Cultural and political trends make the position of traditional believers increasingly precarious, and these trends inevitably manifest themselves in our law.
Over the weekend the New York Times published another in its stream of op-eds about how democracy is endangered by President Trump in particular and populism in general. I am not a great fan of either the President or of populism, but these articles share a blind spot. Democracy has been endangered and populism enlivened by the relentless rise of institutions which elites use to insulate issues from democratic contestation without ever gaining the substantial constitutional consensus needed to put these issues off limits. In other words, populism is in large measure a reaction to extra-constitutional constraints on democracy.
The idea that elites are limiting democracy worldwide through maintaining relatively unconstrained judicial power is the subject of Ran Hirschl’s Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Despite some weakening of that trend in the United States because of the rise of originalism, fear of juristocracy was still instrumental to Trump’s victory. In the year before the election the Supreme Court discovered a previously unknown right to same sex marriage in the Constitution, ending state by state democratic debate over this social issue. Of even more concern for the members of religious groups who went on to support Donald Trump, President Obama’s Solicitor General implied that the government might withdraw support, including tax exemptions, from private institutions that did not go along with this new regime.
Enforced multiculturalism, including affirmative action at governmental educational institutions and legal norms that encourage race conscious hiring, is another fundamental social policy that has been implemented by elite institutions without much democratic input. The Supreme Court interpreted the democratically enacted Title VII that by its terms prohibits discrimination in employment to instead authorize affirmative action in United Steel Workers v. Weber (1979)—an opinion accurately characterized by William Rehnquist in dissent as “a tour de force reminiscent not of jurists such as Hale, Holmes, or Hughes, but of escape artists such as Houdini.” Administrators at state universities impose what increasingly resemble quotas for certain preferred racial and ethnic groups. These policies, to put it mildly, also lack democratic support: voters reject governmental race consciousness in hiring and admissions, whenever they are put to a state referendum.
To this list of social issues, one could add regulation by the administrative state of housing and small businesses, such as expansive environmental regulation that has never been voted by Congress, but made possible by open-ended delegation of power. Some of these elite actions are outright usurpations of the democratic process while others test the outer limits of democratic norms. But all are end-runs around the messy process of building a social consensus. As a result, they foster political alienation and fuel populism.
I am not an expert in the politics and laws of other nations. But my sense is that there, too, populism is also a reaction against similar trends, particularly an elite-imposed multiculturalism of coercion, as I have called it, to distinguish it from a multiculturalism of liberty.
Some rights do need to be put beyond the vicissitudes of ordinary democracy, but those limitations must themselves be enacted by the people using the appropriate procedures of constitutional democracy. Populism today in no small measure reflects the failure of elites to respect the proper boundaries of constitutionalism.