Libertarian Judicial Activism Isn’t What the Courts Need

By | 2017-06-02T18:30:05+00:00 January 3, 2017|
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Were the Founding Fathers anarchists? Did the ideas contained in John Stuart Mill’s On Liberty, published in 1859, somehow inspire the delegates to the Constitutional Convention in 1787? Does the Constitution contemplate Robert Nozick’s minimal state, presaging his 1974 magnum opus Anarchy, State, and Utopia?

These may seem like facetious questions, but libertarian legal scholars have devised a novel theory that the Constitution, properly understood, protects a person’s “right to do those acts which do not harm others.” They contend that this sweeping right to personal liberty is enforceable against the federal government and the states. Moreover, within the three branches of government, it is only judges who get to decide whether a particular law is justified constitutionally. Incredibly, libertarian legal scholars are urging President-elect Trump to appoint an adherent of this fanciful theory to replace Justice Antonin Scalia on the U.S. Supreme Court.

I bring this up to introduce an objection made by a libertarian acquaintance to my article, “The Trump Court: SCOTUS Could Stand Some Disruption,” which contrasted two competing models of judicial review: “restraint” versus “activism.” This acquaintance, a prominent lawyer, questioned the accuracy of the following statement from my post, which he broke into numbered subparts: “[L]ibertarian legal scholars who [1] advocate a more aggressive role for judges in all cases [2] deny the existence of judicial activism and [3] regard any form of restraint as ‘abdication.’ Many libertarians [4] view Roe v. Wade and similar decisions as a vindication of ‘unenumerated’ individual rights.” My acquaintance disputes that any libertarian legal scholar subscribes to even a single one of the four listed viewpoints, let alone all of them.

I’d like to address that challenge.

As someone who regards himself as a classical liberal, I did not intend to pick on—or malign—libertarians in general, with whom I share the goals of limited government, preserving the rule of law, and protection of property rights and economic liberties. I have, in the past, written for libertarian publications such as Reason and The Freeman, and participated in programs sponsored by the Reason Foundation and the Institute for Humane Studies. However, the objection raises a specific issue—libertarian constitutional theory—that I consider to be unsound and misguided. Hence my reply.

Libertarians, like atheists and some other groups, exert influence greatly disproportionate to their numbers because they tend to be vocal, intensely focused, tenacious, and dogmatic. Moreover, lavishly funded libertarian organizations such as the Cato Institute and the Institute for Justice tirelessly proselytize their tenets. In matters of constitutional theory, libertarians (notably Cato’s Roger Pilon and Georgetown law professor Randy Barnett) have developed an approach that they sometimes refer to as “judicial engagement.” They offer this approach as a form of “originalism,” but as we shall see later in this post, it more closely resembles the judicial activism pioneered by the Warren Court.

Without getting too deeply into the weeds, the libertarian approach rests on the premise that the Constitution was not so much an arrangement among the individual states (which themselves were separate Lockean social compacts) as it was a very limited delegation to the federal government of individual sovereignty (harkening back to the Declaration of Independence and its reliance on “natural rights”). In this rubric, individuals continue to possess all unalienable rights to which they were endowed in the “state of nature,” other than the federal powers specifically enumerated in the Constitution. “Natural rights,” they claim, are protected by the reference to “liberty” in the due process clause of the Fifth Amendment, and the Ninth and 10th Amendments preserve to the people—as individuals, not as states—all rights not specifically surrendered to the federal government.

Libertarians have a facile “solution” to the potentially vexing question of the states’ police powers, which antedated the drafting and ratification of the Constitution: they contend that the 14th Amendment applied the Fifth Amendment (including the protection of “liberty” in the due process clause) to the states, particularly through the “privileges or immunities” clause, which libertarians believe was erroneously drained of its intended meaning in the incorrectly decided Slaughter-House Cases in 1873.

Libertarians maintain, in other words, that the Constitution went off the rails almost 150 years ago, and that—in cabal-like fashion—the Supreme Court has subsequently refused to correct its grievous error. Pardon me for saying so, but in terms of convoluted plot twists, drama, and intrigue, this tale sounds more like an overwrought Dan Brown novel than serious constitutional history.

