Justice Thomas’s delightful concurring opinion in Evenwel offers a lot of food for thought. In particular, his discussion of the anti-Democratic nature of our Constitution is worth a careful study.
The Framers also understood that unchecked majorities could lead to tyranny of the majority. As a result, many viewed antidemocratic checks as indispensable to republican government. And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.
The Framers believed that a proper government pro moted the common good. They conceived this good as objective and not inherently coextensive with majoritarian preferences. See, e.g., The Federalist No. 1, at 4 (Hamil ton) (defining the common good or “public good” as the “true interests” of the community); id., No. 10, at 57 (Mad ison) (“the permanent and aggregate interests of the com munity”). For government to promote the common good, it had to do more than simply obey the will of the majority. See, e.g., ibid. (discussing majoritarian factions). Gov ernment must also protect fundamental rights. See The Declaration of Independence ¶2; 1 W. Blackstone, Com mentaries *124 (“[T]he principal aim of society is to pro tect individuals in the enjoyment of those absolute rights, which are vested in them by the immutable laws of nature”).
Among these anti-Democrat checks were indirect selections of Senators and the President, plus equal voting in the Senate:
Because of the Framers’ concerns about placing un checked power in political majorities, the Constitution’s majoritarian provisions were only part of a complex repub lican structure. The Framers also placed several anti- democratic provisions in the Constitution. The original Constitution permitted only the direct election of representatives. Art. I, §2, cl. 1. Senators and the Presi dent were selected indirectly. See Art. I, §3, cl. 1; Art. II, §1, cls. 2–3. And the “Great Compromise” guaranteed large and small States voting equality in the Senate. By malapportioning the Senate, the Framers prevented large States from outvoting small States to adopt policies that would advance the large States’ interests at the expense of the small States. See The Federalist No. 62, at 417 (Madison).
These countermajoritarian measures reflect the Fram ers’ aspirations of promoting competing goals. Rejecting a hereditary class system, they thought political power resided with the people. At the same time, they sought to check majority rule to promote the common good and mitigate threats to fundamental rights.
I’m sure Justice Thomas would agree that the Senate refusing to provide their advice and consent for the President’s nominees is among those anti-democratic checks built into the Constitution. See my National Review piece on this point.
Justice Thomas also took a deep dive into a provision of the Constitution that is often neglected–other than a glancing mention of Luther v. Borden–the Guarantee Clause.
Instead, the Constitution broadly required that the States maintain a “Republican Form of Government.” Art. IV, §4. But the Framers otherwise left it to States to make tradeoffs and reconcile the competing goals.
Republican governments promote the common good by placing power in the hands of the people, while curtailing the majority’s ability to invade the minority’s fundamental rights.
Reflecting this history, the Constitution continued to afford States significant leeway in structuring their “Re publican” governments. At the framing, “republican” referred to “[p]lacing the government in the people,” and a “republick” was a “state in which the power is lodged in more than one.” S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Federalist No. 39, at 251 (Madison) (“[W]e may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or dur ing good behaviour”). By requiring the States to have republican governments, the Constitution prohibited them from having monarchies and aristocracies. See id., No. 43, at 291. Some would argue that the Constitution also prohibited States from adopting direct democracies. Com pare Wood 222–226 (“For most constitution-makers in 1776, republicanism was not equated with democracy”) with A. Amar, America’s Constitution: A Biography 276– 281 (2005) (arguing that the provision prohibited monar chies and aristocracies but not direct democracy); see also The Federalist No. 10, at 62 (Madison) (distinguishing a “democracy” and a “republic”); id., No. 14, at 83–84 (same).
Beyond that, however, the Constitution left matters open for the people of the States to decide. The Constitu tion says nothing about what type of republican govern ment the States must follow. When the Framers wanted to deny powers to state governments, they did so explicitly. See, e.g., Art. I, §10, cl. 1 (“No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts”).
Thomas also explains that the Reconstruction Amendments in no way affected the Guarantee Clause–a concept I had never even considered:
None of the Reconstruction Amendments changed the original understanding of republican government. Those Amendments brought blacks within the existing American political community. The Fourteenth Amendment pres sured States to adopt universal male suffrage by reducing a noncomplying State’s representation in Congress. Amdt. 14, §2. And the Fifteenth Amendment prohibited restrict ing the right of suffrage based on race. Amdt. 15, §1. That is as far as those Amendments went. As Justice Harlan explained in Reynolds, neither Amendment pro vides a theory of how much “weight” a vote must receive, nor do they require a State to apportion both Houses of their legislature solely on a population basis. See 377 U. S., at 595–608 (dissenting opinion). And JUSTICE ALITO quite convincingly demonstrates why the majority errs by reading a theory of equal representation into the appor tionment provision in §2 of the Fourteenth Amendment. See post, at 8–13 (opinion concurring in judgment).
Here is the closing, which the majority would have no answer to:
States can place policy choices in their constitutions or have supermajoritarian voting rules in a legislative assembly. See, e.g., N. Y. Const., Art. V, §7 (constitutionalizing pub lic employee pensions); Ill. Const., Art. VII, §6(g) (requir ing a three-fifths vote of the General Assembly to pre empt certain local ordinances). In theory, of course, it does not seem to make a difference if a state legislature is unresponsive to the majority of residents because the state assembly requires a 60% vote to pass a bill or because 40% of the population elects 51% of the representatives.
So far as the Constitution is concerned, there is no single “correct” way to design a republican government. Any republic will have to reconcile giving power to the people with diminishing the influence of special interests. The wisdom of the Framers was that they recognized this dilemma and left it to the people to resolve. In trying to impose its own theory of democracy, the Court is hope- lessly adrift amid political theory and interest-group politics with no guiding legal principles.
Take the time to read through CT’s opinion. I should note that though RBG offers a few footnotes to engage Alito, she doesn’t bother replying to any of Thomas’s opinion. I find this is often the case. When Justice Thomas’s points go unrebutted, they remain open and unresolved. Thomas, and not the Chief, is truly playing the long game.