Constitutionalism and Legitimacy

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7 Responses

  1. Orin Kerr says:

    Dan writes:

    I believe that the Constitution should be interpreted according to one’s guiding vision of the good society.

    And he then writes:

    We don’t want rule by oligarchs on the Supreme Court. There must be some constraining factors on how robustly justices can interpret the Constitution.

    Dan, why do you think both of these are true? Do you have some notion that judges should run the country a little bit but not a lot? And if so, why?

  2. This is a phenomenal post, and coheres with many of my own views on legitimacy, and majoritarianism. I particularly endorse 4, 6, and 7. Far too many Burkean conservatives and textualists-originalists beg the question by pointing to the anti-democratic nature of judicial review, as if the latter resolves the inquiry.

    The anti-democratic nature of judicial review is, rather, the point of departure for the ethical discussion we ought to be having. This is because, as you point out, many of the Framers — and in particular Madison — were absolutely terrified of naked majoritarian rule. I’m constantly reminded of Churchill’s aphorism here: democracy is absolutely the worst form of government we could possibly have, except for all the other forms that have ever been tried.

    The key in Churchill’s point is to recognize the deep tension in majority rule — not that it isn’t superior to totalitarianism, of course, but that the history of democratic rule can hardly be said to paint a particularly rosy picture of the ways in which minority and marginalized communities have been at least disenfranchised and at most brutalized through majority rule in the West. People love to glorify Athens, but we should not forget that Socrates was sentenced to death precisely because he championed unpopular views, and worse yet, he sought to teach those views.

    The countermajoritarian _feature_, as you note, was one way of grappling with the spectacularly difficult buck-stopping problem you note above. Whatever the problems with active judiciaries — and there indeed many problems — simply pointing to their antidemocratic nature is no answer at all because many of the Framers relied upon precisely that nature as a means of addressing their (quite legitimate, I tend to think) significant fears about majoritarian tyranny. I could say more, but I’ll stop here (for now!).

  3. Of course, one of the biggest advantages of going with Option (b) is that no-one can criticize your opinions as being inimicable to your stated method of constitutional interpretation. If the Justice defines it with Prof. Solove’s incredibly nebulous “one’s guiding vision of the good society”, well, then it is what he/she says it is and who can argue.

    Justice Scalia has articulated a methodolgy which at least is subject to critique as to how well he stays consistent to it (No surprise – I think he does a good job of it). Justices Breyer, Ginsburg et al are immune to such reviews because post-reality is whatever they say it is.

  4. Orin,

    There is a lot of space in between total rule by oligarchical judges versus some limited control by judges. I don’t want judges making rules for every issue, but I do want judges making rules in some important situations. The key question is: How often?

    To some extent, my views are somewhat similar to Alexander Bickel’s. He argued that the Supreme Court only had limited political capital, but that when it chose to use its political capital, it should do so. He believed basically in strong and potent action by the judiciary, only on a very limited basis. That’s different from many judicial restraint theories, which argue for very weak action by the judiciary in nearly all cases (Thayer is an example). In other words, Bickel believed in a strong judicial review but used infrequently. Other proponents of judicial restraint believe in a weak judicial review generally (a heavy dose of deference in most cases). I believe in a strong judicial review used to a moderate, but not infrequent degree. I disagree with Bickel’s assessment of how low the Court’s power and political capital are; I think that the Court can be more involved than Bickel did. But Bickel and I disagree primarily as to degree.

    With a Constitution that can be amended more easily, this will be a constraining factor on justices. Right now, when the Court interprets the Constitution in a way the public dislikes, there’s little the public can do. It takes decades to replace to Court’s personnel and to pressure changes in the law. A process to more easily amend the Constitution lets the public have much more of a say. The justices are no longer the last word.

  5. Orin Kerr says:


    Can you warn me next time? Your comparing yourself to Bickel nearly made me snarf my beer.

  6. Correcting the Record on Scalia says:

    Whatever the merits of this massive post, one point, repeated by Dan and Balkin, cries out for correction. Critics of Scalia’s approach love to drag out the statistics regarding his alleged propensity to overturn majority will, and then say “see, what a hypocite.” Originalism is not about letting the majority rule. Rather, its about letting the majority rule where the Constitution has not spoken on the issue at hand. Where the majority has ruled in a manner inconsistent with the text, there is nothing in Originalism that requires that the statute be sustained. This distinction has been pointed out to Balkin many times – see, for example, Ed Whelan’s numerous evicerations of Balkin on Bench Memos. Still, Balkin repeats his favorite non-sequitor again and again. While Balkin is a charlatan, it saddens me when a more respectable – albeit far too long-winded here – scholar like Dan repeats the same silly ACS, Balkin-like canard. So Dan, your gargantuan post indicates to me that you think fairly seriously on these issues – can it possibly be true that you are not aware of the distinction I have identified here?

  7. Maz2331 says:

    The Constitution is not immutable, as it can be amended with enough suppport. Otherwise, it needs to be obeyed, regardless of current opinion.

    Every restriction in there was done for a very important reason – to keep razor-thin majorities from trampling on minorities’ rights. Further, the concept of Federalism reserving some issues to the states and others to the Federal level was brilliant.

    The whole “amended the Constitution through interpretation” basically means that any provision can be a dead letter at any time. By doing so, we basically say “it’s okay to break the law if we want to, by just pretending it’s not there.” That wouldn’t work for a murderer before a jury, and shouldn’t work for ignoring a Constitutional restriction that 51% of Congress may feel is outdated or quaint.

    The “too difficult to change” argument is similarly bunk. It has been changed, and only takes 2/3 of both houses of Congress and ratification by 3/4 of states. Anything that is such a pressing issue should easily pass such a test.