Orin’s remarks notwithstanding, there are some non-visiting voices here at Prawfs. One of those is the voice of our own Hillel Levin, who has generated much discussion about breastfeeding, lactivism, and other important social issues. One of Hillel’s hobbyhorses–and the one that has generated the most discussion here–is his commitment to majoritarianism over courts. He has honed his arguments through provocative discussions of Kelo and the “french-fry case.” My first instinct to his majoritarianism was populist sympathy.
Much of my own academic work has been of the populist variety: I’ve argued for new institutions of direct democracy; I’ve argued that court-centrism is indeed problematic and that legislatures embody substantial democratic virtues that courts lack; and I’ve even suggested that our conception of responsibility can only be vindicated through democratic procedures. In short, my inclination is to be sympathetic to majoritarianism over counter-majoritarianism, so Hillel’s posts first resonated with me.
But I find Hillel’s perspective on legislatures too rosy by half, so have to come to the rescue of the courts. A single blog post can’t do this argument justice, but I do feel that another consistent voice here must speak up about the importance of courts and their unique role in the administration of justice. Quite simply, justice already costs tremendous amounts of money. A lone individual who has been wronged must pay high entry costs to have justice done. The individual will have to find a lawyer; and usually they will have to pay a lawyer. The individual will have to tell their narrative in a foreign language: legalese. The individual will have to fit his wrong into a “cognizable” category. The individual will often have to convince a judge and a jury of his peers that he has indeed been wronged and is entitled to redress. These costs are severe– but they are arguably necessary. Asking the individual, however, to mobilize a political movement to garner the support of a majority of voters is too high a cost, I think. Worse still, those who fetishize political mobilization over court-centered victories often fail to recognize that those who are expected to mobilize (those already wronged) cannot benefit from the fruit of their labors if their recourse is in the legislature because it takes a new law to get the recognition they need–and the new law cannot apply to the past wrongs.
[I think even the Court recognizes this distinction. For example, if one looks at the standing jurisprudence, one can trace a pattern (though it is not universally applied): wronged individuals can often get standing, while organizations that can more easily use the political process do not. The Sierra Club, with its political capital is expected to go through political channels, while a group of students (SCRAP) can find redress through the courts. Of course, the Court boots many wronged individuals on standing grounds (Allen, Lyons, etc.)–but it is far more suspicious of organizations that have access to the political process in a way that wronged individuals do not.]
There are other things one can focus on to counter Hillel’s counter-counter-majoritarianism: legislatures do not actually respond adequately to simple majorities; legislators respond more to money than to democratic mandates; legislatures makes compromises for reasons endogenous to the legislative process that have nothing to do with the preferences of their constituencies; campaign finance requires reform before we can trust legislatures; etc. But I wanted to go for something more touchy-feely to start out this discussion.
Posted by Ethan Leib on August 4, 2005 at 03:51 PM
Comments
Hillel:
I think it was just Paul who described gays as an “insular minority”, but I confess that either way, I don’t really understand what makes a particular unpopular group of people insular rather than not-insular.
As to whether libertarianism achieves more than it would have with Justice Kennedy voting the other way, I suppose we can only wait and guess.
Posted by: Will Baude | Aug 7, 2005 8:57:29 AM
I’m not sure I suggested that gay people are an insular minority. A targeted minority, yes. Insular minority? Maybe; maybe not.
And whether states join the anti-Kelo bandwagon, I do think libertarianism is better off with Kelo than it was without it. Just as the social conservatives achieved more–fundingwise, organizationally, and politically–with Roe than they would have without. That isn’t to say that either social conservatives or libertarians are personally happier with the status quo than they would have been with the alternatives.
Posted by: Hillel Levin | Aug 7, 2005 12:20:46 AM
I’m sorry; what work does “insular” do here? What makes, say, people who wish to engage in sodomy an “insular minority” but not, say, people who wish to engage in the splitting of their tongues, or the consensual sale and consumption of small quantities of crystal meth?
Posted by: Will Baude | Aug 5, 2005 4:52:49 PM
Hillel:
For the third, I’m thinking things like legislative decisions made on the basis of bad science etc. For the fourth, I mean anti-oppression. Now perhaps my “oppression” is about as coherent as I say your “insular minorities” are: but it seems to me that the courts can and should intervene when disfavored groups — even disfavored groups who are entirely entitled to participate in the political process- get stepped on. Lawrence is the best example here. A definition of “insular minorities” that doesn’t include gays is a pretty weak definition of insular minorities. What we have in Lawrence is the spectacle of the Court — appropriately, I think — telling the political majority that its majoritarian rights do not go so far as to allow them to criminalize utterly harmless conduct based on biological drives. I really don’t think there needs to be a specific principle to justify the use of the judicial power in cases like Lawrence, beyond “patent injustice and oppression are not permissible.” Call it distributive justice, and let me appeal to Rawls: could someone in the original position possibly agree to the laws at issue in Lawrence? If not, strike it down.
Posted by: Paul Gowder | Aug 5, 2005 3:54:43 PM
All right. I believe your actual claim was the libertarians have “achieved more in the long run” by losing Kelo than they would have by winning it. The long run is of course, not here, but your claim still seems very dubious.