The rhetorical denouement of this far-fetched jurisprudential exegesis is that the Constitution is brimming with “unenumerated rights” (that is, rights nowhere set forth in the Constitution), leaving us with the aforementioned “right to do those acts which do not harm others,” a libertarian credo which—conveniently—echoes Ayn Rand more than it does The Federalist. (Tellingly, Barnett’s 2004 manifesto, Restoring the Lost Constitution, is dedicated in part to anarchist pamphleteer Lysander Spooner, who did not believe in the legitimacy of a written constitution.) And who is responsible for enforcing this state of semi-anarchy? Libertarians aver that the democratically-accountable branches of government (that is, elected officials) are “majoritarian” threats to individual liberty. Hence, all laws should be presumed to be unconstitutional (to vindicate the “presumption of liberty” inherent in natural law), and it is solely up to judges (and in federal court, unelected, life-tenured judges) to decide which laws can be justified as necessary and appropriate, based on the government’s case-by-case evidentiary showing.

I have described “judicial engagement” as “a judicially managed state of anarchy” in which “judges would have more power than legislators, rendering democratic self-government a feeble charade.” Conservative critic Ed Whelan is similarly disdainful, asking “is judicial engagement anything more than camouflage for libertarian judicial activism—an effort to smuggle in the back door what can’t be formally established by straightforward and persuasive arguments about original meaning?” Whelan has also said that Barnett’s latest book, Our Republican Constitution, “looks suspiciously like a fantasy libertarian constitution,” and not “the usual stuff of originalism.” Ouch.

So much for the overview. Let’s turn to the four challenged statements. I can barely scratch the surface of the torrent of words declaimed by the Cato/IJ camp. But here is a representative sample:

Some libertarian scholars advocate a more aggressive role for judges in all cases. Recall that libertarians reject the “presumption of constitutionality” currently enjoyed by most laws; Pilon maintains that “the Constitution, from its inception, established a clear presumption for individual liberty and against collective undertakings.” The corollary is that, in Barnett’s words, when reviewing laws challenged as an abridgement of “unenumerated” (that is, unwritten) rights, “Judges need to explain why a restriction on liberty is both necessary and proper and then realistically examine the preferred explanation.” Under judicial engagement, the government would have the burden of proof to justify all challenged laws. If the judge was not convinced, the law would be struck down. This is obviously a more aggressive role for judges than they currently play, which is the whole point of “judicial engagement.”

Throughout his 2013 book, Terms of Engagement, Institute for Justice senior attorney Clark Neily derides “rational basis” review as “make-believe judging,” “rubber-stamp style judging,” and an “empty charade.” Judicial engagement, Neily argued, requires “real judging in all cases,” with courts using something like the “strict scrutiny” now reserved for “fundamental rights” and “suspect classifications.” In a recent USA Today op-ed, Neily wrote: “An engaged judge will always require the government to provide a constitutionally proper reason for its actions and evidentiary support for its factual assertions.”

Some libertarian scholars deny the existence of judicial activism. In a National Affairs article titled “Against Judicial Restraint, Cato’s Ilya Shapiro urges a heightened judicial role and dismisses “the vacuous activism/restraint dichotomy.” Chapter 7 of Neily’s Terms of Engagement is titled “The Judicial Activism Bogeyman.” Libertarian scholars are fond of citing University of Pennsylvania law professor Kermit Roosevelt’s book, The Myth of Judicial Activism. In 2011, Neily and an IJ colleague, Dick Carpenter, wrote a report titled, “Government Unchecked: The False Problem of ‘Judicial Activism’ and the Need for Judicial Engagement.”

Some libertarian scholars regard any form of judicial restraint as “abdication.” Neily in his book disparages the current standard of review (under the deferential “rational basis” test) as “judicial abdication.” Presuming laws to be constitutional, placing the burden of proof on a challenger, and failing to recognize “unenumerated” rights are all cited by Neily as examples of “abdication.” Two chapters of Neily’s book are titled “Why Do Judges Abdicate?” and “From Abdication to Engagement.” IJ attorney Anthony Sanders has gone so far as to state that anything short of “judicial engagement” constitutes “abdication”: “The opposite of judicial engagement—‘judicial abdication’—is the real worry.”

Many libertarians view Roe v. Wade and similar decisions as a vindication of “unenumerated” individual rights. The first three refutations were easy. This one is a little more nuanced, because even libertarians realize that Roe v. Wade is the “third rail” for constitutional theorists, at least on the Right.

