Judicial Supremacy vs Popular Constitutionalism

Who should have the final say on the law of the land?

Last Tuesday’s episode of the Ezra Klein Show, “Liberals Need a Clearer Vision of the Constitution. Here’s What It Could Look Like.” features a conversation with legal scholar Larry Kramer, who makes some really interesting arguments that buck the conventional wisdom about the relationship between politics, the Supreme Court, and Constitutional interpretation. While Kramer has been making versions of this argument at least since his 2004, it’s worth considering in light of the angst surrounding a term where a conservative court overturned Roe and struck down attempts to regulate firearms and climate change.

From Klein’s setup:

Kramer is the former dean of Stanford Law. He’s the president of the William and Flora Hewlett Foundation. His 2004 book, “The People Themselves: Popular Constitutionalism and Judicial Review” is this wild and really interesting interpretation of our constitutional history that has the unusual accolade of being beloved by both Newt Gingrich and Ralph Nader.

And the argument he makes there and that he made to me here is that around the rise of the Warren court, liberals did something they hadn’t done before. They embraced the doctrine of judicial supremacy, and they came to see the Constitution as the purview of judges and the word of those judges as final. And so this long tradition of having a politics around the Constitution and around the court, it began to collapse at least on the left.

And here’s Kramer setting up his argument:

[S]o there’s a Constitution long before the revolution, right. The Americans launched the American Revolution basically arguing that the British were violating the American Constitution over and over again. So there was this concept of constitutionalism, and its enforcement rested in the community at large.

So there’s no real notion of judicial review. As I think I mentioned to you the other day, like, at no point in the American Revolution did somebody say, hmm did the British have power to tax us? Let’s go to court and find out the answer to that. It’s just not a concept.

So as judicial review emerges in the early days, it comes out of this notion that courts are agents of the people just like the other branches. So when a case comes in front of them, of course, they have to interpret the Constitution, but their interpretations are not superior or binding on anybody else in the system. Everybody does their own interpreting. Final authority rests in the community by how the community responds to the decisions.

And then that takes you into a way of thinking about the Constitution, which they also didn’t think of as like some empty charter. It had a purpose. It was to create a republic, and so it had a political goal. And so the way you thought about interpreting it depended on what you thought the objectives of the American Republic were supposed to be.

That the United States has a history predating the Declaration isn’t novel. But the idea that it had a “constitution” is a different way of thinking than I’m used to. My sense was that the colonial leaders were British subjects and felt that they were being denied their rights under the British (unwritten) constitution.

My longstanding sense had been that the Marshall court essentially claimed for themselves the power to decide what the Constitution meant, even though it’s nowhere in the Constitution. My more recent sense, though, was that it was simply assumed they had the power because British judges had that authority under the Common Law. Kramer takes a different view altogether.

Larry Kramer: And so the political fights have been about that too. And for most of that history, courts — no one thought of courts as having final say over the Constitution. That’s a late 20th century invention, right, that begins with Brown v. the Board of Education. So if you think about the Constitution —

Ezra Klein: Hold on. That’s going to sound weird to people, because a lot of us learned about Marbury v. Madison in school. And so the takeaway of that case now is that the courts have final say over the Constitution.

Larry Kramer: Yeah, the court makes that claim in Cooper v. Aaron and cites Marbury v. Madison. There’s a reason it had never been cited for that proposition.

Ezra Klein: It’s a very strange thing that I learned from you that Marbury v. Madison is not well cited before the late 20th century.

Larry Kramer: It’s not cited ever for anything about judicial review. It’s cited occasionally for some of the other subsidiary issues in the case. And that’s because, in context, Marbury was a rejection of judicial supremacy, literally a rejection of it, right. That position was being put forth in the 1790s by the conservative Federalists and being opposed by the more liberal Republicans, the Jeffersonian Party. And it comes to a head in the election of 1800. The Republicans win, trounce the Federalists.

So, I knew that, despite declaring the power to strike down laws passed by Congress in Marbury, the court didn’t do so again until Dred Scott—55 years later. But the notion that judicial review didn’t catch on until the 20th century is alien to me.

But Kramer’s larger point is about judicial supremacy—the notion that, when the Supreme Court declares that the Constitution says a thing, the argument is over. That’s really not embraced until the days of the Warren Court and Kramer says that was a mistake. That the Constitution belongs to the community, not the courts.

Larry Kramer: So the distinction would be, so let’s say the law does X. And the question is, does the Constitution permit the law to do x? Well, different people may have different views about that. So the judges on the court may think yes. The members of Congress may think no. The president may think yes or no, whatever.

So the question is not what does the Constitution say, but whose interpretation, whose decision about what it says is final and binding. So judicial supremacy is the notion that whatever the other branches think, whatever the community at large thinks, whatever the states think, once courts have said it, everybody is supposed to get behind the court’s interpretation.

That’s different from saying the courts can have their say, but if Congress — and we’ll enforce it in the case — but if Congress disagrees, they can pass a law that is inconsistent with the court’s decision. And all that does is force it back to the community, right, which depending on how it responds to the various things that are being done in the different departments of government will decide the case literally.

So the theory was called departmentalism— each department. And that’s actually what Marbury says, right. It says courts no less than the other branches have authority to interpret the Constitution.

Here’s how I think of it. It’s an agency problem. So imagine I have a house, and I have a cook who cooks my meals, and I have a gardener who takes care of the garden, right.

So each of them has within their sphere things to do. And if the gardener comes into the kitchen and starts telling the cook how to cook the meals, like, the cook would say that’s not your job. It’s the owner of the house’s job to tell me how the meals are cooked.

So the people are like the owner of the house. The gardener is like the court. The cook is like Congress. So each has its say within its domain, although always subject to the final and binding decision of the community at large by how it responds to what the different agents do.

Which is reasonable enough. And does indeed accord with my understanding of how the process worked. If the courts issued a ruling that Congress didn’t like, it would change the law, amend the Constitution, or even take away judicial jurisdiction.

Larry Kramer: So for most of American history, how to interpret the Constitution was this kind of open-ended, forensic, all things considered approach. It wasn’t really theorized. It was the kind of way conventional lawyers do law.

You look at the language. You look at the history. You look at the policy. You look at the precedent. And you put it all together, and what’s the most persuasive story. And there’s a lot of fights in the early Republic about is the Constitution — what kind of law is it? Is it like a statute? Is it like the common law? Which of these principles do we use? But by the, sort of, 1820s, 1830s, they’ve settled that the Constitution also should be done with this forensic, kind of, all things considered method. And in fact, if you read — Joseph’s Story writes the sort of treatise on Constitution. That’s what he sets out as the method to interpret, and everybody agrees on that. There’s not really any fighting about how to interpret. And so the fight is do the courts have final say or not, and that fight emerges by the mid 1790s. And across American history, that’s always the fight.

That the left and right agreed on the basics of how to interpret the Constitution until relatively recently is interesting. Whether other legal scholars dispute that contention, I don’t honestly know. But we’ll get back to that point shortly.

Now you can think of it this way. People who favor democracy — let’s call them people who favor popular authority are opposed to judicial pretensions. People who are nervous about democracy, who think that people need to be confined in cabins support judicial pretensions, because they are looking for ways to tamp this down.

The reason this emerges in the mid-1790s is the French Revolution. It scares the heck out of the Federalists, who are the conservatives of that period. And so they’re looking for all sorts of ways to control popular authority, and judicial supremacy is one of them.

