Dec 4, 2021Liked by James J. Heaney

Instead of “democratically popular and democratically passed” laws how does one sign up for “republiquely popular and republiquely passed” laws? (IYKYK)

Also, at the beginning of the piece you claim “The Supreme Court is, of course, by design, an undemocratic institution.” But then by the end are positing “But it isn’t going to do that anymore, both because the Court no longer supports those outcomes and because the Supreme Court has become self-consciously less autocratic and more democratic.”

So which is it? Speaking as a lefty who has been wholly won over by the many descriptions of textualism I’ve read here at DeCiv, are we sliding closer to or farther from democracy in our Supreme Court?

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I can't tell you how much it pleases me to see "republiquely" again. Well done, sir; well done.

This comment made me think quite a bit, because I'm quite convinced that both those sentences are true -- but, you're right, they also seem to contradict. I think this is what I mean:

In our system of government, all power ultimately derives from The People. (The People are somewhat idealized in this, but that's okay for our purposes today.) That means everyone who has governing power over us is ultimately accountable to us. This is the heart of democratic-republicanism.

Now, just because someone is *ultimately* accountable to us does not mean that that same someone is *easily* or *directly* accountable to us. Our representatives in Congress are directly accountable to us -- they face frequent, direct elections, win-or-go-home. Their fates are constantly in the hands of their constituents. Here is the Republic at its most democratic. The President is (deliberately) insulated from us slightly (not nearly as much as he was supposed to be); we vote for electors, who then vote for the President. That's a bit less democratic. The Federal Reserve is (deliberately) *quite* heavily insulated from us. We vote (indirectly) for a President, who nominates a guy to the Fed, who then has to be confirmed by the (elected) Senate, except neither we nor the President can get rid of a guy we don't like. We have to wait for his term to expire. This is undemocratic.

Yet even the Federal Reserve Governors are accountable, ultimately, to the People: they have to follow laws passed by our representatives, they have to be appointed by our representatives, and, through actual legislation, it is possible (though not easy) to remove them from power. So they are democratic (because accountable to the People) but undemocratic (because that accountability is like nine steps removed from the decision of an actual voter). I guess this is what you'd call a spectrum.

The ne plus ultra of this is the Supreme Court (really, the entire federal judiciary). The Supremes are appointed by the President and confirmed by the Senate. But they are more insulated than even the Federal Reserve. The Supreme Court is (like the Federal Reserve) nominated by the President and confirmed by the Senate. But (unlike the Fed) they cannot be fired for cause, their terms never expire, and they can't be thrown out even by legislation. They are *constitutionally* shielded from everything short of impeachment, which is only allowed in cases of "high crimes and misdemeanors," and requires a majority of the House + two-thirds of the Senate. Effectively, they're beyond political accountability in all but the most extreme circumstances. All this is done so the Supreme Court can act neutrally, with absolute loyalty to one and only one thing, the ultimate expression of the People's will: the Constitution. The Supreme Court is a barely-democratic safeguard of our most important democratic treasure, bound to obey it and bound to interpret it. (All very republiquean.)

...in theory.

In practice, the Supreme Court *can* just tell the Constitution to "stuff it" while the Court goes off and invents its own law out of whole cloth. Constitutional interpretation is hard, and every human court will sometimes just make mistakes, but the Supreme Court could go further than that, and just not particularly care anymore what the Constitution says. At that point, they're no longer an undemocratic institution safeguarding democracy, but they become an undemocratic institution safeguarding a kritarchy (where the judges are sovereign, not the people) -- and we no longer live in a democratic-republic, except occasionally and by the Court's sovereign indulgence.

This, I contend, is basically what happened between 1937 and 2015. (A conservative version of it also happened between 1897 and 1937, aka "the Lochner era.")

Textualism developed* in response to those eras of freewheeling judicial tyranny. It pulls the Court back toward democratic accountability not by changing its (by design), undemocratic structure, but by forcing it to do the job of safeguarding (rather than overriding) the Constitution and the laws passed by the People's government.

Does that seem satisfactory? It was a bit long, and I'm kind of hoping I didn't write all those paragraphs only to end up with the same difficulty as I had at the start.

*at least, that's when textualism developed as a formal theory. You go back to 18th and 19th century jurisprudence, you read John Marshall and Joseph Story, and you'll see an awful lot of what looks a whole lot like textualism. But it isn't self-conscious, doesn't have a name or any kind of formal theory yet (although Story writes some stuff that is *extremely* on point for being more than a century too early), and it is mixed with some other interesting ideas (the law of nations, the common law).

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Love seeing footnotes in comments! Maybe that’s Substack’s next big achievement will be allowing for true footnote annotation even down in the depths of comment sections.

And yes! Your description here aligns perfectly with what you’re describing in the article itself. To try and boil your argument down to my understanding, there seem to be two ideals expressed:

1. SCOTUS is undemocratic by definition. (Relating to the first quote I pulled from OP)

2. A perfect SCOTUS would be defending democracy against all other forms of ‘-archy’ by strictly reading and interpreting the constitution. (Relating to the second quote I pulled from OP)

It’s that second ideal (or at least my interpretation of what you’re explaining) that I have questions with. You seem to be falling in to the same trap that you’re accusing late night talk show hosts of falling in to where “good” and “just” and “right” are being conflated with “democratic”. Unless I’m missing an argument somewhere I don’t know that all efforts in defense of a belief can be classified as inherently consistent with that same belief.

