Comments Elsewhere

Brandon: My point is that there’s nothing democratic about special interest groups lobbying unelected judges to overturn laws passed by democratically elected legislatures.

This argument presupposes two things: (1) that how “democratic” a constitution is depends purely on the procedural question of who passes the law, and not on any substantive questions about what spheres of sovereignty and authority the laws that are made give to individual ordinary people; and (2) that having laws passed by a select legislature is a democratic procedure.

But why accept either claim? “Democracy” means the people ruling themselves, not the people choosing who rules. (The Greeks, who knew something about democracy, had a word for a system on which the people got together every so often to pick a ruler for the polis. But they didn’t call it “democracy;” they called it “tyranny.”) There’s a good argument to be made that laws produced by elective oligarchies deserve no special respect as any more “democratic” than the reasoned rulings of judges; and there’s another good argument to be made that democracy simply does not exist, anyway, to the degree that laws (however they were made) compromise the substantive political equality between ordinary people and government officials (by, for example, trashing civil liberties and treating people as if they are permitted to live their lives only at the pleasure of the Authorities).