Perfecting the Democratic Process
Robert Bork and William Rehnquist both put great stock in majority rule; Bork even compared an activist Supreme Court with a military coup, suggesting that the justices have no more basis on which to impose their values on the majority than the Joint Chiefs of Staff.1 Since values are subjective, originalists argue, and there is a wide diversity of opinion about them, the best alternative is for the majority to decide. In that way, decisions are made by elected officials who are far more representative of society's moral, ethnic, and religious diversity than unelected judges.
As we have seen, however, it is in fact no more "undemocratic" for the Court to impose the values of long-dead framers on contemporary majorities than for military leaders to impose their values. The progression of this argument nicely illustrates how interpretive issues are tied to philosophical ones. Beginning with a question about the meaning of a specific provision limiting legislative power ("cruel and unusual punishment," for instance), the originalist's answer is that judges must rely on the intentions of the framers. But then, when asked why that is the right interpretive approach, originalists respond with the claim that judicial review serves to keep the constitutional "covenant" -- a view of government that is at once deeply philosophical and, when explored in detail, completely unattractive.
Two broad alternatives to original intent are available. One is to acknowledge that judges cannot avoid giving expression to their own moral views in exercising judicial review -- a position I will consider in later chapters. The other option, which is the subject of the present chapter, follows originalism in rejecting this form of activism while replacing originalism's interpretive and philosophical assumptions with an account of constitutional interpretation and judicial review based on the nature and value of democratic processes themselves. So, like originalism it takes seriously the claim that political legitimacy is best achieved through majoritarian procedures; but unlike originalism it does not envision judicial review as serving to enforce the terms of the social contract -- a contract that