Randy Barnett weighs in again with quotes from various founders that collectively add up to the following:
These men did not care for unchecked democracy, having experienced it first hand, and they wrote a constitution with multiple checks on majority will includng separation of powers, federalism, limited enumerated powers, express prohibitions on federal and state powers, express protections of rights,and co-equal judiciary with a "judicial power" that included judicial nullification of laws that violated these restrictions.I wonder what those founders would think of our modern Supreme Court as it happily goes about the business of, as Justice Scalia put it, "Day by day, case by case, ... designing a Constitution for a country I do not recognize." My guess is that many of them would agree with Judge Bork that the courts have taken sides in the "struggle between the cultural or liberal left and the great mass of citizens who, left to their own devices, tend to be traditionalists. The courts are enacting the agenda of the cultural left." And even among those who would take the other side of the culture wars (Jefferson?), there might be some who would recognize that their cherished checks and balances are breaking down as the Court becomes less and less accountable. (Quotes taken from Richard Neuhaus' review of Bork's latest book: Coercing Virtue: The Worldwide Rule of Judges. Those who have been following this debate will scarcely be surprised by my ringing endorsement of that book.)
As I read history, most of the founders were sensible and pragmatic men rather than visionary idealists. In their time, perhaps runaway democracy was the main problem. In our time, the main problem is undemocratic legislation by thin (often 5-4) majorities of the Supreme Court by which the justices impose their personal policy preferences on virtually every aspect of American life. Indeed, even Prof. Solum recognizes that:
The politicization of the judiciary plus the general and abstract language of the individual rights, separation of powers, and federalism provisions of the United States Constitution slowly but surely created a judiciary that sometimes views constitutional interpretation as the appropriate vehicle for enacting personal beliefs about what the law should be into binding constitutional law.Surely that is a situation of which the founders would have disapproved.
Update: Barnett replies:
And with extremely rare exceptions, courts are not imposing their preferences on individual citizens. They are stopping legislatures from imposing their preferences on individual citizens. When speaking of imposing one's preferences, there is a huge difference between a court mandating gay sex--which no court has--and stopping legislatures from putting adults in prison (where they may well be raped) for engaging in consensual with an adult of the same in the privacy of their own homes, which has now been held unconstitutional.A couple of observations: (1) It is now clear that Barnett is on the other side of the culture wars from most conservatives. Modern conservatism is not solely about "individual rights," but rather (as Ramesh Ponnuru explained) is premised on "three basic propositions: that American foreign policy should seek to end totalitarian regimes; that the domestic functions of government, and especially of the federal government, should be strictly limited; and that the moral precepts traditionally associated with Christianity (sometimes the formulation includes Judaism as well) should be upheld." Legislative efforts to uphold the third prong evidently constitute legislative tyrrany in Barnett's world.
(2) It's not just about sex. Barnett's expansive theory of the 9th amendment is at least as radical as William O. Douglas' theory of penumbras in terms of its ability for judges to invent reasons to strike down laws. Hence, Barnett's theory apparently validates not just Lawrence but also Roe v. Wade. Any legal theory that would validate the murder of over 40 million innocent unborn children raises serious moral concerns, because it likely constitutes material cooperation with evil. (I'm trying to get a discussion of this issue started over at the Catholic blawg Mirror of Justice.) Update: Barnett replies:
On my theory of the 14th Amendment in which all its limitatations on states are justiciable, IF a fetus is a "person" then laws permitting abortion violate the Due Process Clause, and if a fetus is also a "citizen" (and if the fetus is a person, then why isnt't it also an American citizen too?), it also violates the Privileges or Immunities Clause. On this reasoning, state laws permitting abortion should be held unconstitutional, and under Section 5 of the 14th Amendment, Congress has the power to protect fetus's from murder if a state fails to do so.
While I do not consider a fetus to be a "person"--either theoretically or historically--Bainbridge does. Yet HIS theory of the Constitution in general, and of the 14th Amendment in particular, would allow abortion--which he considers evil and murder--to continue unchecked so long as a mere majority of the legislature so vote. Indeed, the pro-life forces repeatedly say that they this is an issue properly to be left to the states.The dispute remains - who decides? A judge who agrees with Barnett that a fetus is not a person can effectively take the issue of the table, at the very least until turnover on the court produces a majority prepared to reverse that decision. (And, as Casey demonstrated, even the more conservative members of the legal elites cannot be trusted to do the right thing in this area). When a legislature decides to allow abortion, we can try voting them out of office immediately. In a democracy, there is always a risk that immoral laws will be made. I simply prefer to take my chances on legislators who can be held to account through the electoral process than on unelected judges subject to no meaningful checks and balances. Update: Barnett still thinks its about sex and he's still wrong about that.
Update 2: Clayton Cramer is on the march again, with a post explaining the conservative skepticism of the 9th amendment and a post on the role Barnett's theory plays in the culture wars. Both are must reads.
Update 3: Joel Buckingham at Calblog agrees with Randy Barnett "on the founders view of democratic majoritarianism," but argues that "despite the founders aversion to democratic majoritarism, their device in limiting it, was not an imperial judiciary." Yep.