So you have these fights right from the beginning that are essentially left right fights. Now of course, what happens is when it comes to a head, the popular side wins. Jefferson crushes the Federalists in the 1800s election, and the idea of judicial supremacy is squashed quite explicitly, first in the debates over the repeal of the 1801 Judiciary Act — no reason to go into all the details — then in Marbury v. Madison. And then what will happen across America — and it doesn’t go away. There are still people who believe it’s the right thing to do, including people in the profession, including lots of people on the left in the profession.

The idea that the courts were inherently a check on democracy—and thus favored by conservatives—is an interesting notion nowadays but makes sense in relation to the founding period.

So it’s always there. And when government is weak or divided, the court can assert its authority. So you have these waves at different points in time where the court will assert its authority.

This is an idea Kramer weaves throughout the conversation: that the courts are only able to assert themselves in periods—like today—where the body politic is quite divided. When there’s rough consensus on the issues, the elected branches can easily impose their will.

The Marshall court tries it again in the late 18 teens, and they get crushed. It comes up again in the early Jacksonian period around the Second Bank. They get crushed. It comes up again in the 1850s around slavery and the territories and Dred Scott, and the court gets crushed.

Then after the Civil War, of course, you have this period like today of polarization and divided government, and the court can reassert its authority. And the idea of judicial supremacy re-emerges pretty strongly in the 1880s and 90s in the populist era and in the Lochner Era, and then that all comes to a head in the New Deal. And once again, the court gets crushed, and then it reasserts itself in the 1950s.

But there’s a difference in the 1950s, which is now for the first and actually only time in American history you’ve got an activist court that wants to assert its authority that is liberal. That’s the Warren court.

And so as the Warren court begins to assert authority and not only say that the courts have final say over the Constitution but to use the Constitution to take these rights provisions and really run with them, whether it’s race discrimination, voting rights, criminal justice, people on the left flip, not all of. The older people on the left who had fought the Lochner fight in the mid-twentieth century are really dubious and skeptical about the court’s claims to supremacy, but they support the decisions.

Younger people on the left, the Ronald Dworkins and Bob Gordon’s of the era, they’re in for this. So they flip. They begin to support judicial authority.

The right does not change. It also continues to embrace the idea of judicial authority. And for the first time, the debate shifts from who has final say. If it’s going to be the courts, how should they interpret the Constitution. And you get a left right split over that.

Kramer argues that originalism was essentially newfangled theory that conservatives came up with early during this new era of consensus over judicial supremacy:

And that’s where originalism comes from, right, which emerges really in the 1970s, 1980s as the conservative theory of the Constitution. And that’s the fight we’ve been having since, because people seem to have broadly accepted the idea that it should be courts who have final say over the Constitution.

Kramer argues that, contrary to the way we think about it today, FDR’s court-packing plan wasn’t really all that controversial. Democrats just thought it was unnecessary to bring out the big guns given their political position.

The way judicial supremacy works in the American system is the court has its say. The question is, how does the pushback take place?

So it’s not going to be like the American Revolution, popular uprisings, people in the streets tarring and feathering people. It’s through the branches of government. So that means you’re only going to get pushback on the court if the branches of government are aligned.

So look at today, right. People on the left want to see pushback on the court. You’re not going to get court packing or jurisdiction stripping or budget slashing, the tools that were used across American history.

You’re not going to get those out of Congress today. So you can only get them when a president and both houses of Congress are strongly controlled by the same party — what Roosevelt had, what Lincoln had, what Jackson had, what Jefferson had, just key points of pushback. So when you have divided government, the court has space to run.

Ezra Klein: So let me pick up on something in there too, because I think this is a big and tricky part of this, which is in this fight over judicial supremacy, judicial review, what are the tools through which the fight is waged? When Congress or the president doesn’t agree with what the court is doing, typically, they don’t just say, well, you don’t have any troops to your name. So we’re not going to listen. What do they do?

Larry Kramer: Well, they do occasionally do that.

Ezra Klein:They do occasionally do that. But we understand that now is a terrible norm-breaking that is down the road to a kind of authoritarianism.

Larry Kramer: Yeah, so if you were starting from scratch today, what would you do? You need the court — if you’re going to give the court this like incredible policymaking power — because that’s what judicial review is. It’s not just deciding cases. If you’re going to give them that kind of power, you need them to be independent, so they can function as a court. But you need somehow to balance it with the degree of accountability, so they can’t veer too far off.

So if you look at modern constitutions, what they typically do is they have courts with judges who have limited terms that are staggered. They require supermajorities to get onto the court, which forces a kind of centrist appointment. They make their constitutions easier to amend because they thought this through and recognized what they need to do.

And so you can give the judges lots of independence, but the branch will never veer too far. So when our Constitution was written since no one was imagining anything remotely like the modern court or that kind of power, they were all focused on the decisions in individual cases, and they made it super independent.

So when the court began to assert that power and they had to figure out what can we do to reign it in, they used the tools that they actually the Constitution made available. Although, they weren’t put there for that reason. Like, Congress controls the composition of the court. So you can add justices, court packing.

Or you can slow down its increase, which has also been done where you shrink the court to keep a president from having appointments. As, for instance, after Lincoln’s assassinated and Andrew Johnson becomes president, the Republicans do not want appointments for him. So they shrink the court, so he’s not going to get any appointments.

And then when Grant is elected, they increase it again so that he can — so there’s lots of ways to use the composition of the court. Congress controls its budget. Congress controls its jurisdiction.

So those kinds of tools are available. They’re pretty crude. So you don’t want to use them except in pretty extreme circumstances. Like, you’re not going to use them in response to a single decision. But if you have a course of decisions where the court really is veering away from where the country is, those are the kinds of tools that can be used and were used across American history.

And they’re consistent with the idea of judicial independence, because they are actually controls explicitly in the Constitution. After Brown, as the left begins to support judicial supremacy, what’s done is the delegitimization of those devices, right. It’s now you have people on the left and the right saying, no, you can’t do that. That’s bad. That would cripple the ability of the courts to do what it’s supposed to do, which is protect us from ourselves essentially.

Ezra Klein: Let’s talk about court packing for a second. Because an argument you make is that we understand that moment in history, the FDR moment almost exactly wrong. We see it as norms-breaking, as a terrible political failure. And you see it as something else. Give me your revision.

Larry Kramer: So Roosevelt is elected with a huge majority to do something about the country’s economic calamity. He acts immediately. The court invoking a set of interpretive theories that were way outdated and not necessarily valid, although not completely ludicrously invalid strikes down the first New Deal.

Roosevelt — and not just Roosevelt, people forget this was widespread effort by the Democrats begin pushing back against the court making basically the argument that this is not the way we do things in a democracy — and in that battle proposes as part of his solution packing the court, adding justices. Now it’s not popular when he proposes it. It never was. It wasn’t when Lincoln did it. It wasn’t when Jackson — but he pushes the idea.

Ezra Klein: Which is, by the way, to say it wasn’t a Roosevelt innovation to do this.

Larry Kramer: No, not at all. It had been done repeatedly across American history. The federal — I mean, I can go through all the instances, but it was — as I said, it was a pretty common thing to use the size of the court as a way to control it in just the ways that we talked about before.