The meaning of “good”, “just”, and “right” (when substituted by the word “democratic”) as used by Colbert is aiming at a moral root while a textualist would argue that their root is constitutional, but the same logic leaps seem to be present in both instances. I guess what I’m saying is that textualists should lean in to wanting the courts to behave undemocratically? “In defense of democracy but not democratic ourselves”?

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Nov 5, 2022Liked by James J. Heaney

When the Left talks democracy, replace the word with something similar to what you and Mike appear to mean by "republiquely."

This is the way that comparative political scientists, both in the United States and abroad, use the term "democracy." At least in my social circles, this is the commonsensical meaning of the word too. It refers to a system of government in which representatives are elected through votes, and judges and bureaucrats appointed by those leaders safeguard fundamental rights and execute policy.

American right wingers, and nobody else in my experience, seem to use democracy to mean direct democracy, or rule by simple majority, and then like to correct everyone else who refers to the United States or other modern democracies as democracies. No, we are a republic! In this, they manage to be both pedantic and wrong, like someone correcting your already proper use of their/they're/there.

A core feature of functioning democracy is its compulsion of differing interest groups to reach compromise, rather than a majority simply performing its will. American democracy has systems for this, but they don't work anymore, and arguably never did work particularly well. Look at the behavior of elected authoritarians like Orban, Erdogan, and Putin, and you'll see their breaking of such systems as a fundamental component of what political scientists (and not just lefties) are calling anti-democratic.

In this language, courts are absolutely a democratic institution, and they only cease to be so when a faction is able to install partisans in gross disproportion to their voting bloc, or who will reliably protect the rights of some over others. A 6/3 Supreme Court appointed and approved through a minority of voters meets these criteria as clearly as anything could. (And if our democracy were functioning properly, we wouldn't refer to our Justices as belonging to a side to begin with.)

There's a slippage, of course, since the further away people are from academic discourse, the more likely they might use the term in a loosey-goosey way where it sometimes refers to a democratic system of government and other times it means "I'm mad that my majority can't do anything." However, in the kinds of articles you're linking to, the authors appear to be using the word in the sense of the last century of comparative political science.

Rhetorically, the American right-wing language of "we are not a democracy" serves to numb any charges against practices that are openly inimical to representative government. Because Republicans have chosen to advance the interests of a numeric minority, they have increasingly needed to rely on electoral strategies that lead to power without having the support or approval of most citizens. Voter suppression tactics have become a core part of strategy, and American Republicans have become staunch defenders of systems that give them disproportionate representation, but which don't make sense to much anybody else on the planet. How much of this language about "confusion" regarding democracy is about justifying systems that give you disproportionate power?

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Jan 7, 2023·edited Jan 7, 2023Author

I think there are contexts in which the broader meaning you propose for "democracy" would be accurate. There are academic contexts in which "democracy" means something much more complicated, with internal balances and filters to moderate the raw will of the plurality (in particular by giving minorities veto points). I think the Founders themselves used "democracy" and "republic" much more interchangeably than some today tend to give them credit for.

(I also think this was analytically confusing, and I do admit my preference for just referring to "democracy-in-the-sophisticated-sense" as "republicanism." However, you have made the grave charge of pedantry, so I will not say the r-word again in this comment.)

I don't think this is a context where your sophisticated sense of democracy makes sense. It's very clear from the context of Colbert's comments on Dobbs that he means "democracy" in its blunt, unsophisticated sense: democracy = the will of the plurality. Colbert's criticism of the Supreme Court is specifically that it does not (in his view) reflect the will of the plurality. His criticisms (which are representative of a whole genre of criticisms directed at the current Supreme Court) does not make sense in any other light. He is mad because Americans voted for the guy who picks Supreme Court nominees, and, in one crucial election, a guy got to pick Supreme Court nominees without winning a popular plurality. Colbert & Co. are mad because the Senate, an institution *designed* to moderate the unfiltered will of the popular majority, is, in Colbert's view... moderating the unfiltered will of a popular majority! (I'm not convinced that's even an accurate view: a plurality of Americans supported the confirmations of Kavanaugh, Gorsuch, and Barrett, according to Gallup.)

If he's using "democracy" in the more complicated sense that you suggest, then his argument makes no sense. If democracy involves layers of institutions, NOT all of them designed around the idea of simple "plurality rule", then the things he complains about are all democracy operating *exactly as advertised*.

Therefore, I don't think he is using "democracy" in that sense. I think he's using it in the simplistic, "plurality rule," sense. Because he, along with many others, are using it in that sense, the rest of my argument in this article follows.

I think that applies to your comment as well: at first you say that the Supreme Court, as an anti-majoritarian institution hanging above the raw will of the people, is a democratic institution. Then you say that it's currently undemocratic because the current Court was effectively indirectly elected, and some of those originating elections privileged a minority over a majority. In my view, you are trying to have your cake and eat it too.

