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Chapter 3

POL-UA 330 Chapter 3: Wk3 Readings: Counter Majoritarian Difficulty & Stare Decisis
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by OneClass931116 , Spring 2018
9 Pages
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Department
Politics
Course Code
POL-UA 330
Professor
Peter Rajsingh
Chapter
3

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1
Week 3: CMD & Stare Decisis
Legitimacy & the Counter-Majoritarian Difficulty—Moeller (1985): Alexander M. Bickel: Toward a
Theory of Politics
Original Intent: The Meese Brennan debate (1985)
Frankfurter: Memorandum on “Incorporation” of the BoR into the Due Process Clause (1965)
Legitimacy & the Counter-Majoritarian Difficulty—Moeller
(1985): Alexander M. Bickel: Toward a Theory of Politics
Bickel believes politics should
1. Accommodate diverse interests
2. Rely on fundamental principle
3. Take account of empirical reality
4. Encourage an ongoing conversation among all participants
His positions are generally unclear he states something then backtracks
His defense of politics is present in all his work even when considering
the SCOTUS
Burke “the business of pol is not w theory & ideology but w accomodation”
Bickel thinks the accommodation should rest upon fundamental principles of
American life
Bickel loves Fed #10 → humankind is diverse but like minded individs tend to group
These groups are fundamental unit of pol, but remain diverse enough so no 1
group can declare absolute correctness
Pol accomodation for the courts → refrain from interfering excessively w the natural
computation
Usually in accommodation is addressing routine social and pol questions, then
the judicial opinion is just one of mapy inputs → Can’t be final accommodator
distributing goods
SCOTUS accommodating for a dem society eventually saps that dem of it’s meaning
1. Theoretical → Dem isn’t a predetermined set of ends, but a process of
deciding which ends are most worthy of attainment
When federal courts est. a social policy that runs counter to majority their
decision isn’t accommodation but imposition
2
Even when courts rule w majority opinion still dangerous bc dem is
habitual → relies on consistent skills, shouldn’t rely on the courts to make
decisions constantly
Courts should sometimes deflect back to the people’s elected reps
Otherwise people forget how to wage battle in the pol arena bc
they only know legalistic language
2. Pragmatic → court decisions are betting their vision of the future will be
accepted as the right one
When they’re correct few issues, but when they lose this bet rejection of
court authority and vision esp if they keep losing
Best not to bet often then
General rule: accommodation is the heart of pol and courts shouldn’t interfere except for:
1. Judicial activists → courts a needed antidote to the pol system’s failure to
guarantee constit rights
Judge Skelly Wright argues courts are the pol branch most capable of
protecting rights
Wright & Bickel at odds → B has faith in pol system, W thinks it’s hostile
Edward Purcell - dislikes Bickel’s pluralism that presumes pol to be complex,
unmanageable
Faulkner argues Bickel failed to perceive the 1960s debate was about
the fundamental values and ends of society regarding which values were
the fundamental ones protected by the constit
Thinks B overlooked the real nature of citizenship for non-elites
B - “no segment of society should feel alienated from the institutions that govern”
Dems must be majoritiatian, not a plea for pure dem, but mixed gov
Press’s right to know VS gov’s right to secrecy → neither right is absolute
Disorderly process w considerable diversity and set of rules acknowledged by all
B recognizes all pol must be principles and thinks the courts should have a
crucial role in maintaining those principles
Though critics often view him as an ethical relativist (does say too much
morality can be destructive)
Bickel’s three sets of funda. Principles:
1. The idea of Law → has to have meaning via corresponding moral duty in order
for people to obey it
2. Morality of process
3. Substantive principles - though makes them hard to ID in his writing
The courts play a special role in ID-ing and maintaining those principles
so need to examine the court’s role
“Insistence on reason in the jud process, on analytical coherence, and on
principled judgement” aka judicial opinions have to be COHERENT &
LOGICAL
3
But also must be wed to something more firm and substantial than
plain logic - clever justices can make bad decisions based on
novel theories
1.) The process must always remain open to all participants 2.)
not be allowed to destroy itself
Foundations for directing and limiting judicial behavior
Demands universal suffrage
Contest 2nd area bc sometimes the pol process must be
limited for its own good
“The process must be open to bc it’s the only way to
guarantee an accommodation that engenders consent, yet
if it’s too open there is danger it’ll destroy itself”
Two kinds of discussion need to be checked
1. Conditions found in SC’s clear and present danger test
2. discussion that lessens the tone of the environment
B is very cautious here
to discuss things is to legit them (genocide, porn, obscenity)
Bickel better outlines when courts should abstain from acting: policy preference
Discrimination on basis of race, religion, etc. are irrational because have
no foundation in reality → irrational and bad in principle
When a law is rational and not bad in principle the courts have no
grounds for advancing their will over the leg.
However there’s a lot of disagreement about which principles are
fundamental
B looked for a theory that would encourage judges to act when fund. Princ. Were
at stake AND would check judges who might be prone to make decisions that
obviate the idea of politics
Tried idea of consensus → progress → settled w traditional
All incredibly vague
Do have similarities that show B’s consistency → all presume “that the
fund values of a society aren’t abstrations but truths generated by the
ongoing pol of society”
Views progress not in it of itself as he end but merely the conduit that
leads to a good state
Bickel has more confidence in human kind than individuals
Places his confidence in the public discussions not judges
The role of the courts is to flush out those principles which they don’t through
their participation in the ongoing colloquy
Politics is empirical
Not only have an underlying set of principles but must also accept and work w
the empirical reality of the world in which it finds itself
2 sides of the issue for Bickel demonstrated by

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Description
1 Week 3: CMD Stare Decisis Legitimacy the CounterMajoritarian DifficultyMoeller (1985): Alexander M. Bickel: Toward a Theory of Politics Original Intent: The Meese Brennan debate (1985) Frankfurter: Memorandum on Incorporation of the BoR into the Due Process Clause (1965) Legitimacy the CounterMajoritarian DifficultyMoeller (1985): Alexander M. Bickel: Toward a Theory of Politics Bickel believes politics should 1. Accommodate diverse interests 2. Rely on fundamental principle 3. Take account of empirical reality 4. Encourage an ongoing conversation among all participants His positions are generally unclear he states something then backtracks His defense of politics is present in all his work even when considering the SCOTUS Burke the business of pol is not w theory ideology but w accomodation Bickel thinks the accommodation should rest upon fundamental principles of American life Bickel loves Fed 10 humankind is diverse but like minded individs tend to group These groups are fundamental unit of pol, but remain diverse enough so no 1 group can declare absolute correctness Pol accomodation for the courts refrain from interfering excessively w the natural computation Usually in accommodation is addressing routine social and pol questions, then the judicial opinion is just one of mapy inputs Cant be final accommodator distributing goods SCOTUS accommodating for a dem society eventually saps that dem of its meaning 1. Theoretical Dem isnt a predetermined set of ends, but a process of deciding which ends are most worthy of attainment When federal courts est. a social policy that runs counter to majority their decision isnt accommodation but imposition
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