There is an established genre of attacks on the Constitution arising from its failure to produce certain policies at a given moment.
In my last post, I described how originalism encompasses text and structure correctly understood as methods of interpretation, making it unnecessary to include them as separate modalities. Here, I want to contest Professor Karlan’s view that abstract considerations of “democracy” provide an appropriate “modality” in interpreting the Constitution.
The first problem with using democracy as a consideration is that the Constitution famously creates a system that protects rights even as it makes the government representative. The original Constitution, including the Bill of Rights, puts some very important rights beyond the reach of a representative federal government. The Fourteenth Amendment adds other important rights and puts them beyond the reach of state governments as well. Thus, it is hard to say as a general matter that the Constitution should be interpreted to advance representative government or to advance specified rights.
Some have argued, most famously John Hart Ely, that most of the rights provisions in the Constitution are democracy reinforcing, thus suggesting that democracy is the key concept for interpreting the Constitution. I do not believe this claim is right as matter of original understanding. Free speech is surely conducive to representative government. However, that does not mean it was meant to be instrument of it, rather than a protection of an individual right, as I have argued elsewhere. Free speech also appears in an amendment with the right of free exercise of religion, which is not democracy reinforcing but individually empowering. And other rights in the Constitution, like those guaranteed by the Contract Clause in the original Constitution and the Privileges or Immunities Clause in the 14th Amendment, protect rights that cannot be understood as designed to reinforce rather than to restrict democracy.
The danger of using democracy as a structural principle is that it will become a weapon to limit constitutional rights. Both right and left fall into this trap. Robert Bork used the democratic principle to limit the reach of the First Amendment to political speech. Liberal Supreme Courts justices today claim that considerations of democracy now can be used even to limit political speech. For similar reasons, the contentious question of judicial deference versus engagement cannot be resolved by appeals to democracy, even if it can settled in other ways, as I have discussed here.
Second, the limitations of the enumerated powers mean that the Constitution empowers not one but fifty one representative governments, including all the states. Thus, yet another danger of appealing to “democracy” is that the structural principle of democracy will be used to limit the freedom of some of these states to structure their own representative government by representative means.
The danger is acute, because the Constitution itself clearly does not embody a structural principle of one-person, one-vote that goes by the name of democracy today. It does guarantee each state a republican form of government, but republicanism was obviously consistent with restrictions on the franchise well known at the time of the Framing and indeed unequal forms of representation embodied in the Constitution itself, like that in the Senate and electoral college. (I recognize that these latter features were of the federal, not state, government but there was general agreement that the federal government was a republican one.) To be sure, several amendments to the Constitution, like the Fifteenth (prohibiting discrimination on the basis of race), Nineteenth (prohibiting discrimination on the basis of sex) and the Twenty-Fourth (outlawing poll taxes) curtail various restrictions on the franchise. But on the principle of expressio unius, they also suggest that many other forms of restrictions may be permissible. And lest that danger seem only one about which the political right worries, a democratic principle seriously applied might also prevent states from protecting additional rights, including collective rights, like that to a free education, from democratic oversight.
In short, republicanism, not democracy, might be a structural principle. But even that cannot be applied to limit individual rights exercised against the wishes of one’s fellow citizens. And like other appropriate structural considerations, it flows from the original meaning of the Constitution. It is not a free standing modality.