But the cake is not to be had: the Dobbs decision returning the abortion question to the states (and allowing Mississippi's popular law to stand) is a clear victory for democracy in either sense of the word. This has been nicely illustrated by the metric ton of simple-sense democracy over abortion in the months since (and my side is not winning all of the battles!). It was always Roe itself that had to struggle to justify itself as a democratic decision, which it could only do by embracing *very* sophisticated definitions of "democracy" -- but those definitions are so sophisticated that they necessarily treat Dobbs as at least equally democratic.

The only way to interpret Dobbs as undemocratic, as Colbert does, is if one considers a right to abortion constitutive of "democracy," which, I think, is ultimately just defining "democracy" as "the system of government that follows the policies I like."

"Because Republicans have chosen to advance the interests of a numeric minority"

I don't consider myself a Republican anymore and resigned all my positions in 2016, so can't speak with insider authority, but I don't think that's particularly fair: as footnote 4 mentions, Republicans as a whole were *not* a numeric minority in 1994, 1998, 2000, 2002, 2004, 2010, 2014, or 2016 (Trump underperformed Republicans in general). They also won the clear plurality of votes in the 2022 elections just finished, which makes them the current national majority party, representing the plurality of Americans.

"Orban, Erdogan, and Putin"

I think it is deeply unfair to Orban to put him in with Putin. I haven't studied Erdogan enough to know whether his reputation is actually deserved (like Putin, who murders opponents and does not hold free or fair elections) or merely political resentment (which is how Orban's treatment continues to look to me). This isn't my main article about Hungarian politics, though, so I won't press the point by detailing the various trumped-up charges against Viktor Orban. (But see "Peter Marki-Zay is Not a Conservative" for more of my Hungarian arguments.)

Sorry for my slow reply. I knew I would have to type very slowly to avoid tripping myself up on the different meanings of "democracy," and thus waited until my decks were cleared. They're cleared right now because I'm waiting for beta-reader feedback on the next De Civ article, so I'm just twiddling my thumbs for a week.

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Is a partisan supermajority in the Supreme Court democracy as advertised? Are progressives confused for thinking it isn't? "We're a republic, not a democracy!" is semantic pedantry, but these questions aren't, and they make for discussion that might be illuminating.

In this article and elsewhere, you refer to prior Courts and Justices as tyrannical. People with much more to fear from judicial decisions than you ever will might post that the Right is confused about tyranny, but I think it's more fruitful to look at the convergences between your arguments and the ones you're critiquing. Democracy isn't simple majority rule; it's reaching compromises through proportionate representation, with stopgaps to protect fundamental rights for all. What are our criteria for institutions that succeed at this?

Your discussion of protections for minorities is rather sly. Whites were a numeric minority in apartheid South Africa, but the reservation of the vote for them was not a democratic protection. Functional democracy disallows two wolves from voting that one sheep is for dinner. Protection for minorities doesn't mean that one wolf can vote to eat two sheep!

Antimajoritarianism does not mean minority rule, and it's only in our broken, polarized two-party system where we might imagine it does. Courts can be democratic and antimajoritarian when they make decisions that protect the fundamental rights of a minority, even when a majority would rather see those rights stripped or not granted. Your argument conflates antimajoritarian choices made by a court with a minoritarian process for stacking the court. These two things are not a cake to be both had and eaten. They are, respectively, a cake and a cow pie.

I am curious: if only White men who own property could vote, would this system be operating republiquely in your eyes? I genuinely don't know your answer, since you don't seem perturbed by very strong weighting of representation that favors you. If absolute control of the ballot isn't democratic, how far slated does relative advantage need to be to qualify? Perhaps here we encounter differences between republiquely and democratically.

There's an oddity in responding to the centrality of voter suppression to Republican electoral strategy with, "and look how we have more votes!" Even the most conservative estimates of the millions of people denied the ballot as of 2022 substantively exceeds the margin of difference. But it only matters slightly which side has the marginal plurality. Even if Republicans had a slight majority in every election for the last few decades, in a make-believe world with no voter suppression, this wouldn't warrant the current shape of the Supreme Court. It would warrant that beast you hated so much: the Roberts court. A court that gives wins to both sides and tacks slightly toward the right. Functional democracy is not plurality rule; functional democracy gives majority versus minority weight in shaping compromises.

The current Court, in progressive eyes, is thus undemocratic on two counts: it grossly disproportionately represents the will of some voters, and it makes decisions that willfully tear away fundamental rights from the vulnerable.

Your response to the second point generally questions who gets to define what "fundamental rights" are. I would say that there's much less debate over this than you suggest, and the argument is really over who gets to have them. Everyone wants dignity for their family. Everyone wants to practice their religion without someone else's forced on them. Everyone wants basic bodily autonomy. Everyone wants not to be property. Everyone wants to exist without being harmed for the way they were born. Everyone wants not to be killed.

Good-faith debates can ask what happens when two rights come into conflict. But most major American debates, historically and now, revolve around some set of excuses for some group of people simply not deserving full humanity. If the right to marriage and family can be reframed as a right to fornication, we get to justify claiming that it isn't embedded in our national history, when in reality the right is clearly embedded, simply with a history of granting it to some and not others.

