Originalism was the way Constitutional law was done until the progressive era came up with the idea of the living constitution.
A common Progressive-era complaint advanced that the Constitution’s framers were overly suspicious of democracy. George Norris, a leading Progressive Senator, bluntly argued in the 1920s and 1930s that while the Constitution was an advance in democracy for its time, it created too many checks and balances on majority will, it created too many barriers to legislation in the modern era. (He thus advocated legislative unicameralism and opposed activist judicial review, among other things.)
The irony of course is that the Constitution’s framers largely conceived their project as one of perfecting and preserving democracy rather than undermining it. And the irony is that Progressives today manifestly seek to limit democracy when calculated to achieve their policy goals. Conservatives do that as well. But when they do it Progressives accuse them of being “anti-democratic.” This is correct in some ways, as it is with Progressives as well, but is incorrect in other ways.
First, at its broadest, there is the issue of the range of meaning in the word “democracy.” It is a modern god-term, meaning that moderns often use it simply to designate something as good. Hence, North Korea’s official name is the “Democratic People’s Republic of Korea,” with both “Democratic” and “Republic” thrown in for good measure. So labeling something or someone as “antidemocratic” or “undemocratic,” or even wondering about aspects of democratic rule, means that thing or person so labeled is really baaaad.
That romantic notion of democracy proceeds from a jumble of concepts existing in tension with one other. To wit, in the West, “democratic” is already a synthetic combination. We usually mean some form of liberal democracy: a robust form of majoritarian decision making combined with a robust recognition of a set of individual rights.
There’s the rub right there, though. “Rights” are things that, except under unusual circumstances, are not normally subject to majoritarian determination. Democracy, understood as majority rule, can easily entail distinctly non- or even anti-liberal outcomes. Sketching the constitutional line between what policies can be decided by majorities and what policies must be immune from majoritarian decision making has been a matter of judicial controversy for more than a century. Most of the Supreme Court’s most controversial decisions derive from drawing new constitutional lines distinguishing what’s protected from majoritarian decision making and what is not.
The legal academy terms this problem the countermajoritarian dilemma. Interestingly, it’s not named the “antidemocratic” dilemma. That would be too pointed. While many modern academics who draw new lines nonetheless denounce the constitutional framers as anti-democratic, in fact their project is the same in one way as the constitutional framers’ project: to perfect democracy in their lights, making it a sustainable program.
To be sure, today’s two-tiered judicial review extends little protection to the economic rights the founders thought vital to protect. Felix Frankfurter did not think serious judicial protection of economic liberties should be provided because they “derive merely from shifting economic arrangements.” Nonetheless, in the second and third paragraphs of Carolene Products’ famous Footnote 4 the Supreme Court in dictum articulated a theory of rights that need to be protected by courts from regulation by popular majorities. It is manifestly antidemocratic, but the Court, and academic and legal supporters, argue that that is a good thing. It’s not being antidemocratic that is the problem for Progressives, despite the rhetoric, it’s what one seeks to reserve from majoritarian decision making. Suggesting that economic rights be even modestly protected from majoritarian whim is baaaaad countermajoritarianism.
But why the distinction? Frankfurter complained that even legal formula summarized “by the phrase ‘the preferred position of freedom of speech’ . . . expresses a complicated process of constitutional adjudication by a deceptive formula. And it was Mr. Justice Holmes who admonished us that ‘To rest upon a formula is a slumber that, prolonged, means death.” He added, “Such sterile argumentation treats society as though it consisted of bloodless categories.” Needless to say, Frankfurter did not end his career as the Progressive hero that prompted his appointment in the first place.
In addition to the occasionally oxymoronic “liberal democracy,” “democracy” is also often taken to refer not to actual decision making, but to a deliberative process almost untethered to decision making. The idea is deliberation can build consensus, and allow opinions to converge.
This, too, is often premised on too-rosy a view of human nature. After all, discussion, rather than leading opinions to converge can instead lead to the hardening of divergent opinions. Pinpointing the time in which more deliberation is useless, or even harmful, is a problem, however, even assuming benign motivations on the part of the majority when deciding to shut down debate.
Finally, as we do individually, as a society we can recognize that it’s sometimes best to restrict our future choices. In our individual lives, the ubiquity of enforceable contracts demonstrates the common sense point that we can create better futures for ourselves by today taking some choices off the table. Commitments today can leave us better off tomorrow. A contractor won’t fix the roof unless we commit to paying what we agreed. (Or, in the obverse, we won’t pre-pay the contractor unless he can commit to performing the job we paid him for.) We tie our hands in order to make credible commitments that leave us better off.
So, too, socially, a community can create a better future for itself, as it were, by tying its hands today. The law of the contract is the epitome of free action, despite that it limits action in the future. One of the purposes of constitutions is to make commitments that leave the community better off. This decision is not anti-democratic, it is the perfection of democracy.