Madison’s Majority and Originalism’s Judicial Dilemma, Part III

Mike Rappaport raises some tough questions about the conservative case for majority rule and, with it, judicial restraint.  But they strike me as fundamentally consequentialist questions converging from two directions: first, the contingent fact that the Supreme Court happens now to lean conservative and thus might be inclined to confine left-leaning majorities, and second, the fact that majority rule does not necessarily produce conservative results.  Both propositions are true.  But neither refutes my claim that majority rule itself is a conservative principle even if it sometimes produces unconservative results.

Mike says a conservative jurisprudence distinct from originalism would have to include meaningful limits on the legislature, “constitutional provisions that incorporated traditional provisions” and evolved “only gradually,” federalism and, finally, mechanisms for building consensus.

With the exception of “traditional provisions”— judgment withheld here pending what exactly that entails—all this seems completely compatible with what I described as a conservative case for majority rule.  But none of it answers the nagging question of who precisely judges the limits on the legislature and the boundaries between the national, state and local governments.  Before we lurch for the “courts” button, it’s worth recalling a few facts.

One is the basic precept never to trust a transient authority with a power one would not entrust to someone with whom one disagreed.  The fact that originalists have a tenuous foothold on the Supreme Court today is contingent and fragile.  He or she who endorses conservative activism today has no principled basis on which to object to liberal activism qua activism tomorrow.  Related to that question is why, exactly, we should expect jurists as a general rule, not at this moment in historical time to be any more disposed toward the principles Mike adduces than majorities, especially if (see below) those majorities are institutionally encouraged to behave reasonably.  If majorities fail these principles, one has the option to persuade them to reconsider; if judges do, the game is over.

Finally, there is the question of democratic legitimacy.  It is tempting to dismiss democratic legitimacy as a progressive objection, but its provenance is decidedly Madisonian.  Madison raised serious questions about the legitimacy of courts overturning the will of Congress.  His preferred model was his failed proposal for a Council of Revision, which would have involved judges in passing constitutional judgment on bills pre-enactment, when Congress could still render the final say.  This, to repeat, was not to say judges were to do nothing.  Madison was clear that they should, for example, police separation of powers disputes such as are raised by the recent recess appointments controversy.  The problem with legitimacy arises when judges overturn the will of democratic majorities as expressed through Congress.

If judges were not to police the boundaries of majority rule, then, who would?  Madison’s answer was majorities themselves.  He went so far as to accede to the constitutionality of the Second Bank on the grounds that persistent majorities could even render a suspect act of the legislature constitutional by consistently ratifying it through all three branches of government over a prolonged period.  His point was that persistent majorities ultimately bore responsibility for constitutional interpretation.

Mike notes, correctly, that judicial restraint permitted the New Deal[1], which makes advocates of restraint like Robert Bork the ironic descendants of progressive jurists like Holmes and Brandeis.[2]  But all of them are heirs to Madison.  It is true, as Mike notes, that a conservative like Burke championed majority rule only within the context of other limiting arrangements.  But the American system does not draw on the same social sources, and therefore limits, as the British Constitution: as Madison noted, the puzzle to be solved was that all three branches of government ultimately arose from the same source—the people.

The Constitution’s solution was to require precisely these sorts of enduring rather than transient majorities—witness, for example, the Senate’s six-year terms.  The idea is that persistent majorities are likelier to behave reasonably and to recognize their long-term interest in respecting other people’s rights.  Mike’s principles for a conservative system of majority rule might easily flow from these arrangements.  Either way, the question is not whether the scope of the legislature ought to be limited.  It is whether majorities so constituted or unelected and unaccountable judges are likelier to respect the principles Mike elucidates.

One final point, suggested where I began: I would not judge the conservatism of the majority principle by whether it produces conservative results at any given point in time.  The fact that it produced the New Deal, for example, does not impugn majority rule itself.  As Mike notes, I follow Kendall in tracing the case for majority rule to Aristotelian premises about man’s political nature and the costs of living in a political community—one of which is accepting results one would not prefer.

[1] Yet the New Deal, too, has the same support of enduring majorities that the Second Bank enjoyed, and I would defy anyone to point to someone in the mainstream of politics in either party who questions its basic premises: a Republican opponent of Social Security, for example.  On Madisonian premises, it is now constitutional.

[2] Incidentally, I have a pet hypothesis that had he gotten on the Court, cleavages would have opened between Bork and Scalia that would have illustrated the tension I posit between restraint and originalism—but that’s a post for another day.

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