Question: in a radically alternate universe where Plessy v. Ferguson had ruled that Black people were citizens and persons, and that the natural rights deeply embedded in our nation's history included not being enslaved, would you call this tyrannical? This is another case where I do not know your answer, and am interested in it. If the Ninth Amendment lacks judicial enforceabilty, as you've held, and amounts to the Founders just making conversation, it would seem that the only way for subjugated minorities to gain equal rights would be through supermajorities deciding to grant them--in which case, they wouldn't be denied rights to begin with. Or through civil war, I suppose.

Returning to the question of confusion, I referenced the linked articles using democracy in the sense of republicanism, and you responded about how Colbert doesn't, so we have a slight disconnect. I'm not about to engage in a full-throated defense of Colbert, but instead I would say that, even when we look at less sophisticated critiques of the undemocratic aspects of the Court and the Senate, at issue is the weighting of power toward the already powerful, more than the divergence from a simple popular vote. Interracial marriage was unpopular when the Supreme Court deemed it a right, and I'm pretty sure that Colbert fans could explain why this was democratic, in protecting a common right for all, and Dobbs wasn't, for doing the opposite.

I've seen your argument for how the Supreme Court probably won't come after interracial marriage, or other rights whose reasoning Dobbs invalidated, and you're probably right. ("Probably" feels very different to be on the receiving end of, in a way you've never had to worry about, and never will.) Are *you* okay with states being able to decide whether people of different races can marry? Is this how things should be, under our Constitution? People only began broadly accepting interracial marriage after the right had been in place for some time and it became clear that the fears based around granting it were all lies. If past cases had been decided correctly, in the current Court's views, we'd therefore likely still have anti-miscegenation laws on the books. I assume you don't support such laws, but with your view of how the Court should operate, should this be our status quo? Once again, these questions are not rhetorical. Your worldview is very different from mine, and my purpose here in general is not so much to debate you as to search for where we do and don't have common ground.

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It may help to address several factual disagreements immediately, clearing the decks for the more theoretical questions that I think you are most interested in exploring.

First, you express the belief that I have "never had to worry about" being on the receiving end of direct judicial assault on my life, my family, or my livelihood. Since this is, strictly speaking, an argumentum ad misericordiam, I normally ignore this when progressives (inevitably) make the argument that straight white Christians have no real skin in this game and are just ruining people's lives by sacrificing empathy to their abstract theories of government. But I think there's an ironic lack of empathy in this argument, even when it is only made by implication.

When I wrote, in that article you mentioned, that the Supreme Court probably wouldn't invalidate anyone's same-sex marriage, the reason I was nevertheless able to empathize with the fear of people like Mark Joseph Stern (the reason I considered his fear *justified*) was *explicitly* because I had felt that fear myself -- the awful uncertainty of that "probably," the felt need to plan an escape route from one's home state (or one's home country) just in case the worst happen. When conservatives express their deep fears, progressives often reply with something like "Oh, well, the loss of oppressive power often feels like subjugation to the oppressor," but that's not what I'm talking about, and to presume that I am would be another marked failure of empathy. I don't think it would be productive or successful for us to have an oppression olympics to decide which of us has more to fear, or which of us has better justifications for our fear -- but rest assured that I have deeply feared the courts for a very long time.

Second, you contend that periodic Republican popular majorities are illegitimate, because of "the centrality of voter suppression to Republican electoral strategy." I think this claim is false in a variety of interesting ways: Republicans aren't motivated toward Voter ID laws by a desire to suppress legal votes, any more than Democrats are motivated toward same-day registration by a desire to permit fradulent ones. Republican support for Voter ID is in fact motivated by a fear of widespread voter fraud, just as Democrats are motivated by a fear that citizens suffer a widespread lack of access to the ballot. Both fears are, empirically, wildly overblown. And, happily, their preferred solutions have, empirically, almost none of the negative side effects the other side is freaked out about.

Voter ID laws do not, empirically, do much (if anything) to prevent voter fraud, but they also do not, empirically, do very much to suppress votes. When they do, their partisan effect is miniscule and directionally unpredictable (which is another way of saying that Voter ID, when it has an effect, can marginally help *Democrat* candidates instead of marginally helping Republican candidates). They can affect, and probably have affected, some very VERY close elections, but the same can be said of the in-person illegal voting Republicans are always complaining about. (The razor-close 2010 MN Senate election was plausibly decided by several hundred felons who illegally cast ballots, and the result of that election is why the Affordable Care Act passed the Senate. Illegal voting is both very rare *and*, sometimes, very consequential!)

In general, though, particularly when one is looking at national popular vote results, it is empirically nonsensical to look at Republicans beating Democrats by several percentage points and chalking it up to Republican voter suppression strategies. (The parallel on the right -- chalking up Democratic popular vote margins to illegal voters -- is also empirically nonsensical.) I have no clue where you are getting the idea of "millions of people denied the ballot as of 2022." If we ever have a national House popular vote where the overall margin is <1000 votes, we can talk!

(Unless you're talking about the fact that, like, six-year-olds can't vote? But FWIW I am pro-demeny voting!)

