democratic and anti-democratic

Frank Cross crossf at mail.utexas.edu
Sun Oct 30 12:26:15 PST 2005


I think Earl has cut to an important issue.  Traditionally, many of the 
majoritarian decisions (such as the civil rights actions) embraced a 
national majority at the expense of a state majority.  Scot Powe's book on 
the Warren Court lays this out nicely.  However, I think is wrong about 
Lawrence.  Indeed, polling in Texas showed that a substantial majority 
opposed the criminalization of gay conduct in private.  The law was vestigial.

But it depends on the Court.  Some current research in which I am engaged 
shows that the Warren and Burger Courts tended to overturn state laws but 
not federal ones.  This was completely reversed in the Rehnquist Court, 
which was very reluctant to overturn state laws but much more willing to 
overturn federal laws.


At 02:03 PM 10/30/2005, Earl Maltz wrote:
>It might depend upon which majority we are talking about.  To me, cases 
>such as Roe and Lawrence are at least as offensive to basic principles of 
>federalism (which do underly the basic constitutional structure) as they 
>are to principles of democracy (which, in my view, are almost entirely the 
>construct of liberal constitutional theory, rather than the Constitution 
>itself).    Roe and Lawrence might be consistent with the views of 
>national majorities, but not the views of a local citizenry, nor of the 
>state governments that are left with the authority to make the relevant 
>decisions by the Constitution (including the Reconstruction amendments),.
>
>At 12:44 PM 10/30/2005 -0600, Frank Cross wrote:
>
>>Well, I again favor civil discourse.  But a lot of law professors are 
>>unfamiliar with a lot of compelling political science research on this 
>>issue.  For example, there is good research that judicial action comports 
>>with majoritarian preferences as much as does legislative action.
>>
>>Perhaps this is because the majoritarianism of the legislature and 
>>presidency is vastly exaggerated.  Indeed, bicameralism and the veto are 
>>structured to make it hard to adopt even majority 
>>preferences.     Judicial review is but an add-on to that separation of 
>>powers system.  And this doesn't even consider the gerrymandering in the 
>>people's House, which makes it very difficult for even national 
>>majorities to alter the composition of that branch.  And the Senate bears 
>>no association with majoritarianism, being equal representation per state.
>>
>>The bottom line is that law professors too often define "democratic" as 
>>"what we have here in the U.S." or treat the Federalist as if it were 
>>sacred gospel.  If you step back and consider what democracy means, you 
>>may find that under a strict majoritarian definition the elected branches 
>>are not very democratic.  Or if you adopt the "liberal democracy" that we 
>>are pushing on Iraq, I think you recognize that the judicial veto and 
>>separation of powers actually furthers this democratic concept.  But I 
>>think the failure to even address what democracy means in these "judicial 
>>activism" attacks is the source of the "incredibly unexamined" comment.
>>
>>
>>At 12:26 PM 10/30/2005, Scarberry, Mark wrote:
>>>It's not easy to engage in discourse with someone who, without asking for
>>>further explanation of what thought might have gone into the choice of a
>>>term, such as undemocratic, disparages that use as "incredibly unexamined"
>>>and lacking even an "exceedingly simple" level of analysis. I wonder why
>>>some list members seem to insist on insulting those with whom they disagree.
>>>
>>>One need not be a political scientist to have an "examined" understanding of
>>>democratic principles. Hamilton, in Federalist 78, "examined" the democratic
>>>nature of judicial review and reached conclusions that are consistent, I
>>>think, with mine. Where courts are faithful to the expressed will of the
>>>people in the Constitution, they act to buttress democracy, exercising (per
>>>Hamilton) judgment but not will. Where they exercise their own will they
>>>exceed their authority and in essence usurp the legislative power. As
>>>Hamilton noted, quoting Montesquieu, "there is no liberty if the power of
>>>judging be not separated from the legislative and executive powers."
>>>
>>>Because such an exercise of will is, I believe, at the heart of the theory
>>>of stare decisis set forth in the Casey concurrence, that theory is, in my
>>>view, pernicious.
>>>
>>>I take as my starting point the democratic legitimacy of the Constitution.
