An Open Letter to our Counter-Majoritarian President
Dear Mr. President:
Whenever the topic of the courts arises, you say that you favor judges who will “interpret the law” rather than “legislate from the bench.” I could quarrel with the claim that the conservative judges and Justices you have appointed actually follow this philosophy, but I certainly understand and sympathize with the core belief that motivates it: In our system of government, important decisions should be made by the elected representatives of the People, unless the Constitution clearly takes some particular decision away from them. With respect to the courts, you, sir, can proudly say that you are a small-d democrat.
Why then, I must respectfully ask, have you so little regard for the will of the People? I’m not referring here to the awkward circumstances in which you first won the Presidency. That’s water under the bridge in light of your victory in 2004. That latter victory was, as you said at the time, “an accountability moment.”
But while we’re on the subject of accountability moments, you may recall that we had another one just last month, and this time the People said - - about as clearly as they can say in a federal electoral system that does not have ballot initiatives and in which most citizens vote in politically gerrymandered districts - - that they disapprove of the conduct of the war in Iraq. Accordingly, you should reject the policy you are apparently considering: increasing troop levels in Baghdad for a “surge” of strength designed to secure the city.
I recognize that there are some military experts who think the surge plan could work, although there appear to be more military experts who think it won’t, and even some of its supporters think it probably won’t work but is worth a try before we just “cut and run.” Faced with tactical uncertainty of this sort, wouldn’t the right approach be to give some deference to the citizens who have made clear that any surge in U.S. troops should be directed towards, rather than away from, their bases back home?
Patriotically yours,
Michael C. Dorf
Whenever the topic of the courts arises, you say that you favor judges who will “interpret the law” rather than “legislate from the bench.” I could quarrel with the claim that the conservative judges and Justices you have appointed actually follow this philosophy, but I certainly understand and sympathize with the core belief that motivates it: In our system of government, important decisions should be made by the elected representatives of the People, unless the Constitution clearly takes some particular decision away from them. With respect to the courts, you, sir, can proudly say that you are a small-d democrat.
Why then, I must respectfully ask, have you so little regard for the will of the People? I’m not referring here to the awkward circumstances in which you first won the Presidency. That’s water under the bridge in light of your victory in 2004. That latter victory was, as you said at the time, “an accountability moment.”
But while we’re on the subject of accountability moments, you may recall that we had another one just last month, and this time the People said - - about as clearly as they can say in a federal electoral system that does not have ballot initiatives and in which most citizens vote in politically gerrymandered districts - - that they disapprove of the conduct of the war in Iraq. Accordingly, you should reject the policy you are apparently considering: increasing troop levels in Baghdad for a “surge” of strength designed to secure the city.
I recognize that there are some military experts who think the surge plan could work, although there appear to be more military experts who think it won’t, and even some of its supporters think it probably won’t work but is worth a try before we just “cut and run.” Faced with tactical uncertainty of this sort, wouldn’t the right approach be to give some deference to the citizens who have made clear that any surge in U.S. troops should be directed towards, rather than away from, their bases back home?
Patriotically yours,
Michael C. Dorf
posted by Michael C. Dorf @ 8:10 AM
4 Comments:
At 8:31 AM,
Michael W. Dowdle said…
I wonder, given the degree to which we (i.e., the US) have been in control of their country over the last 4-5 years, whether a true democracy would demand that Iraqis be allowed vote in our national elections?
At 1:24 PM,
Craig J. Albert said…
Mike posted this letter at 8:30 a.m. At 10:00 a.m., the President marched to the podium at a news conference. Here's an early, counter-majoritarian rquestion and answer:
"QUESTION: Thank you, Mr. President. In the latest CBS News poll, 50 percent of Americans say they favor a beginning of an end to U.S. military involvement in Iraq; 43 percent said keep fighting, but change tactics. By this, and many other measures, there is no clear mandate to continue being in Iraq in a military form. I guess my question is: Are you still willing to follow a path that seems to be in opposition to the will of the American people? "
"BUSH: I am willing to follow a path that leads to victory. And that's exactly why we're conducting the review we are. Victory in Iraq is achievable. It hadn't happened nearly as quickly as I hoped it would have. I know it's -- the fact that there is still, you know, unspeakable sectarian violence in Iraq, I know that's troubling to the American people. But I also don't believe most Americans want us just to get out now. A lot of Americans understand the consequences of retreat. Retreat would embolden radicals. It would hurt the credibility of the United States. Retreat from Iraq would dash the hopes of millions who want to be free. Retreat from Iraq would enable the extremists and radicals to more likely be able to have safe haven from which to plot and plan further attacks. And so it's been a tough period for the American people. They want to see success. And our objective is to put a plan in place that achieves that success. I'm often asked about public opinion. Of course, I want public opinion to support the efforts. I understand that. But I also understand the consequences of failure. And, therefore, I'm going to work with the Iraqis and our military and politicians from both political parties to achieve success. I thought the American -- the election -- it said they want to see more bipartisan cooperation. They want to see us working together to achieve common objectives. And I'm going to continue to reach out to Democrats to do just that."
Now, you might expect that a good counter-majoritarian to recognize that other national leaders - lunatics though they may be - have just as much of a right to be counter-majoritarian. But, of course, you would be wrong. Here's what he said in partial response to a question about whether we ought to be talking to our enemies:
"The Iranian people can do better than becoming -- than be an isolated nation. This is a proud nation with a fantastic history and tradition. And yet they've got a leader who constantly sends messages to the world that Iran is out of step with the majority of thinkers; that Iran is willing to become isolated, to the detriment of the people."
At 4:18 PM,
Anonymous said…
Consider how national ballot initiatives (used for 158 years in Switzerland) would be the perfect way for the people to stop an unpopular war, keep the Feds from busting legal Medical Marijuana patients, anything Congress now obstructs.
The best proposal is from famed former US Senator Mike Gravel: Vote.org
The U of Colorado Law School is holding a conference Jan 26 about ballot initiatives and how to improve them. See the bottom of http://Vote.org
At 5:59 PM,
Craig J. Albert said…
Oh, I wasn't arguing that it's bad to be a counter-majoritarian; I just think that you should be consistent. I think that initiative and referndum are supremely awful ideas, and ought never to be adopted on a national level.
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