JMC fellow John O. McGinnis writes in Law and Liberty that democracy is not the defining principle of the Constitution.
“Democracy” Cannot Unlock the Meaning of the Constitution
By John O. McGinnis
From Law and Liberty
In my last post, I described how originalism encompasses text and structure correctly understood as methods of interpretation, making it unnecessary to include them as separate modalities. Here, I want to contest Professor Karlan’s view that abstract considerations of “democracy” provide an appropriate “modality” in interpreting the Constitution.
The first problem with using democracy as a consideration is that the Constitution famously creates a system that protects rights even as it makes the government representative. The original Constitution, including the Bill of Rights, puts some very important rights beyond the reach of a representative federal government. The Fourteenth Amendment adds other important rights and puts them beyond the reach of state governments as well. Thus, it is hard to say as a general matter that the Constitution should be interpreted to advance representative government or to advance specified rights.
Some have argued, most famously John Hart Ely, that most of the rights provisions in the Constitution are democracy reinforcing, thus suggesting that democracy is the key concept for interpreting the Constitution. I do not believe this claim is right as matter of original understanding. Free speech is surely conducive to representative government. However, that does not mean it was meant to be instrument of it, rather than a protection of an individual right, as I have argued elsewhere. Free speech also appears in an amendment with the right of free exercise of religion, which is not democracy reinforcing but individually empowering. And other rights in the Constitution, like those guaranteed by the Contract Clause in the original Constitution and the Privileges or Immunities Clause in the 14th Amendment, protect rights that cannot be understood as designed to reinforce rather than to restrict democracy.
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John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.
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