We the people, they the people, and the puzzle of democratic constitutionalism

Texas Law Review

Volumn 91, Issue 7, 2013, Pages 1969-1981

  Strauss, David A ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 84883283917     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (63)

1. U.S. CONST. pmbl.
2. See, e.g., Larry G. Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 CALIF. L. REV. 1482, 1498 n.44, 1499-1500 & n.48 (1985) (estimating that, because only property-holding adult white males were enfranchised, and not all of them supported ratification, only 2.5% of the population of the United States at the time voted in favor of ratifying the Constitution).
3. Of course, the Constitution can be amended, see U.S. CONST. art. V, but a proposed amendment can be blocked even by a small minority-just over one-third of either House of Congress (unless two-thirds of the states call for a convention), or just over one-fourth of the states.
4. For a description and defense of common law constitutionalism, see generally DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010) and
5. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996).
6. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1215-19 (2011) (quoting the text of the Free Speech Clause of the First Amendment but then discussing numerous precedents without any further reference to the text).
7. See id. at 1220 (asserting that "hurtful speech on public issues" must be protected "to ensure that we do not stifle public debate").
8. See Benjamin N. Cardozo, Adherence to Precedent: The Subconscious Element in the Judicial Process, in THE NATURE OF THE JUDICIAL PROCESS 142 (1921). Judge Cardozo noted that: [W]hen the law has left the situation uncovered by any pre-existing rule, there is nothing to do except to have [the judge] declare what fair and reasonable men, mindful of the habits of life of the community, and of the standards of justice and fair dealing prevalent among them, ought in such circumstances to do, with no rules except those of custom and conscience to regulate their conduct.
9. Id. at 142-43.
10. For an example of an argument based primarily on non-judicial precedent, see the opinions of the Office of Legal Counsel of the United States Department of Justice concluding that the President may make appointments under the Recess Appointments Clause during an intrasession recess of Congress. The most recent opinion, citing others, is Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. at 5-9 (Jan. 6, 2012), http://justice.gov/olc/2012/pro-forma-sessions-opinion.pdf. This position was disapproved by the District of Columbia Circuit in Noel Canning v. NLRB, 705 F.3d 490, 499-507 (D.C. Cir. 2013). Contra, Evans v. Stephens, 387 F.3d 1220, 1224-26 (11th Cir. 2004) (holding that the recess of the Senate, within the meaning of the Recess Appointments Clause, includes an intrasession recess).
11. See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 205 (1980) ("The text of the Constitution is authoritative, but many of its provisions are treated as inherently open-textured.")
12. Richard H. Fallon Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1195 (1987) ("Arguments from text play a universally accepted role in constitutional debate.").
13. See, e.g., Sanford Levinson, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 49-62 (2006) (noting the disproportionate power of small states in the Senate and concluding that "there is simply no defense for this other than the fact that equal representation of the states was thought necessary in 1787 to create a Constitution that would be ratified by the small states," and that the current division of power in the Senate "has literally nothing to do with measuring national majority sentiment").
14. See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 913 (2010) (invalidating part of the Bipartisan Campaign Reform Act on First Amendment grounds); United States v. Morrison, 529 U.S. 598, 602, 605 (2000) (striking down the federal civil remedies portion of the Violence Against Women Act) see also Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 SUP. CT. REV. 103, 105 ("Judged in any number of ways, Citizens United appears to be the most countermajoritarian act of the Court in many decades.").
15. For an objection along these lines, see, for example, Jack M. Balkin, LIVING ORIGINALISM 54 (2011) (asserting that common law constitutionalism "offers no account of why judicial decisionmaking has any connection to popular sovereignty" because "[j]udges are professional elites, and the precedents of previous judges are the decisions of past elites").
16. This is, of course, a persistent theme, but probably the best known discussion is Alexander M. Bickel, THE LEAST DANGEROUS BRANCH 16-23 (1962).
17. Id. at 16-17.
18. See, e.g., BALKIN, supra note 12 (asserting that judges who use a common law approach to the Constitution "are not engaged in constitutional construction that implements a written plan adopted by We the People; rather they are creating the Constitution through familiar common law methods").
19. THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
20. Id. at 466.
21. U.S. CONST. art. III, § 1.
22. See BALKIN, supra note 13 (discussing the "root difficulty" of judicial review's "countermajoritarian" nature).
23. See LEVINSON, supra note 10, at 50 ("I suspect that the country has probably been reasonably well served by the six-year term. It encourages taking a more long-term view than do members of the House, who are constantly aware that they will face a new election literally within twenty-two months of taking their oaths of office.")
24. William N. Eskridge Jr. & John Ferejohn, Constitutional Horticulture: Deliberation-Respecting Judicial Review, 87 TEXAS L. REV. 1273, 1281 (2009) (noting that "the Senate, with long terms and statewide districts, is expected to be a 'select and stable' body").
25. See Andrew Rehfeld, Representation Rethought: On Trustees, Delegates, and Gyroscopes in the Study of Political Representation and Democracy, 103 AM. POL. SCI. REV. 214, 214 (2009) (remarking that "[n]o one expects there to be an exact correspondence" between the laws of a nation and the preferences of the citizens governed by them because citizens' preferences are not coherent at "the individual [and] collective levels," may not correspond to their "true interests," and might be trumped by "more important principles" such as minority rights).
26. See Eskridge & Ferejohn, supra note 23 (arguing that "each part of the lawmaking process plays a different deliberative role," with the House of Representatives being "most responsive to popular attitudes and demands" and the Senate "apply[ing] longer term considerations of 'reason and justice' to measures urgently sought by the House")
27. cf. James E. Fleming, Toward a More Democratic Congress?, 89 B.U. L. REV. 629, 640 (2009) (concluding "attempts to make Congress more democratic" would not fix the institution's problems).
28. The best-known contemporary statements are in 1 Bruce Ackerman, WE THE PEOPLE: FOUNDATIONS 6-7 (1991) [hereinafter ACKERMAN, FOUNDATIONS], which differentiates between rare decisions made by the people-"higher lawmaking"-and decisions made more frequently by the government-"normal lawmaking"-and 2
29. Bruce Ackerman, WE THE PEOPLE: TRANSFORMATIONS 5 (1998) [hereinafter ACKERMAN, TRANSFORMATIONS], which describes higher lawmaking as taking place under a "heightened sense of democratic legitimacy" and normal lawmaking as the "countless decisions made in the absence of mobilized and politically selfconscious majority sentiment."
30. See also the discussion of the dualist nature of constitutional democracy in John Rawls, POLITICAL LIBERALISM 231-33 (expanded ed. 2005), which traces the central idea to John Locke's Two Treatises of Government, and refers to "Locke's distinction between the people's constituent power to establish a new regime and the ordinary power of officers of government and the electorate exercised in day-to-day politics."
31. See Ackerman, Foundations, supra note 26, at 6 (arguing that the Constitution "accords to decisions made by the People" only when an "extraordinary number" of citizens take a proposal seriously, opponents of the decision have "a fair opportunity to organize," and a majority of Americans "support [the] initiative as its merits are discussed, time and again, in the deliberative fora provided for 'higher lawmaking'"). For a somewhat similar account
32. see Keith E. Whittington, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 110-59 (1999)
33. See, e.g., id. at 151 ("The formation of the Constitution depended on popular deliberation, and it was drafted and ratified on the basis of the persuasion of the whole, not the assertion of a part.").
34. See Ackerman, Foundations, supra note 26, at 243-51 (identifying bureaucrats, public and private interest groups, the mass media, and political parties as the primary vehicles of normal politics).
35. See id. at 266-67 (describing a period of "mobilized popular deliberation" in which a "movement's transformative proposals are tested time and again within the higher lawmaking system").
36. See id. at 267 (describing the final phase of higher lawmaking, legal codification, in which "the Supreme Court begins the task of translating constitutional politics into constitutional law, supplying the cogent doctrinal principles that will guide normal politics for many years to come").
37. Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1022 (1984) ("Although constitutional politics is the highest kind of politics, it should be permitted to dominate the nation's life only during rare periods of heightened political consciousness. During the long periods between these constitutional moments, a second form of activity-I shall call it normal politics-prevails." (emphasis added)).
38. See, e.g., ACKERMAN, FOUNDATIONS, supra note 26, at 58 (identifying the "three great turning points of constitutional history" as the Founding, Reconstruction, and the New Deal).
