THE COUNTER-MAJORITARIAN  DILEMMA

Back in law school in the late '70s, one of the big debates in constitutional law was whether the Supreme Court, in holding federal or state laws unconstitutional, was improperly turning itself into a super-legislature neither elected by nor beholden to "We the People." 

The problem was even named.

It was called the "counter-majoritarian dilemma," the puzzle that plagued an un-elected Court every time it overturned the wishes of majority-elected legislators or Congress.

The debate became heated -- some would say over-heated --  at the time of Roe v. Wade, the Court's decision overturning state laws banning abortion.  Critics almost universally claimed there were two problems with Roe.  One was, so they claimed, that the 14th Amendment's due process clause does not explicitly name abortion as a protected substantive right, nor do any of the Bill of Rights some deemed incorporated in the substance of due process. In their view, the right to privacy which underpins Roe was simply invented.  The other was that Justice Blackman's trimesters approach to abortion, which announced an absolute and near absolute right while embryos and then fetuses were not viable followed by a post-viability regime where fetal life could be protected so long as the mother's life or health was not jeopardized, looked more like a legislative statute than a judicial opinion.

Following Roe, the originalist movement took off, gaining real traction in the '80s with the appointment of conservative jurists by the Reagan Administration.  Justice Scalia was the most prominent of these appointees, but by no means the only one once appellate and district court appointments were factored into the mix.

Originalists ostensibly avoid the two problems they claim plagued Roe by restricting their constitutional determinations to the strict text and the meaning of that text in the minds of its framers.  So, whether abortion is a a protected right under the 14th Amendment depends upon whether the framers of that amendment in the 1860s thought it was; whether the eighth amendment's ban on "cruel and unusual punishment" precludes the death penalty depends on whether the drafters of the Bill of Rights in the 1780s thought it did; and whether the second amendment's "right to bear arms" allows for bans of hand guns or assault weapons depends on whether those same drafters thought the right was an individual one.  In each of these cases, the answer becomes, so the originalists claim, simple -- in the first two they didn't and in the last they did.

Ergo, abortion can be outlawed, the death penalty is permissible, gun control is unconstitutional . . .

And the Supreme Court -- or at least the so-called originalists on it -- can sleep soundly, knowing the Court has not created rights that don't exist or usurped legislative power it does not enjoy.

In truth, however, the originalists need to wake up.

Because they are violating the very rules they so avowedly profess.

Start with strict adherence to the text.  The first problem is that originalists don't really mean it.  The text of the Constitution's substantive rights clauses speaks in abstract terms alone.  It bans "cruel and unusual punishment," deprivations of "due process," and violations of "equal protection of the law." It protects the "right to bear arms" on the basis of a need for a "well regulated militia."  If text alone were sacred for the originalists, they'd stop there. 

But they don't. 

To the contrary, they demand that we enshrine the drafters' unexpressed meaning in those terms.

Why?

If the drafters had wanted their unenshrined meaning to be forever honored by generations unborn, they surely could have written that meaning into those texts.  If, for example, only the rack and screw or walking over hot coals (or whatever other depravities characterized  the middle ages) were all the eighth amendment forbade, the drafters could have written out a list and said so.  Similarly, if -- contrary to the common law's understanding -- "due process" had no (or limited) substantive component, the common lawyers who drafted the Bill of Rights (and there were many of them) could have made that clear as well.

But they didn't.

Because, pace the originalists, they didn't want to straight-jacket American constitutional law.  In other words, they thought it could and would change over time, and that judges, deciding cases in courts, would be the agents of that change as the content of abstract terms was filled in over time.

Does that mean judges become -- or risk becoming -- super-legislators arrogantly overturning the wishes of the majority of We the People?

The short answer is "No."  The facts of cases and the craft of adjudication contain inherent limits in the form of precedents, rules of evidence and procedure, and jury trials.

And the longer answer is that originalists should be careful what they condemn. 

For today's Court is hardly protecting majoritarian rights.  In many instances, in fact, it is doing the precise opposite.

The vast majority of the country demands gun control.  78% of Americans do not own guns and 3% own more than half the guns out there.  The reason Congress cannot pass gun control -- it didn't in the wake of Columbine, Sandy Hook or Orlando and very likely won't in the wake of Las Vegas either -- is not because majorities do not favor regulation.  It's because the minority of those who oppose regulation have disproportionate power in the Senate (where all states have two Senators) and in a gerrymandered House of Representatives (where 45% of the voters are now determining 55% of the seats).  

At the same time, gun manufacturers routinely produce firearms in numbers that far exceed demand in states without strict controls,  knowing the created gun surplus will make its way to states that would otherwise ban or regulate them.  

In protecting these acquisitions, the Court is not respecting the will of the majority.

To the contrary, it is simply aiding and abetting the avoidance of majority rules by a determined (and well financed, thank you NRA) minority.

Originalism is thus a canard.  And as the  expressed view of all the jurists our current President would appoint to the Supreme Court were another vacancy to arise, it is a very dangerous canard.

Because . . .

It gives more rights to embryos than victims of gun violence . . .

And underscores an old critique of the right wing.

For them . . .

The right to life ends at birth.