George Thomas makes an excellent case that there is more tension between judicial deference and constitutional principle than my essay on the topic acknowledged. The Constitution, he correctly notes, does not rest on a simple principle of majority rule. Legislatures might violate rights on what, like election security, would otherwise be legitimate pretexts.
Let me push back, for the sake of clarifying my original point and asking George for his thoughts: First, the Constitution may not operate on a principle of simple majority rule, but neither does it have a provision for what James Madison said was ultimately the only other option, which is minority rule. There are rights the state is explicitly forbidden to transgress, but Madison, the father of the Bill of Rights, acknowledged they would be useless against impassioned majorities–the very type likeliest to violate liberties. The challenge, then, is to create mechanisms that make it less likely majorities will be inclined to violate rights. Abandoning this civic cultivation to the caretaking of judges may exacerbate the problem by letting majorities off the hook. The problem with John Hart Ely’s thesis that judges should make decisions based on expanding the electoral and participatory processes of democracy is that the nature and extent of those processes is a matter of legitimate dispute. That does not mean judges should never overrule legislatures. It does mean that, as James Bradley Thayer offered, they should do so only in the case of a “clear mistake.”
More important, I do not see any way to judge a legislature’s motives coherently. The courts can, and should, look to the operation of a law–such as one that makes it harder for racial minorities to vote–and weigh state interests against it. But legislatures are comprised of individuals operating on multiple motives on any given legislative act. George doesn’t say this, and I don’t want to impute it to him, but there is a strain of “judicial engagement” that would have the courts judge statutes based on legislative motives. These seem ephemeral to me. George is right that advocates of judicial deference often have “an idealized view of the democratic nature of legislatures.” My view is not idealized, or at least I hope it is not. Some legislators are principled, others are scoundrels and most are probably some of both. But I am reluctant to endorse an alternative that entails judges analyzing whether democratically elected legislatures are really democratic.
George is correct that deference of itself is not a principle–a poor choice of words on my part. But it is a disposition. And I think it beats the alternatives.
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