Counter-conversationalism and the sense of difficulty

Northwestern University Law Review

Volumn 95, Issue 3, 2001, Pages 845-906

  Bennett, Robert W ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0038975969     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (338)

1. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH (1962).
2. The attention of Bickel and of most other commentators concerned with judicial policymaking has been focused on the Supreme Court and on the federal Constitution. This is understandable because the Supreme Court has made many of the most important decisions over the years, because it has broad power to overrule decisions of other courts, and because it often acts in the name of the United States Constitution. Still, other courts, particularly at the appellate level, do make constitutional policy, and most commentators seem to assume, implicitly at least, that the "difficulty" extends to all such policymaking by judges. My discussion here will be directed to the broad question, but I will often follow the convention of articulating the difficulty in terms of policymaking by the United States Supreme Court in the name of the United States Constitution. When I do speak of "courts" more generally, I have the appellate level in mind.
3. The term "judicial review" is used for constitutional review generally, not just for a holding of offense. The narrow power makes sense only as part of the broader one, and I will use the term freely with either connotation.
4. BICKEL, supra note 1, at 18; see also Alexander M. Bickel, The Supreme Court 1960 Term - Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 47 (1961).
5. BICKEL, supra note 1, at 18; see also Alexander M. Bickel, The Supreme Court 1960 Term -Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 47 (1961).
6. BICKEL, supra note 1, at 16-17.
7. Bickel's most celebrated academic precursor was James Bradley Thayer. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893). The influence of Thayer's article has been widely noted, see, e.g., One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 NW. U. L. REV. 1 (1993), including by Bickel who calls it "a singularly important piece of American legal scholarship," BICKEL, supra note 1, at 35. Concern with the tension between American democracy and judicial review, however, long preceded Thayer.
8. Bickel's most celebrated academic precursor was James Bradley Thayer. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893). The influence of Thayer's article has been widely noted, see, e.g., One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 NW. U. L. REV. 1 (1993), including by Bickel who calls it "a singularly important piece of American legal scholarship," BICKEL, supra note 1, at 35. Concern with the tension between American democracy and judicial review, however, long preceded Thayer.
9. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 4 (1980).
10. "Bickel's argument concerning the 'counter-majoritarian difficulty' . . . set the terms of the contemporary debate over the justification of judicial review, a debate that tended to remain static in the ensuing years." STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM 107 (1996); see also Rebecca L. Brown Accountability. Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998); Erwin Chemerinsky, The Supreme Court 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 64 (1989) (discussing characterization of judicial review as "anti-majoritarian"). Writing in a collection of essays on constitutional amendment, David Dow observes that the "so-called 'countermajoritarian difficulty'" is "what drives efforts [of four other contributors] to justify extra-Article V theories of amendment." David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION 117, 118 (Sanford Levinson ed., 1995). A recent article on the nondelegation doctrine, which looks with disfavor on delegation of legislative authority to unaccountable agencies, associates the numerous supporters of that doctrine with a "counter-majoritarian framework," the "current dominance" of which "can be traced back to . . . Bickel's . . . The Least Dangerous Branch." George I. Lovell, That Sick Chicken Won't Hunt: The Limits of a Judicially Enforced Non-Delegation Doctrine, 17 CONST. COMM. 79, 84 (2000). Another entirely typical example is Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1771 (1997), treating the counter-majoritarian difficulty as simply a fact of life in American politics around which discussion of other things is to be organized.
11. "Bickel's argument concerning the 'counter-majoritarian difficulty' . . . set the terms of the contemporary debate over the justification of judicial review, a debate that tended to remain static in the ensuing years." STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM 107 (1996); see also Rebecca L. Brown Accountability. Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998); Erwin Chemerinsky, The Supreme Court 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 64 (1989) (discussing characterization of judicial review as "anti-majoritarian"). Writing in a collection of essays on constitutional amendment, David Dow observes that the "so-called 'countermajoritarian difficulty'" is "what drives efforts [of four other contributors] to justify extra-Article V theories of amendment." David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION 117, 118 (Sanford Levinson ed., 1995). A recent article on the nondelegation doctrine, which looks with disfavor on delegation of legislative authority to unaccountable agencies, associates the numerous supporters of that doctrine with a "counter-majoritarian framework," the "current dominance" of which "can be traced back to . . . Bickel's . . . The Least Dangerous Branch." George I. Lovell, That Sick Chicken Won't Hunt: The Limits of a Judicially Enforced Non-Delegation Doctrine, 17 CONST. COMM. 79, 84 (2000). Another entirely typical example is Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1771 (1997), treating the counter-majoritarian difficulty as simply a fact of life in American politics around which discussion of other things is to be organized.
12. "Bickel's argument concerning the 'counter-majoritarian difficulty' . . . set the terms of the contemporary debate over the justification of judicial review, a debate that tended to remain static in the ensuing years." STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM 107 (1996); see also Rebecca L. Brown Accountability. Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998); Erwin Chemerinsky, The Supreme Court 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 64 (1989) (discussing characterization of judicial review as "anti-majoritarian"). Writing in a collection of essays on constitutional amendment, David Dow observes that the "so-called 'countermajoritarian difficulty'" is "what drives efforts [of four other contributors] to justify extra-Article V theories of amendment." David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION 117, 118 (Sanford Levinson ed., 1995). A recent article on the nondelegation doctrine, which looks with disfavor on delegation of legislative authority to unaccountable agencies, associates the numerous supporters of that doctrine with a "counter-majoritarian framework," the "current dominance" of which "can be traced back to . . . Bickel's . . . The Least Dangerous Branch." George I. Lovell, That Sick Chicken Won't Hunt: The Limits of a Judicially Enforced Non-Delegation Doctrine, 17 CONST. COMM. 79, 84 (2000). Another entirely typical example is Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1771 (1997), treating the counter-majoritarian difficulty as simply a fact of life in American politics around which discussion of other things is to be organized.
13. "Bickel's argument concerning the 'counter-majoritarian difficulty' . . . set the terms of the contemporary debate over the justification of judicial review, a debate that tended to remain static in the ensuing years." STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM 107 (1996); see also Rebecca L. Brown Accountability. Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998); Erwin Chemerinsky, The Supreme Court 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 64 (1989) (discussing characterization of judicial review as "anti-majoritarian"). Writing in a collection of essays on constitutional amendment, David Dow observes that the "so-called 'countermajoritarian difficulty'" is "what drives efforts [of four other contributors] to justify extra-Article V theories of amendment." David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION 117, 118 (Sanford Levinson ed., 1995). A recent article on the nondelegation doctrine, which looks with disfavor on delegation of legislative authority to unaccountable agencies, associates the numerous supporters of that doctrine with a "counter-majoritarian framework," the "current dominance" of which "can be traced back to . . . Bickel's . . . The Least Dangerous Branch." George I. Lovell, That Sick Chicken Won't Hunt: The Limits of a Judicially Enforced Non-Delegation Doctrine, 17 CONST. COMM. 79, 84 (2000). Another entirely typical example is Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1771 (1997), treating the counter-majoritarian difficulty as simply a fact of life in American politics around which discussion of other things is to be organized.
14. "Bickel's argument concerning the 'counter-majoritarian difficulty' . . . set the terms of the contemporary debate over the justification of judicial review, a debate that tended to remain static in the ensuing years." STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM 107 (1996); see also Rebecca L. Brown Accountability. Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998); Erwin Chemerinsky, The Supreme Court 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 64 (1989) (discussing characterization of judicial review as "anti-majoritarian"). Writing in a collection of essays on constitutional amendment, David Dow observes that the "so-called 'countermajoritarian difficulty'" is "what drives efforts [of four other contributors] to justify extra-Article V theories of amendment." David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION 117, 118 (Sanford Levinson ed., 1995). A recent article on the nondelegation doctrine, which looks with disfavor on delegation of legislative authority to unaccountable agencies, associates the numerous supporters of that doctrine with a "counter-majoritarian framework," the "current dominance" of which "can be traced back to . . . Bickel's . . . The Least Dangerous Branch." George I. Lovell, That Sick Chicken Won't Hunt: The Limits of a Judicially Enforced Non-Delegation Doctrine, 17 CONST. COMM. 79, 84 (2000). Another entirely typical example is Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1771 (1997), treating the counter-majoritarian difficulty as simply a fact of life in American politics around which discussion of other things is to be organized.
15. "Bickel's argument concerning the 'counter-majoritarian difficulty' . . . set the terms of the contemporary debate over the justification of judicial review, a debate that tended to remain static in the ensuing years." STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM 107 (1996); see also Rebecca L. Brown Accountability. Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998); Erwin Chemerinsky, The Supreme Court 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 64 (1989) (discussing characterization of judicial review as "anti-majoritarian"). Writing in a collection of essays on constitutional amendment, David Dow observes that the "so-called 'countermajoritarian difficulty'" is "what drives efforts [of four other contributors] to justify extra-Article V theories of amendment." David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION 117, 118 (Sanford Levinson ed., 1995). A recent article on the nondelegation doctrine, which looks with disfavor on delegation of legislative authority to unaccountable agencies, associates the numerous supporters of that doctrine with a "counter-majoritarian framework," the "current dominance" of which "can be traced back to . . . Bickel's . . . The Least Dangerous Branch." George I. Lovell, That Sick Chicken Won't Hunt: The Limits of a Judicially Enforced Non-Delegation Doctrine, 17 CONST. COMM. 79, 84 (2000). Another entirely typical example is Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1771 (1997), treating the counter-majoritarian difficulty as simply a fact of life in American politics around which discussion of other things is to be organized.
16. E.g., GRIFFIN, supra note 7, at 109; ROBERT C. POST, CONSTITUTIONAL DOMAINS 191 (1995); Brown, supra note 7; Chemerinsky, supra note 7, at 77-83; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1531-33 (1990); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue]; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334-43 (1998) [hereinafter Friedman, History]; Frank I. Michelman, The Supreme Court 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 75 (1986); Henry Paul Monaghan, We The People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996); see also Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMM. 481, 493-500 (1997).
17. E.g., GRIFFIN, supra note 7, at 109; ROBERT C. POST, CONSTITUTIONAL DOMAINS 191 (1995); Brown, supra note 7; Chemerinsky, supra note 7, at 77-83; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1531-33 (1990); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue]; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334-43 (1998) [hereinafter Friedman, History]; Frank I. Michelman, The Supreme Court 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 75 (1986); Henry Paul Monaghan, We The People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996); see also Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMM. 481, 493-500 (1997).
18. E.g., GRIFFIN, supra note 7, at 109; ROBERT C. POST, CONSTITUTIONAL DOMAINS 191 (1995); Brown, supra note 7; Chemerinsky, supra note 7, at 77-83; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1531-33 (1990); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue]; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334-43 (1998) [hereinafter Friedman, History]; Frank I. Michelman, The Supreme Court 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 75 (1986); Henry Paul Monaghan, We The People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996); see also Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMM. 481, 493-500 (1997).
19. E.g., GRIFFIN, supra note 7, at 109; ROBERT C. POST, CONSTITUTIONAL DOMAINS 191 (1995); Brown, supra note 7; Chemerinsky, supra note 7, at 77-83; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1531-33 (1990); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue]; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334-43 (1998) [hereinafter Friedman, History]; Frank I. Michelman, The Supreme Court 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 75 (1986); Henry Paul Monaghan, We The People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996); see also Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMM. 481, 493-500 (1997).
20. E.g., GRIFFIN, supra note 7, at 109; ROBERT C. POST, CONSTITUTIONAL DOMAINS 191 (1995); Brown, supra note 7; Chemerinsky, supra note 7, at 77-83; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1531-33 (1990); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue]; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334-43 (1998) [hereinafter Friedman, History]; Frank I. Michelman, The Supreme Court 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 75 (1986); Henry Paul Monaghan, We The People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996); see also Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMM. 481, 493-500 (1997).
21. E.g., GRIFFIN, supra note 7, at 109; ROBERT C. POST, CONSTITUTIONAL DOMAINS 191 (1995); Brown, supra note 7; Chemerinsky, supra note 7, at 77-83; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1531-33 (1990); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue]; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334-43 (1998) [hereinafter Friedman, History]; Frank I. Michelman, The Supreme Court 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 75 (1986); Henry Paul Monaghan, We The People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996); see also Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMM. 481, 493-500 (1997).
22. E.g., GRIFFIN, supra note 7, at 109; ROBERT C. POST, CONSTITUTIONAL DOMAINS 191 (1995); Brown, supra note 7; Chemerinsky, supra note 7, at 77-83; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1531-33 (1990); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue]; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334-43 (1998) [hereinafter Friedman, History]; Frank I. Michelman, The Supreme Court 1985 Term -Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 75 (1986); Henry Paul Monaghan, We The People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996); see also Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMM. 481, 493-500 (1997).
23. E.g., GRIFFIN, supra note 7, at 109; ROBERT C. POST, CONSTITUTIONAL DOMAINS 191 (1995); Brown, supra note 7; Chemerinsky, supra note 7, at 77-83; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1531-33 (1990); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue]; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334-43 (1998) [hereinafter Friedman, History]; Frank I. Michelman, The Supreme Court 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 75 (1986); Henry Paul Monaghan, We The People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996); see also Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMM. 481, 493-500 (1997).
24. E.g., GRIFFIN, supra note 7, at 109; ROBERT C. POST, CONSTITUTIONAL DOMAINS 191 (1995); Brown, supra note 7; Chemerinsky, supra note 7, at 77-83; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1531-33 (1990); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman, Dialogue]; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334-43 (1998) [hereinafter Friedman, History]; Frank I. Michelman, The Supreme Court 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 75 (1986); Henry Paul Monaghan, We The People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996); see also Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMM. 481, 493-500 (1997).
25. BICKEL, supra note 1, at 17.
26. See id. at 18; see also id. at 193 (discussing "differently weighted constituenc[ies of American political institutions], with the executive's normally being the most straight-out majoritarian"); id. at 197 (suggesting that "even the Supreme Court may enter the 'political thicket' in states where no branch of government, not even the executive, rests on the majoritarian principle").
27. Id. at 18; see also id. at 193.
28. Id. at 18.
29. Id. Bickel's recognition of complexity does allow Stephen Griffin to assert that his "argument was built on an appeal to democratic principles understood as a complex set, not an assumption that majoritarianism was the supreme principle of American democracy (despite the phrase 'countermajoritarian difficulty')." GRIFFIN, supra note 7, at 108; see also Eule, supra note 8, at 1531. This seems more accurate as a characterization of the position Bickel would come to in later work, where, without being entirely explicit that he had changed his position, he rather clearly disavowed majoritarianism as either accurately capturing American democracy or as normatively appealing. See ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 83 (1978) ("[E]lections do influence, and sometimes they determine, the movement of public policy. . . . But elections are the tip of the iceberg; the bulk of the political process is below."); id. at 110 (disparagingly contrasting "[p]opulist majoritarianism" with "balanced Madisonian adjustment among countervailing groups and factions"); id. at 168 n.* (discussing "majoritarian fixation of the one-man, one-vote rule"); see also ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 100 (1975) ("[M]ajorities are in large part fictions."); id. at 6-7. Barry Friedman reaches basically the same conclusion as I do on Bickel's views as of the time of The Least Dangerous Branch. Friedman, Dialogue, supra note 8, at 587.
30. Id. Bickel's recognition of complexity does allow Stephen Griffin to assert that his "argument was built on an appeal to democratic principles understood as a complex set, not an assumption that majoritarianism was the supreme principle of American democracy (despite the phrase 'countermajoritarian difficulty')." GRIFFIN, supra note 7, at 108; see also Eule, supra note 8, at 1531. This seems more accurate as a characterization of the position Bickel would come to in later work, where, without being entirely explicit that he had changed his position, he rather clearly disavowed majoritarianism as either accurately capturing American democracy or as normatively appealing. See ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 83 (1978) ("[E]lections do influence, and sometimes they determine, the movement of public policy. . . . But elections are the tip of the iceberg; the bulk of the political process is below."); id. at 110 (disparagingly contrasting "[p]opulist majoritarianism" with "balanced Madisonian adjustment among countervailing groups and factions"); id. at 168 n.* (discussing "majoritarian fixation of the one-man, one-vote rule"); see also ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 100 (1975) ("[M]ajorities are in large part fictions."); id. at 6-7. Barry Friedman reaches basically the same conclusion as I do on Bickel's views as of the time of The Least Dangerous Branch. Friedman, Dialogue, supra note 8, at 587.
31. U.S. CONST. art. VI, cl. 2.
32. 5 U.S.(1 Cranch) 137 (1803).
33. "The basic function of a constitution is to remove certain decisions from the democratic process, that is, to tie the community's hands." Stephen Holmes, Precommitment and the Paradox of Democracy, in CONSTITUTIONALISM AND DEMOCRACY 195, 196 (Jon Elster & Rune Slagstad eds., 1988).
34. The danger of confusion about both majoritarianism and judicial review is real. The role of the Supreme Court in American democracy is an important and much discussed subject. If we are misled about the nature of the relationship between courts of law and the democracy in which they function, we cannot hope to think straight about either. What, for instance, are we to make of the United States Senate, which might plausibly be called "counter-majoritarian," since the states are given equal representation there regardless of population? Is it a deviant institution? So one might conclude from Reynolds v. Sims, 377 U.S. 533 (1964). See Akhil Reed Amar, Philadelphia Revised: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1070-71 (1988); William N. Eskridge, Jr., The One Senator, One Vote Clause, 12 CONST. COMM. 159 (1995); Suzanna Sherry, Our Unconstitutional Senate, 12 CONST. COMM. 213 (1995). And what are we to do with constitutional decisions of elected courts? Over half the states choose some portion of their judges in popular elections. A 1991 count put the number of states that elect all their judges at 23 and the number that elect some but not all at 10. Madson B. McClellan, Merit Appointment Versus Popular Election: A Reformer's Guide to Judicial Selection Methods in Florida, 43 FLA. L. REV. 529 (1991); see also Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 725-26 (1995). Constitutional decision making by such judges, just as much as that of an appointed judiciary, can thwart "the will of representatives of the actual people of the here and now," but does it do so "against" a "prevailing majority"? Bickel's terminology misleadingly suggests that this is a sensible way to pose some questions, and then leaves them without much in the way of answers.
35. The danger of confusion about both majoritarianism and judicial review is real. The role of the Supreme Court in American democracy is an important and much discussed subject. If we are misled about the nature of the relationship between courts of law and the democracy in which they function, we cannot hope to think straight about either. What, for instance, are we to make of the United States Senate, which might plausibly be called "counter-majoritarian," since the states are given equal representation there regardless of population? Is it a deviant institution? So one might conclude from Reynolds v. Sims, 377 U.S. 533 (1964). See Akhil Reed Amar, Philadelphia Revised: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1070-71 (1988); William N. Eskridge, Jr., The One Senator, One Vote Clause, 12 CONST. COMM. 159 (1995); Suzanna Sherry, Our Unconstitutional Senate, 12 CONST. COMM. 213 (1995). And what are we to do with constitutional decisions of elected courts? Over half the states choose some portion of their judges in popular elections. A 1991 count put the number of states that elect all their judges at 23 and the number that elect some but not all at 10. Madson B. McClellan, Merit Appointment Versus Popular Election: A Reformer's Guide to Judicial Selection Methods in Florida, 43 FLA. L. REV. 529 (1991); see also Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 725-26 (1995). Constitutional decision making by such judges, just as much as that of an appointed judiciary, can thwart "the will of representatives of the actual people of the here and now," but does it do so "against" a "prevailing majority"? Bickel's terminology misleadingly suggests that this is a sensible way to pose some questions, and then leaves them without much in the way of answers.
