democratic and anti-democratic

[Earl Maltz]

In a very real sense, whether the ratification of the Constitution was 
"democratic" or not is basically irrelevant.  The federal government 
derives its authority from the decision of each of the original constituent 
state governments, acting through constitutional conventions vested with 
authority by the state legislatures, to surrender a portion of their 
governmental power to the new federal government, and to bind themselves to 
abide by the limitations imposed by the new Constitution.

At 05:05 PM 10/30/2005 -0800, you wrote:
>I don't want to get involved in the argument between Sean and Malla over
>whether her view is "presentistic." But all American judges (and most of us
>who are American lawyers) have taken an oath to uphold the Constitution. If
>judges believed that the Constitution was illegitimate and did not intend to
>be faithful to it, then they should not have taken the oath. If enough
>outstanding candidates refused to do so, perhaps there would be a movement
>to have a more new, more democratic Founding. But every member of the
>Supreme Court has taken the oath, and with it comes the obligation to
>faithfully interpret the Constitution we have. That Constitution gives
>different roles to the different branches, and it gives the core legislative
>power to those branches whose members are elected directly by the people:
>namely the House and the Senate (post 17th Amendment). Though the President
>shares in the legislative power (negatively by way of the veto), the Supreme
>Court has no part of it.
>
>It may be that if the Court had power to do what it wished, the results
>might be more democratic in some sense than the results obtained from a
>gerrymandered House and a two-Senators-per-state Senate. But that is not
>what was consented to at the Founding. Hamilton, in one of his less sage
>moments, proposed at the Convention that the President should serve for
>life. His proposal was properly rejected. Implicit in that was the rejection
>of the idea that we should be ruled by nine philosopher kings (or queens?)
>holding lifetime positions.
>
>One may question, as Malla has, whether ratification of the Constitution was
>a democratic process. Note, though, that Akil Amar, in his very new book,
>The Constitution: A Biography, shows that the limitations on suffrage that
>applied to elections for state legislatures were in many cases substantially
>relaxed in the voting for members of the state ratification conventions. See
>pages 7 and 17-18. The first chapter of the book (which is as far as I've
>gotten) stresses the many ways in which the Constitution of 1787 was
>democratic. Though recognizing the Constitution's serious defects (such as
>the 3/5 clause), he argues that
>
>"America's Founding gave the world more democracy than the planet had thus
>far witnessed. Yet many modern Americans, from lawyers to laity, have missed
>this basic fact." Id. at 14.
>
>Mark Scarberry
>Pepperdine
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