So it’s not popular at first, and it’s not the only thing. It’s being done along with a really concerted campaign to raise popular awareness of what the court is doing and popular opposition to letting the court continue to do it and hold the country back. And the court flips.

At that point, Roosevelt doesn’t need court packing anymore, right. The court in 1937 upholds the so-called Second New Deal, allows the laws to go into effect. And a couple of weeks later, one of the justices that was in the five person conservative majority retires, and Roosevelt can replace him with Hugo Black. And at that point, he just doesn’t need it anymore. So he lets it go.

So if you don’t think about the court-packing proposal in isolation but think of it as part of this larger campaign, it’s exactly the way this is supposed to work and has worked across American history, which is when the court veered too far out of sync, the community responded. And the court retreated, and we moved on.

Obviously, many mainstream Democrats think we’re at that point now. President Biden himself isn’t quite there yet and at least Joe Manchin and Kyrsten Sinema stand in the way. But one could easily see if, somehow, Democrats increased their majority in the Senate in the midterms and continued to get struck down by a conservative Supreme Court that a consensus would emerge to pack the courts to re-assert the primacy of elected policymakers

But one could also look at the decision overturning Roe as part of this process, too. While conservative legal scholars may well have embraced the notion of judicial supremacy, Republicans writ large didn’t. They have spent nearly half a century rejecting that decision as illegitimate and used every tool available to them—including the egregious norm-breaking that kept Merrick Garland off the bench and put Neil Gorsuch on in his stead—to reassert the will of their voters. (That the national majority opposed this is really beyond the point in their mind.)

Here’s where Kramer’s argument gets even more interesting:

Ezra Klein: And there’s another thread from this era that I think is worth spending some time on because it gets to this much deeper question of who interprets the Constitution, which is Roosevelt in ways that I think would sound a little alien to us now has real theories about the Constitution. He says at one point the Constitution of the United States is a layman’s document, not a lawyer’s contract. To your point about popular constitutionalism and some amount of ultimate authority for its meaning and charter residing in the community, can you talk a bit about the ways in which it has and hasn’t been normalized for elected officials to say that I, in fact, have a view on the Constitution and that view is legitimate despite the fact that I’m not a member of the Supreme Court.

Larry Kramer: Yeah, and I would separate two separate strands here. So again, one is the who should have a say issue, and increasingly political actors have accepted the idea of judicial supremacy. So I may have a view on the Constitution, but I will accept what the Court says finally.

If you think about Al Gore after the 2000 election coming out and saying, I may disagree with what the Court said, but we should all get behind it. So that’s part of the acceptance of judicial supremacy is actually they tell us what the Constitution means, which I have always found rather peculiar.

It’s, kind of, like saying we’re a democracy, self-government. We make our own laws except for the really important one. The really important one we’re going to give to this life elected — not even elected, this life appointed oligarchy that’s going to tell us what we can do.

The second issue, though, also is what is the Constitution for? So is it just a, kind of, empty structure or frame, or does it actually have a purpose? Is there a substantive conception of what it’s supposed to produce for us? And that also across American history, there was one, right. [emphasis mine]

The Jeffersonians believed in an Agrarian Republic, and they interpreted the Constitution to create that. The Federalists believed in a Commercial Republic, and they interpreted the Constitution for that. And all through American history, the fights were not just over who, but assuming it wasn’t the Court it still meant we still had to figure out what the Constitution meant. And there were these substantive visions.

Roosevelt had one, right. It was a response to the libertarian vision of the Constitution that had been dominant in the Republican Party in the early 20th century. And it was basically saying, no, government has a responsibility. The Constitution is designed to create a society in which we take care of the people. There is a social safety net and so on. And that has been drained out on the left at least.

The right having embraced the neoliberal idea actually interprets the Constitution consistently with it. It’s about constraining government. So the Constitution is meant to be a constraint on what government can do, and the theory of originalism supports that in all sorts of ways. Although they’ve also managed to turn it around where they want into a, kind of, aggressive activist tool.

Kramer’s politics and mine differ, I suspect, but I think he’s largely right here. The notion that unelected judges get to set the rules of the game and be the ultimate arbiter of our public policy has always struck me as asinine. And I’ve believed for quite some time that it makes little sense to govern a continental superpower of 330 million by rules conceived in a wildly different era for a tiny country of 4 million nestled along the Eastern Seaboard.

Where we differ, really, is that I think the solution is a new or at least massively revised Constitution, not having judges reinterpret the old one to fit their current policy preferences. But I think Kramer would cast it differently: judges getting out of the way to allow the will of the community to be enacted into policy notwithstanding the text of a 235-year-old document.

Ezra Klein: Let me offer what I think might be an objection from the right here. This is all sour grapes. Liberals don’t like some of the recent rulings. They really don’t like Dobbs. So now they’re moving, and we’re sitting here talking about how in the past we didn’t listen to the court. And we give the court too much authority. And in fact, if you believe in popular constitutionalism, if you believe that the community should have the voice here, that’s actually exactly what the conservative court just did. The judges are just saying they’re turning the question of abortion back to, as they put it, the people and their representatives. How do you think about that argument?

Larry Kramer: So again, it’s more complicated than that. In part, they’re not wrong. That is to say so all the branches have a say that includes the court. So it’s not to say that they shouldn’t exercise a theory of interpretation. It is to say, though, that their interpretation of the Constitution isn’t final and binding. So the acceptance of judicial supremacy changes the way in which it’s heard. I will hear something different if I believe someone is my servant than if I believe they’re my boss.

So the court has moved from our servant to our boss. So then the courts say has a different way in which it plays out in the popular political debate. It gives it much more weight and changes the way in which it’s heard. [emphasis mine]

Now constitutional rights exist. The idea of popular constitutionalism isn’t that there are no rights, and every legislature gets to decide. So you still have to have an interpretive process.

And if there is a constitutional right, it does restrain what a state legislature or Congress can do. So the idea is that people can also interpret what their rights are in the way in which they push back.

Now how do you do that? That’s really the — it’s a messy process as it always has been across American history, but it’s not an answer to say as long as you say the Constitution doesn’t do anything and state legislatures can do what they want you’ve got popular constitutionalism. You don’t. Then you just have democracy run amok. [emphasis mine]

So again, it’s back to that there is a Constitution. It limits what government can do. Who should have final say over the ways in which it limits government, that has to rest in the community at large in terms of how they respond to what the political actors are doing.

So, I’m fundamentally in agreement with Kramer here. And, practically speaking, it’s simply reality. Americans have been protesting judicial decisions as long as I can remember. As already noted, Republicans spent half a century pushing back against Roe—and essentially refusing to follow the ruling, constantly enacting laws to test it. And now Democrats are looking at ways to reinstate abortion rights nationally. (Frankly, an easier task since it’s a legislative matter.)

Finally, Kramer gets to the argument that supplies the episode’s title. Essentially, liberals never advanced a compelling alternative to originalism-textualism for interpreting the Constitution. And, so, in the dissent in Dobbs, they’re left arguing for stare decisis—which he terms “a flabby doctrine”—rather than grounding abortion in the spirit of what the Constitution is supposed to do for us. He doesn’t quite explain what that alternative is, but hints at it here:

But there’s this notion you’re going to look at this practice abortion and you’re going to look at it in isolation and use a historical test where what matters is how were they thinking about it when the 14th Amendment was enacted. And of course, when the 14th Amendment was enacted, women couldn’t vote. They couldn’t own property. If they were married, there was covet — the notion that this wasn’t wholly wrapped in a vision of society that is not just foreign to us today but offensive to us today.