36. The danger of confusion about both majoritarianism and judicial review is real. The role of the Supreme Court in American democracy is an important and much discussed subject. If we are misled about the nature of the relationship between courts of law and the democracy in which they function, we cannot hope to think straight about either. What, for instance, are we to make of the United States Senate, which might plausibly be called "counter-majoritarian," since the states are given equal representation there regardless of population? Is it a deviant institution? So one might conclude from Reynolds v. Sims, 377 U.S. 533 (1964). See Akhil Reed Amar, Philadelphia Revised: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1070-71 (1988); William N. Eskridge, Jr., The One Senator, One Vote Clause, 12 CONST. COMM. 159 (1995); Suzanna Sherry, Our Unconstitutional Senate, 12 CONST. COMM. 213 (1995). And what are we to do with constitutional decisions of elected courts? Over half the states choose some portion of their judges in popular elections. A 1991 count put the number of states that elect all their judges at 23 and the number that elect some but not all at 10. Madson B. McClellan, Merit Appointment Versus Popular Election: A Reformer's Guide to Judicial Selection Methods in Florida, 43 FLA. L. REV. 529 (1991); see also Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 725-26 (1995). Constitutional decision making by such judges, just as much as that of an appointed judiciary, can thwart "the will of representatives of the actual people of the here and now," but does it do so "against" a "prevailing majority"? Bickel's terminology misleadingly suggests that this is a sensible way to pose some questions, and then leaves them without much in the way of answers.
37. The danger of confusion about both majoritarianism and judicial review is real. The role of the Supreme Court in American democracy is an important and much discussed subject. If we are misled about the nature of the relationship between courts of law and the democracy in which they function, we cannot hope to think straight about either. What, for instance, are we to make of the United States Senate, which might plausibly be called "counter-majoritarian," since the states are given equal representation there regardless of population? Is it a deviant institution? So one might conclude from Reynolds v. Sims, 377 U.S. 533 (1964). See Akhil Reed Amar, Philadelphia Revised: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1070-71 (1988); William N. Eskridge, Jr., The One Senator, One Vote Clause, 12 CONST. COMM. 159 (1995); Suzanna Sherry, Our Unconstitutional Senate, 12 CONST. COMM. 213 (1995). And what are we to do with constitutional decisions of elected courts? Over half the states choose some portion of their judges in popular elections. A 1991 count put the number of states that elect all their judges at 23 and the number that elect some but not all at 10. Madson B. McClellan, Merit Appointment Versus Popular Election: A Reformer's Guide to Judicial Selection Methods in Florida, 43 FLA. L. REV. 529 (1991); see also Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 725-26 (1995). Constitutional decision making by such judges, just as much as that of an appointed judiciary, can thwart "the will of representatives of the actual people of the here and now," but does it do so "against" a "prevailing majority"? Bickel's terminology misleadingly suggests that this is a sensible way to pose some questions, and then leaves them without much in the way of answers.
38. The danger of confusion about both majoritarianism and judicial review is real. The role of the Supreme Court in American democracy is an important and much discussed subject. If we are misled about the nature of the relationship between courts of law and the democracy in which they function, we cannot hope to think straight about either. What, for instance, are we to make of the United States Senate, which might plausibly be called "counter-majoritarian," since the states are given equal representation there regardless of population? Is it a deviant institution? So one might conclude from Reynolds v. Sims, 377 U.S. 533 (1964). See Akhil Reed Amar, Philadelphia Revised: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1070-71 (1988); William N. Eskridge, Jr., The One Senator, One Vote Clause, 12 CONST. COMM. 159 (1995); Suzanna Sherry, Our Unconstitutional Senate, 12 CONST. COMM. 213 (1995). And what are we to do with constitutional decisions of elected courts? Over half the states choose some portion of their judges in popular elections. A 1991 count put the number of states that elect all their judges at 23 and the number that elect some but not all at 10. Madson B. McClellan, Merit Appointment Versus Popular Election: A Reformer's Guide to Judicial Selection Methods in Florida, 43 FLA. L. REV. 529 (1991); see also Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 725-26 (1995). Constitutional decision making by such judges, just as much as that of an appointed judiciary, can thwart "the will of representatives of the actual people of the here and now," but does it do so "against" a "prevailing majority"? Bickel's terminology misleadingly suggests that this is a sensible way to pose some questions, and then leaves them without much in the way of answers.
39. The danger of confusion about both majoritarianism and judicial review is real. The role of the Supreme Court in American democracy is an important and much discussed subject. If we are misled about the nature of the relationship between courts of law and the democracy in which they function, we cannot hope to think straight about either. What, for instance, are we to make of the United States Senate, which might plausibly be called "counter-majoritarian," since the states are given equal representation there regardless of population? Is it a deviant institution? So one might conclude from Reynolds v. Sims, 377 U.S. 533 (1964). See Akhil Reed Amar, Philadelphia Revised: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1070-71 (1988); William N. Eskridge, Jr., The One Senator, One Vote Clause, 12 CONST. COMM. 159 (1995); Suzanna Sherry, Our Unconstitutional Senate, 12 CONST. COMM. 213 (1995). And what are we to do with constitutional decisions of elected courts? Over half the states choose some portion of their judges in popular elections. A 1991 count put the number of states that elect all their judges at 23 and the number that elect some but not all at 10. Madson B. McClellan, Merit Appointment Versus Popular Election: A Reformer's Guide to Judicial Selection Methods in Florida, 43 FLA. L. REV. 529 (1991); see also Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 725-26 (1995). Constitutional decision making by such judges, just as much as that of an appointed judiciary, can thwart "the will of representatives of the actual people of the here and now," but does it do so "against" a "prevailing majority"? Bickel's terminology misleadingly suggests that this is a sensible way to pose some questions, and then leaves them without much in the way of answers.
40. BICKEL, supra note 1, at 188.
41. Id. at 25.
42. "[N]o viable society can be principle-ridden." Id. at 64; see also id. at 111-98.
43. Id. at 18.
44. There is only one exception that I can find. Speaking of the desegregation decisions of the 1950s, Bickel did say that: The Supreme Court's law . . . could not in our system prevail - not merely in the very long run, but within the decade - if it ran counter to deeply felt popular needs or convictions, or even if it was opposed by a determined and substantial minority, and received with indifference by the rest of the country. This, in the end, is how and why judicial review is consistent with the theory and practice of political democracy. Id. at 258. This is, to say the least, a rather different approach to the "difficulty" than is the emphasis on "principle" and its sensitive deployment.
45. Henceforth I will simply refer to "statutory" decisions to encompass elaboration of the common law as well. In the federal context, there is little in the way of "common law" to be elaborated.
46. See BICKEL, supra note 1, at 202-03; see also Lovell, supra note 7, at 105-06 ("Legislators are well aware of the important role of judges as interpreters of statutes . . . [and] have not always been able to resist the temptation to use open-ended language to shift important policy decisions to judges.").
47. See BICKEL, supra note 1, at 202-03; see also Lovell, supra note 7, at 105-06 ("Legislators are well aware of the important role of judges as interpreters of statutes . . . [and] have not always been able to resist the temptation to use open-ended language to shift important policy decisions to judges.").
48. BICKEL, supra note 1, at 202.
49. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 28-31 (1977).
50. JOHN HART ELY, DEMOCRACY AND DISTRUST (1980); see also Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. WASH. L. REV. 1373 (1998). The basic idea has deep roots in constitutional jurisprudence. See United States v. Carolene Products, 304 U.S. 144, 152-53 n.4 (1938); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
51. JOHN HART ELY, DEMOCRACY AND DISTRUST (1980); see also Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. WASH. L. REV. 1373 (1998). The basic idea has deep roots in constitutional jurisprudence. See United States v. Carolene Products, 304 U.S. 144, 152-53 n.4 (1938); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
52. JOHN HART ELY, DEMOCRACY AND DISTRUST (1980); see also Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. WASH. L. REV. 1373 (1998). The basic idea has deep roots in constitutional jurisprudence. See United States v. Carolene Products, 304 U.S. 144, 152-53 n.4 (1938); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
53. JOHN HART ELY, DEMOCRACY AND DISTRUST (1980); see also Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. WASH. L. REV. 1373 (1998). The basic idea has deep roots in constitutional jurisprudence. See United States v. Carolene Products, 304 U.S. 144, 152-53 n.4 (1938); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
54. ROBERT H. BORK, THE TEMPTING OF AMERICA 139 (1990).
55. Id. at 141. A few commentators who focus on the courts in this way find the difficulty so grave that they would do away with judicial review altogether. See, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); Jules B. Gerard, A Proposal to Amend Article III: Putting a Check on Antidemocratic Courts, in A BLUEPRINT FOR JUDICIAL REFORM 217, 224 (Patrick B. McGuigan & Randall R. Rader eds., 1981); Pat Buchanan, Better to Shear Shannon - or the Judges?, DETROIT NEWS, Aug. 18, 1994,at A11, available at 1994 WL 5286511.
56. Id. at 141. A few commentators who focus on the courts in this way find the difficulty so grave that they would do away with judicial review altogether. See, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); Jules B. Gerard, A Proposal to Amend Article III: Putting a Check on Antidemocratic Courts, in A BLUEPRINT FOR JUDICIAL REFORM 217, 224 (Patrick B. McGuigan & Randall R. Rader eds., 1981); Pat Buchanan, Better to Shear Shannon - or the Judges?, DETROIT NEWS, Aug. 18, 1994,at A11, available at 1994 WL 5286511.
57. Id. at 141. A few commentators who focus on the courts in this way find the difficulty so grave that they would do away with judicial review altogether. See, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); Jules B. Gerard, A Proposal to Amend Article III: Putting a Check on Antidemocratic Courts, in A BLUEPRINT FOR JUDICIAL REFORM 217, 224 (Patrick B. McGuigan & Randall R. Rader eds., 1981); Pat Buchanan, Better to Shear Shannon - or the Judges?, DETROIT NEWS, Aug. 18, 1994,at A11, available at 1994 WL 5286511.
58. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) [hereinafter DAHL, CRITICS]; ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 109-11 (1956) [hereinafter DAHL, PREFACE]; Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. LAW 282 (1957); see also ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT (1960); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981); Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795 (1975); cf. TUSHNET, supra note 29, at 153 ("[J]udicial review basically amounts to noise around zero."). Dahl's phrase "lawmaking majorities" is ambiguous. In A Preface to Democratic Theory, he explicitly confined the phrase to the "very restricted sense . . . [of] a majority of the voting members of both houses plus presidential acquiescence." DAHL, PREFACE, supra, at 108. He makes no special point of the restriction in the more recent work, though perhaps he meant to track the earlier usage. Democracy and Its Critics freely discusses majoritarianism more generally, including its imperfect but approximate embodiment in "polyarchies" like the United States. Thus, Arend Lijphardt sees Dahl's "polyarchies" as "democratic regimes . . . characterized not by perfect majoritarian responsiveness but by a high degree of it." AREND LIJPHARDT, DEMOCRACIES 2 (1984). At some risk of oversimplifying his views, I thus associate Dahl with those who basically accept the characterization of the United States' form of democracy as "majoritarian."
59. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) [hereinafter DAHL, CRITICS]; ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 109-11 (1956) [hereinafter DAHL, PREFACE]; Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. LAW 282 (1957); see also ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT (1960); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981); Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795 (1975); cf. TUSHNET, supra note 29, at 153 ("[J]udicial review basically amounts to noise around zero."). Dahl's phrase "lawmaking majorities" is ambiguous. In A Preface to Democratic Theory, he explicitly confined the phrase to the "very restricted sense . . . [of] a majority of the voting members of both houses plus presidential acquiescence." DAHL, PREFACE, supra, at 108. He makes no special point of the restriction in the more recent work, though perhaps he meant to track the earlier usage. Democracy and Its Critics freely discusses majoritarianism more generally, including its imperfect but approximate embodiment in "polyarchies" like the United States. Thus, Arend Lijphardt sees Dahl's "polyarchies" as "democratic regimes . . . characterized not by perfect majoritarian responsiveness but by a high degree of it." AREND LIJPHARDT, DEMOCRACIES 2 (1984). At some risk of oversimplifying his views, I thus associate Dahl with those who basically accept the characterization of the United States' form of democracy as "majoritarian."
60. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) [hereinafter DAHL, CRITICS]; ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 109-11 (1956) [hereinafter DAHL, PREFACE]; Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. LAW 282 (1957); see also ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT (1960); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981); Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795 (1975); cf. TUSHNET, supra note 29, at 153 ("[J]udicial review basically amounts to noise around zero."). Dahl's phrase "lawmaking majorities" is ambiguous. In A Preface to Democratic Theory, he explicitly confined the phrase to the "very restricted sense . . . [of] a majority of the voting members of both houses plus presidential acquiescence." DAHL, PREFACE, supra, at 108. He makes no special point of the restriction in the more recent work, though perhaps he meant to track the earlier usage. Democracy and Its Critics freely discusses majoritarianism more generally, including its imperfect but approximate embodiment in "polyarchies" like the United States. Thus, Arend Lijphardt sees Dahl's "polyarchies" as "democratic regimes . . . characterized not by perfect majoritarian responsiveness but by a high degree of it." AREND LIJPHARDT, DEMOCRACIES 2 (1984). At some risk of oversimplifying his views, I thus associate Dahl with those who basically accept the characterization of the United States' form of democracy as "majoritarian."
61. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) [hereinafter DAHL, CRITICS]; ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 109-11 (1956) [hereinafter DAHL, PREFACE]; Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. LAW 282 (1957); see also ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT (1960); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981); Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795 (1975); cf. TUSHNET, supra note 29, at 153 ("[J]udicial review basically amounts to noise around zero."). Dahl's phrase "lawmaking majorities" is ambiguous. In A Preface to Democratic Theory, he explicitly confined the phrase to the "very restricted sense . . . [of] a majority of the voting members of both houses plus presidential acquiescence." DAHL, PREFACE, supra, at 108. He makes no special point of the restriction in the more recent work, though perhaps he meant to track the earlier usage. Democracy and Its Critics freely discusses majoritarianism more generally, including its imperfect but approximate embodiment in "polyarchies" like the United States. Thus, Arend Lijphardt sees Dahl's "polyarchies" as "democratic regimes . . . characterized not by perfect majoritarian responsiveness but by a high degree of it." AREND LIJPHARDT, DEMOCRACIES 2 (1984). At some risk of oversimplifying his views, I thus associate Dahl with those who basically accept the characterization of the United States' form of democracy as "majoritarian."
62. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) [hereinafter DAHL, CRITICS]; ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 109-11 (1956) [hereinafter DAHL, PREFACE]; Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. LAW 282 (1957); see also ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT (1960); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981); Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795 (1975); cf. TUSHNET, supra note 29, at 153 ("[J]udicial review basically amounts to noise around zero."). Dahl's phrase "lawmaking majorities" is ambiguous. In A Preface to Democratic Theory, he explicitly confined the phrase to the "very restricted sense . . . [of] a majority of the voting members of both houses plus presidential acquiescence." DAHL, PREFACE, supra, at 108. He makes no special point of the restriction in the more recent work, though perhaps he meant to track the earlier usage. Democracy and Its Critics freely discusses majoritarianism more generally, including its imperfect but approximate embodiment in "polyarchies" like the United States. Thus, Arend Lijphardt sees Dahl's "polyarchies" as "democratic regimes . . . characterized not by perfect majoritarian responsiveness but by a high degree of it." AREND LIJPHARDT, DEMOCRACIES 2 (1984). At some risk of oversimplifying his views, I thus associate Dahl with those who basically accept the characterization of the United States' form of democracy as "majoritarian."
63. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) [hereinafter DAHL, CRITICS]; ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 109-11 (1956) [hereinafter DAHL, PREFACE]; Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. LAW 282 (1957); see also ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT (1960); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981); Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795 (1975); cf. TUSHNET, supra note 29, at 153 ("[J]udicial review basically amounts to noise around zero."). Dahl's phrase "lawmaking majorities" is ambiguous. In A Preface to Democratic Theory, he explicitly confined the phrase to the "very restricted sense . . . [of] a majority of the voting members of both houses plus presidential acquiescence." DAHL, PREFACE, supra, at 108. He makes no special point of the restriction in the more recent work, though perhaps he meant to track the earlier usage. Democracy and Its Critics freely discusses majoritarianism more generally, including its imperfect but approximate embodiment in "polyarchies" like the United States. Thus, Arend Lijphardt sees Dahl's "polyarchies" as "democratic regimes . . . characterized not by perfect majoritarian responsiveness but by a high degree of it." AREND LIJPHARDT, DEMOCRACIES 2 (1984). At some risk of oversimplifying his views, I thus associate Dahl with those who basically accept the characterization of the United States' form of democracy as "majoritarian."
64. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) [hereinafter DAHL, CRITICS]; ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 109-11 (1956) [hereinafter DAHL, PREFACE]; Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. LAW 282 (1957); see also ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT (1960); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981); Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795 (1975); cf. TUSHNET, supra note 29, at 153 ("[J]udicial review basically amounts to noise around zero."). Dahl's phrase "lawmaking majorities" is ambiguous. In A Preface to Democratic Theory, he explicitly confined the phrase to the "very restricted sense . . . [of] a majority of the voting members of both houses plus presidential acquiescence." DAHL, PREFACE, supra, at 108. He makes no special point of the restriction in the more recent work, though perhaps he meant to track the earlier usage. Democracy and Its Critics freely discusses majoritarianism more generally, including its imperfect but approximate embodiment in "polyarchies" like the United States. Thus, Arend Lijphardt sees Dahl's "polyarchies" as "democratic regimes . . . characterized not by perfect majoritarian responsiveness but by a high degree of it." AREND LIJPHARDT, DEMOCRACIES 2 (1984). At some risk of oversimplifying his views, I thus associate Dahl with those who basically accept the characterization of the United States' form of democracy as "majoritarian."
65. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 5 (1998).
66. See NEAL DEVINS, SHAPING CONSTITUTIONAL VALUES 156-62 (1996); Abner Mikva, The Judges v. The People: Judicial Independence and Democratic Ideals, 19 CARDOZO L. REV. 1771, 1772 (1998); Martin H. Redish, Judicial Review and the "Political Question," 79 NW. U. L. REV. 1031, 1045-46 (1985); Chemerinsky, supra note 7, at 74 (associating democracy with the "majoritarian paradigm" and asserting that "the Constitution-the basic charter for government in this country - does not support the priority of democracy"). Chemerinsky does later assert that "no branch of government is truly majoritarian," but that all three branches "further the ends of democracy." Id. at 78. The strands are not always nicely separated. For Chemerinsky, for instance, the courts sometimes hark too closely to majoritarianism, id. at 96-98, and as we have already seen on one occasion, Bickel recognized the relevance of compensation elsewhere in the system. See supra note 22. We also saw that Bickel thought it important to leaven majoritarianism with a sensitive dose of principle. See supra text accompanying notes 18-20.