In other words, Republicans do in fact routinely win elections because they are routinely the more popular party among all Americans -- and in fact have been the more popular party for most of the past several decades. (Although Democrats certainly score some wins, too.) We need not imagine a "make-believe world" where Republicans periodically enjoy genuine majority support; we live in it.

Third, you assert that people "only began broadly accepting interracial marriage" because the Supreme Court's decision in Loving v. Virginia (1967) showed them that they had been wrong to oppose it. I don't see good evidence for this. Gallup began measuring support for interracial marriage in 1961. It has increased more or less linearly since then. There's no obvious point after Loving where the rate of increasing support rose in response to the decision.

Moreover, even though most Americans didn't approve of interracial marriage for themselves in 1967, they also weren't big on legally preventing *others* from entering interracial marriages. 20 states had no laws against miscegenation in the 20th century at all, and a wave of repeals in the 1940s through 1960s left only 16 states (out of 50) with anti-miscegenation laws on the books by the time of Loving. (These were, of course, the Jim Crow states.) Loving had immediate good effects, by hastening the fall of anti-miscegenation laws in those final 16 states, but I think crediting the overall national movement toward interracial marriage to the action of the Supreme Court is exactly the sort of progressive mythmaking about the judiciary that I critique in this article. (I offer no opinion on whether Loving v. Virginia was correctly decided as a matter of law, because I haven't read it. FWIW, most of the scholars I respect agree that it reached the correct outcome, although perhaps not for the correct reasons.)

So much for factual disagreements. Now to theory.

Let's start with one place where we agree: in a democracy-in-the-sophisticated sense, what I have referred to as a republic, the funamental law often establishes moderating institutions of various kinds, which exist to thwart the power of the majority to oppress unpopular minorities. One of these institutions is the judicial branch. Only Congress can author or authorize law, and (for just this reason) it is fully exposed to all the hurly-burly of politics. The judicial branch is insulated from politics. This is because of the special role they play: The judicial branch does not represent the People at all, and, accordingly, the Constitution assigns it no independent power over our law whatsoever. Judges exist solely to make an honest attempt to explain what the laws mean, mostly to juries, occasionally to others. Their role is not to shape policy nor forge compromises. They have no authority over the Constitution. On the contrary, they are its slaves. They swear an oath to follow it and no other authority. To ensure that they do so, they are freed from many political pressures, since political pressure might convince them to corruptly substitute their own personal or political judgments for the supreme law of the land -- the Constitution.

[I hit the character limit. Continued in child comment(s)]

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[Part 2]

Why the Constitution instead of, say, The Bible, or Peter Singer's "Practical Ethics"? Well, the American theory of government is that all power resides, ultimately, with the People -- the mass of law-abiding persons of all ages and races who live under that government. The People, in turn, have consented to be governed by a text called the Constitution (and not by any other text). The People who originally consented to this text are long dead, and their ratification process had serious democratic shortcomings in light of modern developments... but the People today have neither altered the Constitution from its current form (which the People can do by acting in overwhelming concert) nor overthrown it (which they could do peacefully, as the Founding Fathers did to the Confederation, or violently, by civil war). Since today's People have not disturbed the Constitution, their consent to be governed by it can be inferred. Several states require fresh constitutional conventions every generation or so, just to check whether that inference is correct; it invariably is. (The last time it wasn't was Rhode Island in 1984. They overthrew their constitution and replaced it with... an even more conventionally American one.)

So goes the theory, anyway. I have some problems with this theory, to be honest. You are correct, for example, that I don't find it inherently alarming if representation is weighted in certain ways (whether or not that weighting favors my "side"). The Constitution itself clearly supports certain kinds of weighting (which sometimes helps my "side" and sometimes hurts it) in ways that don't fit easily into that just-so-story. But I take the law as I find it, and so I agree with the theory's conclusion: the Constitution is the law of this country and the foundation of its democracy, and judges are subordinate both to it and to laws passed under its auspices.

So I agree with you that a court can be simultaneously democratic (in the sophisticated sense) and antimajoritarian when it strikes down a popular law for violating a fundamental right of a minority. Nazis v. Skokie (1977) and Texas v. Johnson (1989) are my favorite examples of this: there are few minorities more loathed than Nazis and Communists (justly so, on both counts), yet no right more fundamental (under our Constitution) than the right to free speech. Judges stepped in to uphold the Constitution (the supreme expression of the popular will) over the present, transient will of a narrower, unstable majority that had voted to limit free speech. That's the courts' function. So far so good! This is democracy (in the sophisticated sense) in action! We agree here!

But, for the very same reasons, the label "democratic" *can't* be applied to a case like Roe v Wade or Dred Scott v Sandford. Our Constitution clearly does not establish any right to an abortion, and it clearly does not establish a right to keep slaves in the federal territories. In both cases, judges struck down laws that had been validly established by the democratic process under the Constitution. They did not do so because the higher democratic authority of the Constitution required those laws to be struck down. They did it because they wanted to impose their personal moral beliefs in place of the Constitution. When a judge refuses to obey the Constitution but instead imposes his or her personal beliefs on the litigants (and perhaps the entire country), that judge unlawfully usurps the Constitution and the People's ultimate authority. He creates law that is neither authored nor authorized by Congress, and therefore unauthorized by the People. That judge acts tyrannically.

