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Does the Supreme Court Have a Counter-Majoritarian Difficulty?
By Anonymous, October 13, 2010 in Outside the Classroom

In 1961, Yale law professor Alexander Bickel wrote what would become the dominant work of constitutional theory for the next half century.  Borrowing a phrase from Alexander Hamilton in Federalist 78, Bickel’s book, The Least Danger Branch, argued that in a democratic society - a society in which decision-making is made through institutions that aggregate the preferences of the majority - popular sovereignty will dictate that one have some sort of rationale as to why judicial review is legitimate.  Bickel’s book arrived on the scene just as the Warren Court was trying to rebuild its legitimacy - in the face of challenges to its decisions in Brown v. Board of Education (1954/1955) and Cooper v. Aaron (1958) – and today it is hard not to read his book in the light of that history.  But whatever the historical context within which Bickel wrote his book, and whatever his reasons for writing it, the notion that the Supreme Court has a counter-majoritarian difficulty that poses a fundamental challenge to the legitimacy of Court has remained with us.

But is such a view right?  I would like to briefly suggest that seeing the Court through the lens of the counter-majoritarian difficulty distorts its role in American government and history.  Further, there may be a fundamental conflict between the moral intuitions that sit behind notions like the rule of law and democracy, such that looking at the Court from a counter-majoritarian point of view, leads us to focus on the wrong set of issues when we try to evaluate its role in American government.  So, I'll briefly say something about that too.   

The first thing to notice about the counter-majoritarian difficulty is that it takes a proceduralist, majoritarian, and interest group pluralist point of view toward the notion of democracy.  It is because of this picture of what a democratic society is and should be that there is thought to be a counter-majoritarian difficulty in the first place.  From this point of view, extra-proceduralist values – values about the dignity of human beings, or substantive values associated with higher law, for instance – operate independent of democratic government, and thus of themselves lack democratic legitimacy.  And so, to the extent that judges draw on these extra-proceduralist values to overrule democratic majorities, they have a counter-majoritarian difficulty.

Yet if the relevant issue is democracy, not majoritarianism, the it's important to note that democracy need not be thought of along these lines.  Democracy, most broadly defined, is a system of political legitimacy where decisions are collectively binding if the arrangements that give rise to them give equal consideration to the interests of each person bound by the decision.  But thought of thus, “giving equal consideration to the interests of each person bound by the decision” in no way entails that government simply aggregate the given interests of its citizens.

Indeed, as James Madison realized – following the natural law theory of Grotius, Pufendorf and Locke – human beings have an unsociable social nature; and it is the aim of government to filter these unsociable and at times irrational passions, such that the sociable nature of humanity finds common cause.  As he says in Federalists 55: “as there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust, so there are other qualities in human nature, which justify a certain portion of esteem and confidence.”

Madison realized that the unsociable sociability of human nature required not legislative omnipotence – which, as he noted in his Vices of the Political System of the United States, caused multiplicity, mutability, and injustice in laws (the last being the worst, because it undermined the very foundation of republican government, by showing that the majority who rule are not the safest guardians of public good and private right).  Instead, what was required was a system of government that would, as he says in Federalist 10, “refine and enlarge the public view…”

The complicated system of checks and balances - with sovereignty divided between the states and the federal government, and the three separate but equal branches of government - were each intended, from the Madisonian point of view, to filter the passions and interests of individuals and groups, so that they might find, what Woodrow Wilson called, “common counsel.”  This process of coming to one mind, so to speak, within a democracy was not a process of aggregating individual preferences.  It is not, Wilson said, "a sum in addition, counting heads.  It is compound out of many views in actual contact; is a living thing made out of the vital substance of many minds, many personalities, many experiences.”  Democracy thus may be thought of as a culture, a history, of free institutions, which allows for the equal consideration of its citizens’ points of view and interests, so that they find common cause with one another.  Thought of this way, the Supreme Court may be anti-majoritarian, but it need not be anti-democratic.  Indeed, the Court may help filter and structure the process whereby a democratic society finds “common counsel.”  To take this story further – the story of how the Supreme Court fits within the Madisonian republic – would require more space than we have here.  But the important point to see is how narrow and limiting the view of democracy and American government is which the counter-majoritarian difficulty presupposes.