But we’re going to stick with that practice and use that to impose a limitation today is just crazy, right. That’s in some sense the problem with originalism. You’ve yanked something out of context. If you think about it in the current context, you’re not going to do the same thing. So that was one thing.

Essentially, originalism doesn’t work because it doesn’t acknowledge that circumstances have changed. But Kramer doesn’t quite supply an alternative, beyond judges using their judgment.

Larry Kramer: I think, again, there needs to be a substantive animating vision of what the Constitution is trying to do. And that’s what the left lost, right.

That’s what — Roosevelt had one that carried forward all through the Great Society. That was all part of a, sort of, vision of what the Constitution was meant to empower a government to do for the American people. And as that vision, kind of, lost its weight particularly after liberals took the neoliberal turn in the 1980s, then they lost, sort of, anything that would animate a positive theory of what the Constitution should be both in terms of what it permits and what it forbids.

And so they’ve been left with a kind of potpourri of leftover things from the periods when liberals were ascendant in the 60s and 70s. You don’t see that on the right. They actually do have an animating vision of what the Constitution is meant to look like and do.

Now you’re right about It being dressed up in mythic stuff. Because originalism and this notion that all we’re doing is letting history tell us what to do, that’s the myth. But it is a way to interpret the Constitution that neatly maps on to the kind of animating notion they have of what the Constitution should require and forbid.

But Klein pushes back:

Ezra Klein: Well, my observation of liberals on this, though, is that most liberal legal thinkers you talk to, not all, but most will tell you originalism is a little nutty. That method of interpretation pushed forward hundreds of years into the future is just going to get you very strange results and is not what the founders intended themselves.

But I think they have absorbed quite deeply the critique of originalism, which is that without some binding interpretive methodology, all you’re doing is reading your own values into the Constitution. You’re simply playing Calvin Ball with the nation’s founding document. And as such, its left them a little, again, in my view paralyzed.

On the one hand, the way the right does it isn’t correct. But on the other hand, nothing ever really arose that is this is how we do it. This is how we have confidence of what we’re seeing in the Constitution is true and how we are able to come up with the story we actually believe but that allows for something that is connected to a purpose we see for the country.

Even though I embrace a form of originalism as a starting point—as does Kramer, in a roundabout way—I agree that it’s problematic when taken to its conclusion. The problem is that the alternatives leave us essentially without a written Constitution at all.

Larry Kramer: So I don’t think — so look, it can’t be that there’s some objective out there thing that tells us what the answers are. No one believes that. I know originalists say that, and maybe they’re like so lacking in self-introspection that they actually believe that’s what they’re doing.

But you can’t look at the decisions or the history and not see that there’s some animating external thing that’s helping them decide. The way I think about it, the law takes you a certain length. And in many cases, it takes you all the way there. It’s really well-settled. There’s just no question. We’re going to do that.

But in the hard cases, the ones that matter — the Supreme Court decides, what, 75 to 80 cases a year. Let’s call it 80. 75 of them don’t matter. We just need a decision. They’re pretty clear. They’re pretty easy. Those few extra cases, the law runs out before you get to the end, and you can go in different directions. And you’re not finding that out there in some external source. There’s some animating vision that helps you make a choice.

And I think that’s right. In the hardest cases, Constitutional principles either contradict one another or the document simply doesn’t deal with the issue in any meaningful way. There, there’s really no alternative but to apply judgment.

So I don’t think anybody — I don’t think people on the left any more than people in the right have accepted the idea that there’s some objective thing out there. What has been absorbed is that it should be something other than, though, my personal preferences today.

But then it can be anything right. It could be what the founders said in 1789. It could be the writings of Nelson Mandela. I mean, we just need some — and even then, we’re still going to have to interpret and bring some values into it. So what you do need is some kind of animating vision that helps guide your judgment that’s not just your personal preferences but that also isn’t some pretended, sort of, thing out there that decides it for you, that helps guide the judgment. We call them judges for a reason. They’re supposed to exercise judgment. So it’s going to guide the judgments that they make. What has been lost on the left is that — that kind of overarching animating principle that they can use to help them think about what to do. And so you’ve just got holding on to lots of things, outcomes that were generated at a time when there was such a vision. But that vision itself is no longer widely embraced on the left, and it really hasn’t been replaced by anything.

Ezra Klein: But I do think there’s a fear about what happens if you begin doing constitutional interpretation without obvious limiting principles or boundaries. I mean, you’re saying maybe it can be Nelson Mandela, but I think it probably — well, we’re not supposed to interpret the Constitution based on Nelson Mandela.

And I’ll give maybe a silly example here. What stops me from saying, well, look the Constitution says we form this Union to promote the general welfare. It’s clear that general welfare would be promoted by universal access to PlayStation 5s, and therefore, every American has a right to a PlayStation 5.

Larry Kramer: Well, this is where you come at it again, nobody’s saying — so there are all those other sources. They’re still there. You do have to deal with the text. You do have to deal with the history. You do have to deal with the precedent. You do have to think about the policy implications of different things that you do. All of those things are going to constrain and guide and shape. And then as I say in the really hard cases, they’re only going to take you so far, but they’re going to take you pretty far. And it’s in that last little piece that you need something to help guide you.

I think everybody agrees on that. It’s just, as I say on the left, they’ve, sort of, lost a coherent, overarching, animating vision of what the Constitution is trying to achieve that helps take it the rest of the way home and that would give them an affirmative agenda. As I say on the right, I think they have that, and then they use these, kind of, fake references to history, which just astonishingly seems in every single case to line up exactly with their current political preferences. But you can see what’s guiding them, right, which is actually a vision of what the government’s role is supposed to be and what freedom means and all of that.

But that gets us back to Klein’s point (and mine): essentially, even Kramer embraces textualism. He just says that we can’t be silly about it. Which, again, I agree with fundamentally. But if judges get to decide when following the text is silly, then they’ll inevitably do so any time they don’t like the result of following the text. (Of course, the same can be true of originalists.)

Still, Kramer is right here:

Well, come back to the whole notion of popular constitutionalism. Ultimately, we judge by what resonates with us, what makes sense, what kind of society do we want to have. So it’s not just blindly following popular desires. It involves leadership.

If you read Madison’s original stuff, he had an important role for leadership. But it wasn’t leadership tells the subjects what to do and what they should believe. It’s that we engage in an ongoing active conversation where the role of leadership is to lead towards some sort of better vision.

You offer that vision, and you try and persuade, and if you do, the country follows you. It does rest on certain assumptions about the basic decency of most Americans, about their willingness to grow and change and improve their lives and the lives of fellow citizens.

And with our fits and starts and ups and downs, there’s been pretty good progress over American history in all those directions. So that’s what political leaders are supposed to do, right, provide a vision and inspire people to lead them in a direction. And that has to include the Constitution. That is the fundamental charter that sets out what the American Republic is supposed to be. And we haven’t had much of that for quite some time.

But, ultimately, that’s just representative democracy—or at least how it’s supposed to work.

There’s quite a bit more to the conversation but those are the high points.

