Squaring the Progressive Constitutional Circle

As I have discussed in previous posts and a recent paper, public choice has freed originalism from the countermajoritarian difficulty by showing that it is an interpretative method well suited to enforce a constitution that is in its formation and essence anti-majoritarian. But many scholars are resistant to the truths of public choice and continue to be attracted to the essentially majoritarian paradigm of Progressivism. Their difficulty is that the modern Court has often invalidated the actions of majorities without any substantial support in the text of the Constitution. Thus, scholars have attempted to square the circle to preserve the Progressive paradigm by showing that the Court’s actions can meet some definition of majoritarianism and do not reflect judicial usurpation of the political process. Here is a thumbnail sketch (and critique) of three of the most prominent attempts.

John Hart Ely and Democracy and Distrust. In my view the strongest way of meeting the countermajoritarian difficulty is John Hart Ely’s Democracy and Distrust.  Ely dismisses clause bound originalism but sees judicial review as justified when it reinforces and refines democratic outputs. Thus, anti-discrimination principles are to be enforced, because they prevent the political process from being distorted by racial and gender stereotypes. Similarly, free speech permits people to deliberate and thus reinforces democracy.

But Democracy and Distrust famously does not justify Griswold or Roe v. Wade, because it is difficult to see these decisions as reinforcing the democratic process rather than providing substantive rights. Thus progressives who today almost universally want to preserve a jurisprudence that expands what they consider to be core human rights need other theories to address the countermajoritarian difficulty.

Barry Friedman and Majority Will Barry Friedman in his book The Will of the People: How Popular Opinion Influences the Supreme Court provides another possible route to justifying substantive progressive decisions. He argues that in the long run for the most part the Supreme Court follows popular opinion. If the Court largely follows majority will, there should be little concern with the countermajoritarian difficulty.

While an interesting effort, Friedman’s claim is belied by the facts. That the Court is an institution constrained by other institutions should not be confused with the claim that it follows popular will. First, as a matter of structure, the judiciary is substantially insulated from popular opinion. Second, others have suggested, correctly in my view, that the Court is more likely to follow elite opinion. Elites possess the power to determine judicial reputation. As a result, the Court tends to be particularly out of step with the will of the people when elite opinion sharply diverges from popular opinion, on such issues as prayer in schools.

Reva Siegel and Social Movements Reva Siegal has argued that enduring Supreme Court decisions can be a product of social movements. In so  far as this theory attempts to justify Court decisions (and it is not clear that this is the way that Siegal uses it although others have), it has the advantage of not relying on the erroneous claim that Supreme Court decisions tend to link up with majoritarian opinion.  But the Tea Party is a social movement that disagrees with Occupy Wall Street. Judges would be left in the position of deciding among  conflicting social movements. It will still be judges, not popular opinion, that ends up counting.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. says

    The art of mechanical design must often make use of simplifying, if imaginary devices: frictionless pulleys, massless springs, inviscid fluids, etc. The law sometimes resorts to “fictions,” like corporate personhood, or the notion that inanimate objects are parties in civil litigation. We sometimes seek to understand the impenetrable mysteries by imposing anthropomorphic qualities upon mature: an electron “sees” an electric field, nature “abhors” a vacuum, an inductor “tries” to prevent change in current flow, etc. All of these are useful mental models, mnemonics that may suffice when greater fidelity to reality is not necessary. Sometimes they are good enough, but they always carry the caveat that they are mental approximations, sometimes analogues of the real world, sometimes abstractions and sometimes pure imagination.

    The original post contains several such entities: the will of the people; the democratic process; even things that are used as proper nouns like Originalism and Progressivism. Each of these, like massless springs, may serve an abstract analytical purpose, but are not discrete objects that can be identified and precisely described and measured in the real world. Prohibition, for example, for all of the Constitutional rigor and cosmetic approval, was not after all the will of the people. The Defense of Marriage act, despite presidential lip service and ratification by democratically elected institutions is apparently not the will of the people, nor is the Affordable Care Act, the Patriot Act, or marijuana prohibition. If there is such a thing as the “will of the people,” its defining characteristics are that it is fickle, transient, difficult to measure and varies between public pronouncement and private belief.

    A similar discordance exists with the phrase “we as a society have decided…” Hillary Clinton memorably invoked this in an address to the medical student section of the American Association of Medical Colleges in 1994, after a delegate questioned why the government should dictate where she should practice upon graduation. Ms. Clinton, then First Lady, informed the doctor-in-training that “we as a society have decided” that the government would address the problem of healthcare shortage areas by bureaucratic diktat. This, of course, coming from a person that no one elected, confirmed to an official post, or had any Constitutional policy-making authority of any kind. Not to mention that her husband, through whom she ascended to her ad hoc post, was elected with a plurality of the popular vote. Whatever the basis for the credibility or authority Ms. Clinton assumed for herself then, it was not that “we as a society” decided something. Sometimes, “we as a society” seem to decide one way, and our democratic institutions the other, for example on school choice; or we decide something once and for all in one election cycle and then change our minds the next. What “we as a society have decided” is determined by how we live our lives, not the slogans we put on bumper stickers or the celebrity causes we acknowledge with fleeting attention.

    There is no absolute political truth; there is no deterministic legal theory that is impervious to changing intellectual fashions. There are no self-sustaining theories of liberty or justice. There are no mathematical equations to describe the alliances, enmities, interests and prejudices of people in their relations with each other. This is why we resort to fictions, and abstractions and anthropomorphic models, and why we should always be wary of believing that they are anything more than that.

    • says

      Z9z99, I like the way you’ve used your language to examine “the analytical purpose”; your examples of the public not having anything do w/”the public voice”. The public had no choice but – only to listen — to the federal court decrees, and Executive/Legislative statues.
      Where John McGinnis employs the theory of “the public voice” (which I would love to see the majority wake-up to what’s really going on w/their liberties). I employ the reality of clause bound enumerations of the Constitution. And the fact, THERE IS, and always has been, the proceeding of “impeachment” for “bad behavior”. (A time that must come.) How about a first name?
      Respectfully, John

  2. gabe says


    Very well said.

    I suppose this is why the proponents of the various theories or “schools” can so often be found wrapped around a tree of their own creation when attempting to explain (explicate) everything / situation that comes before the courts. Borrowing a phrase from Prohibition – perhaps a little “temperance” is in order.

    take care

  3. Scott Amorian says

    Justices are appointed by the Executive and approved by the Legislature. The character of the Justices are a reflection of the mentality of the dominant officers in those two branches. From this comes bias in the Court. A Court thusly appointed will always lean in favor of granting more power to the Executive and Legislature at the expense of the sovereign citizens.

    The Court reflects the mentality of the public in that the elected representatives reflect the mentality of the public, excepting of course the displacement of the loyalty of the representatives to their party leadership, their financiers, and their electors who are dependent on government.

    If this is a problem, the correction to the problem is to change the method of appointment of Justices so they are neutral to Executive and Legislature. This would requirement an amendment to the Constitution, but very few people are willing to champion this cause. Most people prefer to expend herculean efforts complaining about the problems being caused by the biased Court, and prefer not to apply the small amount of elbow grease needed to fix the problem. I do not understand why people choose do this.

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