Accordingly, libertarians such as Neily often deny that recognition of “unenumerated” rights (through the use of “substantive due process” under the Fifth and Fourteenth Amendments) “necessarily entails Roe” (as Neily writes in Terms of Engagement) but Roe was the classic example of judges “finding” rights not actually specified in the Constitution. Constitutional rights, unless credibly derived from constitutional text or history, represent nothing more than the personal predilections of judges. “Natural rights” are an amorphous and potentially unlimited source of jurisprudential legerdemain, capable of extending to any judicial whim or caprice.

Under the theory of “unenumerated” rights, individuals possess a constitutional right to personal autonomy broader than Roe—sufficiently capacious to justify every activist decision rendered in the past 50 years, and then some. Abortion rights, unrestricted “sexual privacy” (including engaging in prostitution and incest), same-sex marriage, plural marriage, the right to assisted suicide, recreational drug use, and almost any individual impulse would have to be allowed unless the government was able to convince a judge that the law prohibiting such conduct was justified by a “compelling state interest” that could not be achieved through less restrictive means.

The doctrinal precursor for Roe was Justice William O. Douglas’s infamous opinion in Griswold v. Connecticut (1965), which recognized an unenumerated right of “marital privacy” to overturn a state law restricting the use of contraceptives. Douglas relied on the contrivance of “penumbras, formed by emanations” from the Bill of Rights because the “right” recognized by the Court nowhere appeared in the Constitution. The libertarian theory of “unenumerated” rights is much more open-ended than Douglas’s risible artifice in Griswold, and would give a blank check to judges wishing to overturn legislative policy preferences. It is revealing that a Cato/IJ compilation of the 12 worst Supreme Court decisions of all time, The Dirty Dozen (2008), doesn’t include Roe. Libertarians play coy about Roe but readily acknowledge that the result in Obergefell v. Hodges (2015)—constitutional protection for same-sex marriage—would be the same under “judicial engagement.”

Judicial engagement is faux originalism. At best, it represents wishful thinking by inventive libertarian scholars. At worst, it would unmoor constitutional law from the text of the Constitution and empower unelected judges to be society’s Platonic Guardians. President Trump should avoid jurists in any way sympathetic to this badly misguided theory.

About the Author:

Mark Pulliam
Mark Pulliam is a lawyer and commentator who fled California and now lives in Austin, Texas. He is a contributing editor at the Library of Law and Liberty.
  • tz1

    The FEDERAL Government was to have only the enumerated powers, no more.
    The only place for judicial argument is if the power being exercised is or is not enumerated (and that on an originalist basis, not “the butterfly effect” theory of the commerce clause).
    Rights are natural and inherent, not buried in the constitution reading between the lines.
    All sides should propose amendments and see if they can get adopted.

  • Severn

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    “By the people”. Somehow libertarians turn this into a blank check for judges to draw upon. The more power judges have, the less “the people” have. In fact under the libertarian (and liberal) theory of jurisprudence, the role of the judges is to act as a check and restraint on the right “the people” to govern themselves. That’s not a role granted to them in the Constitution or contemplated in the Federalist papers.

  • Brian B

    “Libertarians aver that the democratically-accountable branches of government (that is, elected officials) are “majoritarian” threats to individual liberty. Hence, all laws should be presumed to be unconstitutional (to vindicate the “presumptsion of liberty” inherent in natural law), and it is solely up to judges (and in federal court, unelected, life-tenured judges) to decide which laws can be justified as necessary and appropriate, based on the government’s case-by-case evidentiary showing.”

    How do libertarians then explain the enumerated power given to congress to deprive federal appellate courts and SCOTUS of any jurisdiction they see fit save SCOTUS’ s “original jurisdiction”?

  • Your English Teacher

    A few months ago I plowed through Barnett’s “The Ninth Amendment: It Means What It Says”, and “The Inescapable Federalism of the Ninth Amendment”, by Kurt T. Lash, and now I have read your piece. I am not a lawyer, I don’t play one on TV, and I didn’t stay at a Holiday Inn Express last night … but I’ve got a pretty firm grip on the English language, and I am sure that the Framers intended for the Constitution to be understood at face value.