Still, there is a further and perhaps more fundamental problem with using the counter-majoritarian difficulty to frame the role of the Supreme Court in American politics and history.  The fundamental normative aim of political science – and ideally of public policy – is to establish good government.  Yet good government may require more than just democracy.  Thus, it may be best to say that while democracy is a necessary condition, it may not be a sufficient one for good government, and that human rights and the rule of law should in some situations limit presumptive claims to democratic legitimacy.  And yet if that is in fact our situation, then we may simply be forced to accept the wisdom of Isaiah Berlin: because we have plural and conflicting political values, we may be forced to choose between them.  If so, and the cases are very hard ones, then we will have to learn to live with loss, regret, and perhaps even tragedy.  From this point of view, to say the Supreme Court has a counter-majoritarian difficulty is simply be to focus on the wrong set of issues.  Instead, we ought to acknowledge the plural and conflicting nature of the values our political tradition has given us, and own up to the fact that difficult trade-offs will have to be made.

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Lee Trepanier on Oct 14, 2010 at 10:44 am

I wonder whether the court is the best institution then to resolve these conflicting political values. Isn't the better institution to resolve these issues the legislature; and if so, then what role does the court play, if any?

Patrick Peel on Oct 14, 2010 at 3:34 pm

Thanks for the question, Lee. You raise an important and fundamental point. One idea about the justification of and guide for judicial action is the notion - popularized by J.H. Ely in his book Democracy and Distrust (1980) - that the judiciary can make up for defects in the ordinary operation of representative government. I wasn't going quite that far in my piece. Still, I was suggesting that the democratic legitimacy of the Court hinges to some degree on how one defines democracy in the first place. A broader more Madisonian republican conception makes understanding the role of the Court in American government and history easier and less problematic, I think, that the narrow majoritarian conception of democracy the counter-majoritarian difficulty presupposes.

But your point is a more fundamental one - namely, say the values of the rule of law and human rights conflict with those of democracy, then who is to decided? Is the Court or the legislature a better institution? My own view is that if and when we find ourselves in such situations - even if we think of democracy along Madisonian republican lines, rather than majoritarian lines - there is still unfortunately no good answer. There will have to be trade-offs, and in making such trade-offs, we may make mistakes. Further, we should probably accept that fact, and recognize the tragedy of political decision-making at times, rather than try to paper over such conflicts in our self-identity as liberal democratic citizens. Likewise, there is no good answer as to which institution will do the best job relatively speaking in such a situation... The best we can probably hope for is that our culture is vibrant enough, so that these institutions function as best they can.

Lee Trepanier on Oct 15, 2010 at 10:41 am

I wonder whether a revival in federalism might be a better solution than an institutional one (courts vs. legislature). Why not limit the role of the national government to certain public policy areas, like trade, defense, and leave social policy to the states? But if this were the case, what role should the national government play say in the enforcement of civil rights and liberties, especially in a country with a history of segregation and slavery?

Anonymous on Oct 15, 2010 at 1:21 pm

An interesting argument here. One might note, in conjunction with it, that there is no such thing as pure proceduralism, proceduralists notwithstanding (I know those exist, I've even seen a few). Madison clearly rejects mere majoritarianism or what I've come to call unconstrained majoritarianism in favor of constrained majoritarianism. He seeks to prevent governance by majority factions, which are majorities animated by the passion of the moment or a short-term and narrowly distributed majority and to promote governance by majorities that are long-term and broadly distributed. His goal is that the deliberate opinion of the public prevail over the views of their rulers. He promotes deliberative majorities because he thinks deliberate public opinion more likely to be consonant with reason, justice, truth, and the common good (or public welfare). But, of course, you cannot distinguish some majorities from others on the basis of majority will (just like you cannot distinguish some exercises of will from others on the basis of will alone). For such a distinction to be intelligible, it must be premised upon the existence of an objective (or real) and substantive good--which is what I argue in Uncovering the Constitution's Moral Design.

