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November 16, 2005

Do you really want a democracy?

Various current events centering around the law have gotten me thinking about issues of governance. The subject is rumbling around in my head, reverberating into a constellation of tangential arguments, but for my readers' sakes I'll resist (for once!) the urge to write a magnum opus and keep it compact. As always, I welcome your comments.

We pay lip service to democracy. The notion of pure, "one person, one vote" democracy has been damned with faint praise by every generation since its conception in ancient Greece. While we desire to be governed only with our consent, we fear everyone else's incompetent, parochial, or otherwise bestial natures will nullify that consent. This fear of the masses screwing everything up was one of Plato's major beefs with Athenian democracy -- and their version excluded 75-85% of the population. Apparently among that 15-25% there were still enough reprobates to foul the deal! Something else was needed in order to "counter majoritarian tendencies", which is high-flown language for our desire to keep part of ourselves immune from the whim of the rabble. Plato's addition, though restated and modified in several ways, still is with us: a ruling philosopher class.

Modern democracies worldwide have incorporated philosopher classes in the form of the judiciary. Judges have a politically benign interpretive role (in the West, based on historic common-law or civil code a la Napoleon), where they serve as umpires in the game of big-law-trumps-little-law. But when something happens that falls through the gaps of the written law, they are empowered to render a judgment based on what they consider prudent. In America and Canada (except Quebec, naturalment), this jurisprudence has a historical basis in the chancery court, which was supposed to deliver judgments based on the principle of equity; in other words, what is fair. While this power of the judiciary can be defended practically (we can't possibly think of every law we might need) and ethically (some things i.e. rights should be beyond majority rule), it nevertheless is both politically powerful and subject to misuse: whose "fair" are we using?

In this continuing he-said-she-said debate over "judicial activism", we never talk about how we ceded our sovereignty to an appointed few. Instead we tend to praise court decisions that match our pet philosophies while vilifying those that don't as irresponsible. This shouldn't be surprising. After all, in politics, everybody wants their hands on the big levers of government, and who wouldn't want to be able to shut their opponent up by making his position illegal to implement? The laws I want rest on ideas and beliefs I hold dear, which (I think it's safe to say) do not necessarily comport with the majority. I am not naive enough to believe I'm right about all of them, but a suitably examined subset I really do believe are The Right Thing and should be the law. Some of them I feel are such major injustices that they ethically should not be subject to democracy. Don't we all?

But for the sake of democracy, we must resist this urge and retake our authority. If we truly believe that a government by the people is the most ethical, then we need to back it up by allowing the legislature to decide these things. Nearly all of us agree murder simpliciter is wrong. Do you think it's murder to kill the unborn? To kill death row inmates? To kill Iraqis? Stand up and be counted, and let's have our laws reflect that. If enough of us think a certain right, say abortion, needs protection from our own fickleness beyond what the Constitution currently states, let's amend it rather than engaging in clever eisegesis in the Supreme Court. If enough of us think the Second Amendment is an anacronism, let's do away with it. Wanna have a do-over? There's a way.

But if you cringe when the Gallup polls come out, well, I guess you know the answer to my question.

Posted by The Greatness at November 16, 2005 12:45 PM


The Constitutional clauses that are counter-majoritarian aren't counter-majoritarian just for the sake of frustrating the will of the majority. Rather, they are meant to protect vulnerable minorities. At least that is claimed purpose. It doesn't seem like this post deals with that purpose directly. Maybe you think that purpose is not the real purpose -- e.g. a "sham." I might agree as to certain clauses and certain cases, but you surely must agree it is not a sham as to certain clauses and cases. For example, Brown v. Board of Education was contrary to the majority view in the South at the time. But I don't think you would dispute that the Court was on solid ground in finding that separate but equal violated the Constitution's guarantee of truly equal treatment.

So to me the issue is one of line drawing -- which cases/clauses are simply countermajoritarian for the purpose of being countermajoritarian, and which are legitimately countermajoritarian for the purpose of protecting a threatened group.

Outside of the Constitutional realm, you correctly identify the reason for judges -- statutes simply cannot account for every eventuality, so some interpretation is required. You appear to agree with this. If that's true, then who is to do the interpretation? If not judges, then who?

Posted by: The Greatness's Lawyer Friend at November 16, 2005 04:21 PM

I don't think that counter-majoritarian clauses are a sham, but they do provide an illusion of consensus as to good governance. Brown is an excellent example. I agree that the Southern states were in violation of the Equal Protection clause. But how did this particular clause become enshrined? Technically it was ratified, but that ratification was assured by force at Appomattox. In that sense the period from 1865 to 1964 represents a civil disobedience campaign on behalf of white Southerners forced into accepting a law they didn't voluntarily accept. Stepping further backward, the reason the issue became so central is that the Founders disagreed among themselves as to how slavery could be satisfactorily incorporated into a natural rights perspective that the Constitution is supposed to protect.
The country would not have ratified the Constitution in the first place had the Fourteenth Amendment or some equivalent clause been included.
And those Founders were a still further subset of Americans who, some say, were actually just looking to protect landed and moneyed interests, their favorite "threatened group". See by contrast the Canadian system, which does not explicitly enshrine property ownership as a right.