67. See NEAL DEVINS, SHAPING CONSTITUTIONAL VALUES 156-62 (1996); Abner Mikva, The Judges v. The People: Judicial Independence and Democratic Ideals, 19 CARDOZO L. REV. 1771, 1772 (1998); Martin H. Redish, Judicial Review and the "Political Question," 79 NW. U. L. REV. 1031, 1045-46 (1985); Chemerinsky, supra note 7, at 74 (associating democracy with the "majoritarian paradigm" and asserting that "the Constitution-the basic charter for government in this country - does not support the priority of democracy"). Chemerinsky does later assert that "no branch of government is truly majoritarian," but that all three branches "further the ends of democracy." Id. at 78. The strands are not always nicely separated. For Chemerinsky, for instance, the courts sometimes hark too closely to majoritarianism, id. at 96-98, and as we have already seen on one occasion, Bickel recognized the relevance of compensation elsewhere in the system. See supra note 22. We also saw that Bickel thought it important to leaven majoritarianism with a sensitive dose of principle. See supra text accompanying notes 18-20.
68. See NEAL DEVINS, SHAPING CONSTITUTIONAL VALUES 156-62 (1996); Abner Mikva, The Judges v. The People: Judicial Independence and Democratic Ideals, 19 CARDOZO L. REV. 1771, 1772 (1998); Martin H. Redish, Judicial Review and the "Political Question," 79 NW. U. L. REV. 1031, 1045-46 (1985); Chemerinsky, supra note 7, at 74 (associating democracy with the "majoritarian paradigm" and asserting that "the Constitution-the basic charter for government in this country - does not support the priority of democracy"). Chemerinsky does later assert that "no branch of government is truly majoritarian," but that all three branches "further the ends of democracy." Id. at 78. The strands are not always nicely separated. For Chemerinsky, for instance, the courts sometimes hark too closely to majoritarianism, id. at 96-98, and as we have already seen on one occasion, Bickel recognized the relevance of compensation elsewhere in the system. See supra note 22. We also saw that Bickel thought it important to leaven majoritarianism with a sensitive dose of principle. See supra text accompanying notes 18-20.
69. Whether it is voters or some other category of persons - like citizens, or adult citizens - that is to be given an equal input under this model is a subject I have dealt with elsewhere. See Robert W. Bennett, Should Parents Be Given EXtra Votes on Account of Their Children?: Toward a Conversational Understanding of American Democracy, 94 NW. U. L. REV. 503 (2000).
70. See infra text accompanying note 51.
71. We saw that Bickel thought that there would be "majoritarian" results, even if it was the net product of some nonmajoritarian steps along the way. See supra text accompanying notes 9-13. He apparently had some causal mechanism in mind other than the vote-centered model (and others may as well), but he provides no hint of what that might be. See Bennett, supra note 33, at 548-50.
72. An extended treatment can be found in Bennett, supra note 8. I have concluded that the adjusted terminology serves as a better shorthand description of the model.
73. See, e.g., BORK, supra note 28, at 139 ("Self-government . . . means that in wide areas of life majorities are entitled to rule . . . simply because they are majorities"); CHOPER, supra note 6, at 10 ("[T]he procedure of judicial review is in conflict with the fundamental principle of democracy-majority rule under conditions of political freedom."); FREDERICK SCHAUER, FREE SPEECH 40 (1982) ("The more we accept the premise of the argument from democracy, the less can we impinge on the right of self-government by restricting the power of the majority."); MARK TUSHNET RED, WHITE, AND BLUE 16 (1988) ("In general [in our society] the choice made by a majority is to be respected. . . ."); Calabresi, supra note 27, at 1382-83, 1391 ("[T]he Court's recent movement . . . toward . . . enforc[ing] textually prescribed structural constitutional allocations of power . . . does not suffer from the countermajoritarian difficulty . . . because it is engaged only in choosing which majority should govern on which issue . . . . [D]emocracy is simply a regime where there is majority rule . . . ."); Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122 (1998) ("Today's majority accepts limits on its own power . . . ."); Abner J. Mikva, Foreword on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) ("I am still one of those . . . who believe . . . that majorities in effect make policy in this country. . . ."); Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 419-20 (1997) ("The process of judicial review may not be majoritarian, but it is democratic in a sense closely akin to that of majoritarian lawmaking."); Kathleen M. Sullivan, Law's Labors, THE NEW REPUBLIC, May 23, 1994, at 42, 44 (associating "imperfections in the political market" with "thwart[ing] . . . vindication of majority preferences"); cf. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE, A CRITICAL INTRODUCTION 147 (1991) (calling judicial review a "countermajoritarian authority," a characterization that is particularly jarring in a book devoted to discussing the theoretical underpinnings of many qualifications on the reign of majorities); Brown, supra note 7, at 541 ("Common wisdom paints the twentieth century as simply one continuous movement toward a majoritarian paradigm . . . ."); Croley, supra note 17, at 710 (making the association, though not particularly approvingly);
74. See, e.g., BORK, supra note 28, at 139 ("Self-government . . . means that in wide areas of life majorities are entitled to rule . . . simply because they are majorities"); CHOPER, supra note 6, at 10 ("[T]he procedure of judicial review is in conflict with the fundamental principle of democracy-majority rule under conditions of political freedom."); FREDERICK SCHAUER, FREE SPEECH 40 (1982) ("The more we accept the premise of the argument from democracy, the less can we impinge on the right of self-government by restricting the power of the majority."); MARK TUSHNET RED, WHITE, AND BLUE 16 (1988) ("In general [in our society] the choice made by a majority is to be respected. . . ."); Calabresi, supra note 27, at 1382-83, 1391 ("[T]he Court's recent movement . . . toward . . . enforc[ing] textually prescribed structural constitutional allocations of power . . . does not suffer from the countermajoritarian difficulty . . . because it is engaged only in choosing which majority should govern on which issue . . . . [D]emocracy is simply a regime where there is majority rule . . . ."); Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122 (1998) ("Today's majority accepts limits on its own power . . . ."); Abner J. Mikva, Foreword on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) ("I am still one of those . . . who believe . . . that majorities in effect make policy in this country. . . ."); Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 419-20 (1997) ("The process of judicial review may not be majoritarian, but it is democratic in a sense closely akin to that of majoritarian lawmaking."); Kathleen M. Sullivan, Law's Labors, THE NEW REPUBLIC, May 23, 1994, at 42, 44 (associating "imperfections in the political market" with "thwart[ing] . . . vindication of majority preferences"); cf. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE, A CRITICAL INTRODUCTION 147 (1991) (calling judicial review a "countermajoritarian authority," a characterization that is particularly jarring in a book devoted to discussing the theoretical underpinnings of many qualifications on the reign of majorities); Brown, supra note 7, at 541 ("Common wisdom paints the twentieth century as simply one continuous movement toward a majoritarian paradigm . . . ."); Croley, supra note 17, at 710 (making the association, though not particularly approvingly); Thomas Merrill, Chief Justice Rehnquist: Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 626 (1994) (arguing that Rehnquist is an "optimistic pluralist," by which Merrill means someone who believes "that the competition for votes and the compromises needed to produce legislation under a system [like ours] of majority voting tends to produce a reasonably accurate summation of private preferences").
75. See, e.g., BORK, supra note 28, at 139 ("Self-government . . . means that in wide areas of life majorities are entitled to rule . . . simply because they are majorities"); CHOPER, supra note 6, at 10 ("[T]he procedure of judicial review is in conflict with the fundamental principle of democracy-majority rule under conditions of political freedom."); FREDERICK SCHAUER, FREE SPEECH 40 (1982) ("The more we accept the premise of the argument from democracy, the less can we impinge on the right of self-government by restricting the power of the majority."); MARK TUSHNET RED, WHITE, AND BLUE 16 (1988) ("In general [in our society] the choice made by a majority is to be respected. . . ."); Calabresi, supra note 27, at 1382-83, 1391 ("[T]he Court's recent movement . . . toward . . . enforc[ing] textually prescribed structural constitutional allocations of power . . . does not suffer from the countermajoritarian difficulty . . . because it is engaged only in choosing which majority should govern on which issue . . . . [D]emocracy is simply a regime where there is majority rule . . . ."); Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122 (1998) ("Today's majority accepts limits on its own power . . . ."); Abner J. Mikva, Foreword on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) ("I am still one of those . . . who believe . . . that majorities in effect make policy in this country. . . ."); Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 419-20 (1997) ("The process of judicial review may not be majoritarian, but it is democratic in a sense closely akin to that of majoritarian lawmaking."); Kathleen M. Sullivan, Law's Labors, THE NEW REPUBLIC, May 23, 1994, at 42, 44 (associating "imperfections in the political market" with "thwart[ing] . . . vindication of majority preferences"); cf. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE, A CRITICAL INTRODUCTION 147 (1991) (calling judicial review a "countermajoritarian authority," a characterization that is particularly jarring in a book devoted to discussing the theoretical underpinnings of many qualifications on the reign of majorities); Brown, supra note 7, at 541 ("Common wisdom paints the twentieth century as simply one continuous movement toward a majoritarian paradigm . . . ."); Croley, supra note 17, at 710 (making the association, though not particularly approvingly); Thomas Merrill, Chief Justice Rehnquist: Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 626 (1994) (arguing that Rehnquist is an "optimistic pluralist," by which Merrill means someone who believes "that the competition for votes and the compromises needed to produce legislation under a system [like ours] of majority voting tends to produce a reasonably accurate summation of private preferences").
76. See, e.g., BORK, supra note 28, at 139 ("Self-government . . . means that in wide areas of life majorities are entitled to rule . . . simply because they are majorities"); CHOPER, supra note 6, at 10 ("[T]he procedure of judicial review is in conflict with the fundamental principle of democracy-majority rule under conditions of political freedom."); FREDERICK SCHAUER, FREE SPEECH 40 (1982) ("The more we accept the premise of the argument from democracy, the less can we impinge on the right of self-government by restricting the power of the majority."); MARK TUSHNET RED, WHITE, AND BLUE 16 (1988) ("In general [in our society] the choice made by a majority is to be respected. . . ."); Calabresi, supra note 27, at 1382-83, 1391 ("[T]he Court's recent movement . . . toward . . . enforc[ing] textually prescribed structural constitutional allocations of power . . . does not suffer from the countermajoritarian difficulty . . . because it is engaged only in choosing which majority should govern on which issue . . . . [D]emocracy is simply a regime where there is majority rule . . . ."); Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122 (1998) ("Today's majority accepts limits on its own power . . . ."); Abner J. Mikva, Foreword on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) ("I am still one of those . . . who believe . . . that majorities in effect make policy in this country. . . ."); Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 419-20 (1997) ("The process of judicial review may not be majoritarian, but it is democratic in a sense closely akin to that of majoritarian lawmaking."); Kathleen M. Sullivan, Law's Labors, THE NEW REPUBLIC, May 23, 1994, at 42, 44 (associating "imperfections in the political market" with "thwart[ing] . . . vindication of majority preferences"); cf. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE, A CRITICAL INTRODUCTION 147 (1991) (calling judicial review a "countermajoritarian authority," a characterization that is particularly jarring in a book devoted to discussing the theoretical underpinnings of many qualifications on the reign of majorities); Brown, supra note 7, at 541 ("Common wisdom paints the twentieth century as simply one continuous movement toward a majoritarian paradigm . . . ."); Croley, supra note 17, at 710 (making the association, though not particularly approvingly); Thomas Merrill, Chief Justice Rehnquist: Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 626 (1994) (arguing that Rehnquist is an "optimistic pluralist," by which Merrill means someone who believes "that the competition for votes and the compromises needed to produce legislation under a system [like ours] of majority voting tends to produce a reasonably accurate summation of private preferences").
77. See, e.g., BORK, supra note 28, at 139 ("Self-government . . . means that in wide areas of life majorities are entitled to rule . . . simply because they are majorities"); CHOPER, supra note 6, at 10 ("[T]he procedure of judicial review is in conflict with the fundamental principle of democracy-majority rule under conditions of political freedom."); FREDERICK SCHAUER, FREE SPEECH 40 (1982) ("The more we accept the premise of the argument from democracy, the less can we impinge on the right of self-government by restricting the power of the majority."); MARK TUSHNET RED, WHITE, AND BLUE 16 (1988) ("In general [in our society] the choice made by a majority is to be respected. . . ."); Calabresi, supra note 27, at 1382-83, 1391 ("[T]he Court's recent movement . . . toward . . . enforc[ing] textually prescribed structural constitutional allocations of power . . . does not suffer from the countermajoritarian difficulty . . . because it is engaged only in choosing which majority should govern on which issue . . . . [D]emocracy is simply a regime where there is majority rule . . . ."); Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122 (1998) ("Today's majority accepts limits on its own power . . . ."); Abner J. Mikva, Foreword on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) ("I am still one of those . . . who believe . . . that majorities in effect make policy in this country. . . ."); Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 419-20 (1997) ("The process of judicial review may not be majoritarian, but it is democratic in a sense closely akin to that of majoritarian lawmaking."); Kathleen M. Sullivan, Law's Labors, THE NEW REPUBLIC, May 23, 1994, at 42, 44 (associating "imperfections in the political market" with "thwart[ing] . . . vindication of majority preferences"); cf. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE, A CRITICAL INTRODUCTION 147 (1991) (calling judicial review a "countermajoritarian authority," a characterization that is particularly jarring in a book devoted to discussing the theoretical underpinnings of many qualifications on the reign of majorities); Brown, supra note 7, at 541 ("Common wisdom paints the twentieth century as simply one continuous movement toward a majoritarian paradigm . . . ."); Croley, supra note 17, at 710 (making the association, though not particularly approvingly); Thomas Merrill, Chief Justice Rehnquist: Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 626 (1994) (arguing that Rehnquist is an "optimistic pluralist," by which Merrill means someone who believes "that the competition for votes and the compromises needed to produce legislation under a system [like ours] of majority voting tends to produce a reasonably accurate summation of private preferences").
78. See, e.g., BORK, supra note 28, at 139 ("Self-government . . . means that in wide areas of life majorities are entitled to rule . . . simply because they are majorities"); CHOPER, supra note 6, at 10 ("[T]he procedure of judicial review is in conflict with the fundamental principle of democracy-majority rule under conditions of political freedom."); FREDERICK SCHAUER, FREE SPEECH 40 (1982) ("The more we accept the premise of the argument from democracy, the less can we impinge on the right of self-government by restricting the power of the majority."); MARK TUSHNET RED, WHITE, AND BLUE 16 (1988) ("In general [in our society] the choice made by a majority is to be respected. . . ."); Calabresi, supra note 27, at 1382-83, 1391 ("[T]he Court's recent movement . . . toward . . . enforc[ing] textually prescribed structural constitutional allocations of power . . . does not suffer from the countermajoritarian difficulty . . . because it is engaged only in choosing which majority should govern on which issue . . . . [D]emocracy is simply a regime where there is majority rule . . . ."); Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122 (1998) ("Today's majority accepts limits on its own power . . . ."); Abner J. Mikva, Foreword on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) ("I am still one of those . . . who believe . . . that majorities in effect make policy in this country. . . ."); Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 419-20 (1997) ("The process of judicial review may not be majoritarian, but it is democratic in a sense closely akin to that of majoritarian lawmaking."); Kathleen M. Sullivan, Law's Labors, THE NEW REPUBLIC, May 23, 1994, at 42, 44 (associating "imperfections in the political market" with "thwart[ing] . . . vindication of majority preferences"); cf. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE, A CRITICAL INTRODUCTION 147 (1991) (calling judicial review a "countermajoritarian authority," a characterization that is particularly jarring in a book devoted to discussing the theoretical underpinnings of many qualifications on the reign of majorities); Brown, supra note 7, at 541 ("Common wisdom paints the twentieth century as simply one continuous movement toward a majoritarian paradigm . . . ."); Croley, supra note 17, at 710 (making the association, though not particularly approvingly); Thomas Merrill, Chief Justice Rehnquist: Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 626 (1994) (arguing that Rehnquist is an "optimistic pluralist," by which Merrill means someone who believes "that the competition for votes and the compromises needed to produce legislation under a system [like ours] of majority voting tends to produce a reasonably accurate summation of private preferences").
79. See, e.g., BORK, supra note 28, at 139 ("Self-government . . . means that in wide areas of life majorities are entitled to rule . . . simply because they are majorities"); CHOPER, supra note 6, at 10 ("[T]he procedure of judicial review is in conflict with the fundamental principle of democracy-majority rule under conditions of political freedom."); FREDERICK SCHAUER, FREE SPEECH 40 (1982) ("The more we accept the premise of the argument from democracy, the less can we impinge on the right of self-government by restricting the power of the majority."); MARK TUSHNET RED, WHITE, AND BLUE 16 (1988) ("In general [in our society] the choice made by a majority is to be respected. . . ."); Calabresi, supra note 27, at 1382-83, 1391 ("[T]he Court's recent movement . . . toward . . . enforc[ing] textually prescribed structural constitutional allocations of power . . . does not suffer from the countermajoritarian difficulty . . . because it is engaged only in choosing which majority should govern on which issue . . . . [D]emocracy is simply a regime where there is majority rule . . . ."); Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122 (1998) ("Today's majority accepts limits on its own power . . . ."); Abner J. Mikva, Foreword on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) ("I am still one of those . . . who believe . . . that majorities in effect make policy in this country. . . ."); Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 419-20 (1997) ("The process of judicial review may not be majoritarian, but it is democratic in a sense closely akin to that of majoritarian lawmaking."); Kathleen M. Sullivan, Law's Labors, THE NEW REPUBLIC, May 23, 1994, at 42, 44 (associating "imperfections in the political market" with "thwart[ing] . . . vindication of majority preferences"); cf. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE, A CRITICAL INTRODUCTION 147 (1991) (calling judicial review a "countermajoritarian authority," a characterization that is particularly jarring in a book devoted to discussing the theoretical underpinnings of many qualifications on the reign of majorities); Brown, supra note 7, at 541 ("Common wisdom paints the twentieth century as simply one continuous movement toward a majoritarian paradigm . . . ."); Croley, supra note 17, at 710 (making the association, though not particularly approvingly); Thomas Merrill, Chief Justice Rehnquist: Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 626 (1994) (arguing that Rehnquist is an "optimistic pluralist," by which Merrill means someone who believes "that the competition for votes and the compromises needed to produce legislation under a system [like ours] of majority voting tends to produce a reasonably accurate summation of private preferences").
80. See, e.g., BORK, supra note 28, at 139 ("Self-government . . . means that in wide areas of life majorities are entitled to rule . . . simply because they are majorities"); CHOPER, supra note 6, at 10 ("[T]he procedure of judicial review is in conflict with the fundamental principle of democracy-majority rule under conditions of political freedom."); FREDERICK SCHAUER, FREE SPEECH 40 (1982) ("The more we accept the premise of the argument from democracy, the less can we impinge on the right of self-government by restricting the power of the majority."); MARK TUSHNET RED, WHITE, AND BLUE 16 (1988) ("In general [in our society] the choice made by a majority is to be respected. . . ."); Calabresi, supra note 27, at 1382-83, 1391 ("[T]he Court's recent movement . . . toward . . . enforc[ing] textually prescribed structural constitutional allocations of power . . . does not suffer from the countermajoritarian difficulty . . . because it is engaged only in choosing which majority should govern on which issue . . . . [D]emocracy is simply a regime where there is majority rule . . . ."); Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122 (1998) ("Today's majority accepts limits on its own power . . . ."); Abner J. Mikva, Foreword on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) ("I am still one of those . . . who believe . . . that majorities in effect make policy in this country. . . ."); Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 419-20 (1997) ("The process of judicial review may not be majoritarian, but it is democratic in a sense closely akin to that of majoritarian lawmaking."); Kathleen M. Sullivan, Law's Labors, THE NEW REPUBLIC, May 23, 1994, at 42, 44 (associating "imperfections in the political market" with "thwart[ing] . . . vindication of majority preferences"); cf. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE, A CRITICAL INTRODUCTION 147 (1991) (calling judicial review a "countermajoritarian authority," a characterization that is particularly jarring in a book devoted to discussing the theoretical underpinnings of many qualifications on the reign of majorities); Brown, supra note 7, at 541 ("Common wisdom paints the twentieth century as simply one continuous movement toward a majoritarian paradigm . . . ."); Croley, supra note 17, at 710 (making the association, though not particularly approvingly); Thomas Merrill, Chief Justice Rehnquist: Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 626 (1994) (arguing that Rehnquist is an "optimistic pluralist," by which Merrill means someone who believes "that the competition for votes and the compromises needed to produce legislation under a system [like ours] of majority voting tends to produce a reasonably accurate summation of private preferences").
