Frequently when a court declares that a law is constitutional it says something like “who are we judges to overrule the will of the people?” Judicial review, goes this argument, is an anti-democratic veto of the people’s “will” and judges should only fail to enforce that “will” if the Constitution is crystal clear that such a law is outlawed, with no room for doubt. Starting with the premise that a “will of the people” exists, this is the problem every lawyer learns in their introductory constitutional law class, the “countermajoritarian difficulty.”
But what exactly is this “will of the people”? You are invited to an event where a number of scholars are going to try and figure that out.
We at the Center for Judicial Engagement and our friends at the Liberty and Law Center of George Mason University’s Antonin Scalia Law School are sponsoring a conference called “Does the ‘Will of the People’ Actually Exist?” It will be held on September 10, 2021, at GMU’s campus in Arlington, Virginia. There’s no charge, you can attend in person or online, and if in person there’s a free lunch for you. Plus, an application is pending for in-person Virginia CLE. Either in person or online, please register here.
The metaphysical reality of the “will of the people” turns out to be surprisingly elusive. When a majority of citizens vote for a candidate for office, we arguably can say that “the people” have “willed” that candidate to represent them in government. (“Arguably” because there’s a host of other questions, such as: how were the candidates chosen for the ballot? Who actually voted? Did the candidate lie while campaigning? Etc.) However, beyond that things get pretty murky. If the state legislature adopts a law regulating, for example, the number of training hours a barber needs to get a license, is that law the “will of the people”? For this and similar run-of-the-mill legislation, it’s likely that the vast majority of “the people” have never even heard of the law. You could take a poll of a random sample of citizens and call the results their “will,” but considering it would be the first time almost all of them have even thought about the subject, can it constitute a “will” in the first place? And what if—as often happens—the legislature adopts a law that a majority in some poll disagrees with. Is that the “will of the people”? What about legislation that, like many laws these days, is adopted through logrolling, i.e. where a number of separate mandates and public expenditures are stitched together in an effort to garner the votes of various single-issue legislators. Do “the people” “will” that resulting hodgepodge to be the law? Or only part of the law? If so, how do we tell which is which?
Of course, given these complexities, most of us will admit that a majority of voters do not have a “will” about most legislation. So does that mean most laws lack a mandate from the “will of the people”? And does that mean that, in fact, there is no “countermajoritarian difficulty” when courts exercise judicial review? One retort is that in selecting representatives “the people” delegate their will, and the resulting laws those delegates enact should be seen as representing the people’s “will.” But does that mean it’s really a polite legal fiction? And is that something courts should defer to?
Further, there are some laws—those selected through popular vote, such as initiatives and referendums—that a majority of voters (or at least a majority of voters voting in that election) really did vote for. And the greatest laws of them all, constitutions, often rest their legitimacy on the very same argument. In justifying constitutions to be the “supreme law” we point out that “We the People” either voted for them (as with many state constitutions) or voted for delegates who did (as with the U.S. Constitution). Which sounds a lot like how legislation is enacted. So what does that do for judicial review that relies on a constitution? If we’re going to pursue this argument, is it turtles all the way down?
We’ll be exploring these questions and many more at the conference. We’ve invited some of the top scholars on these issues to write essays on the central issue of the “will of the people’s” reality that will be published in the George Mason Law Review next year, and also invited other top scholars to comment on those essays at the conference. And because no one discipline has a monopoly on the truth, we’ve invited experts from law, political science, and economics.
Again, the conference will be September 10, 2021. It runs from 8:30am to 2:15pm, Eastern Daylight Time. You can register, and see the scholars coming to discuss these issues, here.
Please join us!
Anthony Sanders is the director of IJ’s Center for Judicial Engagement.