However fundamental they are, they’re still subject to some kind of decision-making. There’s no way around the difficulty: whoever makes the decision has interests, including an interest in expanding his/their own power. If the decision is too fundamental to be made by the people, then we’re saying that precisely the most important matters should be decided by people with interests that may not be those of the people whose interests we’re actually trying to promote, which is the general public. If they’re that much better than us that this makes sense, it’s irrational to leave anything at all to democratic decision-making. Besides, when we give the Supreme Court or the Wise Elders the authority to decide fundamental issues, who gets to decide what a fundamental issue is? Are we going to write it down—and who interprets this written document?
If the decision is too fundamental to be made by the people, then we’re saying that precisely the most important matters should be decided by people with interests that may not be those of the people whose interests we’re actually trying to promote, which is the general public.
One of the main ideas behind this type of Constitutional interpretation is that these decisions were already made by the people. That’s what the Constitution is, and it’s why states and Congress can’t pass certain laws, because they conflict with what the people have decided in the Constitution.
However fundamental they are, they’re still subject to some kind of decision-making. There’s no way around the difficulty: whoever makes the decision has interests, including an interest in expanding his/their own power. If the decision is too fundamental to be made by the people, then we’re saying that precisely the most important matters should be decided by people with interests that may not be those of the people whose interests we’re actually trying to promote, which is the general public. If they’re that much better than us that this makes sense, it’s irrational to leave anything at all to democratic decision-making. Besides, when we give the Supreme Court or the Wise Elders the authority to decide fundamental issues, who gets to decide what a fundamental issue is? Are we going to write it down—and who interprets this written document?
One of the main ideas behind this type of Constitutional interpretation is that these decisions were already made by the people. That’s what the Constitution is, and it’s why states and Congress can’t pass certain laws, because they conflict with what the people have decided in the Constitution.
Well, yes. That’s textualism: the decision was made and it’s written down right here.
A Council of Elders who make the decision for us is something else altogether.