    All the mumbo jumbo about what libertarians believe — I’ve been a libertarian for 35 years, and I don’t recognize three of the four “beliefs” you listed, and I find great fault with using Roe v Wade to illustrate the 4th: how can killing an unborn child be considered to be an act which does no harm to another? — never seems to focus on what almost every libertarian I have ever met believes: we are indeed free to do whatever is not harmful to another, and we are completely responsible for the consequences of our actions. That is true libertarianism in a nutshell; all the rest is just so much pseudo-intellectual self-gratification.

    Humans are endowed with unlimited unalienable rights; the 9th Amendment acknowledges this, even if judges and legislatures do not. Only if The People yield one or more of those rights to the state — through the federal or State constitutions — does any natural right have a limitation. It not only is that simple, if that were actually practiced at the federal and State levels — as the U.S. Constitution requires — this entire nation, and The People thereof, would be much freer, less divided, and more civilized.

    • Severn

      Humans are endowed with unlimited unalienable rights

      Talk about mumbo-jumbo and pseudo-intellectual self-gratification.

      how can killing an unborn child be considered to be an act which does no harm to another?

      How can having sex with another persons spouse be considered to be an act which does no harm to another? And yet libertarians insist that is such a harmless act. In Clintonian fashion, it all depends on what meaning you chose to assign to that word “harm”. And that’s assuming for the sake of argument that we agree with the fundamental assumptions of libertarianism – which most people do not.

      • QET

        You are correct about the function of the word “harm” in Mill’s famous formulation. Mill’s statement is a tautology. It merely shifts the debate from the concept of “liberty” to that of “harm.” The past half century amounts to an Everest of evidence that the Left is fully willing to accept the propositional soundness of Mill’s statement and pursue its totalitarian political goals merely by constant accretions to the catalog of harms.

      • ADM64

        Are we endowed with any inalienable rights or is the country founded on a lie?

        No one says that adultery is wrong, nor that it can’t be punished without violating rights. Ditto abortion, laws against incest, and laws against polygamy.

      • Jean-Marc Cowles O’Connor

        I’m not sure where you get your information on libertarianism, but I have never heard it articulated that cuckolding someone does no harm to them. And if you think that “endowed with unalienable rights” is mumbo-jumbo, pseudo-intellectual, or self-gratification, I’d have to guess that you’re not particularly literate (I learned about unalienable rights while in grade school), fairly superficial intellectually, and sexually repressed. Finally, most people haven’t the foggiest idea what the fundamental assumptions of libertarianism are, but most people are far more libertarian in their daily lives than they are progressive or conservative.

  • ADM64

    Despite the author’s promise to refute the libertarian position, he doesn’t really do so. He does, however, raise an important question that deserves a more comprehensive answer.

    First, the theory of American government is laid out in the Declaration of Independence and it does indeed underlie the Constitution. If the former is illegitimate, then the basis for the country’s existence is itself illegitimate (and note that we date the birth of the country from 1776 not 1787). The Constitution was nothing more than the implementation of “…to secure these rights, governments are instituted amongst men, deriving their just powers from the consent of the government.” The Preamble to the Constitution largely speaks to these points and specifically states that one of the objectives of the document is, “…to secure the blessings of liberty to ourselves and our posterity…”

    Second, the Constitution was not a compact amongst the States. This was the point on which the Civil War was ultimately fought because the South refused to recognize that in fact, ultimate sovereignty is delegated from the people. The Constitution was ratified by State, but not by the State governments. Rather, the Constitution recognized that as a geographically extensive country – and a diverse one – that the states were the more basic unit of government, and that was all.

    Third, the judicial engagement that Neily (and others) have written of means – and Neily made this clear in his book – actually judging all acts of government consistently and in terms of what the Constitution states and means. This does not necessarily mean imposing a libertarian cast on the judicial review, but rather a constitutional one. Yes, libertarians – and Objectivists – would likely argue that the former and the latter are the same, but one can accept judicial engagement without that. However, it is absolutely clear that the 9th and 10th amendments to the Constitution are part of its text, so while I agree that this can be problematic in some instances, the question is how can an originalist or textualist interpretation ignore them? What is the author’s solution to that problem? He does not provide one
    .
    Fourth, judicial review was contemplated by the Founders and addressed in the Constitutional Convention.

    Fifth, if the judiciary has grown over-powerful, there are ways to rein it in without destroying judicial review.

