First: Where's the limiting principle in your argument that we can't use the courts to save the people from their own wickedness or folly in this case? In practice, we already have lots of ways in which courts can and do restrain the will of popular majorities. Why doesn't your argument imply that those are all bad too?
Bouie I think would bite this bullet. He has long argued that SCOTUS, for example, is not actually on net a friend to the freedoms he most values, and that the country would be better off if its power to declare laws unconstitutional were just stripped entirely. Would you take his side on that? If not, where is the distinction? Is it just that the right to choose which candidate gets to be President is somehow more fundamental to popular sovereignty than, say, the right to choose which speech can be censored, or what protections criminal defendants must have, or even what the decision procedures for future elections will be?
Second: if indeed the endurance of the republic depends on a majority of voters rejecting the authoritarian temptation this November... well, the prediction markets say we have on the order of a 40% chance that the republic will not in fact endure. For those of us who highly value living in a liberal-democratic polity, this seems like a contingency worth planning for. What might that contingency planning look like?
The "move to Canada or someplace similar" strategy, so often bandied about, seems inadequate for several reasons:
1. ructions elsewhere have demonstrated that there is no truly safe place anymore;
2. that will become even more true if US democracy fails, given its historic role as an anchor of democracy elsewhere in the developed world;
3. most of all, the thought of flight feels dishonorable for one privileged enough to seriously consider it. Someone has to stay and fight, and who will/should it be if not us?
But then you have to try and lay out what staying and fighting concretely looks like. IMO one plausible mechanism is going to be supporting legal actions against the possible future Trump administration: that is, using the courts to restrain popularly-elected authoritarian officials. Does your belief in popular sovereignty mean you'd abjure that strategy? If so, what to do instead? I don't have a clear answer yet, but I do think this is worth considering carefully while we have the leisure and temporary security to do so with somewhat cool heads, rather than in a despairing panic on November 6th or January 21st.
Now, for your second question, what to do if the republic fails to endure. America is my home, New York is my home, Brooklyn is my home. I didn't leave after 9-11 and I didn't leave during COVID and I'm not planning on leaving if Trump is reelected president. There are plenty of places on earth I could imagine being happy -- Canada, Israel, Australia, Italy and Japan are all examples that come readily to mind -- but it would take a whole lot to get me to go.
I think you're right that, if things really went pear-shaped in America, nowhere else is truly "safe," but for me the real question is where is home, and is home safe *enough* to continue to call home. I can imagine circumstances where I would feel like I *needed* to leave the United States, or *needed* to leave New York. But those circumstances are further out on the tail of the distribution.
Most people, though, aren't going to fight either, even if democracy in America totters. They're going to muddle through, or try to. But I think the idea of fighting an authoritarian Trump administration through the courts is only a plausible path if *the people are on the side of the courts* -- which is to say, if the authoritarian Trump administration is distinctly unpopular. In a scenario where the people are substantially supportive of a new authoritarian regime, I don't think the courts last long as an obstacle. Since in any realistic scenario there will be large anti-Trump majorities in specific parts of the country, the more likely venue for battles against an authoritarian Trump regime would be in the statehouses and legislatures of those anti-Trump states. Part of that battle would play out in court, but it strikes me as more likely than not that in those battles the federal courts will largely be on Trump's side.
All of this speculation, I should be clear, is predicated on the big "if" of "what if Trump wins, his administration takes a distinctively authoritarian turn, and that turn is broadly popular nationally." None of those things are certain -- far from it.
State governments are a promising locus of resistance for sure. And that gets to another significant problem: it's not clear that "the people" are going to remain a unified thing in a Trump reelection and authoritarian-turn scenario-- our present polarization has made us disunited enough already-- or that "broadly popular nationally" is going to be a yes/no quantity. I think it's almost certain that in that scenario you would have large (40+%) minorities of both committed supporters and committed opponents of the regime, increasingly geographically segregated from each other, and increasingly viewing the other group's moral culture as irredeemably corrupt and malicious. Then the somber question, somber especially given the roots of the 14th Amendment, is how long that can go on intensifying before a "velvet divorce" becomes the least bad solution.
Thanks so much for this thoughtful comment. I'll answer your theoretical question first, then post another comment with an answer to your practical question.
I'm not going to go so far as to say "judicial review is bad," but I do think the courts should be more deferential than they are to the branches that are more responsive to the people, because the countermajoritarian difficulty is a genuine and serious problem and the courts should be alive to it. Another way of putting it is that the constitution belongs to everyone, so the court shouldn't presume to special knowledge about how to interpret it that the people as a whole somehow do not possess. The courts do have specialized skills at applying the law, but the constitution and (especially) the Bill of Rights aren't technical in the same way. The courts should be alive to that, and for that reason be deferential to the political branches.