FILED UNDER: Law and the Courts, Supreme Court, US Constitution, US Politics, , , , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. At the end of the day, I think that the major problem is that Congress is unrepresentative of the country and is elected in largely uncompetitive elections and so the engine that is supposed to really be driving all of this is broken.

  2. James Joyner says:

    @Steven L. Taylor: Sure. And, without the Electoral College giving the Republicans two minority vote Presidents, the Supreme Court would look radically different than it does now—more closely “following the election returns.”

    But there’s still the fundamental problem that judicial supremacy means that unelected judges often override the democratic will of the people, even at the state level. Or impose their will on the states under the guess of an originalist interpretation of the Constitution.

  3. @James Joyner: Sure. I am just trying to sort out how Kramer’s “popular constitutionalism” works if the “popular” part of the government is so hamstrung.

  4. MarkedMan says:

    @James Joyner:

    But there’s still the fundamental problem that judicial supremacy means that unelected judges often override the democratic will of the people

    I come at this from a different angle. Our Constitution, at its core, is a document that says, “People have individual rights that must be protected.” The whole structure of the government is an attempt to put the brakes on factions and groups, even majority ones, from willy nilly imposing their beliefs on groups or individuals who don’t have power at the moment. So to me the Supreme Court’s most important function is to protect the rights of the few from the whims of the many.

  5. Tim D. says:

    In the hardest cases, Constitutional principles either contradict one another or the document simply doesn’t deal with the issue in any meaningful way. There, there’s really no alternative but to apply judgment.

    I agree, and I think this is the key issue here.

    In science there is the idea of “false precision”, that it’s silly and misleading to measure something to seven significant digits if your experiment is fundamentally limited by some other uncertainty. Reading the Bruen and Dobbs decisions, it seems that this is where originalism falls down. They’re cherry-picking the history that supports their view and presenting it as a slam-dunk. It is “mere judgement” dressed up as false certainty.

    I guess the bigger structural problems arise from federalism itself (there are competing versions of what is democratically legitimate) and the problem of minority rights in a majoritarian system (can a majority attack and harm a minority through the democratic process). And obviously those tensions go back to the founding and have never been resolved.

    But I also agree with Steven that the major problem in the U.S. today is that Congress has ceased to function and the system has become less responsive to the people.

  6. DK says:

    And, so, in the dissent in Dobbs, they’re left arguing for stare decisis—which he terms “a flabby doctrine”—rather than grounding abortion in the spirit of what the Constitution is supposed to do for us.

    Unfortunately, the Dobbs dissent is as thin as the majority opinion. Neither inspires great confidence.

    There are likely stronger ways the dissenters could have argued for the rights to privacy, freedom, and abortion — grounded in precedent, in history and tradition, and in the 9th, 13th, and 14th Amendments. And they could have thus picked apart Alito’s poor logic and fake history.

    “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Well, this is anti-textualist. The plain text of the 9th Amendment makes clear that just because the Constitution does not explicitly spell out a right does not automatically mean said right does not exist:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    To deny that Dobbs threatens other nonenumerated rights, Alito trots out a non-constitutional standard of protecting “potential life” and claims — wrongly — that abortion lacks roots in US history and tradition.

    As many, many historians are now pointing out, Alito’s history is flat wrong. Legal pre-viability abortion is a common law standard with a longer tradition here than criminalized abortion, especially on grounds of “potential life” — a phrase that appears nowhere in the Constitution. “Potential life” as a compelling interest is based on a) Roe and Casey and b) the personal religious tests of the Catholic justices.

    It’s not logically consistent to toss the Roe/Casey precedent because the Constitution does not mention abortion, while cherry-picking the Roe/Casey “potential life” standard — also not mentioned in the Constitution — to promise Dobbs doesn’t threaten other privacy rights.

    Thomas exposes Alito’s dishonest inconsistentcy when Thomas correctly notes the logic of overturning Roe requires overturning Griswold, Lawrence, and Obergefell. Alito, Kavanaugh, Gorsuch and Barrett denying this shows their Dobbs reasoning springs from personal peccadillos, not consistent legal principle.

    But Thomas exposes his own inconsistency when — as half of a prominent interracial marriage — he conspicuously leaves Loving off his list of rulings that merit re-examination post-Dobbs. Come on bro.

    The Court’s conservatives are just making it up as they go along. Ignoring the Constitution’s text, ignoring history, ignoring precedent, ignoring the constitutional implications of their logic, ignoring their own phony HyperTextualOriginalist judicial philosophy to instead impose their personal views on We The People. All while swearing they’re not. It’s insulting.

    Dobbs is a whole mess. A sloppy, historically wrong, dishonest, internally inconsistent trainwreck. Alito’s sad epitaph.

  7. MarkedMan says:

    @Steven L. Taylor:

    I am just trying to sort out how Kramer’s “popular constitutionalism” works if the “popular” part of the government is so hamstrung.

    I think you put way, way too much faith in popular democracy as a positive agent. Do you honestly think civil rights reform would have passed if put to a popular vote in the 50’s or 60’s? In effect, it was – and was soundly defeated by the majority when they elected their state representatives.

    So while I agree that our voting system is broken and that’s a problem, unlike you I have no illusions that fixing it will also fix the problem of illiberal bigots and racists gaining power. After all, although Trump lost the popular vote, he came close enough that he could have won legitimately. So if a valid and legitimate popular vote isn’t to protect the rights of individuals, why is it so important it be fixed? To me, it’s most important contribution to a stable and open society is in providing a way for bitter rivals to engage in battle with each other without, you know, actually engaging in battle. It provides clear winners and losers, but with the knowledge that the losers don’t have to permanently accept their defeat, as they will have another chance in a relatively short time. This is why the modern Republican Party is so dangerous, because they don’t accept when they have lost, and they seek to raise mobs to retain or retake power. They are as dangerous today as the coalition that became the Confederacy was 150 years ago.

  8. MarkedMan says:

    @DK: Very well put. MarkedMan

  9. @MarkedMan: It is less that I think a properly functioning democracy is a panacea as it is that I think it is the best alternative in an imperfect set of options.

    I really do think that, as the quote attributed to Churchill goes, “Democracy is the worst form of government, except for all the others that have been tried from time to time.”

    This may seem a glib response, but I think it it nonetheless true.

    The only other options are various kinds of authoritarianism.

  10. MarkedMan says:

    @MarkedMan: not sure where that extra “MarkedMan” came from. In case it wasn’t clear, the “well put” was meant for DK

  11. @MarkedMan:

    , unlike you I have no illusions that fixing it will also fix the problem of illiberal bigots and racists gaining power.

    When have I ever said that?

  12. Kurtz says:


    The lasting lesson from the Trump era is how much the system itself relies on good faith actors. It certainly gets mentioned from time to time, but unfortunately, it too often gets lost in the ever-growing pile of shit happening daily.

    My Chrome feed served me a Fox News article the other day. The headline claimed that an expert says we are at risk of blackouts over the summer. I clicked and read it. I had never heard of the quoted expert or his organization. I took the step of looking the person up and found that…he’s a well-credentialed electrical engineer with extensive experience in the utility industry.

    Just kidding, his entire resume consists of public relations jobs, mostly as a spokesperson, first at State, and then for partisan political actors. Just as Christopher Rufo is often introduced as the foremost expert on CRT even though the vast majority of people who developed that school of thought are still alive, it’s clear the only thing that seems to matter is identifying someone as an expert.

