JUDGING CRIMES

The nature of a constitutional ruling - any constitutional ruling - is that it declares an area of public life off-limits to democracy.  This is one of those facts that's so obvious as to be generally invisible, and even a bit startling when pointed out.

When Richmond's Fourth Circuit ruled that a school district violated the first amendment by prohibiting students from wearing t-shirts that referred to guns, it meant that the people of that school district couldn't decide for themselves what type of dress code was appropriate for their community and their children.  Some things, such as NRA t-shirts, are just too important to be subjected to popular sovereignty.

When the late Chief Justice wrote the 2000 opinion upholding Miranda, he laid it out plainly: "Congress may not legislatively supersede our decisions interpreting and applying the Constitution."  By "Congress" Rehnquist meant: "The people of the United States."  The Constitution marks the border of our own Forbidden City.  Commoners are not permitted inside. 

I use the provocative word "commoner" advisedly.  In 1963 the Supreme Court decided an obscenity prosecution relating to John Cleland's exuberantly pornographic Fanny Hill, which had been banned in Boston - a phrase of some piquancy for those of a certain age.   Justice Douglas wrote a separate opinion containing this personal note:

Every time an obscenity case is to be argued here, my office is flooded with letters and postal cards urging me to protect the community or the Nation by striking down the publication. The messages are often identical even down to commas and semicolons. The inference is irresistible that they were all copied from a school or church blackboard. Dozens of postal cards often are mailed from the same precinct. The drives are incessant and the pressures are great. Happily we do not bow to them. I mention them only to emphasize the lack of popular understanding of our constitutional system. Publications and utterances were made immune from majoritarian control by the First Amendment, applicable to the States by reason of the Fourteenth. No exceptions were made, not even for obscenity.

This marked the first use of the word "majoritarian" in a Supreme Court opinion (excepting only one previous appearance in the title of a cited article), and it came in the same breath as Douglas' condemnation of the popular understanding. 

Since 1963, the word "majoritarian" has appeared in Supreme Court opinions no fewer than 54 additional times, according to Westlaw.   The switch from "democratic" to "majoritarian" as the adjective of choice to describe our political system is a significant one.  Phrases such as "majoritarian abuse" roll off the tongue much more easily than "democratic abuse."  

The word "democracy" is built on the Greek demos, meaning the people as a whole, or a community.  By contrast, a majority is defined by its opposition to a minority.  The use of "majoritarian" reflects a concept of society as a collection of parts, or perhaps parties.   It's a distinctively lawyerly way of looking at life, as a perpetual battle of plaintiffs and defendants.

Since 1960, the Supreme Court has developed another linguistic tic.  It's used the phrase "political branches" 103 times to refer to Congress and the executive branch.  In its entire history before 1960, the Court used that phrase a total of 9 times, and only twice before 1939.  The attraction of the phrase to the modern Court is clear.  "Political" has a negative ring entirely missing from "representative" or "elected."  Even better, it implies that the third branch of government is not political.  It, unlike certain other branches it could name, does not permit itself to be controlled by the hoi polloi demos. The phrase is simultaneously a subtle insult and subtle boast.

It's easy to drift into the habit of thinking that some things are so self-evident that you don't even need to prove it.  Such as: torture is bad.  Or: democracy is good.