Posted by: Will Baude | Aug 5, 2005 3:25:41 PM
Will: I don’t think I’ve declared libertarians “winners.” I think I would declare majoritarianism the winner here, and I think libertarians have shown themselves to be a much larger force as a result of Kelo than on any other issue in recent years. Again, this has nothing to do with whether Kelo was “right” (I have little to say) or “good” (as a normative matter, I think this is a good issue left to states and local government, whatever the constitution has to say about it).
Paul: The cases I was referring to were those in which there is a procedural mechanism that stands in the way of minorities advocating their interests democratically. As for the rest, I’ll let you refer to Ely. And I don’t claim I have all of the answers; but I do claim that there’s something sorry and absurd, as matters of both principle and politics, for every person who loses a political battle to seek vindication in the courts. I don’t blame the individual, of course; but the scores of advocacy groups who have decided that political battles are best fought in court–and who think that a court victory means victory in the long term. There are exceptions to every rule, of course, and no single statement can account for or predict which cases will be “good” and which ones not.
I guess the main difference between us is that you have faith in courts, and I think that faith is generally misplaced–much as I respect the many excellent judges and advocates throughout the country.
As for your limits, the second one you refer to, “democracy guarding constraints,” is exactly what I am referring to–and it goes far beyond felons and noncitizens. The first seems unworkable to the point of meaninglessness to me. As for the third, I don’t know what cases you are talking about. As for the fourth, I truly don’t know what you mean. As Will says, we are talking at a rather high level of abstraction here.
I’ll point out that the one upon which we agree, democracy guarding constraints, fits quite comfortably with my own intuition about old abortion laws (as opposed to new ones). It also seems to me that you’d have a tough time arguing under any of these principles that Roe was right, or for that matter, Griswold, Miranda, Lawrence, etc. So perhaps your vision is even more limited than my own?
Posted by: Hillel Levin | Aug 5, 2005 2:06:06 PM
Hillel: How are “insular minorities who can’t effectively harness the procedural mechanisms of democracy” any different from “everyone who loses a political battle?” If someone loses a political battle, either (a) they’re a minority, or (b) the democratic process is non-functioning. In the case of (b), the process has no claim to validity anyway. In the case of (a) it seems that you (and maybe Ely, it’s been a while and I suppose I’ll have to dig up my copy of Democracy and Distrust now) want to define some minorities as “insular” and others as “non-insular.”
Well, I’ve never heard a principled reason to describe, i.e., people with a different religion, skin color, or sexual orientation, or, as in the french fry case, children as “insular,” and people who believe in pacifism, old-growth forest preservation etc. as “non-insular.” Indeed, privileging minority status on the basis of beliefs over minority status on the basis of qualities seems to be far more useful for correcting errors in the political system and avoiding majoritarian oppression, since various i.e. muslims, black people, and gays might well have very different political views, and the courts can hardly accept a case on the theory that the political view to be vindicated is one that all muslims share.
In short, I think the concept of an “insular minority,” with a few very rare exceptions relating to people who are actually disenfranchised (felons and noncitizens seem to be about it) is at significant risk of incoherence. Unless you really do mean that only felons and noncitizens should be able to invoke the courts to overturn political oppression?
Of course, none of this answers the question you rightly put to me, which is where’s MY limit. The lengthy attempt to undermine yours might be seen in some sense as stalling/ducking that question, ’cause, well, dunno. Here are some highly tentative and preliminary thoughts, even more tentative and preliminary than the usual already very tentative and preliminary comments from me:
– Universalization constraints: one may challenge a result of the political system in the courts if it violates some variant of the universalization principle, i.e. if it couldn’t receive the rational consent of all those to whom it would apply. Probably very hard to apply for obvious reasons.
– Democracy-guarding constraints: one may challenge a result of the political system in the courts if the effect of that result of the political system would be to make future uses of the political system more difficult (i.e. speech restrictions, secrecy, etc.). Rather more limited than I’d like…
– Patently false factual predicate constraints: one may challenge a result of the political system if it is based on factual assumptions one can reliably disprove.
– Distributive injustice constraints: need I elaborate this one?
Posted by: Paul Gowder | Aug 5, 2005 10:59:20 AM
I think it is a little early to declare that the libertarians have won. So far only Alabama has enacted legislation to fight off eminent domain abuse, and that legislation is pockmarked with exceptions and holes. Maybe you will prove right in the long run, but what evidence is there of that?
Posted by: Will Baude | Aug 5, 2005 10:26:37 AM
MJ: You concede too much. I think liberals have been “questioning” majoritarianism (for good and bad reasons) since long before Bush came to power. The only time I can think of when liberals realized that leaving issues to legislatures–and letting the legislatures deal with the fallout–was a good idea was Bush v. Gore. I had hoped it would last longer than that, but it didn’t. At least, not for liberal activists. There has been a great deal of movement in the academy. Recent articles by Tushnet, Neuborne, and others make that clear.
Will: Once again, we are talking about two different things. It is great to argue about how the Taking Clause should be interpreted and whether the Court got it right. Be my guest. But that’s not the part of the conversation I’m interested in. Aren’t I entitled?
