The Counter-Majoritarian Difficulty

Via Instapundit, comes an intructory essay on a legal and constitutional principle called The Counter-Majoritarian Difficulty. Basically, it's the idea that courts (and especially the Supreme Court) are and operate as anti-majority anomalies within a constitutional system. It's a very short essay but it launches a lot of deep thinking on a vital issue.

One corrolary issue with courts is the anti-democratic idea of serving for life. Yours truly is a deep appreciator of the basic democratic impulse of our constitutional representative republic. (That's what we are, and not a democracy. It's a very important distinction to make and one most folks just can't quite grasp.) Responsiveness to the will of the people is very important to our form of government. By definition, a judge appointed for life becomes unresponsive to the people as he's increasingly shielded from them politically.

When our Republic was launched, it wasn't quite such a problem, as people just didn't live that long and politicians tended to appoint older men to the job. But as science has progressed, it's not at all unlikely for someone to serve forty years or more. That's just too long.

I support the idea of making high judicial terms of office. Say twenty years, then the person must step down and someone new appointed; no re-appointment. Or twenty years and then a simple up-or-down vote on retention. Tennessee does this with some judges and if you remember the last election, it led to a huge roster of judges needing reconfirmation. So, there's downside, or an place to rethink who and how many and how.

There's also the idea of judicial review. That's where the Supreme Court usurped the role of arbiter of constitutionality. The very first Supreme Court announced it would (and did) review the constitutionality of any laws passed by Congress that came before it. And it's been that way every since, unchallenged.

The Founders didn't give the Supreme Court that power, but almost all of them were alive when it happened and don't seem to have been seriously angered by it. There's a good argument for its check-and-balance role in a constitutional system but it also works to remove the Supreme Court from the rest of the interlocking roles of the Executive and Legislative branches.

Quick question (and one of my favorite bar challenges): what is the center of power of the US constitutional system of government? You'd be surprised how many say, "The President." That's horrifying to me, as it's evidence of latent authoritarianism and willingness to submit to a king. (Yeah, I worry about such things.) The President was never meant to be more than the executor of the will of Congress, slightly removed so that the blunt force of Congressional power could be hamstrung just a bit for the protection of the People.

No, the correct answer is the House of Representatives! Yep, the lowly House. It's members are all put up for election every two years, so turnover is (at least in theory) guaranteed and responsiveness to the will of the people is increased. Look at the important powers vested solely in it. (Go ahead, read for yourself. It's your government, you ought to know how it works.)

The Senate exists as a brake on the volcanic, protean power of the House. Its job is to slow down and even stop the actions of the House so that passions can cool and clearer heads get a look in. Same for the President. By having him separate, the actions of the House are once again blunted and a level of difficulty in unified action introduced.

The Founders were strong believers in democratic principles. In some ways much more than we are today. But they also realised that the people are also very emotional and quick to action. Something must happened to give reason a chance to enter the discussion meaningfully. (Because those guys were all devotees and student of ... The Age of Reason! How 'bout that?)

So having the Supreme Court (and other courts in imitation) set itself aside, and having judges hold themselves apart, tends to break our system in ways that we have to deal with today.

Anyway. This post is nearly as long as the essay now. Go read it and think about this today. No exam, but we'll discuss it further one day soon.