The practical edge of your comment deserves more from me, but I'll have to come back to it as I have a seminar to attend.

Posted by: The Greatness at November 17, 2005 12:01 PM

Okay, I'm back.

The way I see it, we have a two-tier system of governance that is method-agnostic, i.e. incorporates legislative and judicial functions. Call them justice and Justice.

The little-j justice system is the easily changable system where statutes are passed and courts decide cases based on their understanding of those statutes. The degree to which statutes are changeable roughly do (or should) correspond to how firmly we believe a particular position is right. Who "we" are could be argued given the foibles of our electoral system, but I accept this position as being in conformance with participatory democracy. In this sense, judges are doing exactly what they are supposed to do: it is just.

We also have a big-J Justice system. As currently implemented, that system maps to state and federal constitutions and a wide body of jurisprudence. The Justice system protects from short-term vagaries our most important rights, things we (should) have collectively judged to be inviolate. One might expect that these things would be the most difficult things to change, given how sure we are that they shouldn't change. That would be the most democratic way to view the issue. But our system in some cases has made it possible for a relative few judges to elevate certain ideas from the justice system to the Justice system without any electoral consensus whatsoever. That, in my opinion, is not just, no matter how Just the outcome.

To put it another way: I agree that Brown was rightly decided because it was Just, but the Court decided it based on the plain maining of the Equal Protection clause. It wasn't decided based on a principle of equity, but on a statutory reading. Simple principles of equity, like in divorce courts and in much of civil law, don't endanger the democratic process and I would keep them. But would you characterize the principle of equity used by the majority in Roe v. Wade as being so simple? In my view, it would be better to have a judicial tool to force the question on the legislature, or perhaps the electorate at large. Not to take no action a la the originalists, but so as to label a certain issue as being too important for nine people's opinions to decide it.

Posted by: The Greatness at November 17, 2005 01:54 PM

This is a fascinating post, and I for one am thankful to be able to comment, as opposed to the evolution oriented ones which I read in fascination but usually can't offer much.

I think it is interesting that you read Brown as based on the plain meaning of the equal protection clause. The counter to that, of course, is Plessy v. Ferguson, which based on the same clause, upheld the separate but equal system which was later rejected in Brown. To me this points out the problem with believing their is a "plain meaning" to be understood (either in most Constitutional clauses or in many statutes, for that matter). Rather, to me this shows that any attempt at Constitutional interpretation necessarily involves (1) error; and (2) judgment. I don't think our system of justice is perfect. But I think when we get judges who do their best to uphold the principles of the Constitution, that's as good as we can do. There is no perfect, mathematical plain meaning, so we defer to judges we trust to uphold the Constitution. They should be reluctant to use their power to reverse a majoritarian decision, but they should do so to uphold the counter-majoritarian clauses in the Constituion.

Roe of course is the classic problem. I haven't read it in a while but I recall that it was based on the concept of "privacy" which the Court had, for some time prior to Roe, found within the "penumbra" of the 14th Amendment. Now you might say that this is all illegitimate because it is too far removed from any Constitutional language. And I might agree with you. But this just shows that there is a line-drawing problem -- most of us think Brown was a legitimate exercise of Constitutional interpretation and many think that Roe was not. But they are both of the same "species."

Posted by: TGLF at November 17, 2005 07:09 PM

Thanks for your expert opinion. You're right that the two functions of a judge can't really be separated. I'm not really fomenting for true democracy, just a swing of the pendulum in the other direction, though coming up with an alternative is an interesting thought experiment.

My main point of contention is with "judges we trust to uphold the Constitution". After looking up some things on Plessy v. Ferguson, I must admit that Plessy had but one dissenter, suggesting that they at least believed they understood the Fourteenth Amendment and were upholding it. It's a pretty tough counterexample. Says the majority by Justice Henry Brown: "The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either." This distinction between social and political equality was their reasoned, consensus understanding of the spirit of the law.

But "No state shall ... deny to any person within its jurisdiction the equal protection of the laws" doesn't say anything about social or political equality. Justice John Harlan's dissent: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." I submit that on that day, Harlan was the only one upholding the constitution. One could easily argue that the majority knew which way they wanted the case to go and created "separate but equal" as a way to get there. And couldn't the same be said for the "wall of separation", "right to privacy", etc?

It may be that every judge must necessarily interpret the law. But I think it would help if the judges we trust had something more concrete to go on... some amendments that more clearly articulated the nebulous "principles of the Constitution" they're supposed to uphold. Impractical, maybe, but it would channel a lot of anger over "activism" into a real national discussion. (I can dream, can't I?)

Posted by: The Greatness at November 18, 2005 09:22 AM