81. See, e.g., BORK, supra note 28, at 139 ("Self-government . . . means that in wide areas of life majorities are entitled to rule . . . simply because they are majorities"); CHOPER, supra note 6, at 10 ("[T]he procedure of judicial review is in conflict with the fundamental principle of democracy-majority rule under conditions of political freedom."); FREDERICK SCHAUER, FREE SPEECH 40 (1982) ("The more we accept the premise of the argument from democracy, the less can we impinge on the right of self-government by restricting the power of the majority."); MARK TUSHNET RED, WHITE, AND BLUE 16 (1988) ("In general [in our society] the choice made by a majority is to be respected. . . ."); Calabresi, supra note 27, at 1382-83, 1391 ("[T]he Court's recent movement . . . toward . . . enforc[ing] textually prescribed structural constitutional allocations of power . . . does not suffer from the countermajoritarian difficulty . . . because it is engaged only in choosing which majority should govern on which issue . . . . [D]emocracy is simply a regime where there is majority rule . . . ."); Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122 (1998) ("Today's majority accepts limits on its own power . . . ."); Abner J. Mikva, Foreword on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) ("I am still one of those . . . who believe . . . that majorities in effect make policy in this country. . . ."); Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 419-20 (1997) ("The process of judicial review may not be majoritarian, but it is democratic in a sense closely akin to that of majoritarian lawmaking."); Kathleen M. Sullivan, Law's Labors, THE NEW REPUBLIC, May 23, 1994, at 42, 44 (associating "imperfections in the political market" with "thwart[ing] . . . vindication of majority preferences"); cf. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE, A CRITICAL INTRODUCTION 147 (1991) (calling judicial review a "countermajoritarian authority," a characterization that is particularly jarring in a book devoted to discussing the theoretical underpinnings of many qualifications on the reign of majorities); Brown, supra note 7, at 541 ("Common wisdom paints the twentieth century as simply one continuous movement toward a majoritarian paradigm . . . ."); Croley, supra note 17, at 710 (making the association, though not particularly approvingly); Thomas Merrill, Chief Justice Rehnquist: Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 626 (1994) (arguing that Rehnquist is an "optimistic pluralist," by which Merrill means someone who believes "that the competition for votes and the compromises needed to produce legislation under a system [like ours] of majority voting tends to produce a reasonably accurate summation of private preferences").
82. Many issues arise in voting bodies about which many voters are indifferent or close to it. We will return to some problems of how to square the equality norm and majoritarianism where voters may care differentially about matters that come to a vote, see infra text accompanying notes 60-63, 70, but for present purposes we should simply note that the comfortable use of the term "majoritarianism" does not seem to require the active support of an absolute majority of the eligible electorate.
83. DAVID HELD, MODELS OF DEMOCRACY 18 (1996).
84. Id. at 19 (quoting from Aristotle's THE POLITICS). The quoted sentence contrasts this "numerical equality" with decision-making power "based on merit." Id.; see also Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 813 (1999) (equating "democracy" with "equality").
85. But cf. Eule, supra note 8, at 1558-59 (suggesting that courts take a "harder look" at the product of initiatives and referenda than at ordinary legislation to be sure that "the majority governs in the interests of the whole people").
86. See generally id. at 1508-13.
87. A proposal "that the President should be elected by 'the citizens of the United States,' or by the 'people' . . . [was] voted down [at the constitutional convention]." McPherson v. Blacker, 146 U.S. 1, 28 (1892). Under the scheme that was adopted, the president is chosen by what has come to be called the "electoral college," membership in which is apportioned by states, with substantial discretion over the manner of selection reposed in the individual states. Each state is entitled to a number of electors equal to its total representation in the House of Representatives and the Senate. U.S. CONST. art. II, § 1, cl. 2. Because each state is entitled to at least one member of the House of Representatives, U.S. CONST. art. I, § 2, cl. 3, a state's representation there is not proportionate to population. In the Senate, the disproportions are far greater, with California's two senators - to take the most extreme disparity - representing approximately 65 times the population of Wyoming's like number. See THE WORLD ALMANAC AND BOOK OF FACTS 1997, at 384 (Robert Famighetti ed., 1996) (relying on the BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 1990 CENSUS). The result is electoral college apportionment that diverges significantly from population proportionality. In addition, while all states now choose their electors by some form of popular vote, most employ a presidential candidate winner-take-all system, which can also skew the relationship between the popular vote totals in the country as a whole and the electoral college results. As a result of these various features of the electoral college system, one prominent analysis of the electoral college concludes that a member of the California electorate has 2.663 times the presidential "voting power" of a Montana voter. See LAWRENCE D. LONGLEY & NEAL R. PEIRCE, THE ELECTORAL COLLEGE PRIMER 142-44 (1996).
88. A proposal "that the President should be elected by 'the citizens of the United States,' or by the 'people' . . . [was] voted down [at the constitutional convention]." McPherson v. Blacker, 146 U.S. 1, 28 (1892). Under the scheme that was adopted, the president is chosen by what has come to be called the "electoral college," membership in which is apportioned by states, with substantial discretion over the manner of selection reposed in the individual states. Each state is entitled to a number of electors equal to its total representation in the House of Representatives and the Senate. U.S. CONST. art. II, § 1, cl. 2. Because each state is entitled to at least one member of the House of Representatives, U.S. CONST. art. I, § 2, cl. 3, a state's representation there is not proportionate to population. In the Senate, the disproportions are far greater, with California's two senators - to take the most extreme disparity -representing approximately 65 times the population of Wyoming's like number. See THE WORLD ALMANAC AND BOOK OF FACTS 1997, at 384 (Robert Famighetti ed., 1996) (relying on the BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 1990 CENSUS). The result is electoral college apportionment that diverges significantly from population proportionality. In addition, while all states now choose their electors by some form of popular vote, most employ a presidential candidate winner-take-all system, which can also skew the relationship between the popular vote totals in the country as a whole and the electoral college results. As a result of these various features of the electoral college system, one prominent analysis of the electoral college concludes that a member of the California electorate has 2.663 times the presidential "voting power" of a Montana voter. See LAWRENCE D. LONGLEY & NEAL R. PEIRCE, THE ELECTORAL COLLEGE PRIMER 142-44 (1996).
89. A proposal "that the President should be elected by 'the citizens of the United States,' or by the 'people' . . . [was] voted down [at the constitutional convention]." McPherson v. Blacker, 146 U.S. 1, 28 (1892). Under the scheme that was adopted, the president is chosen by what has come to be called the "electoral college," membership in which is apportioned by states, with substantial discretion over the manner of selection reposed in the individual states. Each state is entitled to a number of electors equal to its total representation in the House of Representatives and the Senate. U.S. CONST. art. II, § 1, cl. 2. Because each state is entitled to at least one member of the House of Representatives, U.S. CONST. art. I, § 2, cl. 3, a state's representation there is not proportionate to population. In the Senate, the disproportions are far greater, with California's two senators - to take the most extreme disparity - representing approximately 65 times the population of Wyoming's like number. See THE WORLD ALMANAC AND BOOK OF FACTS 1997, at 384 (Robert Famighetti ed., 1996) (relying on the BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 1990 CENSUS). The result is electoral college apportionment that diverges significantly from population proportionality. In addition, while all states now choose their electors by some form of popular vote, most employ a presidential candidate winner-take-all system, which can also skew the relationship between the popular vote totals in the country as a whole and the electoral college results. As a result of these various features of the electoral college system, one prominent analysis of the electoral college concludes that a member of the California electorate has 2.663 times the presidential "voting power" of a Montana voter. See LAWRENCE D. LONGLEY & NEAL R. PEIRCE, THE ELECTORAL COLLEGE PRIMER 142-44 (1996).
90. One commentator has recently suggested that a majority of American voters could now require Congress to convene a constitutional convention by submitting a petition to that effect "and that an amendment could be lawfully ratified by a simple majority of the American electorate." Akhil Reed Amar, Popular Sovereignty and Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 7, at 89 n.1 [hereinafter Amar, Popular Sovereignty];
91. see also Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994);
92. Amar, supra note 17. This is, to say the least, an eccentric view. There is not a word in the Constitution that would support such a procedure, and it is thoroughly at odds with the most fundamental assumptions of our constitutional order, including, importantly, the role of the states. Thus, qualification to vote in federal elections was originally, and remains to a degree, within the discretion of the states, see U.S. CONST. art. I, § 2, cl. 1; art. II, § 1; amend. XVII, so that there are not even the uniform national qualifications that would seem necessary to give coherence to the notion of a "simple" national majority. An alternative device that might be thought to be a substantial step toward national majoritarianism would be popular "instruction" of representatives. At the time of the constitutional convention, the possibility of such a mechanism was entertained. A right of instruction was included in a number of state constitutions at the time, but both Madison and Hamilton opposed it for the newly structured national legislature, and a move to include it was defeated. See Brown, supra note 7, at 555 (citing THOMAS E. CRONIN, DIRECT DEMOCRACY 24-26 (1989)).
93. The legislative process is actually three steps if each chamber of our bicameral national legislature is counted separately, four if the requirement of presidential approval is treated separately, and as many as six if the popular elections for each body are also counted separately.
94. There is perhaps another plausible possibility. Within the representative context, one version or another of majority vote is the decisional rule for many of the key decisions. It is the way in which we choose those legislators (though if there are more than two candidates, a plurality will often suffice) and it is the standard rule of decision for final action in the legislative chambers. Perhaps an institution could appropriately be called "majoritarian" if each successive step in its decision-making process was taken by majority vote. Cf. Randy E. Barnett, The Relevance of the Framers' Intent, 19 HARV. J.L. & PUB. POL'Y 403, 404 (1996) (discussing the importance of determining the intention of the majority and describing the layers of decision makers). As we shall see, that would dissociate the notion of "majoritarianism" from the results it produces, for the number of steps - and other things about them as well -would have a large impact on outcomes. In addition, that use of the term would fail to account for the embrace of Bickel's characterization of the Supreme Court. The Court makes its final decisions by majority vote, and its membership is chosen only with the "consent" of a majority of the Senate, the membership of which is in turn chosen in basically majoritarian elections in the states.
95. See infra text accompanying notes 68-70.
96. I am using the term "federalist" here to refer to those who supported ratification of the Constitution, as opposed to the "antifederalists." At the time, there was no political party known as the "Federalists," but it was not long before there was open political competition between Federalist and Republican parties. In that contest, former "federalists" were found on both sides, but espousal of fealty to "majoritarian" decision-making was especially prominent among the Republicans. See Friedman, History, supra note 8, at 357-59, 371-72. I do not mean to suggest that federalists uniformly embraced the notion that the representative assembly would be a reliable substitute for a meeting of the whole. To the contrary, James Madison, among other prominent federalists, was repelled by any such vision. See infra text accompanying note 58-59, 75, 81-83.
97. "Philanthrop" to the Public, in I THE DEBATE ON THE CONSTITUTION 325 (Bernard Bailyn ed., 1993) [hereinafter I DEBATE].
98. "Americanus " III, in I DEBATE supra note 48, at 437, 440.
99. JACK N. RAKOVE, ORIGINAL MEANINGS 203 (1996). In a letter to Thomas Jefferson from London in 1787, Adams said, "We agree perfectly that the many should have a full fair and perfect Representation." I DEBATE, supra note 48, at 473. In the case of Adams, at least, it is clear that he was simultaneously wary of an elected assembly and, thus, in favor of substantial countervailing power in a stable executive. Id.
100. John Rawls, for instance, advances a "principle of (equal) participation" requiring that "all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply." JOHN RAWLS, A THEORY OF JUSTICE 221 (1971). Robert Dahl, the dean of American political theorists, explains that among the "ideal standards" of a democracy is that at "the decisive stage of collective decisions, each citizen must be ensured an equal opportunity to express a choice that will be counted as equal in weight to the choice expressed by any other citizen." DAHL, CRITICS, supra note 30, at 109. And Thomas Christiano, elaborates on what political equality means: The basic principle of political equality is that in collective decision making designed for the purpose of deciding upon collective properties of society, all the relevant means to securing desired ends ought to be distributed equally. Voting power is the first important candidate for inclusion among these means . . . . Thomas Christiano, Political Equality, in MAJORITIES AND MINORITIES, NOMOS XXXII, at 151, 153 (John W. Chapman & Alan Wertheimer eds., 1990) [hereinafter NOMOS XXXII]. Joseph Bessette is probably the most explicit of all, and in his formulation the vote-centered model comes clearly into view: The electoral connection is the chief mechanism for ensuring . . . a linkage between the values and goals of representatives and represented. If that linkage is sufficiently strong, then the policies fashioned by political leaders will effectively be those that the people themselves would have chosen had they possessed the same knowledge and exposure as their representatives and devoted the same amount of time considering the information and arguments presented in the national councils. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 2 (1994); see also 2 ACKERMAN, supra note 31, at 88; BENJAMIN I. PAGE, WHO DELIBERATES? (1996); cf. Nixon v. Shrink Mo. Gov't PAC, 68 U.S.L.W. 4102, 4108 (2000) (Breyer, J., concurring) (characterizing limitations on monetary contributions to campaigns as "democratiz[ing]"). In its normative guise, this vision also has deep American roots. Many antifederalists opposed the Constitution on the ground that such a democratic ideal would be impossible in a large republic. See, e.g., Brutus III, in I DEBATE, supra note 48, at 320 (stating that representatives "should bear the strongest resemblance of those in whose room they are substituted"). See Bennett, supra note 8, at 482. This is especially true in judicial decisions, where courts must be mindful of bringing reality around, lest the law not be taken seriously. Thus, in 1964 when the United States Supreme Court held that both houses of state legislatures must be apportioned by population, Reynolds v. Sims, 377 U.S. 533 (1964), it seems likely that the Court thought that that simple move would nudge state government toward a vote-centered form. The Court explained that its "one man one vote" requirement was necessary to give each citizen an "equally effective voice in the election of members of his state legislature," as part of an "inalienable right to full and effective participation in the political processes of his State's legislative bodies." 377 U.S. at 565.
101. John Rawls, for instance, advances a "principle of (equal) participation" requiring that "all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply." JOHN RAWLS, A THEORY OF JUSTICE 221 (1971). Robert Dahl, the dean of American political theorists, explains that among the "ideal standards" of a democracy is that at "the decisive stage of collective decisions, each citizen must be ensured an equal opportunity to express a choice that will be counted as equal in weight to the choice expressed by any other citizen." DAHL, CRITICS, supra note 30, at 109. And Thomas Christiano, elaborates on what political equality means: The basic principle of political equality is that in collective decision making designed for the purpose of deciding upon collective properties of society, all the relevant means to securing desired ends ought to be distributed equally. Voting power is the first important candidate for inclusion among these means . . . . Thomas Christiano, Political Equality, in MAJORITIES AND MINORITIES, NOMOS XXXII, at 151, 153 (John W. Chapman & Alan Wertheimer eds., 1990) [hereinafter NOMOS XXXII]. Joseph Bessette is probably the most explicit of all, and in his formulation the vote-centered model comes clearly into view: The electoral connection is the chief mechanism for ensuring . . . a linkage between the values and goals of representatives and represented. If that linkage is sufficiently strong, then the policies fashioned by political leaders will effectively be those that the people themselves would have chosen had they possessed the same knowledge and exposure as their representatives and devoted the same amount of time considering the information and arguments presented in the national councils. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 2 (1994); see also 2 ACKERMAN, supra note 31, at 88; BENJAMIN I. PAGE, WHO DELIBERATES? (1996); cf. Nixon v. Shrink Mo. Gov't PAC, 68 U.S.L.W. 4102, 4108 (2000) (Breyer, J., concurring) (characterizing limitations on monetary contributions to campaigns as "democratiz[ing]"). In its normative guise, this vision also has deep American roots. Many antifederalists opposed the Constitution on the ground that such a democratic ideal would be impossible in a large republic. See, e.g., Brutus III, in I DEBATE, supra note 48, at 320 (stating that representatives "should bear the strongest resemblance of those in whose room they are substituted"). See Bennett, supra note 8, at 482. This is especially true in judicial decisions, where courts must be mindful of bringing reality around, lest the law not be taken seriously. Thus, in 1964 when the United States Supreme Court held that both houses of state legislatures must be apportioned by population, Reynolds v. Sims, 377 U.S. 533 (1964), it seems likely that the Court thought that that simple move would nudge state government toward a vote-centered form. The Court explained that its "one man one vote" requirement was necessary to give each citizen an "equally effective voice in the election of members of his state legislature," as part of an "inalienable right to full and effective participation in the political processes of his State's legislative bodies." 377 U.S. at 565.
102. John Rawls, for instance, advances a "principle of (equal) participation" requiring that "all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply." JOHN RAWLS, A THEORY OF JUSTICE 221 (1971). Robert Dahl, the dean of American political theorists, explains that among the "ideal standards" of a democracy is that at "the decisive stage of collective decisions, each citizen must be ensured an equal opportunity to express a choice that will be counted as equal in weight to the choice expressed by any other citizen." DAHL, CRITICS, supra note 30, at 109. And Thomas Christiano, elaborates on what political equality means: The basic principle of political equality is that in collective decision making designed for the purpose of deciding upon collective properties of society, all the relevant means to securing desired ends ought to be distributed equally. Voting power is the first important candidate for inclusion among these means . . . . Thomas Christiano, Political Equality, in MAJORITIES AND MINORITIES, NOMOS XXXII, at 151, 153 (John W. Chapman & Alan Wertheimer eds., 1990) [hereinafter NOMOS XXXII]. Joseph Bessette is probably the most explicit of all, and in his formulation the vote-centered model comes clearly into view: The electoral connection is the chief mechanism for ensuring . . . a linkage between the values and goals of representatives and represented. If that linkage is sufficiently strong, then the policies fashioned by political leaders will effectively be those that the people themselves would have chosen had they possessed the same knowledge and exposure as their representatives and devoted the same amount of time considering the information and arguments presented in the national councils. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 2 (1994); see also 2 ACKERMAN, supra note 31, at 88; BENJAMIN I. PAGE, WHO DELIBERATES? (1996); cf. Nixon v. Shrink Mo. Gov't PAC, 68 U.S.L.W. 4102, 4108 (2000) (Breyer, J., concurring) (characterizing limitations on monetary contributions to campaigns as "democratiz[ing]"). In its normative guise, this vision also has deep American roots. Many antifederalists opposed the Constitution on the ground that such a democratic ideal would be impossible in a large republic. See, e.g., Brutus III, in I DEBATE, supra note 48, at 320 (stating that representatives "should bear the strongest resemblance of those in whose room they are substituted"). See Bennett, supra note 8, at 482. This is especially true in judicial decisions, where courts must be mindful of bringing reality around, lest the law not be taken seriously. Thus, in 1964 when the United States Supreme Court held that both houses of state legislatures must be apportioned by population, Reynolds v. Sims, 377 U.S. 533 (1964), it seems likely that the Court thought that that simple move would nudge state government toward a vote-centered form. The Court explained that its "one man one vote" requirement was necessary to give each citizen an "equally effective voice in the election of members of his state legislature," as part of an "inalienable right to full and effective participation in the political processes of his State's legislative bodies." 377 U.S. at 565.
