Tyranny of the Majority or the Minority?

[Justin Schwartz]

Just speaking from my own personal experience, I acquired most of my 
judicial conservatism serving as a law clerk. In law school I wsa much more 
of a Warren Court liberal in judicial philosophy. In law school, textualism 
is taught as a right wing view, but it doesn't have to be. Indeed, the right 
is only textualist when it suits them. I think my experience is not 
atypical. Besides, the judges don't let you get away with with it; in my 
early days on the job, when I tried to be extravagant, Judge Cummings--an 
old New/Fair Deal/Great Society liberal, would gently strike that stuff from 
my drafts. Of course, he was awfully good. But your extravagant 
acquaintances will not be unsupervised by the people who sign their names to 
the opinions, Nathan.

I don't think the American experience with constitutionalism is as 
unremittingly awful as you suggest. I think there are specific problems with 
our Constitution, but not mainly connected with judicial review. The worst 
problem is the 2-member a state Senate, which entrenches reactionary rural 
interests in legislative power. We now see that the Electoral College can 
bite us too--1876 wasn't the last time. As for extravagances of judicial 
review on constitutional grounds, I think which way that cuts depends on the 
total political balance of forces in a way that would affect legislative 
supremacy just as badly. If the left were as a weak as it is and we had 
legislative supremacy, the right would do through the legislature what it 
also does through the courts.

--jks


>I will admit that I have become much less ennamored of a 
>judicially-enforced
>Constitution from when I was younger and law school just accellerated that
>process as I watched all sorts of eager judge-wannabees talking about all
>the ways they would overrule the democratic process to save people from the
>supposed stupidity of the voters.  This is an empirical issue- here at Yale
>I am at ground central for the supply of federal clerks writing opinions 
>and
>those who will become judges in the future.  And the thought of these 
>people
>having that power horrifies me.  And I am not talking just about the
>cosnervative folks wanting to write law and economics into the 
>Constitution,
>but the liberals who see their own social preferences as natural law.  The
>contempt for average people, whether in juries or in legislatures, that 
>runs
>through the legal elite is truly awe-inspiring.
>
. . .
>
>The theory of constitutionalism has great appeal, but the practice in the
>United States has been mostly a failure at best and a reactionary tyranny 
>at
>worst - and more commonly.
>
>-- Nathan Newman
>
>

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