Jonathan Chait tries once again to cast Rand Paul and Mike Lee’s entirely mainstream skepticism toward unchecked majoritarianism as something sinister and unusual. The ideas that Paul and Lee have expressed, Chait writes, are common on the Right, and, indeed, “are not identified solely with the most extreme or Trumpy conservatives,” but “have frequently been articulated by conservatives who express deep personal animosity toward Donald Trump and his cultists.”
Yeah, they have. And do you know who else is skeptical of unchecked majoritarianism?
Chait takes specific aim at Rand Paul’s claim that the Jim Crow era shows the need for counter-majoritarian elements within the system. “Absurd,” he writes,
is the notion that “Jim Crow laws came out of democracy.” Southern states attempted to establish democratic systems after the Civil War, but these governments were destroyed by violent insurrection. Jim Crow laws were not the product of democracy; they were the product of its violent overthrow.
It is narrowly true that, in the wake of the Civil War, violence was used to suppress black votes, which resulted in the election of white governments by a reduced electorate, which resulted in those governments imposing Jim Crow — although I presume that Chait does not really believe that if the Southern states in question had allowed everyone to vote we wouldn’t have needed the 14th and 15th Amendments, given that Jim Crow laws were passed in multiple states where white citizens significantly outnumbered black citizens while only three states had a black majority. But this is hardly a solid case against minority protections per se.
How, I wonder, does Chait account for the counter-majoritarian decisions that his own side strongly favors? The anti-abortion laws that Roe v. Wade overturned were not the product of state governments being “destroyed by violent insurrection.” They were the product of democracy. The laws that protected traditional marriage were not the product of state governments being “destroyed by violent insurrection.” They were the product of democracy — and, in several cases, popular referenda. The laws permitting school prayer were not the product of state governments being “destroyed by violent insurrection.” They were the product of democracy.
All of these laws were swept away despite that democracy. Why? Because they were held to be in violation of the Constitution’s protection of minority rights. (In my view, these cases were incorrectly decided, but my objection is to the specifics of those cases rather than to the existence of judicial review). If Jonathan Chait were to call up a Democratic senator at random this afternoon and ask whether he thinks that this was a good thing, that Democratic senator would likely end up sounding very much like Rand Paul. I wonder: Is that an indictment of the Democratic party, its voters, and the broader progressive movement? Or does it only work the other way around?