103. John Rawls, for instance, advances a "principle of (equal) participation" requiring that "all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply." JOHN RAWLS, A THEORY OF JUSTICE 221 (1971). Robert Dahl, the dean of American political theorists, explains that among the "ideal standards" of a democracy is that at "the decisive stage of collective decisions, each citizen must be ensured an equal opportunity to express a choice that will be counted as equal in weight to the choice expressed by any other citizen." DAHL, CRITICS, supra note 30, at 109. And Thomas Christiano, elaborates on what political equality means: The basic principle of political equality is that in collective decision making designed for the purpose of deciding upon collective properties of society, all the relevant means to securing desired ends ought to be distributed equally. Voting power is the first important candidate for inclusion among these means . . . . Thomas Christiano, Political Equality, in MAJORITIES AND MINORITIES, NOMOS XXXII, at 151, 153 (John W. Chapman & Alan Wertheimer eds., 1990) [hereinafter NOMOS XXXII]. Joseph Bessette is probably the most explicit of all, and in his formulation the vote-centered model comes clearly into view: The electoral connection is the chief mechanism for ensuring . . . a linkage between the values and goals of representatives and represented. If that linkage is sufficiently strong, then the policies fashioned by political leaders will effectively be those that the people themselves would have chosen had they possessed the same knowledge and exposure as their representatives and devoted the same amount of time considering the information and arguments presented in the national councils. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 2 (1994); see also 2 ACKERMAN, supra note 31, at 88; BENJAMIN I. PAGE, WHO DELIBERATES? (1996); cf. Nixon v. Shrink Mo. Gov't PAC, 68 U.S.L.W. 4102, 4108 (2000) (Breyer, J., concurring) (characterizing limitations on monetary contributions to campaigns as "democratiz[ing]"). In its normative guise, this vision also has deep American roots. Many antifederalists opposed the Constitution on the ground that such a democratic ideal would be impossible in a large republic. See, e.g., Brutus III, in I DEBATE, supra note 48, at 320 (stating that representatives "should bear the strongest resemblance of those in whose room they are substituted"). See Bennett, supra note 8, at 482. This is especially true in judicial decisions, where courts must be mindful of bringing reality around, lest the law not be taken seriously. Thus, in 1964 when the United States Supreme Court held that both houses of state legislatures must be apportioned by population, Reynolds v. Sims, 377 U.S. 533 (1964), it seems likely that the Court thought that that simple move would nudge state government toward a vote-centered form. The Court explained that its "one man one vote" requirement was necessary to give each citizen an "equally effective voice in the election of members of his state legislature," as part of an "inalienable right to full and effective participation in the political processes of his State's legislative bodies." 377 U.S. at 565.
104. John Rawls, for instance, advances a "principle of (equal) participation" requiring that "all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply." JOHN RAWLS, A THEORY OF JUSTICE 221 (1971). Robert Dahl, the dean of American political theorists, explains that among the "ideal standards" of a democracy is that at "the decisive stage of collective decisions, each citizen must be ensured an equal opportunity to express a choice that will be counted as equal in weight to the choice expressed by any other citizen." DAHL, CRITICS, supra note 30, at 109. And Thomas Christiano, elaborates on what political equality means: The basic principle of political equality is that in collective decision making designed for the purpose of deciding upon collective properties of society, all the relevant means to securing desired ends ought to be distributed equally. Voting power is the first important candidate for inclusion among these means . . . . Thomas Christiano, Political Equality, in MAJORITIES AND MINORITIES, NOMOS XXXII, at 151, 153 (John W. Chapman & Alan Wertheimer eds., 1990) [hereinafter NOMOS XXXII]. Joseph Bessette is probably the most explicit of all, and in his formulation the vote-centered model comes clearly into view: The electoral connection is the chief mechanism for ensuring . . . a linkage between the values and goals of representatives and represented. If that linkage is sufficiently strong, then the policies fashioned by political leaders will effectively be those that the people themselves would have chosen had they possessed the same knowledge and exposure as their representatives and devoted the same amount of time considering the information and arguments presented in the national councils. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 2 (1994); see also 2 ACKERMAN, supra note 31, at 88; BENJAMIN I. PAGE, WHO DELIBERATES? (1996); cf. Nixon v. Shrink Mo. Gov't PAC, 68 U.S.L.W. 4102, 4108 (2000) (Breyer, J., concurring) (characterizing limitations on monetary contributions to campaigns as "democratiz[ing]"). In its normative guise, this vision also has deep American roots. Many antifederalists opposed the Constitution on the ground that such a democratic ideal would be impossible in a large republic. See, e.g., Brutus III, in I DEBATE, supra note 48, at 320 (stating that representatives "should bear the strongest resemblance of those in whose room they are substituted"). See Bennett, supra note 8, at 482. This is especially true in judicial decisions, where courts must be mindful of bringing reality around, lest the law not be taken seriously. Thus, in 1964 when the United States Supreme Court held that both houses of state legislatures must be apportioned by population, Reynolds v. Sims, 377 U.S. 533 (1964), it seems likely that the Court thought that that simple move would nudge state government toward a vote-centered form. The Court explained that its "one man one vote" requirement was necessary to give each citizen an "equally effective voice in the election of members of his state legislature," as part of an "inalienable right to full and effective participation in the political processes of his State's legislative bodies." 377 U.S. at 565.
105. John Rawls, for instance, advances a "principle of (equal) participation" requiring that "all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply." JOHN RAWLS, A THEORY OF JUSTICE 221 (1971). Robert Dahl, the dean of American political theorists, explains that among the "ideal standards" of a democracy is that at "the decisive stage of collective decisions, each citizen must be ensured an equal opportunity to express a choice that will be counted as equal in weight to the choice expressed by any other citizen." DAHL, CRITICS, supra note 30, at 109. And Thomas Christiano, elaborates on what political equality means: The basic principle of political equality is that in collective decision making designed for the purpose of deciding upon collective properties of society, all the relevant means to securing desired ends ought to be distributed equally. Voting power is the first important candidate for inclusion among these means . . . . Thomas Christiano, Political Equality, in MAJORITIES AND MINORITIES, NOMOS XXXII, at 151, 153 (John W. Chapman & Alan Wertheimer eds., 1990) [hereinafter NOMOS XXXII]. Joseph Bessette is probably the most explicit of all, and in his formulation the vote-centered model comes clearly into view: The electoral connection is the chief mechanism for ensuring . . . a linkage between the values and goals of representatives and represented. If that linkage is sufficiently strong, then the policies fashioned by political leaders will effectively be those that the people themselves would have chosen had they possessed the same knowledge and exposure as their representatives and devoted the same amount of time considering the information and arguments presented in the national councils. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 2 (1994); see also 2 ACKERMAN, supra note 31, at 88; BENJAMIN I. PAGE, WHO DELIBERATES? (1996); cf. Nixon v. Shrink Mo. Gov't PAC, 68 U.S.L.W. 4102, 4108 (2000) (Breyer, J., concurring) (characterizing limitations on monetary contributions to campaigns as "democratiz[ing]"). In its normative guise, this vision also has deep American roots. Many antifederalists opposed the Constitution on the ground that such a democratic ideal would be impossible in a large republic. See, e.g., Brutus III, in I DEBATE, supra note 48, at 320 (stating that representatives "should bear the strongest resemblance of those in whose room they are substituted"). See Bennett, supra note 8, at 482. This is especially true in judicial decisions, where courts must be mindful of bringing reality around, lest the law not be taken seriously. Thus, in 1964 when the United States Supreme Court held that both houses of state legislatures must be apportioned by population, Reynolds v. Sims, 377 U.S. 533 (1964), it seems likely that the Court thought that that simple move would nudge state government toward a vote-centered form. The Court explained that its "one man one vote" requirement was necessary to give each citizen an "equally effective voice in the election of members of his state legislature," as part of an "inalienable right to full and effective participation in the political processes of his State's legislative bodies." 377 U.S. at 565.
106. John Rawls, for instance, advances a "principle of (equal) participation" requiring that "all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply." JOHN RAWLS, A THEORY OF JUSTICE 221 (1971). Robert Dahl, the dean of American political theorists, explains that among the "ideal standards" of a democracy is that at "the decisive stage of collective decisions, each citizen must be ensured an equal opportunity to express a choice that will be counted as equal in weight to the choice expressed by any other citizen." DAHL, CRITICS, supra note 30, at 109. And Thomas Christiano, elaborates on what political equality means: The basic principle of political equality is that in collective decision making designed for the purpose of deciding upon collective properties of society, all the relevant means to securing desired ends ought to be distributed equally. Voting power is the first important candidate for inclusion among these means . . . . Thomas Christiano, Political Equality, in MAJORITIES AND MINORITIES, NOMOS XXXII, at 151, 153 (John W. Chapman & Alan Wertheimer eds., 1990) [hereinafter NOMOS XXXII]. Joseph Bessette is probably the most explicit of all, and in his formulation the vote-centered model comes clearly into view: The electoral connection is the chief mechanism for ensuring . . . a linkage between the values and goals of representatives and represented. If that linkage is sufficiently strong, then the policies fashioned by political leaders will effectively be those that the people themselves would have chosen had they possessed the same knowledge and exposure as their representatives and devoted the same amount of time considering the information and arguments presented in the national councils. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 2 (1994); see also 2 ACKERMAN, supra note 31, at 88; BENJAMIN I. PAGE, WHO DELIBERATES? (1996); cf. Nixon v. Shrink Mo. Gov't PAC, 68 U.S.L.W. 4102, 4108 (2000) (Breyer, J., concurring) (characterizing limitations on monetary contributions to campaigns as "democratiz[ing]"). In its normative guise, this vision also has deep American roots. Many antifederalists opposed the Constitution on the ground that such a democratic ideal would be impossible in a large republic. See, e.g., Brutus III, in I DEBATE, supra note 48, at 320 (stating that representatives "should bear the strongest resemblance of those in whose room they are substituted"). See Bennett, supra note 8, at 482. This is especially true in judicial decisions, where courts must be mindful of bringing reality around, lest the law not be taken seriously. Thus, in 1964 when the United States Supreme Court held that both houses of state legislatures must be apportioned by population, Reynolds v. Sims, 377 U.S. 533 (1964), it seems likely that the Court thought that that simple move would nudge state government toward a vote-centered form. The Court explained that its "one man one vote" requirement was necessary to give each citizen an "equally effective voice in the election of members of his state legislature," as part of an "inalienable right to full and effective participation in the political processes of his State's legislative bodies." 377 U.S. at 565.
107. See Bennett, supra note 8, at 482. This is especially true in judicial
108. See Friedman, History, supra note 8, at 630;
109. cf. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 183 (1991) (labeling "naive synecdoche" the suggestion that the Congress . . . speaks with the genuine voice of the American people," but naive only during "periods of normal politics") ;
110. ALEXANDER MEIKELJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 22 (1948) ("[T]he traditional American town meeting . . . is commonly, and rightly, regarded as a model by which free political procedures may be measured."); Chemerinsky, supra note 7, at 68 ("majority rule" defined as "democratic decisionmaking . . . that reflects the preferences of a majority of the citizens");
111. Sherman J. Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434, 442 (1998)
112. ("[V]oting systems . . . are means through which we seek to allow people to participate, as fully and equally as possible, in crafting and approving the rules and institutions under which they live."); Gerald Flood Leonard, Partisan Political Theory and the Unwritten Constitution: The Origins of Democracy in Illinois, 1818-1840, at 126 (1992) (unpublished Ph.D dissertation, University of Michigan) (available through UMI dissertation services) (summarizing assumptions of the American two-party system to include "that the will of the majority, as expressed through Constitutional means and subject to Constitutional limitation, constitutes the legitimate democratic will of the polity as a whole").
113. See, e.g., Chemerinksy, supra note 7, at 71; cf. MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS 4 (1982) (using the term "electorally accountable policymaking" in place of "democracy"). It is possible to use the phrase "electoral accountability" much more loosely, at the extreme to mean nothing more than that the electorate gets to choose among competitors to rule and to "throw out" rulers with whom it becomes too dissatisfied. See JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY (1974). Contemporary use of the phrase seems to posit a much stronger relationship between electoral decisions and specific acts of governance.
114. See, e.g., Chemerinksy, supra note 7, at 71; cf. MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS 4 (1982) (using the term "electorally accountable policymaking" in place of "democracy"). It is possible to use the phrase "electoral accountability" much more loosely, at the extreme to mean nothing more than that the electorate gets to choose among competitors to rule and to "throw out" rulers with whom it becomes too dissatisfied. See JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY (1974). Contemporary use of the phrase seems to posit a much stronger relationship between electoral decisions and specific acts of governance.
115. See, e.g., Chemerinksy, supra note 7, at 71; cf. MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS 4 (1982) (using the term "electorally accountable policymaking" in place of "democracy"). It is possible to use the phrase "electoral accountability" much more loosely, at the extreme to mean nothing more than that the electorate gets to choose among competitors to rule and to "throw out" rulers with whom it becomes too dissatisfied. See JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY (1974). Contemporary use of the phrase seems to posit a much stronger relationship between electoral decisions and specific acts of governance.
116. For a discussion of early tensions between the two, see GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 243-70 (1993).
117. See HANNAH FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION 127-31 (1967).
118. See RAKOVE, supra note 50, at 55 (characterizing thought of James Madison). 58 THE FEDERALIST NO. 10, at 59 (James Madison) (Edward Mead Earle ed., 1971).
119. "In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob." THE FEDERALIST NO. 55, at 361 (Alexander Hamilton or James Madison) (Earl Mead Earle ed., 1971). Madison was not particularly enamored of small direct democratic gatherings either. See infra note 75.
120. See supra text accompanying notes 38-43.
121. See Lovell, supra note 7, at 96 ("[L]egislators deprived of their power to delegate might instead try to reach compromises . . . by logrolling regulatory programs into huge omnibus bills.").
122. I noted earlier the problem in liberal theory of what it means to treat each voter "equally." See supra notes 38-39 and accompanying text. To the extent that trading is inhibited, the equal treatment comes one issue at a time, raising the real possibility that more trading, or a different definition of issues, would have led not only to greater overall satisfaction, but at the extreme, to a different pattern of results that would have been unanimously preferred. That, then, raises much-traversed questions of whether majority vote is the appropriate rule of decision in a liberal voting body. A nice discussion appears in DENNIS C. MUELLER, PUBLIC CHOICE 207-26 (1979). See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 85-96, 131-45 (1965).
123. I noted earlier the problem in liberal theory of what it means to treat each voter "equally." See supra notes 38-39 and accompanying text. To the extent that trading is inhibited, the equal treatment comes one issue at a time, raising the real possibility that more trading, or a different definition of issues, would have led not only to greater overall satisfaction, but at the extreme, to a different pattern of results that would have been unanimously preferred. That, then, raises much-traversed questions of whether majority vote is the appropriate rule of decision in a liberal voting body. A nice discussion appears in DENNIS C. MUELLER, PUBLIC CHOICE 207-26 (1979). See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 85-96, 131-45 (1965).
124. See KENNETH ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (1951).
125. Saul Levmore, Parliamentary Law, Majority Decisionmaking, and the Voting Paradox, 75 VA. L. REV. 971, 989-90 (1989). Procedural "rules can be neutral - for example, if either the chair is unaware of the individuals' preferences or, more affirmatively, there is a random process to determine voting order - but they will still determine the outcome, because there is no collective preference independent of the rules of order." Id. at 990.
126. There are, of course, two senators for each "district," i.e., state. But no state has both senatorial slots open at once, except in case of some emergency. With only one position being filled at a time, even the United States Senate resembles in some respects a body chosen from "single member" districts. In any event, both houses of the national legislature are chosen in geographically defined districts rather than at large by the entire electorate.
127. For exploration of the importance of the difference between these two possibilities, see Bennett, supra note 33.
128. In theory, just over one-quarter of the votes in the polity as a whole could control outcomes in a unicameral legislative assembly, assuming districting based on voting population of the districts. For "only a bare majority of the representatives in a chamber is needed to pass legislation, and each representative in the governing majority needs just one-half of the voters in his or her district." BUCHANAN & TULLOCK, supra note 62, at 220-22; Saul Levmore, Bicameralism: When Are Two Decisions Better Than One?, 12 INT'L REV. L. & ECON. 145, 156-57 (1992).
129. In theory, just over one-quarter of the votes in the polity as a whole could control outcomes in a unicameral legislative assembly, assuming districting based on voting population of the districts. For "only a bare majority of the representatives in a chamber is needed to pass legislation, and each representative in the governing majority needs just one-half of the voters in his or her district." BUCHANAN & TULLOCK, supra note 62, at 220-22; Saul Levmore, Bicameralism: When Are Two Decisions Better Than One?, 12 INT'L REV. L. & ECON. 145, 156-57 (1992).
130. If each representative had only a handful of constituents and ongoing contact with them, the information problem might be manageable, but then we would be unlikely to find representative government.
131. For one statement of the idea, see Frank Easterbrook, Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 15-16 (1984). One consequence of differential interests is that members of the population often remain ignorant about a wide range of matters of public policy. A recent issue of the journal Critical Review was devoted to the phenomenon of "Public Ignorance." The introductory essay asserts that the fact that the public is "overwhelmingly ignorant when it comes to politics . . . is ['possibly the strongest' finding] produced by any social science." Jeffrey Friedman, Introduction: Public Ignorance and Democratic Theory, 12 CRITICAL REV. 397, 397 (1998).
132. For one statement of the idea, see Frank Easterbrook, Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 15-16 (1984). One consequence of differential interests is that members of the population often remain ignorant about a wide range of matters of public policy. A recent issue of the journal Critical Review was devoted to the phenomenon of "Public Ignorance." The introductory essay asserts that the fact that the public is "overwhelmingly ignorant when it comes to politics . . . is ['possibly the strongest' finding] produced by any social science." Jeffrey Friedman, Introduction: Public Ignorance and Democratic Theory, 12 CRITICAL REV. 397, 397 (1998).
133. See supra text accompanying notes 47-50.
134. See generally MARTIN H. REDISH, THE FEDERAL COURTS IN THE POLITICAL ORDER 76-78 (1991).
135. See supra text accompanying notes 68-69.
136. THE FEDERALIST NO. 62, at 403 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971).
137. Madison made this point most sharply by spurning direct, or as he put it, "pure" democracy in his classic discussion of "factions": a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. THE FEDERALIST NO. 10, at 58 (James Madison) (Edward Earle Meade ed., 1976); see also THE FEDERALIST NO. 59 (Alexander Hamilton) ("[I]nfirmities incident to collective meetings of the people."); THE FEDERALIST NOS. 55, 39 (James Madison).
