7 - Precommitment and the paradox of democracy

Summary

Il est absurde que la volonté se donne des chaines pour l'avenir. Rousseau

Laurence Tribe opens his influential treatise on constitutional law with a concise formulation of the countermajoritarian dilemma – the discord between majoritarian politics and constitutionally anchored restraints: “In its most basic form, the question … is why a nation that rests legality on the consent of the governed would choose to constitute its political life in terms of commitments to an original agreement … deliberately structured so as to be difficult to change.” The underlying problem has been posed in a variety of ways. How can the “consent of the governed” be reconciled with the preempting of subsequent consent by a Constitutional Convention? Why should a constitutional framework, ratified two centuries ago, have such enormous power over our lives today? Why should a minority of our fellow citizens be empowered to prevent amendments to the Constitution? Is judicial review, when based on a superstitious fealty to the intent of the Framers, compatible with popular sovereignty?

The tension between constitutionalism and democracy

These questions have a long history. In the Flag Salute Case of 1943, Justice Robert Jackson issued the following classical pronouncement:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.