So far we're in agreement--you need moral realism and even natural law to make sense of Madison's view of majority rule. And, moreover, it seems that the counter-majoritarian difficulty framed by Bickel may apply only to unconstrained majoritarianism (or mere majoritarianism, if you will). But I think I discern an important point wherein we may disagree as well. For it seems to me that if (as I would argue) distinguishing some majorities from others (by favoring some and promoting others) requires a view of the good and even a theory of natural law, then I think the theory of natural law required must be a workable theory of natural law. And here I think a problem emerges. If Madison relied on the theories of Pufendorf and Locke then he relied on theories of natural law that are putatively voluntaristic in nature (clearly so in the case of Pufendorf and arguably, though less clearly, so in the case of Locke). But ethical voluntarism is self-referentially incoherent (as is conventionalism--for reasons elaborated in Uncovering). So if the Constitution rests upon the theories of natural law elaborated by Pufendorf and Locke, then we're in some trouble. I leave Grotius out here just because the matter with Grotius is murky indeed. I read him as a realist of the Suarezian variety. But I concede that the matter is vexed.

No, there's good news here. The Constitution's view of natural law is not just the same as the framer's view of natural law (whatever that is, since different framers seem to have had somewhat different views concerning natural law and its ontology). To conflate the two would be at a minimum to commit the genetic fallacy. But I think it would also be to commit the fallacy of equivocation and to commit a modal mistake of the first order. It is true that we must rely on a realist theory of the common good and, I think, of natural law in order to make sense of the Constitution's constrained majoritarianism. But we need not assume that the Constitution's theory of natural law is just the same as Madison's theory of natural law, if Madison's theory is that of Pufendorf and Locke (though I think it apparent that Madison didn't think too much about the ontology of natural law, first rate political theorist though I think he was). The Constitution may in fact have a better theory of natural law. The framers may have built, as Brownson says, better than they knew. In Uncovering I make an analytic argument that they did.

Even so, I think we should celebrate Madison's affirmation in Federalist 51 that justice is the end of government and of civil society, that justice is ever pursued until it be obtained or until liberty be lost in the pursuit. And his affirmation in the same essay that in the extended republic of the United States, majorities will seldom form on any other principles save those of justice and the general good.

Patrick Peel on Oct 21, 2010 at 11:05 am

Thank you very much for your thought provoking and insightful comments. Now I must read your book! Just a couple of quick thoughts... I don't know Madison's position on voluntarism (although one would have thought he would have rejected it.) I would be curious to know if Jack Rakove has an insight into the matter - perhaps a question for him at some point. But I very much suspect that you are right - Madison probably just didn't think too much about the ontology of natural law.

My saying that Madison was following the natural law theory of Grotius, Pufendorf, and Locke was intended to highlight that I hear in Madison (although I am no expert on the subject) what Jerry Schneewind has called the "Grotian problematic" - namely the project of discovering empirical rules that help human beings live together and negotiate their unsocial sociability. I remain agnostic - contra Schneewind - as to whether this tradition in fact entails the further idea that there is not one good life to live or one good society to seek to promote. Schneewind thought Grotius' engagement with European skepticism (not a feature of traditional natural law theory), and his concern to resolve disputes between Protestants and Catholics, each of whom took the Bible as authoritative, encouraged Grotius to reject the divine manager theory of the universe, and set aside any substantive conception of the good.)

If one takes the Schneewind point of view on this tradition, then one need not say - assuming that Madison is embracing this tradition - that in order to distinguish differing types of majorities one needs a substantive conception of the good. If one thinks the "Grotian problematic" never did break free from a substantive conception of the good, then for Madison to be coherent he would indeed have need of some such means for distinguishing "good" from "bad" majorities.

Without taking a stand on Madison's conception of the good, one thing does seem fairly clear to me. Madison believed - and it in fact it seems a premise of his argument - that one could know the "public interest." Yet today, in the face of moral relativism, and the rise of interest group politics, among other cultural forces, the idea that citizens can know the public interest, independent of majoritarianism, has been seriously weakened. And yet, without someway to think about the public interest, Madisonian republicanism may seem sadly utopian. Still, there may be, as you suggest, some good news here - the framers may have built, as you say quoting Brownson, better than they knew. And if so, we may still find within our traditions resources to enliven our civic and moral lives.