I was just reminded of this panel discussion on “conservative and libertarian alternatives to originalism” that I attended back in January. I found it ironic because there was only one libertarian on the panel, and nobody offered any alternatives to originalism. And yes, that’s me talking at 1:04:30.
But what I found particularly amusing and failed to mention earlier were the exchanges at about 1:33:00. There, Orin Kerr and Brian Fitzgerald argue for a wholly “democratic” or “populist” approach to the role of the judiciary, in which there are basically no individual rights that take precedence over the will of the majority, and where the judiciary exists, not to defend the rights of individuals, but to aid the majority in enacting its preferences into law, whatever those preferences might be. David Bernstein observes that the Constitution is itself a limit on democracy promulgated by the people, and asks what a Senator should do if his constituents demand legislation that violates the Constitution, since a generalized commitment to democracy cannot resolve that dilemma. Fitzgerald answers:
Fitzgerald: Personally, I would do whatever my constituents wanted me to do. And that’s the end of the story for me.
Bernstein: And violate your oath of office?
Fitzgerald: No, because—
McGinnis: What about Burke to the electors of Bristol? That’s quite a radical conception—
Fitzgerald: I think I’m the agent of the public. Again, at the end of the day, when you go back and look at some of the founding documents on democracy, you know, that the popular constitutional people have referenced, it’s very interesting what they say to this question, what if, you know, the people want to do something bad? And then the response they always give is, you know what? If the people want to do unconstitutional things, then we’re in big trouble. Because the whole theory that we are promulgating here depends on the righteousness of the people…. I think representatives ought to represent.
McGinnis: That seems surprising, at least, to go back to the original discusssion. Democracy, a direct reflection of the people’s will was a bad word at the time of the framing. Representation was a process of filtration, and that necessarily might lead to a gap between what the popular will was at any time and what representation was. So it seems again, to me, to emphasize the radicalness—that you are a radical democrat that can’t be found anywhere in the founding.
Fitzgerald denies this, but McGinnis is clearly right. Contrary to Fitzgerald’s claim, there was little “diversity of opinion” on that matter at the founding; what is remarkable about founding era writings is the degree of consensus on the importance of limiting the people from abusive and wayward acts. Fitzgerald’s reference to founding-era arguments about the danger if the people persist in doing unconstitutional acts is a reference to James Madison’s comments in the Virginia ratification debate that if there is no virtue among the people, no paper checks or barriers will protect us. But Madison was hardly led by this observation to conclude that the people should be safely trusted with all power, unchecked by judicial or other barriers.
It is a just observation, that the people commonly intend the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do…. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.
McGinnis asks (1:08:00), “Where do you get your democracy imperative? From the Constitution? Or is it just a higher-level policy preference? Because of course you might have an Aristotelian view that it’s better to have a mixed regime, there’s a lot of different views we can have, that’s a policy preference too. I’d understand if you’re getting it from within the Constitution, that may be kind of almost an originalist view, so I’m looking for the foundationalism of your views.” To this, Fitzgerald answers, simply, “I just happen to like democracy.”
That’s it. This allegiance to “democracy,” he as much as admits, is utterly arbitrary and without foundation; democracy is not seen as an instrumental good for protecting individual rights, but as an end in itself, and thus incapable of defending its claims against the arbitrary claims to rule of any tyrant or crackpot. When Orin Kerr basically agrees with this arbitrary position, McGinnis prods: “It’s a little stronger than just people participating, because this goes back to Aristotle’s view of polity, he very much thought there should be a democratic element, but he thought there should be other elements, too….”
Interestingly, Thomas Jefferson had this to say about Aristotle and the other Greek democratic thinkers:
So different was the style of society then, and with those people, from what it is now and with us, that I think little edification can be obtained from their writings on the subject of government. They had just ideas of the value of personal liberty, but none at all of the structure of government best calculated to preserve it. They knew no medium between a democracy (the only pure republic, but impracticable beyond the limits of a town) and an abandonment of themselves to an aristocracy, or a tyranny independent of the people. It seems not to have occurred that where the citizens cannot meet to transact their business in person, they alone have the right to choose the agents who shall transact it: and that in this way a republican, or popular government, of the second grade of purity, may be exercised over any extent of country…. The introduction of this new principle of representative democracy has rendered useless almost everything written before on the structure of government: and, in a great measure, relieves our regret, if the political writings of Aristotle, or of any other ancient, have been lost….
Jefferson being one of the more popular-constitutionalists of his day, nevertheless saw the importance of governmental structures calculated to preserve liberty—not to render the unalloyed and often fleeting and oppressive will of the people into laws and compulsion. And of course the important point here is that while Fitzgerald and Kerr are correct that one has to have some goal to guide the work of interpretation, the Constitution itself gives us that goal: it is in the preamble (among other places, including the Declaration of Independence). That goal is not democracy; it is liberty. The Constitutional order speaks for itself: protecting liberty is its primary goal, and democracy is provided for only as a limited, instrumental good for accomplishing that goal. Fitzgerald basically admits that the goal he selects, democracy, is a matter of arbitrary preference. But he accuses everyone of adopting arbitrary preferences, and that is incorrect. A libertarian constitutionalism, with a robust power of judicial review to limit government’s actions to preserve individual liberty, arises not from an arbitrary preference, but from the Constitution’s own explicit and implicit commitment to a classical liberal conception of individual freedom.
Given Fitzgerald’s ultra-democratic views, McGinnis also asks him (at about 0:46:00) why he believes in judicial review at all. “If your goal is restraint and democracy,” he answers, “then I think it does lead you to the popular constitutionalists who question judicial review.” Indeed, it makes you wonder why there’s a Constitution at all.
(Cross posted at Freespace)