Majoritarianism and Constitutional Government
In Part IV.A of our discussion of the future avenues for functional scholarship, we emphasized that the Bill of Rights is not a minoritarian credo. Therefore, we must ask, why haven't liberal legal scholars viewed and explained the Bill of Rights as a safeguard for majoritarian values and interests? At bottom, there are two intellectual constraints in contemporary liberal legal consciousness that are responsible for the continued mischaracterization of the Bill of Rights. These constraints point to opportunities for future liberal scholarship.
First, the premises of liberal rights theory emphasize the individuality, rather than the commonality, of core rights. By moving away from this individual rights consciousness, liberal scholars can recast the Bill of Rights as a majoritarian document: the purpose of constitutional guarantees is to secure the interests of the entire citizenry as against all governmental abuses of power. Succinctly put, "all exercises of power by some over others--even with what passes for the latter's consent--are and must remain deeply problematic. . . . [I]n matters of power, the end of doubt and distrust is the beginning of tyranny." 176
Second, liberal legal theory generally identifies the action of elected public officials as the political expression of majoritarian will. This identity of electoral politics and majoritarian values has assumed the status of an unquestioned article of faith. But, there are sound reasons for future liberal scholars to question this identity, as the teachings of public choice theory,177 the phenomenon of legislative and agency capture by special interest groups,178 and evidence of pervasive malfunctioning of representative democratic politics179 would substantiate. All this is to say that liberal scholars might examine the nature of the nexus between majoritarian will and legislative enactments. Liberal scholars might begin to construct a model of constitutionalism that reveals the salutary operation of majoritarian will. By changing the characterization of majoritarian rule, liberals would be free to reunite constitutionalism with democracy, thereby allowing for the possibility of broad-based constitutional constituencies.180
Such reconstitutive scholarship may move along some of the general tracks that we have already identified. Most apropos is the avenue of functional scholarship, directed toward lawmakers, that proposes certain legislative and/or administrative reforms.181 Moreover, constitutional theorists may consider the legitimate role of judicial review for contexts in which under-representation of the political majority can be identified in the legislative and/or administrative process.
One area in which liberal scholars might begin to tap the possibilities suggested above is the increasingly important issue of vital health care. In the scheme of things, it is hard to imagine anything more fundamental than the preservation of life. Yet, this self-evident point is foreign to constitutional fundamental rights discourse. This neglect continues in the face of overwhelming evidence of the severity of America's health care crisis: 'Advances in biomedical science, though welcome, will add to costs and will further strain government and private budgets. We can expect additional pressure to restrict existing health insurance policies, to increase patient 'cost-sharing,' and to cut benefits.'182 Even now, the high cost of nursing home care is likely to impoverish a significant portion of our elderly.183 It is not beyond tomorrow's liberal scholars to propose innovative solutions of a regulatory, statutory and constitutional order.184
