Constitutional Court Cases v. Democracy
August 31, 2009
I came across a brilliant synopsis of how the U.S. Supreme Court should decide “hard cases” that involve a party claiming an individual right under the auspices of the Constitution:
I confess that in the end I do not have much confidence in constitutional jurisprudence. One consequence, it seems to me, of requiring of the Court a wisdom about “rights” beyond that of the Framers is that it undermines the habits of citizenship that rely on the confidence of the people in constitutional majorities. I modestly suggest, therefore, a rule of prudence to be applied to constitutional jurisprudence: A Justice should always consider, when deciding “a novel and difficult case,” whether the outcome will increase or diminish the ability of the people to govern themselves by the mechanisms laid down in the Constitution. This very likely would mean subordinating the intractable questions of individual right, insofar as they reflect changing social mores, to the political process. True, the tyranny of the majority is the intrinsic danger in a democracy, but the tyranny of pernicious ideas, tricked out in the language of rights, it seems to me, is far worse than having to abide by the rule of constitutional majorities.
This analysis is an afterthought in a broader book review by Robert Licht concerning Mary Ann Glendon’s book critiquing American jurisprudence on individual rights and arguing in favor of communitarianism (which Licht’s book review does not support). While this post is not about communitarianism, I find the analysis quoted above to be spot on.
The Supreme Court’s individual rights jurisprudence has subverted the political system and removed important questions from the will of the people. (Keep in mind that Supreme Court Justices in the U.S. are unelected and are appointed for life, so they are completely unaccountable to the people.) In the close cases, the Supreme Court often exploits the ambiguity in the law to declare national policies and invent new “individual rights” under the Constitution that cannot be changed by anyone except the Supreme Court.
If these individual rights do not come explicitly from the text of the Constitution, where do they come from? God? Hard to imagine that’s the case, given the types of issues the Court has removed from the political will of the people.
When is the last time you were able to vote on the legality of ordinary abortion? When is the last time that anyone you elected (on the local, state, or federal level) had a chance to vote on the legality of abortion? How about prayer in schools? The Court should tread lightly in these areas, deferring to the political process. Yes, the political process may yield an unjust democratic decision, but that is much easier to correct than an unjust legal decision made under the Constitution. To correct that, the people must amend the Constitution, which is no easy task. This is why losers of elections run to court.