Our Supermajoritarian Constitution – Part I: The Supermajoritarian Features of the Constitution

These days the main questions in constitutional theory involve questions of interpretation – in particular, whether one should follow the original meaning of the Constitution or its evolving meaning or some mixture of the two.  (One might also see this question as involving a related question – whether one’s theory of the Constitution should be about the document or about the practices of the country over time.)

But some years ago, constitutional theory focused on a different question – what is the dominant character of the Constitution.  Some people argued that the Constitution is a fundamentally democratic document, essentially allowing a majority of the country to rule, except where the process of democratic rule is subject to infirmities.  That is one way to understand John Hart Ely’s incredibly important book, Democracy and Distrust.  The apparently majoritarian features of the Constitution – that legislation can be passed by a majority of the legislature – is the strongest support for this view.

Other people argue that the Constitution is fundamentally about protecting individual rights.  These people can point to the Bill of Rights as well as the 14th Amendment as the main support for their view.  These people might also point towards the Lockean roots of the political theory that inspired the Constitution.

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A Response to Ken Masugi’s “The Right against America”

Ken Masugi argues that conservatives and libertarians must be “radical to grasp the truth.” He certainly is radical in casting Robert Nisbet and, with him, it would seem, other Burkeans who see little platoons rather than isolated individuals as the building blocks of society outside “the foundation of American politics,” which Ken identifies with the Declaration of Independence.

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What the Declaration Doesn’t Say

This July 4, like countless prior, will witness paeans to the Declaration of Independence, celebration of its unalienable rights, laments of their demise amid spreading statism and the shrinking space left for the individual in American civic life—all of which might be compelling if the Declaration said any such thing.  A more suitable tribute on the document’s 237th birthday would be to recover its actual meaning and proper context. (That context, I should indicate before proceeding further, I learned from George W. Carey, to whom the bulk of the ensuing insights—like most of those I claim for myself—are hereby attributed.)

The typical understanding of the Declaration’s unalienable rights is that they are the immutable and unregulable property of the individual, who is thereby rendered immune from the jurisdiction of the community with respect to his or her life, liberty and pursuit of happiness.  But a moment’s inspection renders this individualist understanding absurd.

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The Miseducation of Danny Glover

In a January 17  speech to students at Texas A&M University, Danny Glover, the actor from Lethal Weapon etc., attempted to disparage the constitutional right to arms with the critique that “The Second Amendment comes from the right to protect themselves from slave revolts, and from uprisings by Native Americans.”

This is abundantly wrong and I hope the students will not consider Mr. Glover a definitive source on the question.  But I will give him credit for the try.  He attempted to engage the issue by at least skimming one piece of the voluminous scholarship in this area.

His comment seems based on a cursory reading of a 1998 law review article by Professor Carl Bogus.  First, it warms the academic’s heart that a Hollywood actor would sit down and read a law review article, although I acknowledge the possibility that someone just told him about it.

Either way, his education is incomplete (as is true for all of us).  Mr. Glover’s mistake is to have taken one dubious thing and run with it.  That is almost always a mistake and especially so in the gun debate.  But Danny Glover’s mistake is also a teaching tool that illuminates the broader conversation.

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Double Losers: The Rule of Law and Equal Protection in the Sixth Circuit

As Mitt Romney continued his hapless class warfare rhetoric, the federal judiciary followed suit. In the most extreme post-Brown federal court opinion on equal protection ever issued, the Sixth Circuit held, in an en banc opinion, that certain unspecified minorities have privileged status in the American constitutional order. This promotion of classes over individual rights of course overthrows the American founding’s basic principle of equality of individual rights and the separation of powers that follows from it.

At issue was Proposal 2, whose victory in 2006 via popular vote of 58-42% amended the Michigan Constitution to reject race, ethnic, and sex preferences in public institutions, including universities. 

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