138. Madison made this point most sharply by spurning direct, or as he put it, "pure" democracy in his classic discussion of "factions": a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. THE FEDERALIST NO. 10, at 58 (James Madison) (Edward Earle Meade ed., 1976); see also THE FEDERALIST NO. 59 (Alexander Hamilton) ("[I]nfirmities incident to collective meetings of the people."); THE FEDERALIST NOS. 55, 39 (James Madison).
139. Madison made this point most sharply by spurning direct, or as he put it, "pure" democracy in his classic discussion of "factions": a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. THE FEDERALIST NO. 10, at 58 (James Madison) (Edward Earle Meade ed., 1976); see also THE FEDERALIST NO. 59 (Alexander Hamilton) ("[I]nfirmities incident to collective meetings of the people."); THE FEDERALIST NOS. 55, 39 (James Madison).
140. See Harry N. Scheiber, Federalism and the Constitution: The Original Understanding, in AMERICAN LAW AND THE CONSTITUTIONAL ORDER 85, 92-94 (Lawrence N. Friedman & Harry N. Scheiber eds., 1988).
141. Assume, for instance, nine electors of whom five are Libertarians (E1, E2, E3, E4, and E5) and four are Egalitarians (E6, E7, E8, and E9). If each branch of the legislature has three members and the house districting puts E1, E2, and E6 in house district one; E3, E4, and E7 in house district two; and E5, E8, and E9 in house district three, the House will presumably have a 2-1 libertarian majority with the representatives from districts one and two. If the senate districting puts E1, E2, and E3 in senate district one; E4, E6, and E7 in senate district two; and E5, E8, and E9 in senate district three, however, the Senate presumably would return a 2-1 egalitarian majority with the senators from districts two and three. This is, of course, a function of the fact noted earlier, see text accompanying notes 67-68 supra, that a majority of the entire electorate need not be reflected, even along the most politically salient of dimensions, in a body of representatives chosen in American-style, single-member, geographically defined districts. At a minimum, by providing a second obstacle, a second house will be protective of the status quo against majoritarian attempts at change. It is unclear whether Madison perceived this advantage in bicameralism simpliciter, but it is clear that one of his overriding concerns was that in representative democracy where "the legislative authority necessarily predominates," THE FEDERALIST NO. 51, at 338 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971), the "diseases" to which the government is "most liable" are "the facility and excess of lawmaking." THE FEDERALIST NO. 62, at 402 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971).
142. Assume, for instance, nine electors of whom five are Libertarians (E1, E2, E3, E4, and E5) and four are Egalitarians (E6, E7, E8, and E9). If each branch of the legislature has three members and the house districting puts E1, E2, and E6 in house district one; E3, E4, and E7 in house district two; and E5, E8, and E9 in house district three, the House will presumably have a 2-1 libertarian majority with the representatives from districts one and two. If the senate districting puts E1, E2, and E3 in senate district one; E4, E6, and E7 in senate district two; and E5, E8, and E9 in senate district three, however, the Senate presumably would return a 2-1 egalitarian majority with the senators from districts two and three. This is, of course, a function of the fact noted earlier, see text accompanying notes 67-68 supra, that a majority of the entire electorate need not be reflected, even along the most politically salient of dimensions, in a body of representatives chosen in American-style, single-member, geographically defined districts. At a minimum, by providing a second obstacle, a second house will be protective of the status quo against majoritarian attempts at change. It is unclear whether Madison perceived this advantage in bicameralism simpliciter, but it is clear that one of his overriding concerns was that in representative democracy where "the legislative authority necessarily predominates," THE FEDERALIST NO. 51, at 338 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971), the "diseases" to which the government is "most liable" are "the facility and excess of lawmaking." THE FEDERALIST NO. 62, at 402 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971).
143. U.S. CONST, art. 1, § 2, cl. 3.
144. THE FEDERALIST NO. 62 (Alexander Hamilton or James Madison). While it was never apportioned according to population, the disparity in the population-based "representativeness" of the Senate is now much greater than in the eighteenth century. Hamilton noted in THE FEDERALIST NO. 22, at 134 (Alexander Hamilton) (Edward Mead Earle ed,. 1971) that the seven least populous states - with majority representation in the Senate - "do not contain one third of the people." By the time of the 1990 census, however, the 26 least populous states - representing a comparable contemporary senatorial majority - had half that proportion. ROBERT L. FORSTALL, DEP'T OF COMMERCE, U.S. BUREAU OF THE CENSUS, POPULATION OF STATES AND COUNTIES OF THE UNITED STATES: 1790-1990, at 2 (1996).
145. THE FEDERALIST NO. 62, at 403 (Alexander Hamilton or James Madison) (Edward Mead Earle ed,. 1971); see also THE FEDERALIST NO. 51, at 338 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971): In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.
146. THE FEDERALIST NO. 62, at 403 (Alexander Hamilton or James Madison) (Edward Mead Earle ed,. 1971); see also THE FEDERALIST NO. 51, at 338 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971): In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.
147. This is sometimes difficult to discern in the Federalist papers because they were produced, in major part, to sway public opinion. For this purpose, it would not do to be too harsh about the oppression that unconstrained popular domination might work. Thus, when Madison discusses the House in particular, he depicts responsiveness to the people as its raison and, in that context, as an unqualifiedly good thing: the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. . . . Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? THE FEDERALIST NO. 57, at 371. In the discussion of the Senate, however, while the problem of government is still depicted as fulfilling "obligations to . . . constituents," THE FEDERALIST NO. 62, at 403 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971), somehow this is made to depend on maintaining distance rather than ensuring closeness, and imposing obstacles to legislation rather than facilitating it.
148. This is sometimes difficult to discern in the Federalist papers because they were produced, in major part, to sway public opinion. For this purpose, it would not do to be too harsh about the oppression that unconstrained popular domination might work. Thus, when Madison discusses the House in particular, he depicts responsiveness to the people as its raison and, in that context, as an unqualifiedly good thing: the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. . . . Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? THE FEDERALIST NO. 57, at 371. In the discussion of the Senate, however, while the problem of government is still depicted as fulfilling "obligations to . . . constituents," THE FEDERALIST NO. 62, at 403 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971), somehow this is made to depend on maintaining distance rather than ensuring closeness, and imposing obstacles to legislation rather than facilitating it.
149. THE FEDERALIST NO. 62, at 403 (Alexander Hamilton or James Madison) (Edward Mead Earle ed., 1971).
150. The Senate seems to have been crucial to Madison's aspirations for the system as a whole. In a letter to Jefferson, where Madison may have been less guarded than in the Federalist papers, he referred to the Senate as "the great anchor of the Government." I DEBATE, supra note 48, at 195. It was not only that the Senate provided "an additional impediment . . . against improper acts of legislation," id., but also that the Senate was assigned several important tasks to the exclusion of the House. International treaties, which coequally with legislation become "the supreme Law of the Land," U.S. CONST. art. VI, cl. 2, can be made by the President only "with the advice and consent of the Senate . . . provided two thirds of the Senators present concur." U.S. CONST, art. II, § 2, cl. 2. Similarly important executive appointments and appointments of federal judges require the advice and consent of the Senate, but not of the House. So important were these senatorial prerogatives that opponents of the Constitution sometimes worried that under it, the executive would be beholden to the Senate. See, e.g., "Centinel" II, in I DEBATE, supra note 48, at 86 ("[I]t will be . . . [the president's] interest to coincide with the views of the senate, and thus become the head of the aristocratic junto.").
151. The Senate seems to have been crucial to Madison's aspirations for the system as a whole. In a letter to Jefferson, where Madison may have been less guarded than in the Federalist papers, he referred to the Senate as "the great anchor of the Government." I DEBATE, supra note 48, at 195. It was not only that the Senate provided "an additional impediment . . . against improper acts of legislation," id., but also that the Senate was assigned several important tasks to the exclusion of the House. International treaties, which coequally with legislation become "the supreme Law of the Land," U.S. CONST. art. VI, cl. 2, can be made by the President only "with the advice and consent of the Senate . . . provided two thirds of the Senators present concur." U.S. CONST, art. II, § 2, cl. 2. Similarly important executive appointments and appointments of federal judges require the advice and consent of the Senate, but not of the House. So important were these senatorial prerogatives that opponents of the Constitution sometimes worried that under it, the executive would be beholden to the Senate. See, e.g., "Centinel" II, in I DEBATE, supra note 48, at 86 ("[I]t will be . . . [the president's] interest to coincide with the views of the senate, and thus become the head of the aristocratic junto.").
152. Matthew D. Adler, Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty, 145 U. PA. L. REV. 759 (1997) presents an extended argument that, even assuming the majoritarian credentials of much legislation, many of the decisions of administrative agencies would not be similarly "plebiscitary." See also Lovell, supra note 7 (stating that given the structure of the Constitution, the nondelegation doctrine, even if strictly enforced by the Court, would not create a system where accountable legislators have supreme and exclusive authority). 85 U.S. CONST. art. I, § 3, cl. 1.
153. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (holding ADEA's abrogation of the state's sovereign immunity is invalid under § 5 of the Fourteenth Amendment).
154. I join a large variety of others in reaching this conclusion. See, e.g., Jon Elster, Introduction, in CONSTITUTIONALISM AND DEMOCRACY, supra note 16, at 4; Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873, 890 (1987); Martin H. Redish, Political Consensus, Constitutional Formulae, and the Rationale for Judicial Review, 88 MICH. L. REV. 1340, 1348 (1990); sources cited supra note 8.
155. I join a large variety of others in reaching this conclusion. See, e.g., Jon Elster, Introduction, in CONSTITUTIONALISM AND DEMOCRACY, supra note 16, at 4; Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873, 890 (1987); Martin H. Redish, Political Consensus, Constitutional Formulae, and the Rationale for Judicial Review, 88 MICH. L. REV. 1340, 1348 (1990); sources cited supra note 8.
156. I join a large variety of others in reaching this conclusion. See, e.g., Jon Elster, Introduction, in CONSTITUTIONALISM AND DEMOCRACY, supra note 16, at 4; Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873, 890 (1987); Martin H. Redish, Political Consensus, Constitutional Formulae, and the Rationale for Judicial Review, 88 MICH. L. REV. 1340, 1348 (1990); sources cited supra note 8.
157. See Redish, supra note 87; Lawrence G. Sager, The Incorrigible Constitution, 65 N.Y.U. L. REV. 893, 897 (1990) ("[T]he Constitution prominently announces procedural and substantive limitations on the exercise of public will."); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1561 (1988).
158. See Redish, supra note 87; Lawrence G. Sager, The Incorrigible Constitution, 65 N.Y.U. L. REV. 893, 897 (1990) ("[T]he Constitution prominently announces procedural and substantive limitations on the exercise of public will."); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1561 (1988).
159. See Redish, supra note 87; Lawrence G. Sager, The Incorrigible Constitution, 65 N.Y.U. L. REV. 893, 897 (1990) ("[T]he Constitution prominently announces procedural and substantive limitations on the exercise of public will."); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1561 (1988).
160. The First Amendment - and what the courts have done in its name - is, of course, crucial here. But there are other manifestations. Administrative agencies are, for instance, required to apprize the public of proposed action and to receive and consider comment. See 5 U.S.C. § 553(b) (1994).
161. Of course, real world politicians may have a more complex set of incentives than election and reelection, but simplification is often an essential step to understanding, and this particular simplification has become standard in the public choice literature, at least since ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957).
162. See generally Friedman, supra note 70. It is possible to put even simplistic and petty parts of the conversation in a favorable light. See, e.g., Richard D. Anderson, Jr., The Place of the Media in Popular Democracy, 12 CRITICAL REV. 481, 493 (1998): If the media emphasize contests rather than issues, attract attention to politics by dramatizing it, make learning about politics easier by simplifying and condensing it, help citizens pick out some issues as important from the welter of possibly important ones, and generate feelings of intimacy with politicians by attending to their personalities, the media may make politics more interesting and accessible, helping to include people who might otherwise think it remote from their personal concerns. . . . If inclusion rather than deliberation produces the desirable consequences of democracy, maybe the media effects that corrode deliberation should be praised, not damned.
163. See generally Friedman, supra note 70. It is possible to put even simplistic and petty parts of the conversation in a favorable light. See, e.g., Richard D. Anderson, Jr., The Place of the Media in Popular Democracy, 12 CRITICAL REV. 481, 493 (1998): If the media emphasize contests rather than issues, attract attention to politics by dramatizing it, make learning about politics easier by simplifying and condensing it, help citizens pick out some issues as important from the welter of possibly important ones, and generate feelings of intimacy with politicians by attending to their personalities, the media may make politics more interesting and accessible, helping to include people who might otherwise think it remote from their personal concerns. . . . If inclusion rather than deliberation produces the desirable consequences of democracy, maybe the media effects that corrode deliberation should be praised, not damned.
164. Reynolds v. Sims, 377 U.S. 533, 543 (1964).
165. The incentive, of course, can be diluted substantially in one-sided districts. See infra note 94; text accompanying note 102.
166. On the incumbent advantage, see generally U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845, 922-23 (1995) (Thomas J., dissenting) (discussing how current federal law confers numerous advantages on incumbents). One form that such incumbent advantage can take is electoral districting to provide "safe" districts for one party or the other, a possibility that has reached a fine art in recent years thanks to the commonplace use of computers in structuring the political makeup of districts. See Davis v. Bandemer, 478 U.S. 109, 174 (1986) (Powell, J., concurring in part and dissenting in part). Resulting noncompetitive districts dampen incentives for candidates to reach out to marginal voters. By one recent estimate "perhaps as few as a tenth of the Congressional districts will have truly competitive races" in the 2000 elections. See Robin Toner, Willing Contenders at a Premium in Fierce Fight to Rule Congress, N.Y. TIMES, Jan. 3, 2000, at A1. To be sure, the relative homogeneity of such districts does allow a candidate more efficiently to tailor a coherent message for the district. But even "safe" electoral districts will often contain an electoral minority that is quite large in absolute numbers. Noncompetitive districts may leave that minority more dependent than others on available alternatives. Among the alternatives, of course, is what may be said by those outside the district.
167. U.S. CONST. amend. I.
168. Political theorists who import an equal treatment ideal into the ongoing process of American government, see sources cited supra note 51, run up against the brute fact that most citizens most of the time are uninterested in active contribution to public affairs. Given the size of the American population, greatly unequal citizen contributions to any ongoing dialogue about public matters seems an irreducible fact of our public life. See also supra note 70 (discussing public ignorance).
169. See supra text accompanying notes 11-13; BICKEL, supra note 1, at 18; MARTIN SHAPIRO, LAW AND POLITICS IN THE SUPREME COURT 249 (1964); Stephen Holmes, Gag Rules or the Politics of Omission, in CONSTITUTIONALISM AND DEMOCRACY, supra note 16, at 35.
170. See supra text accompanying notes 11-13; BICKEL, supra note 1, at 18; MARTIN SHAPIRO, LAW AND POLITICS IN THE SUPREME COURT 249 (1964); Stephen Holmes, Gag Rules or the Politics of Omission, in CONSTITUTIONALISM AND DEMOCRACY, supra note 16, at 35.
171. See supra text accompanying notes 11-13; BICKEL, supra note 1, at 18; MARTIN SHAPIRO, LAW AND POLITICS IN THE SUPREME COURT 249 (1964); Stephen Holmes, Gag Rules or the Politics of Omission, in CONSTITUTIONALISM AND DEMOCRACY, supra note 16, at 35.
172. Cf. POST, supra note 8, at 184-91.
173. See Bennett, supra note 8, at 522-23 (discussing the conversational explanation of the "paradox of voting."). The conversational explanation might, for instance, account for the fact that the tendency to vote increases with education. If, instead, voting were most important as governance and conversation merely a means to that end, the more educated could be expected better to appreciate how ineffectual their votes are and, hence, be less likely to bother casting them. See HOWARD MARGOLIS, SELFISHNESS, ALTRUISM, AND RATIONALITY 17 (1982).
174. See Bennett, supra note 8, at 522-23 (discussing the conversational explanation of the "paradox of voting."). The conversational explanation might, for instance, account for the fact that the tendency to vote increases with education. If, instead, voting were most important as governance and conversation merely a means to that end, the more educated could be expected better to appreciate how ineffectual their votes are and, hence, be less likely to bother casting them. See HOWARD MARGOLIS, SELFISHNESS, ALTRUISM, AND RATIONALITY 17 (1982).
175. See Bennett, supra note 8; Bennett, supra note 33 (arguing that the role of conversation can help explain the nonappearance in American political discourse of the seemingly obvious idea that parents might receive extra votes on account of their children); Robert W. Bennett, The Senate of the United States, in ROLE AND FUNCTION OF THE SECOND CHAMBER, PROCEEDINGS OF THE THIRD CONGRESS OF THE EUROPEAN ASSOCIATION OF LEGISLATION 141 (Nomos Verlagsgesellschaft, Ulrich Karpen ed., 1999).
176. See Bennett, supra note 8; Bennett, supra note 33 (arguing that the role of conversation can help explain the nonappearance in American political discourse of the seemingly obvious idea that parents might receive extra votes on account of their children); Robert W. Bennett, The Senate of the United States, in ROLE AND FUNCTION OF THE SECOND CHAMBER, PROCEEDINGS OF THE THIRD CONGRESS OF THE EUROPEAN ASSOCIATION OF LEGISLATION 141 (Nomos Verlagsgesellschaft, Ulrich Karpen ed., 1999).
177. See Bennett, supra note 8; Bennett, supra note 33 (arguing that the role of conversation can help explain the nonappearance in American political discourse of the seemingly obvious idea that parents might receive extra votes on account of their children); Robert W. Bennett, The Senate of the United States, in ROLE AND FUNCTION OF THE SECOND CHAMBER, PROCEEDINGS OF THE THIRD CONGRESS OF THE EUROPEAN ASSOCIATION OF LEGISLATION 141 (Nomos Verlagsgesellschaft, Ulrich Karpen ed., 1999).
178. It was not until somewhat later that "blatant electioneering" and "competitive campaigning," WOOD supra note 55, at 297, supplanted a republican attitude that "gentlemen simply stood by and waited to be called" to public office, id. at 294. See also J.R. POLE, POLITICAL REPRESENTATION IN ENGLAND AND THE ORIGINS OF THE AMERICAN REPUBLIC 165 (1966) ("The open electioneering of the candidates would certainly have struck anyone bred in the habits of the eighteenth century as a debasement of the dignity of the legislature and a corruption of the freedom and purity of elections.").
179. Cf. Clark, supra note 53, at 473 (describing a populist critique of multimember districts and atlarge elections).
180. LEARNED HAND, THE BILL OF RIGHTS 73-74 (1958).
181. BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE 136 (1984), quoted in POST, supra note 8, at 185.
182. See, e.g., MICHAEL SANDEL, DEMOCRACY'S DISCONTENT (1996); CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993); Michelman, supra note 8, at 4, 19; see also, e.g., Thomas Christiano, Deliberative Equality and Democratic Order, in POLITICAL ORDER, NOMOS XXXVIII, at 251 (Ian Shapiro & Russell Hardin eds., 1993).
183. See, e.g., MICHAEL SANDEL, DEMOCRACY'S DISCONTENT (1996); CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993); Michelman, supra note 8, at 4, 19; see also, e.g., Thomas Christiano, Deliberative Equality and Democratic Order, in POLITICAL ORDER, NOMOS XXXVIII, at 251 (Ian Shapiro & Russell Hardin eds., 1993).
