Among the newsletters I receive is one from historian Heather Cox Richardson, who regularly provides historical context for contemporary issues.
These two paragraphs from a recent newsletter have prompted me to dust off and recycle one of my old classroom lectures.
The right-wing rejection of democracy was on display at a meeting of the Federalist Society in early March. Politico’s Ian Ward covered the meeting. The Federalist Society organized in the 1980s to argue that the civil rights decisions of the past several decades corrupted democracy because liberal judges were “legislating from the bench” against the wishes of actual voters. The society’s members claimed to stand for judicial restraint.
But now that their judges are on the bench, they have changed their philosophy. Last summer, after a Supreme Court stacked with Federalist Society members overturned the right to abortion, voters have tried to protect that right in the states. Now, according to Ward, the Federalist Society appears to be shifting away from the idea of judicial restraint in the face of popular votes and toward the idea that judges should “interpret the Constitution” in ways right-wing Americans support. They are quick to claim that democracy is not the answer: it would result, they say, in the tyranny of the majority.
When I taught Law and Public Policy, we talked a lot about the U.S. Constitution, and the Founders’ approach to that “tyranny of the majority.”
The phrase points to a legitimate concern: if the law is anything a majority of voters say it is at any given time, individual rights are at risk. A majority can vote to disenfranchise a minority, require everyone to attend a particular church, criminalize anti-government sentiments… the list goes on.
It is easy, after 200 plus years, to find fault with our Constitution, and in this blog I have pointed to areas that I think need to be amended or re-construed. But the philosophy with which the Founders approached these very real worries about what they called the “passions of the majority” was (in my view) as close to perfect as possible.
Drawing on Enlightenment scholarship, the Founders distinguished between matters that were properly within the decision-making authority of “the people”–the majority– and matters that were to be protected from the majoritarian passions of those people.
That division was the entire purpose of the Bill of Rights.
In our system, a majority of voters get to select their lawmakers (theoretically, at least, voting for those whose positions they endorse). Those representatives then decide, via legislative majorities, issues ranging from waging war, to taxes, to electoral processes, to the establishment of government agencies…on and on. (And yes, as I periodically point out, this process is currently not working very well…)
The Bill of Rights constrains the ability of the majority to determine the law. It protects the right of individuals to self-govern, marking out legal territory that the majority cannot enter. Your neighbors cannot vote to make you attend a particular church or prevent you from reading a particular book; they may not authorize a government functionary to “search and seize” you without probable cause. Etc.
For years, judges and lawyers have debated the range of personal liberties protected against majority disapproval. Was the Bill of Rights to be read as an organic whole, encompassing the “unenumerated” rights retained by the people, or was it to be limited to rights expressly identified? I think the expansive reading is more consistent with the text and the Founders’ original expressed philosophies, but it’s a legitimate debate.
The about-face by the Federalist Society is not legitimate. It is an argument for the tyranny of a minority–so long, of course, as that ruling minority agrees with them.
The American constitutional system was based upon the libertarian principle (libertarianism as properly–and originally–understood). I’ve shared it before; let me share it again: The libertarian principle holds that Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of another, and so long as they are willing to accord an equal liberty to their fellow citizens.
We can argue about the nature of the harms that justify government intervention, but Jefferson had it right: “It does me no injury for my neighbour to say there are 20 gods or no God. It neither picks my pocket nor breaks my leg.”
The purpose of the Bill of Rights was to erect a boundary between those matters that harm others, which the majority can properly sanction, and the individual, profoundly personal human rights that are simply none of government’s business.
We can argue about where that boundary belongs, but the Federalist Society, MAGA warriors and Christian Nationalists are trying to erase it altogether.