July 30, 2002
I WASN'T GOING TO WRITE ABOUT this New Yorker piece by Rik Hertzberg on Robert Dahl's new book. That's because I don't think the Hertzberg piece is that good, and I rather doubt that the Dahl book is, either. (I haven't read it, but it doesn't sound as if he's changed his views from previous works.)
But then I noticed that Patrick Nielsen Hayden was citing it approvingly, so I thought I'd add this word of warning: What Dahl is talking about turns out in practice to be what Robert Bork wants. Bork's idea of the Framers' intent, and the problems with judicial review, comes from confusing the thinking of the Framers with the political science that Bork studied in college, which was very Dahlian. (William Jennings Bryan had similar thoughts, too.)
It's tempting for liberals to look at the Rehnquist Court and find that sort of thing attractive, just as it was tempting for conservatives of Bork's generation to look at the Warren Court (and even the Burger Court) and find that sort of thing attractive. But the Framers weren't about democracy; they were interested in a democratic republic. And subsequent history, pace Dahl, suggests that they were pretty damned smart to think that way.
Since World War II the United States has made a big deal about democracy, as opposed to democratic republicanism, because it was simpler to explain, and hence an easier idea to sell than separation of powers, checks and balances, etc., etc. Interestingly, Americans have been more swayed by that propaganda than anyone else, and the importance of the Constitution's built-in countermajoritarianism has been largely ignored -- except where issues like school prayer or flag-burning come up.
But there's a lot more to the Constitution's countermajoritarianism than the Bill of Rights, and there's good reason to believe that the structural protections against tyranny have done more to protect freedom than the Bill of Rights -- which the Supreme Court didn't really do much with until the mid-20th Century anyway.