184. See, e.g., MICHAEL SANDEL, DEMOCRACY'S DISCONTENT (1996); CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993); Michelman, supra note 8, at 4, 19; see also, e.g., Thomas Christiano, Deliberative Equality and Democratic Order, in POLITICAL ORDER, NOMOS XXXVIII, at 251 (Ian Shapiro & Russell Hardin eds., 1993).
185. See, e.g., MICHAEL SANDEL, DEMOCRACY'S DISCONTENT (1996); CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993); Michelman, supra note 8, at 4, 19; see also, e.g., Thomas Christiano, Deliberative Equality and Democratic Order, in POLITICAL ORDER, NOMOS XXXVIII, at 251 (Ian Shapiro & Russell Hardin eds., 1993).
186. POST, supra note 8, at 186-87.
187. Id. at 185-86.
188. An exception is Friedman, Dialogue, supra note 8, at 584.
189. POST, supra note 8, at 187.
190. See supra text accompanying notes 55-65.
191. See, e.g., Edwin Chen, Crisis in Yugoslavia: Clinton Approval Rating Drops, L.A. TIMES, May 1, 1999, at A17.
192. RAWLS, supra note 51, at 579.
193. R.H. Coase, How Should Economists Choose?, in ESSAYS ON ECONOMICS AND ECONOMISTS 15, 16-17 (1994).
194. John Ferejohn & Debra Satz, Unification, Universalism, and Rational Choice Theory, in THE RATIONAL CHOICE CONTROVERSY 71, 72 (Jeffrey Friedman ed., 1996).
195. WILLIAM F. HARRIS II, THE INTERPRETABLE CONSTITUTION, at ix (1993).
196. Written submission by attorneys was not a staple of Supreme Court decision making until 1821. See DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 109 (5th ed. 2000).
197. Beyond this footnote, I will not dwell on the very real differences among clients (and probably also lawyers) in the nature and extent of the discussions between lawyer and client. Those differences may well affect the sense of involvement in conversation of the clients when the lawyers are doing the talking on their behalf. Representation by "agents" will, of course, often be found in the political arena as well, when citizens take an "active" conversational role.
198. See Allen v. Wright, 468 U.S. 737, 750-52 (1984) (holding that plaintiffs must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct).
199. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 15 (1959).
200. There is some evidence that elected judges do steer clear of controversial positions on extremely charged and highly salient issues like appropriate use of the death penalty. See Melinda Gann Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 J. POL. 1117, 1120-21 (1987); cf. Mikva, supra note 32, at 1776. But elected courts have not steered clear of holding legislation or executive action unconstitutional. In recent years, for instance, they have been quite active in striking down or limiting legislation that attempted to place limits on jury awards.
201. There is some evidence that elected judges do steer clear of controversial positions on extremely charged and highly salient issues like appropriate use of the death penalty. See Melinda Gann Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 J. POL. 1117, 1120-21 (1987); cf. Mikva, supra note 32, at 1776. But elected courts have not steered clear of holding legislation or executive action unconstitutional. In recent years, for instance, they have been quite active in striking down or limiting legislation that attempted to place limits on jury awards.
202. See William Glaberson, Ohio Supreme Court Voids Legal Limits on Damage Suits, N.Y. TIMES, Aug. 17, 1999, at A9 (reporting, inter alia, on decisions by the Supreme Courts in Illinois, Kentucky, Ohio, and Oregon, all of which have elected Supreme Courts: Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997); Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998); Ohio ex. rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999); Lakin v. Senco Products, Inc. 987 P.2d 463 (Ore. 1999));
203. see also Victor Eugene Flango & Craig R. Ducat, What Difference Does Method of Judicial Selection Make?, 5 JUST. SYS. J. 25, 29 (1979) (detailing the selection procedures in each state). One commentator recently observed that "it . . . seems safe to say that elected judges typically have not been highly responsive to the electorate." Croley, supra note 17, at 730. Others conclude after reviewing the empirical evidence that "no one has been able to show that different selection procedures produce differences in the characteristics of judges' decisions or courts." Flango & Ducat, supra, at 39.
204. But see Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977) (arguing that federal and state trial courts are not equally competent forums for the enforcement of federal constitutional rights).
205. See James J. Alfini & Terrence J. Brooks, Ethical Constraints on Judicial Election Campaigns: A Review and Critique of Canon 7, 77 KY. L.J. 671 (1988-89); Croley, supra note 17, at 731; Hans S. Linde, Elective Judges: Some Comparative Comments, 61 S. CAL. L. REV. 1995, 2001 (1988); Mikva, supra note 32, at 1776.
206. See James J. Alfini & Terrence J. Brooks, Ethical Constraints on Judicial Election Campaigns: A Review and Critique of Canon 7, 77 KY. L.J. 671 (1988-89); Croley, supra note 17, at 731; Hans S. Linde, Elective Judges: Some Comparative Comments, 61 S. CAL. L. REV. 1995, 2001 (1988); Mikva, supra note 32, at 1776.
207. See James J. Alfini & Terrence J. Brooks, Ethical Constraints on Judicial Election Campaigns: A Review and Critique of Canon 7, 77 KY. L.J. 671 (1988-89); Croley, supra note 17, at 731; Hans S. Linde, Elective Judges: Some Comparative Comments, 61 S. CAL. L. REV. 1995, 2001 (1988); Mikva, supra note 32, at 1776.
208. See James J. Alfini & Terrence J. Brooks, Ethical Constraints on Judicial Election Campaigns: A Review and Critique of Canon 7, 77 KY. L.J. 671 (1988-89); Croley, supra note 17, at 731; Hans S. Linde, Elective Judges: Some Comparative Comments, 61 S. CAL. L. REV. 1995, 2001 (1988); Mikva, supra note 32, at 1776.
209. See, e.g., J.V. Schwan, State Courts Blur the Lines Separating Powers, CHI. TRIB., Sept. 22, 1999, at 19 ("[S]tate supreme courts are overstepping their prescribed constitutional boundaries by abandoning their traditional role as interpreters of law, opting instead to act as legislators."). A recent letter to Federalist Society Members from an organization called Illinois Citizens for a Sound Economy Foundation decries that "[i]n the last ten years, state supreme courts struck down civil justice reforms 90 times," justifying a "conclusion that the need for more common sense citizen engagement in this debate is paramount." (Nov. 24, 1999) (on file with author).
210. "After the early 1960s, the attitude of the Court toward amicus filings in argued cases gradually became one of laissez faire." Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 764 (2000).
211. See id. at 753 fig. 6.
212. These data surely exaggerate the democratic conversational reality, for amicus briefs of the Solicitor General account for a good deal of the volume. See id. at 761.
213. See Samuel Krislov, The Amicus Curias Brief: From Friendship to Advocacy, 72 YALE L.J. 694, 703 (1963) ("The amicus is no longer a neutral, amorphous embodiment of justice, but an active participant in the interest group struggle."). A 1997 amendment of the Supreme Court rules for the first time requires disclosure in amicus briefs of monetary assistance and of assistance received from parties to the litigation. See Kearney & Merrill, supra note 123, at 762 n.54.
214. See Samuel Krislov, The Amicus Curias Brief: From Friendship to Advocacy, 72 YALE L.J. 694, 703 (1963) ("The amicus is no longer a neutral, amorphous embodiment of justice, but an active participant in the interest group struggle."). A 1997 amendment of the Supreme Court rules for the first time requires disclosure in amicus briefs of monetary assistance and of assistance received from parties to the litigation. See Kearney & Merrill, supra note 123, at 762 n.54.
215. There is a growing trend toward nonpublication of opinions for decisions rendered by the United States Courts of Appeals, see generally Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 52 U. CHI. L. REV. 1371 (1995), to the point that opinions are now published in only a little over 20% of the dispositions throughout the system. See ADMIN. OFFICE OF THE U.S. COURTS, 1999 ANNUAL REPORT OF THE DIRECTOR 49 tbl. S-3 (1999). In theory at least, non-publication is reserved for matters without much precedential value, see ADMIN. OFFICE OF THE U.S. COURTS, ANNUAL REPORT 11 (1964-66), so that unpublished opinions are likely to be of little conversational import.
216. There is a growing trend toward nonpublication of opinions for decisions rendered by the United States Courts of Appeals, see generally Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 52 U. CHI. L. REV. 1371 (1995), to the point that opinions are now published in only a little over 20% of the dispositions throughout the system. See ADMIN. OFFICE OF THE U.S. COURTS, 1999 ANNUAL REPORT OF THE DIRECTOR 49 tbl. S-3 (1999). In theory at least, non-publication is reserved for matters without much precedential value, see ADMIN. OFFICE OF THE U.S. COURTS, ANNUAL REPORT 11 (1964-66), so that unpublished opinions are likely to be of little conversational import.
217. There is a growing trend toward nonpublication of opinions for decisions rendered by the United States Courts of Appeals, see generally Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 52 U. CHI. L. REV. 1371 (1995), to the point that opinions are now published in only a little over 20% of the dispositions throughout the system. See ADMIN. OFFICE OF THE U.S. COURTS, 1999 ANNUAL REPORT OF THE DIRECTOR 49 tbl. S-3 (1999). In theory at least, non-publication is reserved for matters without much precedential value, see ADMIN. OFFICE OF THE U.S. COURTS, ANNUAL REPORT 11 (1964-66), so that unpublished opinions are likely to be of little conversational import.
218. In Marshall's first four years on the Court, there were no dissents and only one concurring opinion, with Marshall himself writing well over half the opinions. See PERCIVAL E. JACKSON, DISSENT ON THE SUPREME COURT 21 (1969).
219. In the 1997 Term the annual Supreme Court issue of the Harvard Law Review reported that there were 64 dissents to 93 opinions of the Court. There were, in addition, 52 separate concurring opinions that Term. See The Statistics, 112 HARV. L. REV. 366 tbl. 1 (1998).
220. See Robert W. Bennett, A Dissent on Dissent, 74 JUDICATURE 255, 256-57 (1991). A classic example is Justice Stevens' repetition of dissent (on behalf of an identical set of four dissenters) in the second "flag burning" decision, United States v. Eichman, 496 U.S. 310, 319 (1990), acknowledging that the issue was identical to that decided the first time around. I do not mean to suggest that repetition of dissent is the universal practice. For a particularly dramatic refusal to adhere to an earlier dissenting position, see People v. Lewis, 430 N.E. 2d 1346, 1363 (Ill. 1981) (Goldenhersch, C.J., concurring).
221. See, e.g., O'BRIEN, supra note 116, at 117, where a picture of Justices Holmes and Brandeis appears under a caption describing them as "two of the Court's 'great dissenters.'"
222. Kearney & Merrill, supra note 123, at 774.
223. A large percentage of the amicus briefs submitted by nongovernmental agencies are filed on behalf of established "interest groups." This is hardly surprising given that spontaneous decision by an individual, or formation of a group to file a brief, is unlikely. After noting the various organizations that had filed amicus briefs all on one side of a case, Justice Scalia noted cynically that "[t]hat is no surprise. There is no self-interested organization out there devoted to pursuit of the truth in the federal courts." Jaffee v. Redmond, 518 U.S. 1, 36 (1996).
224. See, e.g., Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1063 (7th Cir. 1997) (Posner, C.J.).
225. This is not to say that opinions are never formulated with public reaction in mind. One commentator concludes, for instance, that "politics played a large role in both the content and the packaging of Roe [v. Wade]." DEVINS, supra note 32, at 2.
226. Discussion lamenting an accomplished fact will no doubt be more compelling when remediation remains possible. We will return below to the very real possibilities for change even after a judicial decision. See infra text accompanying notes 191-209.
227. Richard Posner, for one, does not find them persuasive. See Ryan, 125 F.3d at 1064.
228. See infra text accompanying notes 191-94.
229. And conceivably even greater conversational satisfaction for careful readers of a majority opinion. See L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 WM. & MARY L. REV. 1311, 1331 (1997) (stating that unanimous Supreme Court decisions are associated with a likelihood of less than careful consideration).
230. In explaining his attitude (of disapproval) toward dissents, John Marshall said: The course of every tribunal must necessarily be, that the opinion which is to be delivered as the opinion of the court, is previously submitted to the consideration of all the judges; and, if any part of the reasoning be disapproved, it must be so modified as to receive the approbation of all, before it can be delivered as the opinion of all. PHILADELPHIA UNION, Apr. 24, 1819, quoted in DONALD G. MORGAN, JUSTICE WILLIAM JOHNSON: THE FIRST DISSENTER 173 (1954).
231. I briefly discuss a distinction between "institutional" and "individualistic" styles of judging in Robert W. Bennett, Styles of Judging, 84 NW. U. L. REV. 853, 854-55 (1990).
232. See, e.g., Holmes, supra note 16.
233. See supra text accompanying note 79.
234. See, e.g., DAVID E. KYBIG, REPEALING NATIONAL PROHIBITION (1979).
235. U.S. CONST. amend. XIV, § 1.
236. U.S. CONST. art. II, § 1, cl. 5. The apportionment of the Senate is another such provision that I previously have discussed. Bennett, supra note 8, at 484-88; see also FRANCIS E. LEE & BRUCE I. OPPENHEIMER, SIZING UP THE SENATE (1999). 143 See, e.g., Holmes, supra note 16.
237. U.S. CONST. art. II, § 1, cl. 5. The apportionment of the Senate is another such provision that I previously have discussed. Bennett, supra note 8, at 484-88; see also FRANCIS E. LEE & BRUCE I. OPPENHEIMER, SIZING UP THE SENATE (1999). 143 See, e.g., Holmes, supra note 16.
238. U.S. CONST. art. II, § 1, cl. 5. The apportionment of the Senate is another such provision that I previously have discussed. Bennett, supra note 8, at 484-88; see also FRANCIS E. LEE & BRUCE I. OPPENHEIMER, SIZING UP THE SENATE (1999). 143 See, e.g., Holmes, supra note 16.
239. See supra text accompanying note 79.
240. See, e.g., DAVID E. KYBIG, REPEALING NATIONAL PROHIBITION (1979).
241. U.S. CONST. amend. XIV, § 1.
242. U.S. CONST. art. II, § 1, cl. 5. The apportionment of the Senate is another such provision that I previously have discussed. Bennett, supra note 8, at 484-88; see also FRANCIS E. LEE & BRUCE I. OPPENHEIMER, SIZING UP THE SENATE (1999).
243. U.S. CONST. art. II, § 1, cl. 5. The apportionment of the Senate is another such provision that I previously have discussed. Bennett, supra note 8, at 484-88; see also FRANCIS E. LEE & BRUCE I. OPPENHEIMER, SIZING UP THE SENATE (1999).
244. See Plyler v. Doe, 457 U.S. 202 (1982).
245. Ralph Nader, for instance, is frequently cited as a private individual who, through force of personality and energy, was able to bring issues of auto safety to the public attention in the 1960's. See JAY ACTON & ALAN LEMOND, RALPH NADER (1972). And Rachel Carson's 1962 book, Silent Spring, is often credited with advancing environmental issues on the national agenda. See Zygmunt J.B. Plater, From the Beginning, A Fundamental Shift of Paradigms: A Theory and Short History of Environmental Law, 27 LOY. L.A. L. REV. 981 n.1 (1994).
246. Cf. United States v. Eichman, 496 U.S. 310 (1990) (flag desecration cases); Texas v. Johnson, 491 U.S. 397 (1989).
247. See Robert Bellah, Civil Religion in America, DAEDALUS: J. AM. ACAD. ARTS & SCI., Winter 1967, reprinted in AMERICAN CIVIL RELIGION 24 (Richey & Jones eds. 1974). Variations on the characterization have been advanced by a large number of commentators. See, e.g., SANFORD LEVINSON, CONSTITUTIONAL FAITH 14 (1988); TUSHNET, supra note 29, at 50; Thomas Grey, The Constitution as Scripture 37 STAN. L. REV. 1, 21-25 (1984); Max Lerner, The Court and Constitution as Symbols, 46 YALE L.J. 1290, 1294 (1937). In his 1978 book, The Supreme Court and the Idea of Progress, Bickel mentions Supreme Court Justice George Sutherland's belief since childhood that "the Constitution 'was a divinely inspired instrument.'" BICKEL, supra note 13, at 14-15.
248. See Robert Bellah, Civil Religion in America, DAEDALUS: J. AM. ACAD. ARTS & SCI., Winter 1967, reprinted in AMERICAN CIVIL RELIGION 24 (Richey & Jones eds. 1974). Variations on the characterization have been advanced by a large number of commentators. See, e.g., SANFORD LEVINSON, CONSTITUTIONAL FAITH 14 (1988); TUSHNET, supra note 29, at 50; Thomas Grey, The Constitution as Scripture 37 STAN. L. REV. 1, 21-25 (1984); Max Lerner, The Court and Constitution as Symbols, 46 YALE L.J. 1290, 1294 (1937). In his 1978 book, The Supreme Court and the Idea of Progress, Bickel mentions Supreme Court Justice George Sutherland's belief since childhood that "the Constitution 'was a divinely inspired instrument.'" BICKEL, supra note 13, at 14-15.
249. See Robert Bellah, Civil Religion in America, DAEDALUS: J. AM. ACAD. ARTS & SCI., Winter 1967, reprinted in AMERICAN CIVIL RELIGION 24 (Richey & Jones eds. 1974). Variations on the characterization have been advanced by a large number of commentators. See, e.g., SANFORD LEVINSON, CONSTITUTIONAL FAITH 14 (1988); TUSHNET, supra note 29, at 50; Thomas Grey, The Constitution as Scripture 37 STAN. L. REV. 1, 21-25 (1984); Max Lerner, The Court and Constitution as Symbols, 46 YALE L.J. 1290, 1294 (1937). In his 1978 book, The Supreme Court and the Idea of Progress, Bickel mentions Supreme Court Justice George Sutherland's belief since childhood that "the Constitution 'was a divinely inspired instrument.'" BICKEL, supra note 13, at 14-15.
250. See Robert Bellah, Civil Religion in America, DAEDALUS: J. AM. ACAD. ARTS & SCI., Winter 1967, reprinted in AMERICAN CIVIL RELIGION 24 (Richey & Jones eds. 1974). Variations on the characterization have been advanced by a large number of commentators. See, e.g., SANFORD LEVINSON, CONSTITUTIONAL FAITH 14 (1988); TUSHNET, supra note 29, at 50; Thomas Grey, The Constitution as Scripture 37 STAN. L. REV. 1, 21-25 (1984); Max Lerner, The Court and Constitution as Symbols, 46 YALE L.J. 1290, 1294 (1937). In his 1978 book, The
251. See Robert Bellah, Civil Religion in America, DAEDALUS: J. AM. ACAD. ARTS & SCI., Winter 1967, reprinted in AMERICAN CIVIL RELIGION 24 (Richey & Jones eds. 1974). Variations on the characterization have been advanced by a large number of commentators. See, e.g., SANFORD LEVINSON, CONSTITUTIONAL FAITH 14 (1988); TUSHNET, supra note 29, at 50; Thomas Grey, The Constitution as Scripture 37 STAN. L. REV. 1, 21-25 (1984); Max Lerner, The Court and Constitution as Symbols, 46 YALE L.J. 1290, 1294 (1937). In his 1978 book, The Supreme Court and the Idea of Progress, Bickel mentions Supreme Court Justice George Sutherland's belief since childhood that "the Constitution 'was a divinely inspired instrument.'" BICKEL, supra note 13, at 14-15.
