No, Really: Who Will Counter the Counter-Majoritarians?
I want to stay on topic here with the question of how liberals propose to limit the effect of the counter-majoritarian process—i.e., the process that permitted a lifetime-tenured federal district judge to declare Prop 8 unconstitutional—because, despite an ill-tempered response from Jason Kuznicki, no alternative has been suggested. But first, a quick aside:
Although it was after posting my earlier piece that I indicated the distinction between original intent and original meaning, and that I throw my lot in with the latter, I do believe Kuznicki worked up more of a lather than warranted. For example, it’s a bit thick to suggest that “the intent of the Fourteenth Amendment was to protect African-Americans alone,” and that therefore I must believe that invidious discrimination against women and Asian-Americans is constitutional—that I am “apparently very happy to defend the constitutionality” of such laws, even. I am all for adding some showmanship and flourish to make discussions about otherwise pedantic topics a bit more entertaining. But the veiled accusations of racism and sexism are a bit ungentlemanly. There’s a desperation, moreover, an over-zealousness for one’s cause that is revealed when an advocate whips up a storm of accusations of bigotry and sexism and general small-mindedness against an opponent—who happens to simply disagree on a matter of judicial philosophy, for heaven’s sake.
So, staying on topic, let me pose the question to Kuznicki again: The American political system is based on a principle of self-government. However, pure democracy leads to unchecked abuses of power nearly as well as any other form of tyrannical rule. Thus, among other things, certain counter-majoritarian provisions are inserted into our Constitution to prevent the majority from infringing on certain rights of the political minority. But this, of course, puts the principle of self-government in jeopardy so long as these counter-majoritarian measures are not appropriately limited. So, other than originalism—the mere suggestion of which filled Kuznicki with rude energy—how can we prevent judges from trampling the right of self-government through abuse of these counter-majoritarian principles in the Constitution?
But perhaps I use too many words. The question is really much simpler than all that:
How do we curb judicial activism?
The reason I hesitate from putting the question as straightforward as that is that, lamentably, it’s become somewhat passé. Fashionable liberals waive off accusations of judicial activism, typically by offering some more scholastic explanation of the principle, “I’m the rubber, you’re the glue.” Conservatives, you see, make just as much use of “judicial activism” as anyone else. As evidence, refer to any court decision upholding gun rights, or the right of a corporation to free expression, or the enforceability of drug laws. The only difference, liberals explain, is that liberal judges rule in enlightened, forward-thinking ways, and conservative judges rule in bigoted, narrow-minded ways. Every decision a court makes is activism by definition, say liberals, so let’s stop throwing around these spurious accusations of “judicial activism” and just get on with the business of modern jurisprudence—in which whoever can appoint the most ideologues from their side to lifetime judgeships wins.
The reason for liberals’ cynicism toward judicial activism is that it’s a losing battle for them. Americans are well aware that liberals, not conservatives, are vastly more often the beneficiaries of judicial activism. Part of this is just the nature of what it means to be liberal/progressive: These are the guys that want the government to do stuff—typically unprecedented and, sometimes, zany stuff. And the guys who don’t want the government to do this unprecedented and zany stuff tend to respond that the Constitution, as it was originally understood, does not permit such and such, or does not guarantee an enforceable right to such and such. Originalism is a pretty simple idea, so when liberals ignore it in order to secure some new entitlement or social change, they get a target painted on their backs as “judicial activists.” Thus, the cynical, if not somewhat befuddling, rejoinder is invoked that judicial activism can apply to everyone, so stop applying it to us because it’s mucking up plans to keep securing new entitlements and social change.
But the cynical rejoinder is all we ever get—liberals don’t bother suggesting any alternative to originalism as a limiting principle to counter-majoritarianism.
So I was not surprised when, after requesting that Kuznicki provide one—asking
If there is indeed no shortage of meanings of “liberty,” “equality,” “commerce,” “general welfare,” etc. from which a judge may draw, how can the people ever prevent a willful judge from imposing raw policy preferences?
—he evasively replied as follows:
What makes a policy preference “raw”? Could I not have said that I found Judge Walker willful, and his preferences “raw,” if he had ruled the other way? It’s not like holding an election depoliticizes our justice system, is it?
In other words, Kuznicki responded lock-step with the boilerplate liberal response characterized above: The decision would have been lambasted as “activist” no matter what, so just leave it alone.
But the truly riffable passage is provided at the end of Kuznicki’s response to my post, wherein he secrets the germ of liberal judicial philosophy:
It falls to us, and not to the dead hand of 1868, to work out the details. In this we are not changing the meanings of the words. On the contrary, we are being true to them. We are uncovering the full implications of justice, which were not known perfectly by 1868 any more than they are known perfectly to us. The principles are eternal, and they are there on the page. But the work of realizing them lasts an eternity.
To be blunt, this is what judicial activism looks like. First, who, dare I ask, is the “us” and “we” in this portrait of justice? Obviously not the People. This is a philosophy of counter-majoritarianism, after all—the People are, by definition, the enemy. Kuznicki is here, of course, rallying the elites to the cause of shaping our collective future.
But the most interesting and dangerous effect of this passage is its subtle effect of doing the very opposite of what it says. In the same breath in which Kuznicki swears fealty to “the meanings of the words,” he commits to “being true to them” by “uncovering the full implications of justice.” But “being true” to the meanings of words is quite a different thing from “uncovering the full implications of justice” in them. To embark on the interpretation of words expecting to “uncover the full implications of justice” gives little assurance that the enterprise will result in uncovering anything resembling what the People understood when they ratified those words. Abraham Lincoln said “If you look for the bad in people, you will surely find it.” Something similar applies in legal interpretation: if you approach the Constitution expecting to find support for entitlements and social change, then, with a bit of linguistic creativity and scholastic wrangling, you surely will.
The above passage, in other words, is a sleight of hand. While at the same time urging that he is not after changing the meanings of words, Kuznicki asserts a much more revolutionary theory: that words can have no readily ascertainable or understandable meaning, and that all the People can do when ratifying counter-majoritarian principles in the Constitution—which, of necessity, must use words*—they have no ability to give effect to the actual commonly-understood meaning of those words. Instead, all they can do, in Kuznicki’s view, is cede both power and will to the elites to “uncover the full implications of justice” as they envision. Moreover, because these “principles are eternal,” waiting only to be discovered “there on the page,” they may be revised and reworked as needed by the elites, whose “work of realizing them lasts an eternity.”
Indeed, this passage provided immediate validation to my earlier criticism of liberal judicial philosophy:
In fact, it really doesn’t take a lawyer to answer those questions [of constitutional interpretation]. It takes lawyers to launch into esoteric theories of law and linguistics and philosophy to create a lot of confusion over what might otherwise be a fairly straightforward application of words.
*How else could we enact laws then to avoid this result? With pictures? Rebuses? Interpretive dance?