Neo-Majorityism
At some point over the next century the age of judicial supremacy will end and we will go back to respecting the will of the majority, favoring the long-term majority over the short-term majority.
In nations like Hungary it was too easy to amend the Constitution and so when Fidez gained power in 2010 they were able to amend the Constitution and transform Hungary into a dictatorship. In the USA it was too difficult to amend the Constitution and so, faced with the crisis of the Great Depression, the USA had to abandon the idea of a written Constitution and instead adopt the doctrine that it was a "living document" that should be grown via court precedent. The Supreme Court was threatened with "court packing" if they failed to give FDR the power he needed to save the nation from the Great Depression. The court then adopted what seemed like a bad faith interpretation of the Interstate Commerce Clause to greatly expand the power of the Federal government. This allowed FDR to end the Great Depression and also win World War II, but it transformed the Supreme Court into The Committee To Amend The Constitution.
Clearly, there must be some ideal speed at which a Constitution changes and that speed must be somewhere between the extremes of Hungary and the USA. We discussed this in detail in “There is one correct way to amend a Constitution.”
The era of judicial supremacy, depending on how you want to define it, can be said to have started in 1803, when the Supreme Court decided Marbury v Madison and so gave itself the powers of a Constitutional Court, or judicial supremacy can be said to have started during the civil rights revolutions of the New Deal era, 1932 to 1968, which gave us the expanded “substantive due process” that gave us this modern era of lawsuits, an era in which the will of the legislature is easily and frequently sabotaged by lawsuits.
I have no idea how long the era of judicial supremacy will last, but I suspect that at some point over the next century it will come to an end, replaced by a new kind of majorityism that explicitly favors the long-term majority over the short-term majority. For instance, the rule could be "To amend the Constitution, the legislature must pass the amendment by a simple majority, then it must wait 10 years, then it must vote a second time, and the amendment must win a second time by simple majority, at which point the amendment is ratified." This rule would have been enough to protect Hungary from the Fidez takeover in 2010, as their amendments to the Constitution would not have had a chance of passing till 2020, by which point the public of Hungary might have well shifted to a different mood. But likewise, such a rule would allow the USA to move much more quickly to pass amendments that hold a consistent majority for a long period of time. As an example, Roe vs Wade could have been a Constitutional amendment, since it was was supported by the majority for a very long time (abortion rights still have majority support now). And more so, the role of the court would become smaller if it was understood that the legislature was better able to adjust the Constitution to changing circumstances. (In most European countries, the constitutional courts play a smaller role because the legislature has an easier time amending the constitution.)
The Founding Fathers of the USA had the sense that any particular, current, short-term majority could be dangerous, and so they created the Senate with long terms of office (6 years) and, crucially, staggered elections, so that the Senate never represents the outcome of any one election. Instead, the Senate represents a majority that is the outcome of 3 elections over 6 years. This concept of the Senate was one of the best ideas in the original Constitution, and we should be eager to expand upon it. Perhaps even longer terms, with additional staggering of the schedule, would allow the public to trust the legislature with matters of civil rights, and thus allow the public to support a shift of power from the courts and to the legislature.
All Western political theory begins with the death of Socrates. He was a philosopher who asked daring questions, and encouraged everyone else to also ask daring questions, to question the gods and to question tradition, and this made the people of Athens uncomfortable, so the democratic people of Athens got together and democratically voted to murder Socrates, who was then sentenced to death. He was given the option to be killed or to drink hemlock himself, and he chose to drink the hemlock. He gathered his friends and students around and up till the last moment he extolled those axioms that justified a belief in the immortality of the soul. And then he was dead. He had a student named Plato who watched this democratic murder and who concluded that a democracy could be as illiberal and unjust as any tyranny. And so in modern era, starting in the 1600s, Western political theorists have not aimed at pure democracy, but rather, “liberal democracy” with the “liberal” indicating that the political system must have some protections for those who have unpopular opinions. After all, there is no point advocating for democracy if we are simply going to murder Socrates again.
Those Athenians who were most likely to hate Socrates were the ones who showed up to vote against him, therefore the trial of Socrates had the characteristics of a direct referendum. As we’ve studied before, direct referendums are often anti-democratic. The example that we looked at in earlier essays:
a normal election happens, and 70% of adults vote, and one party wins 60% of the vote, and therefore represent 60% of 70%, which is 42% of the adult population.
the victorious party passes a law
some group hates the new law and so, to destroy it, they campaign for a referendum and successfully get it scheduled.
only highly motivated people participate in the referendum, so 40% of adults vote, and 60% vote against the new law. That's 60% of 40%, which is 24% of the adult population.
So a law supported by a party that won 42% of the population has now been defeated by just 24% of the population. Is this real democracy? See Should populist techniques, and direct referendums, be part of the progressive strategy?
