Originalism v. Democracy

Does having a constitutioin actually conflict with democracy? Scalia believes that the answer is no—the constitution protects democracy rather than opposes it. On page 40, he argues that "a society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot.". So when a society writes a constitution, it is making a deliberate, democratic choice to place commitments beyond the reach of temporary majorities. 

However, Scalia's framework binds the living population's to the choices of a founding generation that no longer exists and cannot be held accountable. Scalia himself acknowledges that the "whole purpose is to prevent change — to embed certain rights in such a manner that future genrations cannot readily take them away." (40).  If the constitution's purpose is to resist change, then does it not permanently override democracy? 

Take the Second Ammendment for example. The right to bear arms is not a natural or pre-political right that the Constitution merely recognized; it is a right that the Constitution established. But originalist reasoning treats it as though it is self-evidently fundamental, so any democratic attempt to limit gun ownership must justify itself against a constitutional baseline that is beyond democratic change. This causes a kind of circularity: the Constitution made bearing arms a right; originalism then uses that right to place it beyond the democratic reconsideration that might undo it.

The Constitution—a document drafted in 1787 by a small group of propertied white men and ratified by a process that excluded women, enslaved people, and non-property owners, and amendable only through procedures designed to require extraordinary consensus—does not meet the democratic standards Scalia invokes against judicial lawmaking. On p. 17 he writes that "it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated"—but a constitution promulgated by such a narrow and unrepresentative founding population has no obvious claim to democratic authority over a vastly different present society. Textualism argues for the Constitution's democratic authority, yet the founding of it was far from democratic itself. 

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