Randy, Sandy and the Constitution

In the current New Yorker, Jeffrey Toobin talks to constitutional scholars to figure out whether the U.S. Constitution remains viable, has become obsolete, or was hopelessly flawed from the start. Two of his interlocutors are Randy Barnett, a conservative waging a legal challenge to the Affordable Care Act while advocating the enshrinement of the principles of the Citizens United decision in the form of a constitutional amendment, and Sanford ("Sandy") Levinson, once a champion of the Constitution who has more recently decided that its frame of government is too undemocratic to function properly.

Both scholars agree on the Framers' intentions. Levinson, the critic, says, "The republican form of government imagined by Madison and his friends was extraordinarily fearful of any kind of rule by the people." He used to think that the American system worked to the majority's benefit in spite of that founding handicap, but over the last quarter-century he's decided otherwise. Barnett is on a first-name basis with "Sandy" but they've clearly agreed to disagree about a lot. The problem with Levinson, Barnett thinks, is that he's a "majoritarian" in a way the Framers never were. In turn, Levinson believes Barnett is a minoritarian in a way the Framers never were. The distinction becomes clear in their discussion of majority rule. For Barnett, the problem with majority rule is that "California and New York get to run the country [and] screw the people in the middle of the country." For Levinson, Barnett's objection goes beyond the Framers' mistrust of citizens in general. "What Randy finds himself defending is a veto by small, basically rural states, who ought not to be subjected to majority rule by people who live in cities." It would be wrong, however, to say that the Constitution wasn't molded by the mutual suspicion of urban and rural folk. Jefferson thought cities decadent, partly because he expected a landless majority to be hopelessly dependent upon a wealthy minority of employers. Contrary to the e pluribus unum ideal, the persistence of and insistence upon differences between the cultures of the several states has been a constant theme in American politics. The Framers, however, probably underestimated the extent to which each particular group would try to identify itself as the truly American people, and the others as somehow un-American. They did anticipate considerable diversity, and depended upon it to prevent the emergence of a potentially tyrannical majority. But partisanship has homogenized the American people far more than the Framers feared, and more than many of today's conservatives appreciate, so that a tyrannical majority, taking the form of the Democratic or the Republican party, always appears imminent. Leave partisanship out of it, and what do California and New York have in common, or the entire "middle of the country?"

The ultimate problem, however, may not be that partisanship has nearly fulfilled fears of the tyranny of the majority, but that the Framers, so committed to balance in government, failed to balance safeguards against majoritarianism with safeguards against minority obstruction. Their presumption that majorities could do great mischief by forcing their agenda through wasn't counterbalanced by a suspicion that minorities could do mischief by blocking the majority indefinitely. There may be a simple explanation for this; the Framers probably believed that they had defeated the threat of "minoritarian" tyranny by defeating King George and his oligarchic parliament and instituting a representative form of government. They may not have conceived that a determined minority could paralyze government in a manner detrimental to the public good. Strangely, they may not have believed that a minority in a representative government could be wrong in the same way a majority was often presumed to be wrong -- at least until the sectional crisis of the 19th century convinced a northern majority of the menace of a southern "slave power." There remains an impulse to give the minority, the presumptive dissident, the underdog, the benefit of the doubt -- on the assumption that majority rule is somehow essentially coercive. Toobin quotes Orrin Hatch's opinion that in the Senate, as opposed to the House of Representatives, "you have to make a real case," as if majority rule doesn't require that of anyone. The majority, presumably, wants what it wants because it is what it is, not because anyone in the majority has thought objectively about anything. But there's no reason not to make the very same assumption about any stubborn minority, and a sound frame of government should be as capable of limiting a minority's ability to do harm through delay as it's capable of limiting a majority's ability to harm through haste. At the very least, that means no individual or minority should be able to delay indefinitely any government initiative, whether it's legislation or a nomination. The minority should not be able to tyrannize in order to prevent anyone else from tyrannizing. If the Constitution can meet that simple standard, it should still have life in it.