In a post yesterday, Ned Foley took issue with the essay from Randy Barnett posted yesterday at NYU’s Democracy Project. Here’s an excerpt from Randy’s piece, so readers can understand the context of Ned’s critique. Today’s post at the Democracy Project comes from Mark Cuban, which I’ll blog about later in the week.
From Randy Barnett’s essay:
When one hears today about threats posed by the duly-elected Trump administration to “our Democracy,” one gets the distinct impression that “our Democracy” means the political program of the Democratic Party, whether supported by a majority or minority of the American people. This impression is reinforced by Democrats cheering the unelected district court judges who are massively resisting the policies of a popularly-elected president by issuing restraining orders, or booing the Supreme Court’s returning abortion policy to state legislatures. This “la démocratie, c’est nous” attitude constitutes a return to the Democratic Party’s roots…
When I make observations like these, self-identified “Democrats” often hasten to insist that they too reject majoritarianism. They too believe in protecting the rights of the minority. They favor a “constitutional democracy.” That sounds good, but the sentiment does not last long. These same Democrats easily revert to a majoritarian conception of democracy when any of the undemocratic components of our republican Constitution obstruct their favored policies.
Ask Democrats about the composition of the Senate, the operation of the Electoral College, the Senate filibuster when they hold the majority (but not when they don’t), or the Supreme Court when it rules in a way they dislike. They will condemn all these as “undemocratic” as Sanford Levinson did in his book, Our Undemocratic Constitution. (I wrote Our Republican Constitution: Securing the Liberty and Sovereignty of We the People as my reply.) Since January 2025, Democrats have also become concerned with the “undemocratic” exercise of executive power, pursuant to broadly-worded statutes, that previously did not bother them.
Context is everything. Given the way “our Democracy” is being invoked today and by whom, it is incumbent on an academic initiative calling itself “The Democracy Project,” to specify what exactly it means by “democracy” and “democratic.” If it is not majoritarian governance, just what is it? Does its mission statement’s reference to “the challenges facing American democracy” include “resistance” to the outcome of elections by “career” administrative bureaucrats or by district court judges? Without telling us what it means by “democracy,” the timing of the Democracy Project’s formation may be viewed merely as a “project” to provide intellectual cover for Democratic opposition to the duly-elected Trump Administration and Republican majorities in Congress. Then, when they regain power, Democrats will once again wrap themselves in the mantle of the “will of the people” and decry the counter-majoritarian elements of our republican Constitution.