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Democracy and Liberty

From National Affairs George Will writes The Limits of Majority Rule.  It is an excellent summary of the history of the court as it has moved from judicial review to activism.  The success of Progressivism has hinged on the court shifting from upholding constitutional restraints on majority rule to an activist approach to uphold the majoritarianism- what many would call democracy- of Congress.

an excerpt:

The court did not say, but it might as well have said, that majority rule requires that courts only reluctantly and rarely engage in the judicial supervision of democracy, because majority rule is the essence of the American project. There are, however, two things wrong with this formulation.

First, it is utterly unrealistic and simpleminded to think that there is majority support for, or majority interest in, or even majority awareness of, even a tiny fraction of what governments do in “dishing out” advantages to economic factions. Does anyone really think that, when the Nashville city government dispenses favors for the taxi and limo cartel, it is acting on the will of a majority of the city’s residents? Can anyone actually believe that a majority of Louisianans give a tinker’s dam about who sells caskets or arranges flowers?

The second fallacy behind a passive judiciary deferring to majoritarian institutions is more fundamental. It is rooted in the fact that we know, because he said so, clearly and often, that Lincoln took his political bearings from the Declaration of Independence. We know that Lincoln believed, because the Declaration says so, that governments are instituted to secure our natural rights. These rights therefore pre-exist government. And they include the unenumerated ones affirmed in the Constitution’s Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

 

HKO

The Progressive Era can be summarized as the point in our history where democracy became more important than liberty.  The Founders and Framers clearly valued Liberty much more.

Congress is the instrument of Democracy, but the Court is the instrument of the Constitution which was designed to be a limit to majoritarianism. Democracy is important but without the limits of the Constitution and the proper supervision of the court Democracy breed demagogues and dangerous populism. The Framers understood that democracy and demagogue have the same root.

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The Great Irony of Majoritarianism

Georgewill

From National Affairs George Will writes The Limits of Majority Rule.  I strongly recommend you read the entire essay.

an excerpt:

So, we must ask: How aberrant, or how frequent, are abusive majorities? A related but different question is: When legislatures, which are majoritarian bodies, act, how often are they actually acting on behalf of majorities? My belief, based on almost half a century observing Washington, the beating heart of American governance, is that as government becomes bigger and more hyperactive, as the regulatory, administrative state becomes more promiscuously intrusive in the dynamics of society and the lives of individuals, only a steadily shrinking portion of what the government does is even remotely responsive to the will of a majority.

Rather, the more that government decides that there are no legal or practical limits to its proper scope and actual competence, the more time and energy it devotes to serving the interests of minority — often very small minority — factions. So, paradoxically, as government becomes bigger, its actions become smaller; as it becomes more grandiose in its pretensions, its preoccupations become more minute.

HKO

This is a great irony that Will uncovers. The more that our Progressive government sought to weigh democracy and majoritarianism over liberty the more that it subverted majoritarian will by succumbing to special interests. Courts ruled that as long as laws had a rational basis dictated by a majoritarian election then judicial activists justified using the courts to uphold legislative action rather than enforce constitutional limits. Part of the explanation is  the growth of the administrative state which gave way to the regulatory and welfare state. The micromanagement beginning under FDR led to intense lobbying and cronyism which subverted the interests of the majority. Progressivism which sought to counter the special interests and influence of the Gilded Age merely replaced the corruption with the official channels of  registered lobbying.

 

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The Essence of Restraint

george_will

From National Affairs George Will writes The Limits of Majority Rule. :

an excerpt:

If the sole, or overriding, goal of the Constitution can be reduced to establishing democracy, and if the distilled essence of democracy is that majorities shall rule in whatever sphere of life where majorities wish to rule, then the Court is indeed a “deviant institution.” But such a reductionist understanding of American constitutionalism is passing strange. It is excessive to say, as often has been said, that the Constitution is “undemocratic” or “anti-democratic” or “anti-majoritarian.” It is not, however, too much to say that the Constitution regards majority rule as but one component of a system of liberty.