Despite the wisdom of the Founding Fathers, and despite the careful and detailed criticism of democracy that Western political theorists have offered repeatedly for the last 2,500 years, over the last 100 years most Western democracies have moved towards a populist style of democracy that tends to favor short-term majorities. And then, confusingly, to balance out the recklessness that they have deliberately sought for the legislature, many nations have given greater and greater power to the judiciary so it can veto the populist stupidity and cruelty of the legislature.
We have been stuck in an endless, recurring loop:
Let’s make our society more democratic, with shorter terms or direct referendums.
Whoa, these laws are stupid and cruel and have unintended consequences that we never thought about. Let’s empower the courts to veto these stupid, cruel laws.
Let’s make our society even more democratic, with even shorter terms and even more direct referendums.
Whoa, these laws are stupid and cruel and have unintended consequences that we never thought about. Let’s further empower the courts to veto these stupid, cruel laws.
There is a better way. The idea was already there in the design of the USA Senate. We can move power from the courts back to the legislature, so long as the legislature represents the long-term majority, rather than the short-term majority. We can go even further than what has been enabled by the design the current Senate. Perhaps terms-in-office should be for 8 years, or even 9 years, staggered over 3 or 4 elections. There is also an argument for term-limits. An interesting scenario, which should be considered, would be terms-in-office of 11 years, but with the Senator limited to just one term — no one is allowed to run for this office a second time. They just get one very long term to try to do some good, and then they must go home. This idea would potentially cut down on corruption, as Senators would no longer have the excuse of fundraising for re-election — there would never be any re-elections for any Senator.
These 3 things are certain:
We do not want to murder Socrates again, therefore we do not want to empower a short-term majority via a direct referendum, nor via a legislature elected to short terms-in-office.
It is frustrating that the will-of-the-people, as expressed through the legislature, is so easily sabotaged by lawsuits, thanks to our modern expanded “substantive due process.” Lawsuits are expensive and slow, and as a method of governing, inflexible.
There is a path forward that would allow the majority to rule directly, with less interference from the courts, so long as the public understands that it needs to be a majority built over many years, rather than a majority arising from a single election.
On a personal note, I hope to find time next year to start promoting the idea of this kind of change in states such as New York, New Jersey, Vermont, maybe New Hampshire. I don’t expect to make much progress on the Federal level at any time over the next 20 years, but I think it might be possible to get a state government to experiment in this direction, and if any state government is willing to try this experiment, it can open the door to more experimentation, perhaps over the next 50 years, in more states, and we can hope that such examples on the state level might eventually allow some changes at the Federal level.
A final thought about the right balance between the majority and the judiciary. We should consider a man who some progressives consider a villain, who fought against the early part of the Civil Rights movement, Felix Frankfurter, who FDR appointed to the Supreme Court.
Frankfurter’s commitment to seeking truth sustained his enduring commitment to democracy. Unlike his avowed idol,14 Justice Oliver Wendell Holmes, Jr.,15 Frankfurter was a “stark empiricist”16 and a firm believer in “objective truth.”17 And he insisted that the American people, not judges, were the most capable of realizing truths at scale and thus achieving socially optimal outcomes.18 It followed that unelected judges should get out of their way.
But to hold fast to this “democratic faith,”19 at times Frankfurter broke with its very foundations: he often did not apply his belief in the need to seek, find, and then live by objective truths to questions of constitutional law. Frankfurter was devoted to Professor James Bradley Thayer’s theory of judicial restraint, which prevents judges from invalidating democratic legislation even if they believe it might be unconstitutional.20 The judge’s own sense of true constitutional meaning in close cases is irrelevant; he can set aside legislation only if its unconstitutionality is “clear beyond a reasonable doubt.”21 Such judicial restraint — to which Frankfurter was explicitly committed22 — is not grounded in a belief that the people are superior interpreters of constitutional meaning. Rather, the theory posits that often there is no constitutional meaning clear enough to constrain the democratic branches — especially when those branches come into conflict with individual rights.23
Frankfurter was appointed by President Franklin Roosevelt. Part of FDR’s coalition was populist and favored majority rule in all things, and Frankfurter represented those tendencies. He is now remembered as one of the last Supreme Court justices who fought against the Civil Rights revolution of the mid 20th Century.
His feeling that the Constitution is sometimes ambiguous, and cannot be deciphered, is something we should all take to heart. His idea that, in such cases, we should defer to the majority of the legislature, rather than the majority of the Supreme Court, is deserving of review. I’ve previously written “There is one correct way to amend the Constitution” in which I suggested two majority results, separated by time, would bring society the happiest results. But what should we do when we need an immediate answer to an urgent legal question? That is, what should we do when we cannot wait? In such cases, it might make sense to demand a super-majority from the court. That is, if the Supreme Court is going to overturn the will of the legislature, then the Supreme Court should only be allowed to do so with a super-majority. This, too, would help end the era of judicial supremacy, and therefore it would help re-establish some balance of power between the legislature and the judiciary.