    It’s not just a question of whether Alito’s argument is made in good faith or whether elected officials are committed to principles of good governance or that media holds itself to journalistic standards or whether tech companies exercise power responsibly.
    None of it matters if consumers don’t also listen with a commitment to good faith engagement.

    It requires that individuals take responsibility for vetting what they read and hear. But who the fuck has time for that? I do. But I don’t have kids and have committed myself to being a somewhat intelligent, but very cash-poor person constantly at risk of relying for shelter on a lean-to composed of corrugated cardboard in a dark, dank, dirty alley.

    And even then, my dog sometimes stares at me with an expression that appears to betray resentment of his deep affection for me.

    Madison was right that a functioning democracy requires public education. But he couldn’t forsee how complex the world could get. For all of our modern conveniences, we have managed to shrink the amount of time we actually have. And the easiest thing to excise is contemplation discipline.

  13. Just nutha ignint cracker says:

    @MarkedMan: @Steven L. Taylor: It occurs to me that MarkedMan’s comment about illiberalism and bigotry among the elected leaders brings up an interesting point about our social contract. One of the problems that has evolved over time is that, when the outcome of the Civil War was resolved, the fact that we decided to hold the union together resulted in a social contract that included a de facto acknowledgement that illiberalism and bigotry would still have a place in our society–and that place may well not be limited to issues of race, it would seem. Not particularly surprising to me, given that the anti-slavery movement of the time had no particular understanding of, or concern for, the details of what emancipation would mean as a practical matter or how emancipation would actually work. (As I recall from various histories I’ve studied–so I may well be mistaken–there was a fairly strong contingent advocating that the solution was “just send them back to Africa,” from which came the formation of the nation of Liberia.) Nor was there any particular shortage of illiberalism or bigotry nawth of Maisey-Dixie, for that matter.

    It may well be that part of the friction of our times evolves out of this unresolved social contract flaw. In terms of how to resolve it, I haven’t a clue. We may not be able to because of the economic compacts that our social safety net–tattered though it may be–has constructed, particularly those that protect the elderly (who might be willing to go but are still gonna want the Social Security and Medicare “they earned” and which the new nation may not be willing to continue to provide because KKKlaaaaannnnnnggs would get them some).

    Interesting problem.

  14. MarkedMan says:

    @Steven L. Taylor: When the subjects come up such as the erosion of civil rights, the targeting of minorities and so forth, you often bring up the unequal representation in our current system, so I assumed you were connecting the two, i.e. that if there were more political parties or more proportional representation that we wouldn’t have Trump or people like him, such as Desantis, with all the concomitant problems they bring.

  15. Just nutha ignint cracker says:

    @MarkedMan: I can’t speak for Dr. Taylor, but my assumption is that while there would still be FGs and DeSantises running for office, the fact that there would be myriad choices would give the whack job candidates less traction than they have when the choices are what they are now. On the other hand, multiple parties might show that the FGs and DeSantises are, in fact, the most popular choices of a profoundly dysfunctional society. No guarantees, sorry.

  16. MarkedMan says:

    @Just nutha ignint cracker:

    On the other hand, multiple parties might show that the FGs and DeSantises are, in fact, the most popular choices of a profoundly dysfunctional society.

    Exactly. Fixing disproportional representation… fixes disproportional representation. It doesn’t speak at all, as far as I can tell, to the quality of the people elected.

  17. @MarkedMan: Noting that things would be better under a different set of institutional parameters and claiming “it will also fix the problem of illiberal bigots and racists gaining power” strike me not as identical position 😉

    And on the topics of either abortion rights or gun control (which are relevant to the OP), I am fairly confident that if we had a more representative, functional democracy we would have better policy than we currently have, given that actual public preferences would be in play and not what 6 Justices think.

  18. Kurtz says:

    @MarkedMan: @Just nutha ignint cracker:

    Cracker makes two points I was going to make. I’ll add my extension. A binary choice forces a rough prioritization that ultimately results in one voting for a person who will take actions with which they would disagree. Ultimately, voters rationalize those unwanted actions away based on their prioritization. That rationalization takes many forms, some benign, some malignant.

    But political cues being what they are, basic democratic theory–the body politic constrains representatives via ballot–doesn’t work in practice. Rather, in practical terms, it’s the reverse: office holders and allies shape the views of voters.

    Ex: consider that someone who doesn’t ever think about, say, race relations, but has a compelling interest in low taxes and minimal regulation doesn’t necessarily keep static views on race relations when events place race at the center of the public conversation.

    That person likely doesn’t retreat to their library, load their wooden pipe with some Bombay and pour a glass of Scotch to quietly deliberate. They work backwards from the R and vote for Thurmond or Helms.

    Thus, you get Cracker’s last line:

    No guarantees, sorry.

    But multiple choices at least reduce the likelihood that we end up with fellow travelers of the Grand Wizard because they don’t want a smaller check. Or: good process is better than bad process even if it doesn’t always find the best result.

  19. @MarkedMan:

    It doesn’t speak at all, as far as I can tell, to the quality of the people elected.

    I have never claimed otherwise, and ultimately you can’t design a government of humans over humans that doesn’t have some flaws or that might not lead to bad outcomes.

    What I will confess frustrates me about your critiques is that you seem to be missing the point that I am arguing for improvements over the current system that are pretty profound and your response is that they won’t fix everything. Well, true, but that kind of ignores what they would fix. (FWIW, you also challenge to me to think further about what the arguments are and how to make them).

    Right now the problem isn’t that the majority want an awful president, so that they get it. The problem right now is that a majority can not want an awful president and still get it. (Among a host of other situations wherein the minority has more power than the majority).

    Surely it is not out of the realm of the reasonable to want to see such problems fixed before noting that the solution won’t yield perfection?

  20. @Just nutha ignint cracker:

    the fact that there would be myriad choices would give the whack job candidates less traction than they have when the choices are what they are now.

    That is at least part of an important aspect of what I am arguing in favor of. Moreover, the ability of one firing candidate to capture the whole of one party would be diminished if there were more than two viable options.

  21. @Kurtz: BTW: yes, exactly.

  22. MarkedMan says:

    @Steven L. Taylor:

    I am arguing for improvements over the current system that are pretty profound and your response is that they won’t fix everything.

    But you are bringing your solutions about representations up in the context of things I don’t think they will affect. James published a lengthy essay on what type of SC we have, what type we should have, and what the original intent for the court may have been. You led off the comments with this:

    At the end of the day, I think that the major problem is that Congress is unrepresentative of the country and is elected in largely uncompetitive elections and so the engine that is supposed to really be driving all of this is broken.

    I assume you didn’t mean it as a tangent, and so I also assume you meant we would have some improvement in the issues James raised if we had more representative elections. But it seems to me that addressing these particular issues involve either, a) rewriting the constitution, or b) electing better people. I took it that you were implying that more equitable representation would result in better people being elected. So I pointed out that the first doesn’t necessarily lead to the second.

    So, where have I lost the trail?

  23. Kurtz says:


    Call it an N95 for restraining powerful non-representative interests. Universal masking does not eliminate the spread of virus particles, but it reduces it. The remaining spread is easier to manage.

  24. Dave Schuler says:

    Missing in this discussion is that we have a common law legal system rather than a civil code system. Under a civil code system the law always applies; the role of the judge is in determining how it applies. In a common law system on the other hand if the law does not apply, it doesn’t apply. The role of the judge is to determine whether the law applies and what precedents apply.