That absolutely applies to "what is free speech anyway?" or "what is the right to bear arms anyway?" I'm not an originalist or a textualist about the constitution because I don't think the constitution was intended by its own framers to be interpreted by the courts in that manner. I think its meaning can evolve -- but it evolves with us, the people, and the courts follow, not the other way around.
Does that mean our rights are at the mercy of a democratic majority? Ultimately, yes. The courts can legitimately ensure that the law is applied fairly and evenhandedly, but if the people as a whole want to narrow the scope of the first or second amendments, I really don't think it's the court's business to say "nope, we know what these amendments mean, and you don't." Heck, the court itself has changed its mind so often about these things, I can't see how they can hold with a straight face to the notion that they have special knowledge to discern what the words mean for all time.
That still leaves plenty for the courts to do beyond simply ensuring that the law is applied fairly and evenhandedly. For one thing, they can arbitrate between the branches and between the federal and state governments. Even there, though, the courts have to be careful not to aggrandize power to themselves in the guise of defending the proper separation or division of power. So, for example, the current move to narrow Chevron deference is presented as restoring power to congress. But congress could take that power back any time they like -- the court isn't really arbitrating between the legislature and the executive. Rather, they are arrogating power to themselves to decide what the executive may or may not do, regardless of whether the legislature, which delegated the power in question, is upset about what the executive is doing with it. I'm not fooled, and so I'm against the effort.
But another crucial role for the courts is to make sure that the accountable bodies actually *are* accountable to the people. I think it's appalling that the courts have largely declared gerrymandering to be non-justiciable, since gerrymandering is a corruption of the democratic process and therefore by definition cannot be readily remedied through the political branches. That's why I'm so particularly upset by efforts to throw Trump off the ballot: we should be working to make the political system more accountable to the people as a whole, not less so. That doesn't mean multiplying elected offices necessarily -- it might sometimes mean that, but it might sometimes mean the opposite, consolidating power in a better-known and therefore more-accountable figure. It all depends. But kicking people off the ballot is by definition making the political system less accountable, and once you start doing it, it might become a habit. Believe me -- I've from NY State, where keeping people off the ballot has been raised to a fine art.
Two questions, one theoretical, one practical.
First: Where's the limiting principle in your argument that we can't use the courts to save the people from their own wickedness or folly in this case? In practice, we already have lots of ways in which courts can and do restrain the will of popular majorities. Why doesn't your argument imply that those are all bad too?
Bouie I think would bite this bullet. He has long argued that SCOTUS, for example, is not actually on net a friend to the freedoms he most values, and that the country would be better off if its power to declare laws unconstitutional were just stripped entirely. Would you take his side on that? If not, where is the distinction? Is it just that the right to choose which candidate gets to be President is somehow more fundamental to popular sovereignty than, say, the right to choose which speech can be censored, or what protections criminal defendants must have, or even what the decision procedures for future elections will be?
Second: if indeed the endurance of the republic depends on a majority of voters rejecting the authoritarian temptation this November... well, the prediction markets say we have on the order of a 40% chance that the republic will not in fact endure. For those of us who highly value living in a liberal-democratic polity, this seems like a contingency worth planning for. What might that contingency planning look like?
The "move to Canada or someplace similar" strategy, so often bandied about, seems inadequate for several reasons:
1. ructions elsewhere have demonstrated that there is no truly safe place anymore;
2. that will become even more true if US democracy fails, given its historic role as an anchor of democracy elsewhere in the developed world;
3. most of all, the thought of flight feels dishonorable for one privileged enough to seriously consider it. Someone has to stay and fight, and who will/should it be if not us?
But then you have to try and lay out what staying and fighting concretely looks like. IMO one plausible mechanism is going to be supporting legal actions against the possible future Trump administration: that is, using the courts to restrain popularly-elected authoritarian officials. Does your belief in popular sovereignty mean you'd abjure that strategy? If so, what to do instead? I don't have a clear answer yet, but I do think this is worth considering carefully while we have the leisure and temporary security to do so with somewhat cool heads, rather than in a despairing panic on November 6th or January 21st.
Now, for your second question, what to do if the republic fails to endure. America is my home, New York is my home, Brooklyn is my home. I didn't leave after 9-11 and I didn't leave during COVID and I'm not planning on leaving if Trump is reelected president. There are plenty of places on earth I could imagine being happy -- Canada, Israel, Australia, Italy and Japan are all examples that come readily to mind -- but it would take a whole lot to get me to go.