    The above points, though, still don’t address the heart of the matter, which is the question of what, if any philosophical assumptions underlie our government, how those broader principles relate to the interpretation of the law and especially our understanding of rights, and how one interprets the Constitution but ignores the 9th and 10th amendments to it. If the libertarian-Objectivist position is comprehensively wrong, then the question remains what if anything do our founding documents mean? More fundamentally, does it mean we are defending the Constitution just because it is the Constitution and old, or because it is right and just. I’d suggest that on balance, there is more merit in the libertarian position on this and on rights than the author is prepared to concede even though he shares their love of liberty.

    I’d also suggest that the part of the problem is understanding where rights come from and what they mean. There will always be some difference on this point, however. Libertarians and especially Objectivists argue that they come entirely from man’s rational nature and that therefore anything goes that does not involve violence or fraud against others. The Founders certainly agreed that rights derive from man’s nature (i.e. from something other than society or government, hence Creator) and that rights are not permissions or privileges. But, where there is a difference between the libertarian position and that of classical liberalism comes from how we derive knowledge of those rights. That difference recognizes that rights reflect not just the requirements of our life as rational animals but as social ones, and therefore that rights are not purely deductive (i.e. as a consequence of our ability to reason) but inductive (i.e. based on how people actually behave). Some of our most fundamental rights, such as thought, religion, speech, property and self-defense can be derived in more abstract terms but not all of what many now claim as rights can be. When the evidence indicates that “anything goes” produces problems, then it suggests that the right being claimed in such a context probably isn’t actually a right and thus does not fall within the protection of the 9th and 10th amendments. The criteria, though, is evidence. It also means that the initial presumption is in favor of liberty as the libertarians assert – at least at the Federal level. However, if major problems result from such a decision, then the Court has to re-assess its decision later on or an amendment is required. The notion that one Supreme Court decision, one time, in one sense, is right forever is absurd.

    If we have to get to the correct understanding through some trial and error, so be it. No document or no individual can address all circumstances forever and ahead of time. However, if we take the opposite approach and presume that rights are more narrowly understood, we end up with the sort of permission society the Founders definitely did oppose.

    • Severn

      the theory of American government is laid out in the Declaration of Independence and it does indeed underlie the Constitution.

      !), It’s not.

      2) A sentence fragment ripped from the Declaration does not provide a basis for the courts to ignore “the consent of the governed”.

      • ADM64

        You’ll have to provide more of a rationale for your objection to point 1 than you have. The Declaration of Independence is the basis for the foundation of the United States and describes its theory of government. Or do you think it was wrong? What is the basis for our government if not it? What in the Constitution repudiates it? Where did the Founders repudiate it?

        Either the text means something or it doesn’t. The Founders provided ample evidence of what they meant. Consent of the governed remains within the Constitution because the people consented to its ratification and thus its delineation of powers after extensive public debate. We are not a democracy – the Founders were explicit on this – so consent of the governed doesn’t mean a) a transitory majority’s opinion or b) the fact that not everyone agrees with an otherwise legitimate public policy. Consent is also addressed via the amending process.

        Regarding the 9th and 10th amendments, I think there are two ways to consider the point you are making. First, it is certainly true that both amendments are open-ended but I am not convinced that this is an inherent flaw as you think. The principle is that unless an action or power is forbidden to government, it is permitted to the people, and if the people think such an interpretation is wrong, they need to take advantage of the tools the Constitution allows for dealing with them. In other words, “We the People” must use the amendment process (either to clarify specific rights or to provide a means of overriding Supreme Court decisions), or restrict the powers of the Courts regarding jurisdiction as allowed in the Constitution, or via the impeachment of judges that we consider to have overstepped their mark. Substituting direct popular legislation as in a democracy is not a solution to this problem. Two, the fact that these tools are hard to use doesn’t mean they aren’t tools, nor that they invalidate the consent of the governed. What the Founders wanted to make sure was that the consent of the governed actually reflected a very large national cross-section and no merely the momentary passions of a small majority of the citizens. So, to my mind, “consent of the governed” is preserved but it must be exercised through the appropriate means. I’d also add that if the Declaration is irrelevant to the Constitution, I’m surprised to see you referencing one of its phrases.