    Ideological courts are problematic in a common law system.

  25. MarkedMan says:


    Call it an N95 for restraining powerful non-representative interests.

    But does it? Do countries with parliamentary systems and/or large numbers of parties keep special interests from enacting unpopular laws? Not from what I have seen. In parliamentary systems the bigger parties need the extra votes from smaller ones, often single issue parties with aims opposed by large majorities, but they deal with them anyway and give them concessions. And even in the non-parliamentary systems, when dozens or hundreds of people regularly run for every seat I haven’t noticed anything stellar about the resulting candidates.

    Equitable representation does solve one problem for sure: it keeps people from feeling they have no possible way to achieve their ends. Uncorrected, in the long term that can lead to violence. But I don’t see how it is inherently good for the topic of James’ post, the powers the Supreme Court have assumed. Sure, it will affect it by nature of what justices are appointed, but I don’t think anyone has offered evidence that more, and more equitable, voting will result in more wise and more public thinking Justices.

  26. Jay L Gischer says:

    @Just nutha ignint cracker:

    In my opinion, we tolerate illiberalism and bigotry because in some way, most of us participate in it at some time or another, often without realizing that we are doing so.

    Standards change over time. There are several activities that I participated in or art that I watched that now strikes me as really bad. I enjoyed it at the time. I sought it out.

    I mean, I had a children’s book for “Little Black Sambo” which I adored. Wow.

    That’s on me. I did my best, and I’m still learning. That’s where most of us are, I think.

  27. Jay L Gischer says:

    One reason to prefer a democratic, open society is that in an authoritarian society, one person can hold back the entire country. Just watched a video claiming that it was one person in the USSR that held them back from developing a competitive computer industry. They had the smarts to do it, just not the push.

    Another possibility is how one Chinese Emperor ended all voyages of exploration.

    In a democracy, you have the ability to change course in a way that any authoritarian system doesn’t really have – assassinations and revolutions aside.

  28. Jay L Gischer says:

    One of my guiding impressions of the Constitution – though this appears to come from the 14th Amendment – is that any law enacted needs to have a reason – a “rational basis” at least – for restricting citizens. That reason much match some recognized interest.

    I think this idea has been quite well developed, and I have seen this brought up time after time.

    And yet, it isn’t really addressed by “originalism” or “textualism”.

    Interestingly enough, Alito waves at this, but also ducks the issue, as @DK described so well. Because the “interest” is the life of an unborn, which doesn’t have any tradition or precedent, or rational basis. It comes from a religious belief.

  29. Mikey says:


    So to me the Supreme Court’s most important function is to protect the rights of the few from the whims of the many.

    I think that’s right. The fact that in Dobbs they blew away a right of the many to serve a whim of the few just shows how far astray the current Court has gone.

  30. Just nutha ignint cracker says:

    @MarkedMan: I don’t believe that Dr. Taylor, or myself for that matter, has ever expressed a belief that the existence of a social contract guarantees a good goverment, only one that represents a consensus–and only an approximate one at that–of the governed. Not even Locke believed that such consensus led to government that was good–only to that which was stable and had the best chance of offering what the group defined as liberty–and not everybody was guaranteed liberty, either, because the consensus could certainly deliberately declare certain segments as only 3/5 of a citizen, for example.

  31. MarkedMan says:

    @Jay L Gischer: FWIW, the original Little Black Sambo was hardly racist. It was a children’s book and like many such, involved a child on an unexpected adventure. The child was black, yes, but South Asian, not from the US at all. He goes out walking in his forested area and is set upon by three tigers. But they are vain and he buys them off by giving him various pieces of his clothing. The tigers start to argue about who is better dressed and end up chasing each other so furiously they die. Sambo retrieves his clothing and goes back home. Far from being racist it could be argued it was a very progressive book. Wanting to write about a child having an adventure with tigers, he chose a black child, someone who was much more likely to encounter tigers. And the child himself was the stern stuff of children’s stories, as he kept his wits about him and didn’t panic, which led to him getting safely home.

    Of course, if what you had was one of the Southernized versions, where Sambo is a ludicrous pickaninny, then shame on the people who adapted and published it. But that’s not on 7 year old you. (Of course, if you first picked up as an adult, then I got nothing…)

  32. MarkedMan says:

    @Just nutha ignint cracker: And I agree whole heartedly with both you and Doctor Taylor on this. I just don’t see how it is relevant to James’ comments.

  33. Just nutha ignint cracker says:

    @Just nutha ignint cracker: To push the point further, have read more downline comments, including 2 excellent expansions by Kurtz on my rather paltry contributions, my inclination is toward making perfect the enemy of good strongly flavored with cynicism and pessimism. I, to paraphrase one of the Kennedys, look at things that could be and say “won’t happen.” This is not the mindset from which institutional change evolves.

  34. MarkedMan says:

    @Just nutha ignint cracker: I suspect one of the reasons we were able to have a good discussion here is because a troll invaded another thread and so the scrimmagers decamped thataways

  35. Kurtz says:


    I can’t speak to the comparative politics question re: parliamentary systems.

    I would note that Kramer’s argument about popular interpretation, as I understand it, relies on responsive representation.

    As an aside, I’m not exactly sanguine about the success of reforms. But, try or die, I guess…?

  36. Jay L Gischer says:

    @MarkedMan: Oh, it was the pickaninny. Which was odd, since we lived far from the South.

  37. Just nutha ignint cracker says:

    @MarkedMan: To the extent that my comment is relevant, I think the relevance comes from seeing the issue from a perspective that differs from the one presented. I don’t buy Kramer’s model for what is going on. Specifically, I think that the body politic became divided because the Supremes made the decisions that they made rather than that the Supremes made those decisions because of a divided body politic.

  38. @MarkedMan:

    I assume you didn’t mean it as a tangent, and so I also assume you meant we would have some improvement in the issues James raised if we had more representative elections.

    Yes. I think this is unequivocally true. How could it not be? We know what public opinion is on both guns and abortion rights, so how could it be that a more representative outcome would not be an improvement over what is currently minority rule?

  39. @MarkedMan: The thing about your position that I simply do not understand: how is the current system going to generate the better candidate you claim to want? Surely a more representative, more competitive system would increase the odds of better candidates? I understand that there are no guarantees, but I simply don’t understand your basic critique.

  40. MarkedMan says:

    @Steven L. Taylor:

    Surely a more representative, more competitive system would increase the odds of better candidates?

    This, then, is where we fundamentally diverge. I don’t think there is a “surely” there at all. I don’t think there is even a “probably”. While I think a government is stronger and more stable if more people feel they have a fair stake in it, I don’t see how that somehow guarantees the people they elect will be either more ethical or better and wiser at governance.

    You give two examples (guns and abortion) where the majority opinion is more ethical and would lead to better governance. But I could probably come up with dozens of cases where the majority opinion goes in the opposite direction.

    And even in cases where the majority opinion is a good one, I don’t think it is by any means automatic that simply ensuring more equal representation automatically translates into that opinion being enacted into competent policy.

  41. @MarkedMan: I would note that you attack my position not by actually dealing with it directly, but rather you dismiss it by inflating my claims.

    You give two examples (guns and abortion) where the majority opinion is more ethical and would lead to better governance.

    The reason I do so is that those are the topics of the OP and the basis for my initial claims that you disputed.