I think you're right that, if things really went pear-shaped in America, nowhere else is truly "safe," but for me the real question is where is home, and is home safe *enough* to continue to call home. I can imagine circumstances where I would feel like I *needed* to leave the United States, or *needed* to leave New York. But those circumstances are further out on the tail of the distribution.
Most people, though, aren't going to fight either, even if democracy in America totters. They're going to muddle through, or try to. But I think the idea of fighting an authoritarian Trump administration through the courts is only a plausible path if *the people are on the side of the courts* -- which is to say, if the authoritarian Trump administration is distinctly unpopular. In a scenario where the people are substantially supportive of a new authoritarian regime, I don't think the courts last long as an obstacle. Since in any realistic scenario there will be large anti-Trump majorities in specific parts of the country, the more likely venue for battles against an authoritarian Trump regime would be in the statehouses and legislatures of those anti-Trump states. Part of that battle would play out in court, but it strikes me as more likely than not that in those battles the federal courts will largely be on Trump's side.
All of this speculation, I should be clear, is predicated on the big "if" of "what if Trump wins, his administration takes a distinctively authoritarian turn, and that turn is broadly popular nationally." None of those things are certain -- far from it.
State governments are a promising locus of resistance for sure. And that gets to another significant problem: it's not clear that "the people" are going to remain a unified thing in a Trump reelection and authoritarian-turn scenario-- our present polarization has made us disunited enough already-- or that "broadly popular nationally" is going to be a yes/no quantity. I think it's almost certain that in that scenario you would have large (40+%) minorities of both committed supporters and committed opponents of the regime, increasingly geographically segregated from each other, and increasingly viewing the other group's moral culture as irredeemably corrupt and malicious. Then the somber question, somber especially given the roots of the 14th Amendment, is how long that can go on intensifying before a "velvet divorce" becomes the least bad solution.
Thanks so much for this thoughtful comment. I'll answer your theoretical question first, then post another comment with an answer to your practical question.
I'm not going to go so far as to say "judicial review is bad," but I do think the courts should be more deferential than they are to the branches that are more responsive to the people, because the countermajoritarian difficulty is a genuine and serious problem and the courts should be alive to it. Another way of putting it is that the constitution belongs to everyone, so the court shouldn't presume to special knowledge about how to interpret it that the people as a whole somehow do not possess. The courts do have specialized skills at applying the law, but the constitution and (especially) the Bill of Rights aren't technical in the same way. The courts should be alive to that, and for that reason be deferential to the political branches.
That absolutely applies to "what is free speech anyway?" or "what is the right to bear arms anyway?" I'm not an originalist or a textualist about the constitution because I don't think the constitution was intended by its own framers to be interpreted by the courts in that manner. I think its meaning can evolve -- but it evolves with us, the people, and the courts follow, not the other way around.
Does that mean our rights are at the mercy of a democratic majority? Ultimately, yes. The courts can legitimately ensure that the law is applied fairly and evenhandedly, but if the people as a whole want to narrow the scope of the first or second amendments, I really don't think it's the court's business to say "nope, we know what these amendments mean, and you don't." Heck, the court itself has changed its mind so often about these things, I can't see how they can hold with a straight face to the notion that they have special knowledge to discern what the words mean for all time.
That still leaves plenty for the courts to do beyond simply ensuring that the law is applied fairly and evenhandedly. For one thing, they can arbitrate between the branches and between the federal and state governments. Even there, though, the courts have to be careful not to aggrandize power to themselves in the guise of defending the proper separation or division of power. So, for example, the current move to narrow Chevron deference is presented as restoring power to congress. But congress could take that power back any time they like -- the court isn't really arbitrating between the legislature and the executive. Rather, they are arrogating power to themselves to decide what the executive may or may not do, regardless of whether the legislature, which delegated the power in question, is upset about what the executive is doing with it. I'm not fooled, and so I'm against the effort.
But another crucial role for the courts is to make sure that the accountable bodies actually *are* accountable to the people. I think it's appalling that the courts have largely declared gerrymandering to be non-justiciable, since gerrymandering is a corruption of the democratic process and therefore by definition cannot be readily remedied through the political branches. That's why I'm so particularly upset by efforts to throw Trump off the ballot: we should be working to make the political system more accountable to the people as a whole, not less so. That doesn't mean multiplying elected offices necessarily -- it might sometimes mean that, but it might sometimes mean the opposite, consolidating power in a better-known and therefore more-accountable figure. It all depends. But kicking people off the ballot is by definition making the political system less accountable, and once you start doing it, it might become a habit. Believe me -- I've from NY State, where keeping people off the ballot has been raised to a fine art.
I've written about this topic a bunch, most recently here: https://gideons.substack.com/p/the-role-of-the-courts-in-protecting.