The Madisonian Dilemma Cambridge University Press ^ |
Dennis Goldford
Jefferson commented that the purpose of a constitution is to bind down those whom we are obliged to trust with power, doing so by the chains of the Constitution.
While the binding capacity of the Constitution comes into play in the area of structural principles such as federalism and the separation of powers, perhaps the prime example of that capacity is its role in the problematic relation between majority rule and individual rights. As fundamental law, the Constitution, supposedly above politics, is always drawn into political controversies between majority rule and individual rights precisely because of its binding function. Through this function the Constitution establishes the distinction, central to American political culture, between the sphere of matters subject to decision by majority rule, regardless of individual preferences to the contrary, and the sphere of matters subject to individual choice, regardless of majority preferences to the contrary.
The Constitution binds contemporary majorities to respect this distinction and thereby not to act in certain ways, however democratically decided, vis-à-vis individuals.
Robert Bork aptly distinguishes between these spheres in terms of what he has famously called the Madisonian dilemma:
The United States was founded as a Madisonian system, which means that it contains two opposing principles that must be continually reconciled.
The first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.
The second is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.
The dilemma is that neither majorities nor minorities can be trusted to define the proper spheres of democratic authority and individual liberty....
The political theory of American constitutionalism rests equally on two fundamental premises, the premises of constraint and consent.
The first premise is that the purpose of a constitution, especially a written one, is to bind future generations to the vision of its founders, that is, to constrain the American people, - individuals and institutions, citizens and government officials alike, - to follow the principles of the Constitution rather than anything else.
The second premise is that the binding of future generations to the vision of the founders is a democratically grounded and legitimated act of We the People, that is, that in some sense We the People have consented to be governed - bound - by the principles set forth in the Constitution.
Poster Comment:
"-- there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule. --"
I see these areas as enumerated in the Bill of Rights and the 14th Amendment. -- Many here do not. Feel free to tell me why not.