It doesn't matter if I agree with the judge's personal moral beliefs, or even if the judge's beliefs agree with the objectively true universal moral law (assuming such a thing exists; relativists don't think it does, and they're Americans too). For example, I agreed with the justices in Reynolds v. United States when they ruled that multiple marriage is "odious," full of "evil consequences," and that it ought not to exist in a modern society. Yet, when they made that personal moral view (which is not enumerated in the Constitution) trump the First Amendment's Free Exercise Clause (which IS enumerated in the Constitution)... that was tyrannical.

My belief that judges must always conform to the Constitution will, on rare occasions, mean that a judge must pass up an opportunity to perform an act of "good tyranny," where that judge violates his oath and usurps the Constitution in order to enact a personal moral belief that happens to be really good and important. For example, in Troxel v. Granville (2000) the court did a "good tyranny" (according to my personal moral beliefs) by overturning a state law that undermined parental authority to direct the upbringing of their own children. You introduce a hypothetical where the Court that decided the Dred Scott Case instead could have done a "good tyranny" and decreed an end to slavery. (You said Plessy in your comment, but I assume that was a typo, since Plessy is from the 1890s.) A little "good tyranny" sounds lovely. But we have no way of establishing a system where judges are allowed to do "good tyrannies" but not "bad tyrannies." If we give them to discretion to ignore the Constitution, they will use that power for both good and evil.

And it will usually be for evil. After all, hypos aside, we know what *actually* happens when the Supreme Court ignores the Constitution and enforces the justices' personal moral beliefs: we get the *actual* Dred Scott decision, imposing Chief Justice Taney's warped morality on the entire nation, Constitution be damned. Once you allow Supreme Court justices to enact their own personal morality over and against the Constitution, you are no longer governed by the Constitution; you are governed by what this article calls a "priestly caste" of nine unelected and unaccountable judges.

And, as much as the People suck, judges almost always suck worse. When you give them power, they do not, as a rule, strike great blows for freedom. They hand down Dred Scott, which extended slavery over vast swaths of U.S. territory; they hand down Schenck v. United States, which made it effectively illegal to protest against World War I; they hand down the Slaughter-House Cases, which gutted a key clause of the 14th Amendment because racism (or Bradwell v. Illinois, which did the same because sexism); they hand down Lochner and Dagenhart, which prevented regulation of labor conditions, minimum wage, and even *child labor* for *decades* because the justices prized a perceived "fundamental right to economic liberty" over the powers plainly assigned and reserved by the Constitution to Congress and the states. And they handed down Roe v Wade, which went on to kill more people than the total population of the United States during the CIvil War.

Examples of the courts exercising "good tyranny" are pretty rare and more than outweighed by the evils the "bad tyrannies" have inflicted. This is not surprising. One of the advantages of government by a broad cross-section of citizens over government by a priestly caste is that the moral sense of the crowd as a whole is generally better than the moral sense of a handful of insular individual oligarchs. The idea that a priestly caste can regularly lead the People toward higher moral ground is precisely the midcentury progressive mythmaking that I observed in this article -- and which I suggested is an attempt to resolve cognitive dissonance about the fact that the Lochner/Warren/Burger Courts were routinely guilty of usurping the Constitution in the name of their personal moral beliefs.

I side rather with Abraham Lincoln, who held nearly the opposite view, insisting that "the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers". (His entire First Inaugural is a master class in constitutional reasoning at a time of extreme crisis.) He then did what the court could not and (as we saw) would not: he used the democratic process described by the Constitution to free every slave. That's how democracy works.

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Feb 20, 2023·edited Feb 20, 2023Author

[Part 3]

For these reasons, I would not support an amendment to the Constitution that would give judges the authority to replace the binding power of the Constitution with their own personal moral beliefs. It is too dangerous. If there are any specific moral beliefs we want to add to the Constitution, any particular rights we believe in that we wish to define as fundamental, we can just add them.

As it stands today, though, this isn't even a question; the Constitution, as the highest expression of the People's sovereign authority, currently forces judges to obey it (and the laws passed under it). Any definition of "democracy" that places judges *above* the Constitution (and the People from whom it derives its authority) is not something I recognize as "democracy" at all. Hence my earlier statement: The only way to interpret Dobbs as undemocratic, as Colbert does, is if one considers a right to abortion [inherently] constitutive of "democracy," which, I think, is ultimately just defining "democracy" as "the system of government that follows the policies I like."

It seems to me that this, finally, is the difference between your view of the antimajoritarian function of the judicial branch and mine. My view is that the judicial branch must discard mere statutes passed by a narrow democratic majority when those statutes conflict with the fundamental rights enumerated by a broader democratic majority in the Constitution. In this way, they serve democracy. Your view seems to be that the judicial branch must discard statutes passed by a democratic majority when those statutes conflict with the personal moral views of yourself and some collection of other Americans about what rights ought to be considered fundamental (but which aren't enshrined as fundamental in the Constitution, and can't be, because they lack adequate democratic support). In this way, it seems to me, your view of the courts overthrows democracy and is simply oligarchy. This is the source of my "have your cake and eat it too" comments.

