Constitution trumps majority rule

April 19, 2012


— Judge J. Harvie Wilkinson III, a Reagan appointee to the 4th U.S. Circuit Court of Appeals, is a courtly Virginian who combines a manner as soft as a Shenandoah breeze with a keen intellect. His disapproval of much current thinking about how the Constitution should be construed is explained in his spirited new book — slender and sharp as a stiletto — “Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance” (Oxford).  

A “cosmic theory,” Wilkinson says, is any theory purporting to do for constitutional questions what Freud and Einstein tried to do concerning human behavior and the universe, respectively — provide comprehensive and final answers. The three jurisprudential theories Wilkinson criticizes are the “living Constitution,” “originalism” and “constitutional pragmatism.” Each, he says, abets judicial hubris, leading to judicial “activism.”

Those who believe the Constitution is “living” believe, Wilkinson says, that judges should “implement the contemporary values” of society. This leads to “free-wheeling judging.” So Wilkinson apparently agrees somewhat with Justice Antonin Scalia, who stresses the “antievolutionary purpose of a constitution,” which “is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away.” Future generations or contemporary majorities.

 Wilkinson is right that judges, comprising an elite and “introverted” profession, are prone to misreading the values of the broader society. But even if judges read those values correctly, judicial restraint can mean giving coercive sweep to the values of contemporary majorities. That a majority considers something desirable is not evidence that it is constitutional.

One problem with originalism, Wilkinson argues, is that historical research concerning the original meaning of the Constitution’s text — how it was understood when ratified — often is inconclusive. This leaves judges no Plan B — other than to read their preferences into the historical fog.  

Constitutional pragmatists advocate using judicial power to improve the functioning of the democratic process. But this, Wilkinson rightly warns, licenses judges to decide what a well-functioning democracy should look like, and gives them vast discretion to engage in activism in defense of, for example, those it decides are “discrete and insular minorities.”

Insisting that “the republican virtue of restraint requires no cosmic theory,” Wilkinson’s recurring refrain is that judges should be disposed to defer to majorities, meaning the desires of political, popularly elected institutions. But because deference to majority rule is for Wilkinson a value that generally trumps others, it becomes a kind of cosmic theory — a solution that answers most vexing constitutional riddles.

Wilkinson’s premise is that “self-governance,” meaning majority rule, is the “first principle of our constitutional order.” But this principle, although important, is insufficient and, in fact, is secondary. Granted, where politics operates — where collective decisions are made for the polity — majorities should generally have their way. But a vast portion of life should be exempt from control by majorities. And when the political branches do not respect a capacious zone of private sovereignty, courts should police the zone’s borders. Otherwise, individuals’ self-governance of themselves is sacrificed to self-government understood merely as a prerogative of majorities.

The Constitution is a companion of the Declaration of Independence, and should be construed as an implementation of the Declaration’s premises, which include: Government exists not to confer rights but to “secure” pre-existing rights; the fundamental rights concern the liberty of individuals, not the prerogatives of the collectivity — least of all when it acts to the detriment of individual liberty.

Wilkinson cites Justice Oliver Wendell Holmes as a practitioner of admirable judicial modesty. But restraint needs a limiting principle, lest it become abdication. Holmes said: “If my fellow citizens want to go to Hell I will help them. It’s my job.” No, a judge’s job is to judge, which includes deciding whether majorities are misbehaving at the expense of individual liberty.

Justice Felix Frankfurter, whose restraint Wilkinson praises, said the Constitution is “not a document but a stream of history.” If so, it is not a constitution; it cannot constitute if its meanings are fluid and constantly flowing in the direction of the preferences of contemporary majorities.

The Constitution is a document, one understood — as America’s greatest jurist, John Marshall, said — “chiefly from its words.” And those words are to be construed in the bright light cast by the Declaration. Wilkinson worries about judges causing “an ever-increasing displacement of democracy.” Also worrisome, however, is the displacement of liberty by democracy in the form of majorities indifferent to or hostile to what the Declaration decrees — a spacious sphere of individual sovereignty.

— George Will is a columnist for Washington Post Writers Group.    


Orwell 5 years, 9 months ago

So that stuff about "establish[ing] justice" and "promot[ing] the general welfare" at the top of the first page of the Constitution should be disregarded when set against a claimed pre-existing right to make life worse for other Americans.

Sorry… not buying it. Those on the right are just too selective when deciding which rights are worthy of protection and when judicial "activism" is offensive.

All the labored rhetoric – particularly Will's – is a cover for the current Court's only demonstrable philosophic consistency: them that has, gets.

cato_the_elder 5 years, 9 months ago

The only person in power I know of who appears to have claimed a "pre-existing right to make life worse for other Americans" is Barack Hussein Obama. His pitifully dismal record as president and constant class warfare rhetoric prove it.