        To your last point, I agree that it is not the right of the courts to decide what is right or just in an abstract moral sense and then impose it on the country. The role of the courts (I’m referring here primarily to the Supreme Court) is to say whether or not legislation is consistent with the Constitution. Most of the examples of judicial overreach involve departures from the language and context of the Constitution. But, many aspects of social legislation, I would argue, do so too. Think carefully on this point: if it’s okay for those of us on the right (and here I’m lumping conservatives, libertarians and Objectivists together) are comfortable with morals legislation, then we might disagree with what the Left wants to do, but we can’t dispute its right to do so. Many things that those of us on the right oppose (abortion for example) represent positions that are not shared by an absolute majority of our countrymen. The reason why natural and inalienable rights, and unenumerated rights matter is because they protect us from exactly the interventions that many of us oppose.

        I’d close with two following thoughts.

        First, most of the issues we are talking about involve sex, sexuality and other lifestyle issues. I see no problem whatsoever with a constitutionalist and even a libertarian/Objectivist basis for laws prohibiting incest, polygamy, public nudity and the like. I think a pro-life position is logically fully consistent (and indeed most consistent) with the libertarian/Objectivist theory of rights even if many libertarians/Objectivists disagree. A hundred years ago – heck 50 years ago – the country shared a general moral sense about these things and strong social pressures generally controlled behavior. The laws on the books concerning them were non-controversial for that reason. Whether those laws were actually truly constitutional was another matter and they weren’t tested because it would not have occurred to people to do so. I am convinced that the only way we are ever going to get back to a more moral and restrained society is by recognizing that “sex, drugs and rock and roll” doesn’t actually provide individual happiness, and acting and speaking accordingly. Legislation will not achieve this – or that it would only achieve it if the results were such that the appropriate constitutional amendments could be passed. Maybe in some cases, they ought to be.

        Second, I would agree that there are some things that harm no one other person directly but cumulatively harm everyone. In economics, the most obvious example is called the Tragedy of the Commons. Those things can be identified and dealt with, and I don’t think that an individual-rights based approach requires that they be ignored.

    • Mark Pulliam

      At least you are honest to acknowledge that libertarians espouse an Objectivist theory of constitutional law. And “permission society” is another phrase libertarians have coined (in addition to “presumption of liberty” and “judicial engagement”) to make the extreme position they advocate appear to be more palatable.

      • ADM64

        Permission society, presumption of liberty and judicial engagement to my mind describe very real things that distinguish our constitutional system of government. I do not think they are phrases that have been coined to make extreme positions palatable. Rather, I think that many on the conservative part of the right desire morals legislation (beyond a fairly narrow scope) that in fact our system of government does not actually permit – at least not without amendments to the Constitution.

        We are not a democracy and consent of the governed does not mean “my faction.” Otherwise, we’re accepting the premise of the progressives that the State is God and that majorities (i.e. force) can do as they please. What I would like to hear is a consistent defense and identification of what, if any, principles our country is based on if not what is stated in the Declaration of Independence.
        What I’d also be curious about is how the concept of rights being discussed differs from John Locke’s views, which definitely informed the Founders.

        Finally, I’d be curious to know what laws you want to pass that this interpretation of the Constitution forbids.

  • QET

    I am suspicious of “natural law” and “substantive due process.” I really don’t want the Court discovering so-called civil or human rights lurking within the emanations of penumbras. But by whatever ideological tag you call it, I do want the Court, once it has a solid majority of Justices in the mold of Scalia, Thomas and Alito, to take Mark Tushnet’s advice and immediately begin overturning a great many decisions on the basis that they were “wrongly decided.” I want the Court to put the “limited” back in “limited government.” I am not interested in a conservative Court giving further proof of Chesterton’s observation that the business of Conservatives is to prevent mistakes from being corrected. I want a conservative, originalist-minded Court to fight Marx’s 11th Thesis on Feuerbach with Marx’s 11th Thesis on Feuerbach, and change the change wrought by the Left over the decades.

  • Severn

    There is one crucial question underlying every political system, and that’s “Who decides?”

    For libertarians the answer is “Libertarian judges decide”. For conservatives it’s “The people decide”. The Founders were in agreement with the conservative answer.

    For libertarians the fact that their decision making mechanism is anti-majoritarian is not a bug, but a feature. Perhaps even THE feature. But the Founders saw the principle of majority rule as being at the heart of the American experiment in self-government.

    “The first principle of republicanism is that the lex majoris partis (the majority rules) is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the
    majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends
    necessarily in military despotism.” –Thomas Jefferson to F. von Humboldt, 1817.