>>>We could discuss whether that is an appropriate starting point, but it is of
>>>course the same starting point as Hamilton's in Federalist 78 (as he looked
>>>forward to the role of the courts after ratification of the Constitution).
>>>
>>>Mark Scarberry
>>>Pepperdine
>>>
>>>-----Original Message-----
>>>From: Howard Schweber
>>>To: conlawprof at lists.ucla.edu
>>>Sent: 10/29/2005 5:42 PM
>>>Subject: democratic and anti-democratic
>>>
>>>
>>> >>History aside, Mark Scarberry's use of "undemocratic" here is almost
>>> >>incredibly unexamined.  What follows is all exceedingly simple, of
>>> >>course, but even this very simple level of analysis seems to be absent
>>>in
>>> >>our current discussion.
>>> >>
>>> >>First of all, the term "democratic" may refer either to process or
>>> >>outcome.  A 51% vote to make 49% of the population slaves is
>>>procedurally
>>> >>"democratic," but it is obviously not democratic in its substance.  So
>>>at
>>> >>the outset, something has to be said about which of these is more
>>> >>important, as a philosophical matter, as a matter of the theory of
>>> >>popular sovereignty, and as a matter of constitutional interpretation.
>>> >>
>>> >>At the procedural level, "democratic" as it is used by many
>>>conservatives
>>> >>these days appears to equate to "state sovereignty," so that national
>>>and
>>> >>local majorities are both considered undemocratic, and only statewide
>>> >>majorities qualify as the voice of the people.
>>> >>
>>> >>Also at a procedural level, any number of writers have pointed out
>>>that
>>> >>courts are not inherently any more antidemocratic than, say,
>>> >>representative legislatures -- they are just different mechanisms for
>>> >>collective decision-making.
>>> >>
>>> >>But in the constitutional context, "democratic" and "undemocratic" are
>>>
>>> >>neither of these things.  The Fourteenth Amendment could not be more
>>> >>clear about the proposition that what we seek is equality of
>>>citizenship,
>>> >>an equal opportunity to participate in the processes of collective
>>> >>decision making, and equal regard for our various interests in the
>>> >>exercise of that authority.
>>> >>
>>> >>So in which of these senses would judicial determination that the
>>> >>Fourteenth Amendment -- the one ratified and adopted by the sovereign
>>> >>people -- requires current governments to recognize same-sex marriage
>>>be
>>> >>"undemocratic"?  The claim of "undemocratic" action seems even more
>>> >>extreme where the case involves a a state court's determination that
>>>the
>>> >>state constitution contains the same requirement, if only because it
>>>is
>>> >>easier for a majority to amend the state's constitution, and state
>>>court
>>> >>judges are elected and subject to defeat at the polls or even recall.
>>> >>
>>> >>So the only version of "undemocratic" that seems a plausible basis for
>>>
>>> >>the typical conservative argument here is that anything other than a
>>> >>simple majority vote by a present majority is undemocratic.  But if
>>>that
>>> >>is the claim, then let us be clear in recognizing that the term
>>> >>"undemocratic" is employed to challenge the legitimacy of the
>>> >>Constitution in its entirety, not merely one particular consequence of
>>>
>>> >>its provisions.
>>> >>
>>> >>I have other concerns here -- starting with wondering how my own
>>> >>heterosexual marriage is "threatened" if my same-sex neighbors are
>>> >>married, too -- but let's stick to the constitutional issues at hand.
>>> >>
>>> >>
>>> >>Howard Schweber
>>> >>Dept. of Political Science
>>> >>Affiliate Faculty, Law School; Affiliate Faculty, Integrated Liberal
>>> >>Studies; Affiliate Faculty, Legal Studies
>>> >>University of Wisconsin-Madison
>>> >
>>>
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>>
>>**********************************************************
>>
>>Frank Cross
>>McCombs School of Business
>>The University of Texas at Austin
>>1 University Station B6000
>>Austin, TX 78712-1178
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or get password, see 
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>Please note that messages sent to this large list cannot be viewed as 
>>private.  Anyone can subscribe to the list and read messages that are 
>>posted; people can read the Web archives; and list members can (rightly 
>>or wrongly) forward the messages to others.

**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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