Alyosha 5 years, 9 months ago

Detail in facts — not emotions or emotion-laden jargon — this "pitifully dismal record" you speak of. Else, don't bother wasting readers time.

Also, detail the actions that are "Constant class warfare" — not just your monsters-under-the-bed fears.

Your comment demonstrates a serious inability to see facts instead of fears.

cato_the_elder 5 years, 9 months ago

Are you not aware that the poverty rate increased to an all-time high under Obama? Are you not aware that the poverty rate in most states has soared under Obama? Are you not aware that under Obama one in six Americans lives in poverty? Do you not recall how Obama and his handlers promised that if his Porkulus spending debacle were passed, unemployment would be at 6% by now? Do you not recall Obama saying that if he couldn't get unemployment under 8% by now he didn't deserve re-election? Do you not know that Obama's economy created only 120,000 jobs in March, not enough even to keep up with population growth? Do you not know that government-supplied jobs numbers disregard long-unemployed adults who are so discouraged that they stop looking for work and thus are not counted in the labor force? Are you not aware of the profoundly chilling effect that the prospect of Obamacare has had on American employers' willingness to hire new employees? Are you not aware of the profoundly chilling effect that Obama's constant threats to raise taxes on business has had on American employers' willingness to hire new employees? Are you not aware of how much the economy might have recovered by now if Obama's job-killing policies, e.g. killing the Keystone Pipeline, had not been inflicted on America?

Obama's brand of socialism isn't just pitifully dismal. It's insanity.

just_another_bozo_on_this_bus 5 years, 9 months ago

Yes, George, we know that you fear of the tyranny of the majority that threatens you and the oligarchs you identify with.

cato_the_elder 5 years, 9 months ago

And the liberal Washington power establishment controlled by a few in (a) the media, (b) unions, (c) Hollywood moguls and (d) academia, isn't an oligarchy? C'mon, Bozo. Wake up and smell the coffee.

verity 5 years, 9 months ago

Did Mr Will say something?

Stephen Hawking, arguably the most intelligent person in existence today, can write about complex matters so that we common people can understand. I consider that a mark of intelligence. Mr Will's convoluted and "elite" language not so much. I think there was a point somewhere in there, but I missed it.

This is an important topic, especially with some of the decisions being handed down recently. Maybe some of our local legal minds can explain?

jafs 5 years, 9 months ago

I think his point was that the judicial branch should not, in fact, defer to the majority, as expressed through the legislative branch.

Which I agree with - the judicial branch is supposed to act as a "check and balance" on it.

verity 5 years, 9 months ago

Thank you. I agree with that thought. Interesting that you can state it in one sentence.

However, and again I may have missed it, what I'm really interested in is how the Constitution should be interpreted, not just how it shouldn't be. One of the reasons, obviously, that this is a problem is that the world has changed in ways that the writers of our Constitution could never have imagined. Even the literalists or originalists disagree on interpretations. Our ideas of freedom and rights have evolved---human equality really wasn't what was intended by the writers even though that is what they said.

jafs 5 years, 9 months ago


That's the difficult question - and I don't think there are any easy and satisfying answers.

My own sense is that we should try to understand the principles as originally intended, and then apply them to new situations.

Changes can be made by the process of amending the constitution, rather than "re-interpreting" it.

Paul R Getto 5 years, 9 months ago

"But a vast portion of life should be exempt from control by majorities. " === Good Column, Mr. Will. This is the heart of the issue, in my opinion. While the founders ignored women, landless people and blacks in their original conversations, we gradually worked things out. They had seen what happened when the majority can take things from minorities, hence the strong emphasis on rights and why they should be immutable. Again, good work, sir.

Patricia Davis 5 years, 9 months ago

And how do we interpret that the Supreme Court gave us George Bush as president?

verity 5 years, 9 months ago

Or Citizens United?

Activist Right Wing Judges perhaps?

ThePilgrim 5 years, 9 months ago

That argument is tired as well as fallacious. Many news organizations spent time recounting the "hanging chad" ballots after the debacle that was the 2000 election. Even the New York Times: "A close examination of the ballots found that Mr. Bush would have retained a slender margin over Mr. Gore if the Florida court's order to recount more than 43,000 ballots had not been reversed by the United States Supreme Court. "


ThePilgrim 5 years, 9 months ago

“self-governance,” doesn't mean majority rule. It means minority rule - I am capable of governing myself. PERIOD. I am all Anti-Federalist about it (as in Anti-Federalist papers). Paine's incendiary tract Common Sense says it all. So leave me the *** alone...and get outta my yard.

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