Tyranny of the Majority or the Minority?

Justin Schwartz jkschw at hotmail.com
Sat May 19 07:59:50 PDT 2001

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.


>I will admit that I have become much less ennamored of a
>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
>those who will become judges in the future. And the thought of these
>having that power horrifies me. And I am not talking just about the
>cosnervative folks wanting to write law and economics into the
>but the liberals who see their own social preferences as natural law. The
>contempt for average people, whether in juries or in legislatures, that
>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
>worst - and more commonly.
>-- Nathan Newman

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