to these and more objections in the following selection. Whether or not
his responses are finally adequate, his arguments remain so prominent
and powerful that they cannot be ignored.

W. S-A.

Robert H. Bork

The central problem for constitutional courts is the resolution of the
"Madisonian dilemma." The United States was founded as a Madison-
ian system, which means that it contains two opposing principles that
must be continually reconciled. The first principle is self-government,
which means that in wide areas of life majorities are entitled to rule, if
they wish, simply because they are majorities. The second is that there
are nonetheless some things majorities must not do to minorities, some
areas of life in which the individual must be free of majority rule. The
dilemma is that neither majorities nor minorities can be trusted to
define the proper spheres of democratic authority and individual
liberty. To place that power in one or the other would risk either
tyranny by the majority or tyranny by the minority. The Constitution
deals with the problem in three ways: by limiting the powers of the
federal government; by arranging that the President, the senators, and
the representatives would be elected by different constituencies voting
at different times; and by providing a Bill of Rights. The last is the
only solution that directly addresses the specific liberties minorities
are to have. We have placed the function of defining the otherwise
irreconcilable principles of majority power and minority freedom in a
nonpolitical institution, the federal judiciary, and thus, ultimately, in
the Supreme Court of the United States. The task of reconciliation
cannot be accomplished once and for all. The freedom of the majority to
govern and the freedom of the individual not to be governed remain
forever in tension. The resolution of the dilemma must be achieved

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