The Greatness.com

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?

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.

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.

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."

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?)