Basically, I believe that the libertarians achieved more in the long run by losing Kelo than they would have by winning. Similarly, I believe that same-sex marriage advocates might have more to lose by winning in court than by winning in legislatures–even if the legislative wins are incomplete and long in coming. Similarly, I think it is possible that liberals in general lost more as a result of Roe than if they had won the case more narrowly or lost it altogether. (I refer you to Jeff Rosen and Benjamin Wittes for more). None of these points has anything to do with whether Kelo, Roe, and same-sex marriage court cases are “rightly” decided. Rather, it considers the consequences and implications of court decisions.
Paul: That’s why I agree that courts are most properly invoked where insular minorities who can’t effectively harness the procedural mechanisms of democracy. I don’t know what it means “when an individual believes some deeper principle” has been violated. Does this mean that everyone who loses a political battle that means a lot to her can reasonably sue if she has a “deeper principle” at stake? Surely you have some limits. What are they? And anyway, as I said above, I’m more interested in the majoritarian/democratic implications of court rulings (i.e. how to groups form and advocate as a result of court decisions, and how does the story play out in the bigger picture? Kelo and Roe are excellent examples.).
By the way, all of this comes straight from Ely, though I don’t claim that he or I have answers for every question.
Posted by: Hillel Levin | Aug 5, 2005 10:18:54 AM
Hillel: I disagree. For whatever other role they play, courts are the only branch of government whose institutional mission is to be impartial. (Now admittedly, this is a rule most often observed in the breach.) Who else can resolve the conflict between the majority and the individual/the minority, when the individual believes that some deeper principle than majoritarianism has been violated?
Posted by: Paul Gowder | Aug 4, 2005 5:37:43 PM
Of course, another reason that present-majoritarianism is not all there is to democracy is because most of us believe that past majorities are allowed to pass enactments that remain valid until repealed. This means that when faced with an un-repealed enactment, courts are obligated to enforce it, popular or not, rather than simply assuming that they can abdicate and hope that today’s majorities agree with yesterday’s.
It is all fine and dandy to say that people should deal with their greivances by getting a law passed to fix them, but this begs the question: have they already gotten such a law passed, and if so, why should they have to get it passed again?
All this means is that Hillel’s political process point is question-begging. If the properly-interpreted incorporated public use clause constitutes a ban on non-public uses, that’s that. Only if it does not should the current wake of legislation be needed.
Posted by: Will Baude | Aug 4, 2005 5:31:04 PM
Perhaps this doesn’t apply to the author of this post, but I can’t help noticing all of the re-thinking about majoritarianism on the left side of the spectrum these days. (How many times have we heard the saying “Tyranny of the Majority” since President Bush’s re-election and Republican gains in the House and Senate?)
I think that it is entirely convenient for liberals to begin questioning the value and efficacy of majoritarianism now that they are no longer in the majority.
Rationalization cloaked in high philosophy.
Posted by: MJ | Aug 4, 2005 5:15:14 PM
Ethan, I’m not sure I follow the premise.
“Quite simply, justice already costs tremendous amounts of money. A lone individual who has been wronged must pay high entry costs to have justice done…Asking the individual, however, to mobilize a political movement to garner the support of a majority of voters is too high a cost, I think.”
Is this intended to be an argument that courts should legislate from the bench, because although litigation is expensive, democracy is even more so?
I’m also left to scratch my head a little at what issue that properly belongs in the courts should be dealt with legislatively? Are we going to talk about Terri Schaivo now, whose parents felt (rightly or wrongly) that they could not find “justice” in the court systems, and instead sought legislative relief? I thought we were all agreed – living constitutionalists and originalists, united as one against the non-originalist conservatives – that this was simply unconstitutional?
It seems to me that courts have invaded into the legislative arena; the appropriate cure for that is not to have the legislatures in turn invade the judicial arena, but to put both children back in their respective corners, and utter stern words about the consequences of further departures therefrom.
Posted by: Simon | Aug 4, 2005 5:03:56 PM
Entirely right, Paul. But there is absolutely zero reason to believe that courts are a good place to look in the long run.
Posted by: Hillel Levin | Aug 4, 2005 4:56:38 PM
Well, I certainly can’t resist chiming in here…
I think there’s an even deeper objection to majoritarianism as an objection to the courts, that doesn’t get as much play as it should:
Majoritarianism is a heuristic! Most serious ethical theories (Habermas, Rawls, Kant) (note the conscious omission of utilitarianism) and most serious understandings of political government (social contract theory etc.) presuppose some form of universal consent, or at least universal acceptability, to our political rules. One simply doesn’t screw the little guy,
For pragmatic purposes, we administer a system built on those ideals — freedom and equality for all etc. — in a majoritarian fashion, and justify it by appealing e.g. to the consent of everyone to participate in the majoritarian system (second-order consent). But we still have to recognize that majoritarianism, like all heuristics, will occasionally reach an imperfect result, and that it’s entirely acceptable to look behind majoritarianism to the true reasons that we declare our government to be legitimate when that happens.
Posted by: Paul Gowder | Aug 4, 2005 4:16:43 PM