    It seems hard to dispute that the odds of better policy outcomes on gun safety, for example, would be enhanced if we had a more functional legislature that was better representative of the population and whose members were subject to competitive elections.

    Would it guarantee anything? No, but that is an awfully high bar.

  42. MarkedMan says:

    @Steven L. Taylor:

    At the end of the day, I think that the major problem is that Congress is unrepresentative of the country and is elected in largely uncompetitive elections

    I don’t think I was exaggerating your claim, unless you want to back away from that. And I’m not attacking you, I’m disagreeing with you. Yes, in these particular cases the majority opinion as registered by polling represents what we both consider an objectively better outcome. But I think that is just a coincidence. I don’t think the majority opinion is necessarily or even usually the better path. Flag burning is a relatively trivial example, but as recently as 2000 withholding basic rights from LGBT people was a winning political issue for George W Bush.

    To my mind the major problem is that we need more of the people holding the reins of power and influence to act ethically and accept the rule of law. Also, to be more competent in governance, but that is a separate issue. I don’t think that is made more or less likely by more equitable representation. We can name cases where it may be true, but we can name cases where it wouldn’t, either.

  43. Kurtz says:


    FWIW, reading your posts yesterday, I also thought what @Steven L. Taylor says here:

    inflating my claims.

    But I figured it would be more helpful for all of us to work through the substance of both sides.

    But I the easiest way to show this is to eschew prose and just highlight some words from your posts.


    Surely a more representative, more competitive system would increase the odds of better candidates


    I don’t think there is a “surely” there at all. I don’t think there is even a “probably”. While I think a government is stronger and more stable if more people feel they have a fair stake in it, I don’t see how that somehow guarantees . . .

    So, surely is used much differently in Steven’s post than it is in yours. It refers to an increase in odds, not an inevitability. It is not a synonym for guarantee (of a particular outcome) in this context.

    Also, Steven never used “guarantee” until after the engagement started, and he only used it in the negative.

    *Steven, “surely” seems like it may be written filler in this context. Not that I expect formal writing from you here, much less in the comments. (I’ll gladly take an increase in typos, filler, and other stylistic tics in exchange for more expression from you guys.) But it may have conveyed (to MarkedMan) a certainty that doesn’t reflect your position stated.

  44. Kurtz says:

    @Just nutha ignint cracker:

    making perfect the enemy of good

    Thanks for this. I wrote that phrase in a couple different places, but didn’t like how it fit in any of them. Your post was a much better fit for it than any of my attempts.

    I think I pinned many more words to the clipboard than I posted in this thread.

  45. MarkedMan says:

    @Kurtz: I was sloppy in my use of “guarantees” and if that was the cause of you guys seeing me as inflating Steven’s claims, then it’s definitely my bad.

    Just to be clear though, I don’t think it even probably causes such changes. I think that, while it is important for other reasons, it is tangential to whether or not we get better or more ethical candidates. The fundamental difference here is perhaps unshakeable. Steven feels it is self evident that more equitable representation results in better candidates and better policy, and I think it has little to nothing to do with it.

  46. Just Another Ex-Republican says:

    @MarkedMan: So if you think a more representative system would not produce better candidates in the aggregate (is that a fair statement?), what do you think would produce the desired outcome of better candidates and better policy?

  47. MarkedMan says:

    @Just Another Ex-Republican:

    is that a fair statement?

    Yes. To be clear, I think it is an important factor in people accepting the legitimacy of government (including myself) but my gut tells me it doesn’t materially affect the overall quality of the candidates, and I haven’t seen any evidence to the contrary.

    what do you think would produce the desired outcome of better candidates and better policy?

    I have nothing but vague notions. It’s why, way back when, when this whole interchange started with Steven, I was asking him if he knew of any research on that specific matter. What forms of government seemed to do better than others, and why? There is a fair amount of research on this for things like universal health coverage, but I’ve never seen anything about governance in general.

  48. SC_Birdflyte says:

    @MarkedMan: I loved the story when I was just a youngster starting to read. But loving it didn’t stop me from changing my views on race when I was a teenager. Influences may be good or bad, but we are still responsible for our choices.

  49. Kurtz says:


    Okay, cool. Yeah. This has been an odd one for this forum. Normally, someone figures it out more quickly.

    A research base would be helpful on that. I can tell you that something crossed my mind a few times yesterday and prompted my “not exactly sanguine” line. For lack of a better way to put it: power is fluid.

    Can’t have slaves but don’t want uppity Blacks effing up our government, schools, and country? Enact Jim Crow laws. Establish public segregation.

    For those who seek power, there is always something to exploit.

    But I highlight @Just nutha ignint cracker‘s post above:

    my inclination is toward making perfect the enemy of good strongly flavored with cynicism and pessimism. I, to paraphrase one of the Kennedys, look at things that could be and say “won’t happen.” This is not the mindset from which institutional change evolves.

  50. @MarkedMan:

    Steven feels it is self evident that more equitable representation results in better candidates and better policy, and I think it has little to nothing to do with it.

    I think that more representative is normatively better than less.

    I do not think it guarantees specific outcomes.

    I agree that majorities can be tyrannical.

    I think that competitive systems with real feedback loops via elections have a better chance of producing positive outcomes than semi-closed (if not closed systems).

    I think that our current system very clearly inflates the influence of fringe factions (or, at the very least, gives them disproportionate power and influence). Therefore, I would prefer a system with more open competition and better representation.

    I think that any real democracy has to have some built-in protection of rights (e.g., the First Amendment).

    I fully recognize that humans governing humans has the chance to go off the rails.

  51. @MarkedMan:

    I have nothing but vague notions. It’s why, way back when, when this whole interchange started with Steven, I was asking him if he knew of any research on that specific matter. What forms of government seemed to do better than others, and why? There is a fair amount of research on this for things like universal health coverage, but I’ve never seen anything about governance in general.

    I have tried to provide answers to this in the past.

    World history tends to demonstrate, as does vast amounts of comparative politics literature, that life in non-authoritarian states is better for human flourishing than the opposite. This strikes me as a rather worthwhile, if seemingly obvious, statement.

    If we look at a variety of indicators, humans tend to do better in established democracies as a general rule as well.

    But, I am not even sure what metrics of governance you are asking about. (Or what good candidates and policy are supposed to look like in the context of your critiques).

    And while I sincerely appreciate your contributions to the site, and I enjoy these conservations, you might appreciate that it is a tad frustrating to have you so definitively reject things that I say, but all you have are “vague notions” as to answers 😉

  52. MarkedMan says:

    @Steven L. Taylor:

    If we look at a variety of indicators, humans tend to do better in established democracies as a general rule as well

    Sure. And, to expand on my example, countries with universal health care have better outcomes for people than countries without. But “universal health care” is a broad category and each implementation is different, and rates of satisfaction are different. People who are trying to bring universal health car to the US have been diving down deep to try to understand what specific mechanisms and structures correlate with high satisfaction. It’s not easy. In a lot of ways the Canadian system resembles the British system but the rates of satisfaction differ substantially.

    it is a tad frustrating to have you so definitively reject things that I say, but all you have are “vague notions” as to answers

    I get that, and wish it wasn’t so! But in all fairness, I’m not purporting to have the answers, just the questions. That doesn’t mean, though, that I don’t get to have an opinion about the answers that are being proposed!