252. See Robert Bellah, Civil Religion in America, DAEDALUS: J. AM. ACAD. ARTS & SCI., Winter 1967, reprinted in AMERICAN CIVIL RELIGION 24 (Richey & Jones eds. 1974). Variations on the characterization have been advanced by a large number of commentators. See, e.g., SANFORD LEVINSON, CONSTITUTIONAL FAITH 14 (1988); TUSHNET, supra note 29, at 50; Thomas Grey, The Constitution as Scripture 37 STAN. L. REV. 1, 21-25 (1984); Max Lerner, The Court and Constitution as Symbols, 46 YALE L.J. 1290, 1294 (1937). In his 1978 book, The Supreme Court and the Idea of Progress, Bickel mentions Supreme Court Justice George Sutherland's belief since childhood that "the Constitution 'was a divinely inspired instrument.'" BICKEL, supra note 13, at 14-15.
253. See generally WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION (1994).
254. BICKEL, supra note 1, at 202.
255. Id.
256. As we saw, this inertia was intentionally made quite substantial. See supra text accompanying notes 71-84.
257. See infra text accompanying notes 184-87.
258. The same is true of decisions where a statute or practice is upheld against constitutional challenge or where an action is struck down because it was taken by the wrong unit of government. Adversely affected nonparties may be disappointed and even frustrated to learn of such a court decision of which they had little or no forewarning. But there is no dearth of ongoing conversational outlets in such cases, for it remains within the power of legislative and executive officials to respond to those concerns through ordinary legislative processes.
259. See supra text accompanying note 151.
260. The phrase is associated with the work of Ronald Dworkin. See DWORKIN, supra note 26, at 104. But I do not mean to suggest that Dworkin thought that the search for right answers could proceed without searching conversation. To the contrary, he viewed the judge's search as Herculean, and recognized that "Hercules' judgments will inevitably differ from those other judges would make." Id. at 117.
261. 17 U.S. (4 Wheat.) 316, 407 (1819).
262. Bickel was one of those who recognized the tension between the Marshall of Marbury and the Marshall of McCulloch. See BICKEL, supra note 1, at 73.
263. U.S. CONST, art. I, § 9, cl. 5.
264. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179 (1803).
265. U.S. CONST, art. I, § 9, cl. 3.
266. 5 U.S. (1 Cranch) at 179.
267. U.S. CONST, art. III, § 3, cl. 1.
268. 5 U.S. (1 Cranch) at 179.
269. At one point, Marshall said that judicial review was necessary to prevent the legislature from doing "what is expressly [constitutionally] forbidden." Id. at 178.
270. "Judges and lawyers recurrently come to feel that they find law rather than make it." BICKEL, supra note 1, at 74; see also Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119 & n.14 (noting assumption throughout the nineteenth century that "the Constitution was a static instrument whose absolute meaning did not change");
271. "Judges and lawyers recurrently come to feel that they find law rather than make it." BICKEL, supra note 1, at 74; see also Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119 & n.14 (noting assumption throughout the nineteenth century that "the Constitution was a static instrument whose absolute meaning did not change");
272. see also United States v. Butler, 297 U.S. 1, 62 (1936), where Justice Roberts famously wrote that when "an act of Congress is . . . challenged . . . as not conforming to the constitutional mandate . . . [the] duty [of the judicial branch is] . . . to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former." Still, as the contrast with McCulloch suggests, see supra text accompanying note 160, the presentation in Marbury surely was part artifice, an attempt to make a difficult sell go down more easily.
273. DWORKIN, supra note 26, at 105-30.
274. Compare Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann ed., 1997) (understood by the public at the time), and BORK, supra note 28, at 144 (meaning understood at the time of enactment), with RAOUL BERGER, GOVERNMENT BY JUDICIARY 363 (1977), Robert H. Bork, Neutral Principles And Some First Amendment Problems, 47 IND. L.J. 1, 17 (1971), Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 230 (1988), Edwin Meese, The Battle for the Constitution: The Attorney General Replies to His Critics, 19 U.C. DAVIS L. REV. 22, 26 (1985), and Steven D. Smith, Law Without Mind, 88 MICH. L. REV. 104, 105 (1989) (understood by some group of authors or enactors).
275. Compare Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann ed., 1997) (understood by the public at the time), and BORK, supra note 28, at 144 (meaning understood at the time of enactment), with RAOUL BERGER, GOVERNMENT BY JUDICIARY 363 (1977), Robert H. Bork, Neutral Principles And Some First Amendment Problems, 47 IND. L.J. 1, 17 (1971), Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 230 (1988), Edwin Meese, The Battle for the Constitution: The Attorney General Replies to His Critics, 19 U.C. DAVIS L. REV. 22, 26 (1985), and Steven D. Smith, Law Without Mind, 88 MICH. L. REV. 104, 105 (1989) (understood by some group of authors or enactors).
276. Compare Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann ed., 1997) (understood by the public at the time), and BORK, supra note 28, at 144 (meaning understood at the time of enactment), with RAOUL BERGER, GOVERNMENT BY JUDICIARY 363 (1977), Robert H. Bork, Neutral Principles And Some First Amendment Problems, 47 IND. L.J. 1, 17 (1971), Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 230 (1988), Edwin Meese, The Battle for the Constitution: The Attorney General Replies to His Critics, 19 U.C. DAVIS L. REV. 22, 26 (1985), and Steven D. Smith, Law Without Mind, 88 MICH. L. REV. 104, 105 (1989) (understood by some group of authors or enactors).
277. Compare Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann ed., 1997) (understood by the public at the time), and BORK, supra note 28, at 144 (meaning understood at the time of enactment), with RAOUL BERGER, GOVERNMENT BY JUDICIARY 363 (1977), Robert H. Bork, Neutral Principles And Some First Amendment Problems, 47 IND. L.J. 1, 17 (1971), Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 230 (1988), Edwin Meese, The Battle for the Constitution: The Attorney General Replies to His Critics, 19 U.C. DAVIS L. REV. 22, 26 (1985), and Steven D. Smith, Law Without Mind, 88 MICH. L. REV. 104, 105 (1989) (understood by some group of authors or enactors).
278. Compare Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann ed., 1997) (understood by the public at the time), and BORK, supra note 28, at 144 (meaning understood at the time of enactment), with RAOUL BERGER, GOVERNMENT BY JUDICIARY 363 (1977), Robert H. Bork, Neutral Principles And Some First Amendment Problems, 47 IND. L.J. 1, 17 (1971), Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 230 (1988), Edwin Meese, The Battle for the Constitution: The Attorney General Replies to His Critics, 19 U.C. DAVIS L. REV. 22, 26 (1985), and Steven D. Smith, Law Without Mind, 88 MICH. L. REV. 104, 105 (1989) (understood by some group of authors or enactors).
279. Compare Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann ed., 1997) (understood by the public at the time), and BORK, supra note 28, at 144 (meaning understood at the time of enactment), with RAOUL BERGER, GOVERNMENT BY JUDICIARY 363 (1977), Robert H. Bork, Neutral Principles And Some First Amendment Problems, 47 IND. L.J. 1, 17 (1971), Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 230 (1988), Edwin Meese, The Battle for the Constitution: The Attorney General Replies to His Critics, 19 U.C. DAVIS L. REV. 22, 26 (1985), and Steven D. Smith, Law Without Mind, 88 MICH. L. REV. 104, 105 (1989) (understood by some group of authors or enactors).
280. Compare Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann ed., 1997) (understood by the public at the time), and BORK, supra note 28, at 144 (meaning understood at the time of enactment), with RAOUL BERGER, GOVERNMENT BY JUDICIARY 363 (1977), Robert H. Bork, Neutral Principles And Some First Amendment Problems, 47 IND. L.J. 1, 17 (1971), Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 230 (1988), Edwin Meese, The Battle for the Constitution: The Attorney General Replies to His Critics, 19 U.C. DAVIS L. REV. 22, 26 (1985), and Steven D. Smith, Law Without Mind, 88 MICH. L. REV. 104, 105 (1989) (understood by some group of authors or enactors).
281. I put to the side possibilities that facts in dispute may require discussion, or that a litigant may seek to buy time with the pursuit of a hopeless claim, producing discussion even when there is really nothing to talk about.
282. An example that could easily be challenged on policy grounds but that usually works without fuss is the provision for two senators from each state. U.S. CONST. art. 1, § 3, cl. 1. But even seemingly clear constitutional language is not an unerring guide to what will sometimes be done in its name, as illustrated by the same two senator provision. See TUSHNET, supra note 37, at 68-69; see also, e.g., Hans v. Louisiana, 134 U.S. 1 (1890) (recently reaffirmed (again) in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)).
283. An example that could easily be challenged on policy grounds but that usually works without fuss is the provision for two senators from each state. U.S. CONST. art. 1, § 3, cl. 1. But even seemingly clear constitutional language is not an unerring guide to what will sometimes be done in its name, as illustrated by the same two senator provision. See TUSHNET, supra note 37, at 68-69; see also, e.g., Hans v. Louisiana, 134 U.S. 1 (1890) (recently reaffirmed (again) in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)).
284. An example that could easily be challenged on policy grounds but that usually works without fuss is the provision for two senators from each state. U.S. CONST. art. 1, § 3, cl. 1. But even seemingly clear constitutional language is not an unerring guide to what will sometimes be done in its name, as illustrated by the same two senator provision. See TUSHNET, supra note 37, at 68-69; see also, e.g., Hans v. Louisiana, 134 U.S. 1 (1890) (recently reaffirmed (again) in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)).
285. U.S. CONST, art. I, § 3, cl. 1.
286. GEORGE H. HAYNES, THE ELECTION OF SENATORS 20 (1906).
287. RAKOVE, supra note 50, at 16. Rakove estimates that "roughly two thousand actors . . . served in the various conventions that framed and ratified the Constitution." Id. at 6. It is, of course, no answer to this point to say that the inquiry is an "objective" one into the understanding of the reasonable member of the addressees at the time. Recasting the question in that way only seems to narrow the inquiry by use of the fictional "reasonable" person.
288. See Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469, 488-91 (1981).
289. PLATO, Cratylus, 402A, reprinted in THE COLLECTED DIALOGUES OF PLATO, INCLUDING THE LETTERS 439 (Edith Hamilton & Huntington Cairns eds., 1989). A formulation I much prefer that I found in a lecture by S. Marc Cohen reproduced on the Internet is: "Upon those who step into the same rivers, different and again different waters flow."
290. For Ely, the proper approach to interpretation was established by the nature of the difficulty, and in that sense he may have been an exception.
291. See supra text accompanying notes 8-13.
292. See Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1016 (1984).
293. See infra note 208 and accompanying text.
294. See supra text accompanying notes 156-57.
295. 358 U.S. 1 (1958).
296. 347 U.S. 483 (1954).
297. Cooper, 358 U.S. at 18.
298. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997). Alexander and Schauer cite United States v. Nixon, 418 U.S. 683, 704 (1974) and Powell v. McCormack, 395 U.S. 486, 549 (1969) as reiterating the Cooper claim of judicial supremacy, Alexander & Schauer supra, at 1361 n.7, and there is no indication that the Court has backed away from the Cooper claim. For the limited exceptions that the two authors would allow for challenge to judicial constitutional interpretation (outside of the amendment possibility), see id. at 1381-86.
299. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997). Alexander and Schauer cite United States v. Nixon, 418 U.S. 683, 704 (1974) and Powell v. McCormack, 395 U.S. 486, 549 (1969) as reiterating the Cooper claim of judicial supremacy, Alexander & Schauer supra, at 1361 n.7, and there is no indication that the Court has backed away from the Cooper claim. For the limited exceptions that the two authors would allow for challenge to judicial constitutional interpretation (outside of the amendment possibility), see id. at 1381-86.
300. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997). Alexander and Schauer cite United States v. Nixon, 418 U.S. 683, 704 (1974) and Powell v. McCormack, 395 U.S. 486, 549 (1969) as reiterating the Cooper claim of judicial supremacy, Alexander & Schauer supra, at 1361 n.7, and there is no indication that the Court has backed away from the Cooper claim. For the limited exceptions that the two authors would allow for challenge to judicial constitutional interpretation (outside of the amendment possibility), see id. at 1381-86.
301. A contemporary example is the ongoing attempts to overturn the flag burning decisions. See United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989); see also David E. Rosenbaum, In Recurring Debate, House Votes to Ban Flag-Burning, N.Y. TIMES, June 25, 1999, at A18.
302. See supra text accompanying notes 76-83.
303. Lillian R. BeVier, The Moment and the Millennium: A Question of Time, or Law?, 66 GEO. WASH. L. REV. 1112, 1118 (1998).
304. See 2 ACKERMAN, supra note 31, at 268-71, 279-382.
305. An example might be Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
306. See, e.g., Mitchell v. W.T. Grant Co., 416 U.S. 600, 627-28 (1974) (Powell, J., concurring); Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177, 180-82 (1989). Alexander & Schauer, supra note 187, at 1360; see also Friedman, Dialogue, supra note 8, at 646-49.
307. See, e.g., Mitchell v. W.T. Grant Co., 416 U.S. 600, 627-28 (1974) (Powell, J., concurring); Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177, 180-82 (1989). Alexander & Schauer, supra note 187, at 1360; see also Friedman, Dialogue, supra note 8, at 646-49.
308. Alexander & Schauer, supra note 187, at 1360; see also Friedman, Dialogue, supra note 8, at 646-49.
309. See Maurice Kelman, The Forked Path of Dissent, 1985 SUP. CT. REV. 227, 239-41, 254.
310. Communication is sometimes sent directly to the Court. See Webster v. Reprod. Health Servs., 492 U.S. 490, 532, 535 (1989) (Scalia, J., concurring). That no doubt sometimes proves satisfying to a letter writer, but because of the norms of judicial conduct, it is less likely to be effective - and possibly even less likely to foster a sense of political involvement - than interactions mediated through the political process.
311. See DEVINS, supra note 32, at 23.
312. See generally Symposium, Confirmation Controversy: The Selection of a Supreme Court Justice, 84 NW. U. L. REV. 832 (1990). My focus here is on the federal system of judicial selection. The symposium dealt with the Supreme Court confirmations, but in recent years, the confirmation process for lower court federal judges has increasingly become an occasion for interest group involvement. See Thomas Shakow, Picking Moderate Judges, 107 YALE L.J. 2333, 2336 (1998) (book note).
313. See generally Symposium, Confirmation Controversy: The Selection of a Supreme Court Justice, 84 NW. U. L. REV. 832 (1990). My focus here is on the federal system of judicial selection. The symposium dealt with the Supreme Court confirmations, but in recent years, the confirmation process for lower court federal judges has increasingly become an occasion for interest group involvement. See Thomas Shakow, Picking Moderate Judges, 107 YALE L.J. 2333, 2336 (1998) (book note).
314. The classic example is the Supreme Court's rapid change of heart in the Legal Tender Cases after two new appointments. See DEVINS, supra note 32, at 25-26; Amar, Popular Sovereignty, supra note 43, at 112 ("Conventional wisdom emphasizing 'countermajoritarian' judicial review to protect unpopular rights is . . . shortsighted. Presidents select judges, and presidents are elected by majorities.").
315. The classic example is the Supreme Court's rapid change of heart in the Legal Tender Cases after two new appointments. See DEVINS, supra note 32, at 25-26; Amar, Popular Sovereignty, supra note 43, at 112 ("Conventional wisdom emphasizing 'countermajoritarian' judicial review to protect unpopular rights is . . . shortsighted. Presidents select judges, and presidents are elected by majorities.").
316. See Bruce Fein, Turn Out Lights on Litmus Tests, A.B.A. J., Apr. 2000, at 120.
317. See Marshall, supra note 193, at 177 n.2.
318. In a most unusual move, Justice Blackmun adverted in a court decision involving abortion to the possibility that the confirmation process for his successor might well "focus on the [abortion] issue before us today." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 922, 943 (1992) (Blackmun, J., concurring in part and dissenting in part).
319. 410 U.S. 113 (1973).
320. DEVINS, supra note 32, at 63; see also Friedman, Dialogue, supra note 8, at 658-68; cf. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 48 (1987).
321. DEVINS, supra note 32, at 63; see also Friedman, Dialogue, supra note 8, at 658-68; cf. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 48 (1987).
322. DEVINS, supra note 32, at 63; see also Friedman, Dialogue, supra note 8, at 658-68; cf. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 48 (1987).
323. In his concurring opinion in Webster v. Reproductive Health Service, 492 U. S. 490, 535 (1989), Justice Scalia took note of "carts full of mail from the public, and streets full of demonstrators, urging us - their unelected and life-tenured judges . . . - to follow the popular will."
324. 505 U.S. 833 (1992).
325. Id. at 846.
326. The saga is briefly recounted in GRIFFIN, supra note 7, at 88-89. For an account of continuing interactions during the period when President Roosevelt's court-packing plan was under consideration, see
327. Gregory A. Caldeira, Public Opinion and the U.S. Supreme Court: FDR's Court-Packing Plan, 81 AM. POL. SCI. REV. 1139 (1987) .
328. United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989).
329. See GEORGE GALLUP, THE GALLUP POLL: PUBLIC OPINION 71, 73 (1995); Richard Benedetto, 25 Years After Watergate, Public Trust Has Plunged, USA TODAY, June 17, 1997, at 7A.
330. See GEORGE GALLUP, THE GALLUP POLL: PUBLIC OPINION 71, 73 (1995); Richard Benedetto, 25 Years After Watergate, Public Trust Has Plunged, USA TODAY, June 17, 1997, at 7A.
331. See sources cited in supra note 30.
332. Even Ackerman, whose primary identification is as a law professor, holds an appointment in Yale's political science department as well.
333. See supra note 22.
334. See supra text accompanying notes 186-87, 191-204.
335. See supra text accompanying notes 191-204. The idea of choosing legislators by lot is discussed by a number of commentators. See DENNIS C. MUELLER, CONSTITUTIONAL DEMOCRACY 316 (1996); PITKIN, supra note 56, at 73-75; Akhil R. Amar, Choosing Representatives by Lottery Voting, 93 YALE L.J. 1283 (1984).
336. See supra text accompanying notes 191-204. The idea of choosing legislators by lot is discussed by a number of commentators. See DENNIS C. MUELLER, CONSTITUTIONAL DEMOCRACY 316 (1996); PITKIN, supra note 56, at 73-75; Akhil R. Amar, Choosing Representatives by Lottery Voting, 93 YALE L.J. 1283 (1984).
337. See supra text accompanying notes 191-204. The idea of choosing legislators by lot is discussed by a number of commentators. See DENNIS C. MUELLER, CONSTITUTIONAL DEMOCRACY 316 (1996); PITKIN, supra note 56, at 73-75; Akhil R. Amar, Choosing Representatives by Lottery Voting, 93 YALE L.J. 1283 (1984).
338. With regard to the latter possibility, Bickel was a fan of limited use of the "political question doctrine" through which the courts stay out of selected constitutional controversies on the ground that their resolution appropriately belongs elsewhere. See BICKEL, supra note 1, at 183-98. The modern statement of the doctrine is associated with Baker v. Carr, 369 U.S. 186, 217 (1962). If the doctrine were vastly expanded so that court involvement in constitutional questions was the rare exception, there would be little in the way of court conversation about constitutional policy from which anyone might feel excluded.