(The situation that prevailed in the past, where some adult, law-abiding citizens were not just weighted against, but denied representation altogether, does raise interesting questions about the validity of the democratic theory behind the Constitution and federal law during those times, as you note. But, since that hasn't been true in over a century, and since I take the law as I find it and am therefore not hugely committed to that background theory in the first place, I don't think we need to address those questions in this already very long comment. I certainly agree that denying suffrage to non-Whites, non-males, and the poor was a bad idea.)

As to the Court's composition: in the first place, it is difficult for me to take seriously the complaint that the current Court is illegitimate because it "grossly disproportionately" reflects the will of right-wing voters, when the Court spent decades grossly disproportionately representing the will of left-wing voters without any of the same people questioning its legitimacy. If right-wing voters were actually a persistent minority that, under a representational view of the courts, actually *deserved* less representation, maybe there'd be some hay to make there... but, as I've argued, that isn't even true, so it's very hard for me to credit the position at all.

In the second place, if I could be convinced both that it was a sincere position and that right-wing voters are indeed some kind of secular minority, I'd have to ask why we should adopt a representational view of the courts at all. It seems to me that we should neither expect nor desire the court to reflect the political divisions of the country, since their only job is to explain the Constitution honestly and accurately -- not legislate, make compromises, share diverse experiences, debate the common good, or do any of the other things that make broad representation important over in Congress. Just put the smartest and clearest Constitution-explainers on the courts, whatever their partisan affiliation. The reason we don't vote for federal judges is to *insulate* them from all that so they can do their one job.

The largest problem with the decades of left-wing control of the Court, in my view, was not that they had different politics from mine; it's that (apart from a couple of holdouts like Justice Hugo Black) they gave no indication that they had any intention of doing their one job, and frequently refused point-blank to do it. So I don't think the Court today should have 5 originalist-textualist justices; I think it should have 9. I'd be just fine with 4 of them having a conservative political background and 5 of them coming from progressivism, as long as they all bound themselves to the Constitution over their personal moral codes.

For myself, I find it incredibly frustrating that FDR was able to appoint all 9 justices during his long presidency. This created an extraordinary ideological distortion that had very considerable impact on American law, mostly negative IMO. However, while frustrating, I do not find it illegitimate, and I find peculiar the suggestion that it could have been. I don't even call it "stacking," as you do. The rules are in the Constitution. FDR did got his judges by the rules. So, later on, did the conservatives. If we don't like the rules, we can change the Constitution. If we don't like the Constitution, we can overthrow it, either peacefully (the way the Founders overthrew the Confederation) or violently (although this is quite the Pandora's box).

Personally, I don't dislike the rules or the Constitution; I just acknowledge that a system deliberately insulated from political pressure will obviously deviate in unpredictable ways from a politically representative composition. Then I get on with calling out specific decisions as illegitimate (for ignoring the Constitution) rather than the appointment process (since it followed the Constitution).

>"But most major American debates, historically and now, revolve around some set of excuses for some group of people simply not deserving full humanity."

Couldn't agree more. *stares in fetal rights*

> If the Ninth Amendment lacks judicial enforceabilty, as you've held, and amounts to the Founders just making conversation

I do not think the Ninth Amendment "amounts to the Founders just making conversation." The Ninth imposes meaningful restrictions on the judicial branch, by declaring that all putative rights not touched on by the Constitution have the same legal status under the Constitution as they did before the Constitution. Before the Constitution, for example, there was a legal presumption that all men were free unless positive law clearly consigned them into slavery. The Ninth Amendment ensured that this legal presumption persisted, and that it continued to bind the courts. This sort of background principle becomes important in cases like The Amistad.

What the Ninth does not do is *empower* the judicial branch to identify new rights and/or give old rights a higher status than they had before the Constitution. Before the Constitution, the law recognized no right whatsoever to extramarital sexual activity (quite the opposite); the Ninth confirmed that this putative right remained non-existent afterward. Indeed, since even recognized retained rights could be overridden by statute pre-Constitution, they could obviously still be overridden by statute post-Constitution under the Ninth Amendment. Only the Constitution itself, by specifically declaring that certain rights were immune to positive law, could "promote" rights above statutes -- and we call those rights enumerated rights.

Michael McConnell's paper, "The Ninth Amendment in Light of Text and History" (2010) has significantly influenced my view of the Ninth.

We do indeed come from different perspectives, but I hope that this comment explicates some of mine and draws you closer to them. There's nothing in what I've argued above that precludes any of it from being held by people with very different politics from mine. All I do is insist that the political fights happen in the appropriate fora: Congress, state legislatures, and constitutional conventions, not in the judiciary.

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>>"...most major American debates, historically and now, revolve around some set of excuses for some group of people simply not deserving full humanity."

>Couldn't agree more. *stares in fetal rights*

I thought you might! So it's worth asking how well a given system prevents those in power from acting on such excuses.

