The Framers' Muse on Republicanism, the Supreme Court, and Pragmatic Constitutional Interpretivism

The Supreme Court is currently in retreat from libertarian constructions of the rights of individuals and minorities.Ironically, this retreat coincides with the bicentenary of the bill of Rights, drafted and debated in 1789 and ratified in 1791.No less ironic, political opposition to the Court's previously broad construction of those guarantees has been inspired by what is called the "Madisonian dilemma."ISimply put, the dilemma is one of allowing majorities to govern while also safeguarding the rights of minorities.The Court's critics argued that majoritarianism was central to the "Madisonian system," and therefore judicial review ought to be sharply limited in deference to legislative majorities.The Warren and the Burger Courts' rulings striking down state laws in defense of individual rights were thus attacked for being countermajoritarian.2 Opposition to their rulings is now internalized within the Court itself, due to changes in its composition and the emergence of a solid conservative bloc on the Rehnquist Court.3The problem of the Court's institutional role is not new.But, the "Madisonian dilemma" gave it a new twist and "set the terms * Professor, Woodrow Wilson Department of Government and Foreign Affairs.Copyrighted 1990, David M. O'Brien.This article was originally prepared for delivery at the "James Madison Symposium"