39. See id. at 6-7 (outlining "the basic idea" of a dualist democracy as one where normal lawmaking occasionally cedes to higher lawmaking by which a mobilized populace signals to their government "new marching orders," finally "culminat[ing] in the proclamation of higher law in the name of We the People").
40. See THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 16, at 466 (asserting that "the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority").
41. See, e.g., Jon Elster, The Optimal Design of a Constituent Assembly, in COLLECTIVE WISDOM: PRINCIPLES AND MECHANISMS 148, 149 (Hélène Landemore & Jon Elster eds., 2012) ("Actual constitution making is often a messy business, triggered by crises of one kind or another and rarely governed by the 'calm, sedate medium of reason.'").
42. See, e.g., Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 765 (1992) (book review) (arguing that a proponent of dualist democracy "cannot make a principled choice between the disinterested voice of a People long since dead and the voice of today's living stand-ins").
43. Interview by Ray Suarez with Elzena Johnson, Delegate to the 2012 Democratic Nat'l Convention, in Charlotte, N.C. (Sept. 6, 2012), available at http://www.pbs.org/newshour/bb/politics/july-dec12/elzena_09-06.html.
44. See, e.g., Klarman, supra note 36, at 770 ("Even having established that a constitutional moment had occurred, courts... would still need to ascertain its content.").
45. 347 U.S. 483 (1954).
46. See STRAUSS, supra note 4, at 85-92 (discussing how earlier events influenced the Court's decision in Brown)
47. see generally Charles J. Ogletree Jr., From Dred Scott to Barack Obama: The Ebb and Flow of Race Jurisprudence, 25 HARV. BLACKLETTER L.J. 1 (2009) (describing events and landmark Supreme Court cases concerning racial equality from the mid-1800s to present).
48. See David A. Strauss, Freedom of Speech and the Common-Law Constitution, in ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA 33 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002) (attributing the current state of free speech law to an evolution arising from "judicial decisions and extrajudicial developments").
49. See, e.g., Reva B. Siegel, She The People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947 (2002) (grounding ratification of the Nineteenth Amendment in a history that began with the drafting of the Fourteenth Amendment).
50. See generally Stephen Skowronek, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES 1877-1920 (1982) (describing the creation and growth of federal administrative agencies).
51. See, e.g., Larry Kramer, What's a Constitution For Anyway? Of History and Theory, Bruce Ackerman and The New Deal, 46 CASE W. RES. L. REV. 885, 921 (1996) ("The New Deal called for a significant expansion of federal authority, to be sure, but from a constitutional perspective, the increase was quantitative rather than qualitative.").
52. For a comprehensive discussion, see David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 HARV. L. REV. 941 (2008).
53. Many others have suggested, in various ways, that judicial review is less countermajoritarian than it appears. See, for example, Barry Friedman, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 229-40 (2009)
54. Jeffrey Rosen, THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA (2006)
55. and Corinna Barrett Lain, Upside-Down Judicial Review, 101 GEO. L.J. 113 (2012).
56. See, e.g., Howard Gillman, Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism, in THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT 138, 138-61 (Ronald Kahn & Ken I. Kirsh eds., 2006).
57. See id. at 142-43 ("[J]udges... tend to represent the political agenda that was most salient at the time of their appointment.").
58. See Lain, supra note 46, at 164 ("Like the rest of us, Supreme Court Justices are a product of their time.").
59. See, e.g., BICKEL, supra note 13, at 258-64 (describing reactions of Presidents Jackson, Lincoln, and Franklin Roosevelt to decisions they disapproved).
60. See Levinson, supra note 10 (criticizing the "[i]llegitimate Senate" for its system of unequal representation and the resultant redistribution of resources from large states to small states).
61. See id. at 116-18 (suggesting that the rigidity of the President's term of office may be undemocratic in light of the inability of fixed terms to guarantee good policy or serve as a measure of political stability).
62. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (proposing a heightened standard of judicial review, among other things, for legislation aimed at "discrete and insular minorities").
63. For a historical discussion of the significant events preceding Carolene Products and the impact of these events on the Court's jurisprudence, see FRIEDMAN, supra note 46.