> I had felt that fear myself -- the awful uncertainty of that "probably," the felt need to plan an escape route from one's home state

I don't know what your reasons to fear are and don't think you should feel any obligation to discuss them publicly, but it makes sense that they would serve as a source for empathy. Just as there are people with more to fear than you, there are also some with less, and I worry where, if anywhere, their comparable empathy might stem from. I also worry about the transformation from empathy to compassion; understanding fear that people might come for someone else's rights is only positive if paired with advocacy that they oughtn't.

> Since this is, strictly speaking, an argumentum ad misericordiam

I'm not aware it was an argument at all! I mentioned that people with more to fear than you might argue that you're the confused one, but that I'd rather find convergences than pursue such an argument. So first, you transform my alluding to groups having more to fear than you into your never needing to fear, and second, you transform their fear into the argument itself rather than a motivation to make it. Unless you are claiming equivalent fears *because of* your Whiteness, straightness, and other sources of relative advantage (in which case the failure in empathy would be yours), then we can imagine a brown Muslim lesbian immigrant who also has whatever fears you do. Do you find it arguable that she has more to fear than you, or that she'd likely disagree with your ideas about democracy?

Regarding voter suppression, you've wondered where the numbers I'm referencing could possibly come from while normalizing and affirming disenfranchisement based on criminal record--which is one of the most clearly quantifiable forms of voter suppression! The United States imprisons a higher proportion of its population than any other country on the planet, and those imprisoned are overwhelmingly disproportionately Black, poor, and otherwise minoritized. With laws and their enforcement defined in ways that criminalize large segments of the population, the millions disenfranchised by convictions alone exceeded the House partisan voting gap in 2022. This disenfranchisement is certainly not an international norm. Maintaining the vote for prisoners is the most common approach among democracies, followed by removing it only for exceptional crimes. Only a handful of democracies deny the ballot even after release from prison the way many American states do, and none have comparable incarceration rates.

That's before we even get into voter IDs, roll purges, polling place allottments that make voting convenient for some and a daylong wait for others, the failure to make election day a holiday, and so on. The empirical evidence has confirmed every way from Sunday that in-person voter fraud is a near non-occurrence; Republican leaders know this, and they say the quiet part out loud enough that I'm skeptical how many right-wingers repeating the lie of mass-scale voter fraud are unaware that obstructing opposing voters is the point. In contrast, we have an enduring gap between White and non-White voter turnout (71% versus 58% in 2020) paired with a glut of empirical social science showing voter suppression as systemic across a panoply of laws and practices. I'll wait for a discussion focused on this topic to post a bibliography, but here's one piece regarding explaining that turnout gap in terms of political inclinations rather than difficulty voting: https://www.pnas.org/doi/epdf/10.1073/pnas.2206072119

Regarding votes for kids, no democracy worldwide guarantees the vote to people under 16, but if we were to start, let's have public school counselors vote on their behalf rather than parents. Children whose parents put them into private schools could still set appointments with public school counselors to have their perspectives and interests taken and counted into votes. This seems fair to me!

Neither of these questions of fact matter much to the central argument, but they do surface a difference in reading background. Yours benefits from depth in American Constitutional history and theory, whereas mine benefits from grad study in comparative political science and public policy research in India, Germany, and the USA. This seems to have a significant impact on what arguments make sense to us.

As stated in the prior comment, whether Republicans never once had a legitimate majority in twenty years or whether they had a slight majority the entire time doesn't matter to the crux of the issue. Functioning democracy gives relative weight in compromise, not plurality rule. A steady slight Republican majority would look, at worst, like the Roberts court. I say "at worst" not because a rightward lean is bad, but for exactly the reasoning that you give:

> I'd have to ask why we should adopt a representational view of the courts at all... Just put the smartest and clearest Constitution-explainers on the courts, whatever their partisan affiliation.

You mean the Senate should have approved Merrick Garland? Wait, you don't mean that, because...

> I don't think the Court today should have 5 originalist-textualist justices; I think it should have 9.

There's no international democratic norm around originalism; Canada has living tree Constitutionalism as the law of the land, and a variety of philosophies have support internationally. Multiple hermeneutics have substantive scholarly support in the United States, in addition to the division in popular support. You've selected the one that most often supports your politics and placed it prior to democratic process.

If you think that political fights should happen in the legislature, not the courts, then why on Earth has the right wing spent the last few decades trying to seat Justices who will produce the results they want? By taking your preferred interpretive method and claiming it as the only valid standard, you depict the partisan as neutral. By transforming the Supreme Court into a nakedly partisan instrument, the conservative movement has achieved the opposite of what you say we should aim for.

I don't think the Court should have nine living tree Justices. That would accord neither with contemporary scholarship nor with the balance of ways that Americans read the Constitution. For that matter, I don't think we should have five living tree versus four textualists. That is still "at worst." Ideally, we would have Justices bringing expertise in multiple schools of thought and weighing how different rulings would pass muster with each of them.

Justices also need to have a variety of backgrounds, not so they can represent communities like in Congress, but for diversity in the sensibilities and experiences that render arguments intelligible. We have research that African American judges, independent of political leanings, are more likely to rule in favor of plaintiffs in racial discrimination or harassment cases, for example. It helps to have people who understand how different kinds of excuses to deny humanity operate.

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