The principle of judicial restraint, distilled to its essence, frequently is the principle that an act of the government should be presumed constitutional and that the party disputing the act’s constitutionality bears the heavy burden of demonstrating the act’s unconstitutionality beyond a reasonable doubt. The contrary principle of judicial engagement is that the judiciary’s principal duty is the defense of liberty, and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the Constitution’s architecture, the purpose of which is to protect liberty. The federal government can dispatch this burden by demonstrating that its action is both necessary and proper for the exercise of an enumerated power. A state or local government can dispatch the burden by demonstrating that its act is within the constitutionally proscribed limits of its police power.

HKO

I highly recommend reading Will’s entire essay

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The Conscience of the Constitution

From National Affairs George Will writes The Limits of Majority Rule.  I strongly recommend you read the entire essay.

an excerpt:

Another reason many conservatives favor judicial deference and restraint is what can be called the conservative populist temptation. Conservatives are hardly immune to the temptation to pander — to preach that majorities are presumptively virtuous and that the things legislatures do are necessarily right because they reflect the will of the majority.

But the essential drama of democracy derives from the inherent tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority deems necessary and proper. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. Timothy Sandefur of the Goldwater Institute in Phoenix, in his book The Conscience of the Constitution, rightly emphasizes that the Declaration is not just chronologically prior to the Constitution, it is logically prior. Because it “sets the framework for reading” the Constitution, it is the Constitution’s “conscience”: By the terms with which the Declaration articulates the Constitution’s purpose — the purpose is to “secure” unalienable rights — the Declaration intimates the standards by which to distinguish the proper from the improper exercises of majority rule. “Freedom,” writes Sandefur, “is the starting point of politics; government’s powers are secondary and derivative, and therefore limited….Liberty is the goal at which democracy aims, not the other way around.”

The progressive project, now entering its second century, has been to reverse this by giving majority rule priority over liberty when the two conflict, as they inevitably and frequently do. This reflects the progressive belief that rights are the result of government; they are “spaces of privacy” that government “has chosen to carve out and protect.”

HKO

The Progressive Era marks the point in our history where democracy took precedence over liberty; where majority rights took precedence over individual rights. This was contrary to the intent of the Framers. This departure was the critical argument that converted the administrative state, meant to delivery efficiency in government unpolluted by politics, to the welfare state which grew to serve majoritarian impulses.

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More Than a Democracy

lincoln

From National Affairs George Will writes The Limits of Majority Rule.  It is an excellent summary of the history of the court as it has moved from judicial review to activism.  The success of Progressivism has hinged on the court shifting from upholding constitutional restraints on majority rule to an activist approach to uphold the majoritarianism- what many would call democracy- of Congress.

an excerpt:

The Missouri Compromise had been the work of Henry Clay, whom Lincoln, in the first of his seven 1858 debates with Senator Douglas, called “my beau-ideal of a statesman.” The Compromise somewhat defused the slavery issue and sectional animosity for three decades. It did so by forbidding slavery in the Louisiana Territory north of a line that included the Kansas and Nebraska territories. The Kansas-Nebraska Act, introduced by Senator Douglas, empowered the residents of those two territories to decide whether or not to permit slavery there.

The Act’s premise was that the distilled essence of the American project is democracy. And that the distilled essence of democracy is majority rule. And that, therefore, it was right that there should be popular sovereignty in the territories regarding the great matter of slavery. People should have the right to vote it up or vote it down.

Lincoln disagreed. He responded to the Act with a controlled, canny, patient, but implacable vehemence. So, the most morally luminous career in the history of American democracy took its bearings from the principle that there is more to America’s purpose, more to justice, than majorities having their way.

HKO

The Progressive Era can be summarized as the point in our history where democracy became more important than liberty.  The Founders and Framers clearly valued Liberty much more.