I’ll have to think about this more before I answer. I’ve got a column to finish. From a reader:
How do you think your anti-populism theory squares with the positivist school of jurisprudence (for a perfect example, see Scalia’s dissent in Planned Parenthood v. Casey) that says that a Court that steps in and at least thinks that it is defending the 49% of us whose cornflakes are being peed in is usurping a role not its own– at least unless it is very clear that the Constitution protects our cornflakes?
If the Court is convinced that the people have passed a wrong (2+2=5) law, under your theory, why shouldn’t it step in and remedy that problem in the name of protecting the rights of the other 49%? If it shouldn’t step in, then what is the point of having a Court interpret and enforce (obliquely anyway) Constitutional norms? Is it merely how clear the Constitutional answer is that gives the Supremes the mandate to step in? Maybe that’s the best we can do, but even if we adopt “clarity” or “textualism” or “originalism” as our interpretive paradigm, we will still find ourselves deferring not because we think the current answer given by the law is right, but because we think it’s not our place to say. To me this sounds like populism. I would have thought that you would agree that there is a strong and vibrant place for populism in conservatism, at least where the Court is concerned– if for no other reason than because of the special role played by the Court. Maybe you want to distinguish between popular and democratic will, arguing that courts should defer to democracy but not populism, I don’t know. Or maybe you would pin the distinction on the different roles of courts and legislators (which, as I say above, I would agree with) but it might be helpful to clarify this.