Neo-Majoritarianism
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. 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 expansive doctrine of “substantive due process.”
An expansive understanding of due process has given citizens more ways to block the action of the government. In theory, this is what guarantees us our human rights in the modern era: that is the main justification for expansive due process, that it ensures our rights and therefore our freedom. Especially when we are in the minority, an expansive understanding of due process is our only protection against the violence and bigotry of the majority.
And yet, we also have a right to vote for a government, and we also have a right for our policy preferences to be given weight if our vote was part of the majority that has created the current government, and therefore an expansive understanding of due process actually interferes with some of our rights. We have a right to efficient government, but an expansive understanding of due process can limit the efficiency of government.
An example. If the majority of town citizens are eager for a better connection to a neighboring town, and they elect a town government that promises to build a road connecting the two towns, how much should those who disagree be allowed to slow the construction of the road? An expansive understanding of due process gives opponents of the road many ways to forestall the new road: lawsuits focused on the procedures of the vote, lawsuits focused on the way the money was appropriated, lawsuits focused on the use of eminent domain to buy the land, lawsuits that raise environmental issues that are relevant to the road’s construction. They majority may want this road built urgently, but the minority who disagree can use our modern, expansive understanding of due process to delay the construction for many years. Does the majority have rights in this matter that should be respected? Is there a way to protect those in the minority while still allowing those leaders who represent the majority to act in an expeditious manner?
But wait, let’s take a step back. What, exactly, is it about the courts that make them better protectors of human rights than the other branches of government? Why is the Judiciary seen as being serious about human rights, while the Legislature and the Executive branch are seen as callous?
Clearly, a contributing factor is that judges are appointed either for life or for very long periods. As such, they are seen as protected from short-term populist pressures. If the public is angry about some hot-button issue, such as Muslim terrorists, and the legislators are under pressure to prove they are “tough on Islam” there is a hope that the judges in the judiciary can exercise cool restraint. The judges are not fearful of their next election, so they can think about what is best for the long-term health of the nation. Or at least, this is the common understanding of the difference between the judiciary and the legislature. All of which should have us wondering if it is possible to build a legislature that better resembles the judiciary. And if so, could power be moved from the judiciary to the legislature without endangering the rights of minorities?
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 support from 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. (For both good and ill, in most European countries, if they have a constitutional court, 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 to the legislature.
That’s the basic argument, in a nutshell.
You can stop reading now, if you wish. What follows is only some auxiliary thoughts, a bit of history that further supports the main point.
Western political theory begins with the democratic murder 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.
The long-term majority is wise. The short-term majority is evil.
Nowadays, most of us would be horrified to let an individual’s life be decided by way of a popular referendum. On some level, most of us have the intuition that the outcome of a referendum can be arbitrary, and therefore its use is unethical when deciding a person’s fate. And yet, there are many who feel that referendums are useful to decide other important issues.
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?
In truth, referendums are an unethical way to kill a man, but they are also an unethical (and anti democratic) way of setting tax policy, environmental policy, labor policy, transportation policy, or any other law.
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 either the legislature or via direct referendums, many nations have given greater and greater power to the judiciary so it can veto the populist stupidity and cruelty of the laws created.
We have been stuck in a recurring loop, in which groups react to the most recently observed flaw in the political system, with each group making the following arguments, at various times:
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, and staggered over 3 or 4 elections. There is also an argument for term-limits. An interesting scenario 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.
Every time I mention the idea of longer-terms-in-office someone asks “But how can we (the voters) punish the politicians if the politicians serve for long-terms in office? Wouldn’t it be better if we elected them for each year, one year at a time, so we could have better control over them?”
Two responses:
Why do people raise this concern about legislators but not judges? Would you prefer it if judges were elected every year, and had to do whatever the voters wanted? If so, why don’t we get rid of the legislators and the judges and allow the people to vote on everything directly? Ah, but then we go back to murdering Socrates, and pure democracy proves again that it can be as illiberal as any dictatorship. The real question should always be how we can bring democratic accountability to a system that is more liberal than the one we have today.
How can the voters punish the legislators for specific things that the legislators have done? The voters never do this, a point that Achen and Bartels make, over and over again, in their book Democracy For Realists. See “Do voters keep track of what politicians do? For the most part, no.” How the public controls the political system is a complex topic. See Control of a political party entails engagement in the guts of its system of committees for one example whereby ordinary citizens can exert some control.
So, to recap, here are three ideas to consider:
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, expansive “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.
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
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. His argument, somewhat philosophical, was that some evolutions of thought, to be meaningful, had to arise in the majority of the population. But let’s go beyond his philosophical misgivings to consider the practical question: are the courts actually equipped with the powers that are necessary to bring about a social revolution successfully?
In the mid-20th Century we saw the courts push through a great social revolution. Some historians focus on Little Rock in 1954, others look at the rulings on labor law that began in the 1930s, and also the beginning of Thurgood Marshall’s career and his work at the NAACP. It’s been long enough now to assess the success and failures of the movement. Was the Civil Rights movement sufficient to end police brutality? Did the Civil Rights movement erase the gap in wages between white and black workers? Did the Civil Rights movement end the existence of black ghettos? Did the Civil Rights movement end racism? Did the Civil Rights movement ensure a good education for black children?
Of course, the Civil Rights movement failed in all of these things. The social and cultural and political white-backlash limited the gains that were possible. And the economic reality of these decades was that of deindustrialization and agricultural automation, both of which devastated the wages of African Americans. But also, some of the failures of the Civil Rights era are simply because the courts are not well designed to push through a social revolution. Any meaningful social revolution needs to be accompanied by an economic revolution, and the courts lack the power to engineer such a thing. Only the legislature can engineer such a thing. And so we should consider again, is it possible to get a legislature that operates more like the courts? Would it be possible to have designed a legislature that, in the middle of the 20th Century, would have been able and willing to push through a more comprehensive social revolution than the one we got?
With this scenario in mind, we should consider again the benefits we might derive from a legislature that is better protected from populist pressures. We can build a political system where the majority is empowered to get things done. We can respect the fundamental human right of the majority to have their policy preferences catered to. We can do this while still offering strong protections to minority groups. But to accomplish these twin goals, we will have to commit ourselves to empowering the long-term majority, and by contrast, disempowering any short-term majority. A mechanism that would help us achieve this would be a legislature where the members are elected for long-terms, and where they are elected on a staggered schedule that ensures that the majority is never elected in a single election.
According to most accounts, Socrates was also given the option to go into exile, which he rejected. He was making himself a martyr to the cause of freedom-of-speech by accepting the death penalty.