deal Court, the Supreme Court has done just that. If you must call anything “judicial activism,” this is it.