This is a very good post that I think fairly exposes the three-card monte game that is being played by the (seemingly declining) ideological conservatives. Let them argue for the policies they support, about Roe or guns or voting rights, on the merits.

The meta-arguments are a cover for an ideology based on religion and electoral convenience founded ultimately, literally, on the preferences of the least educated members of society. If your ideology regarding responsible shepherding of the state against the huddled masses results in Donald Trump (initially or via reelection) and his judicial preferences, then that right there is your reductio ad absurdum. Any ideology benighted enough to produce a Trump has failed the test of empirical adequacy.

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I feel the need to preface this by saying it isn't intended as a "gotcha!" but as an earnest question because I feel like I'm just missing something and I'm hoping you can help me find it. What's the principle that assumes everything you're saying here but also leaves enough procedural room for courts to protect, e.g., abortion rights in Alabama or integrated schools in Alabama, or . . . whatever in Alabama?

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I dunno. I’m a little confused. Here are a few propositions that seems incongruous with the argument.

“All durable liberal societies have evolved complex democratic institutions because it’s impossible to manage foundational disagreement in a liberal way — with peaceful toleration and mutual forbearance — without them.”

In a meta sense, why can there not be democratic disagreement about what constitutes a “liberal” approach to dispute resolution. Why does that get to stand outside of majoritarianism? Need I be tolerant?

“We all favor limited government in the sense that we all believe that there are rights the state mustn’t infringe.”

Why should this be true? There are plenty of tankies who do not actually believe this (or perhaps just a verrrrry limited version of it). At best you have to fall back on saying that in any democracy there must at least be an inviolable right for the majority to decide. But that isn’t an individual liberty.

Being this back down to Earth - if you put our system to a vote, what would you get to change? A majority would probably end gerrymandering. Maybe kill the electoral college. Those would be HUGE wins for democracy. But they won’t overturn the bill of rights or judicial review. There is every indication that “we” are happy with these handcuffs and believe they are compatible with liberalism. Personally, I think we should be a parliamentary system. As a society, we don’t want that. If we just put it to a formal vote, does that make it liberal then?

“Rights don’t come to us on tablets etched by the divine.”

Never mind that the majority of Americans actually do believe this and adopt it readily.

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Some quotes from Thomas Paine in Rights of Man:

"On all cases that apply universally to a nation, with respect to system of government, a jury of twelve men is not competent to decide. Where there are no witnesses to be examined, no facts to be proved, and where the whole matter is before the whole public, and merits or demerits of it resting on their opinion; and where there is noting to be known in a court, but what every body knows out of it, every twelve men is equally as good a jury as the other, and most would probably reverse each other's verdict; or from the variety of their opinions, not be able to form one. It is one case, whether a nation approve a work, or a plan; but it is quite another cases, whether it will commit to any such jury the power of determining whether that nation have a right to, or shall reform its government or not."

"Sovereignty, as a matter of right, appertains to the Nation only, and not to any individual; and a Nation has at all times an inherent indefeasible right to abolish any form of Government it finds inconvenient, and to establish such as accords with its interest, disposition, and happiness.

"The circumstances of the world are continually changing, and the opinions of men change also; and as government is for the living, and not for the dead, it is the living only that has any right in it. That which may be thought right and found convenient in one age may be thought wrong and found inconvenient in another. In such cases, who is to decide, the living or the dead?"

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Fareed Zakaria thought that “liberal autocracy” was a better path to democracy than “illiberal democracy.” It would be interesting to see Wilkinson address this.

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I have learned a ton from you reading your stuff over the years and you are almost certainly a better writer than me, but your writing would be way better if it was more concise.

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The fact that the United States does not do national referendums makes it easy for people to overestimate how liberal Americans are on policies.Just take a look at California.Californians vote for the Democratic Party by landslide margins,so does that mean Californians routinely vote for liberal ballot propositions? As this past November showed us, that is not the case at all.

I actually think it would be in the interest of Conservatives for this country to have national referendums. Conservatives would lose several referendums, but they would also win a lot of referendums. For example, if national referendums ever become a reality in the United States, affirmative action will be banned and merit-based immigration system will replace the current immigration system that has existed since the 1960s. So my question for to you,Mr Wilkinson, do you support national referendums, since you seem to believe very much in majoritarianism ?

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Alluded to this on Twitter, but the small-c constitution of judicial, but even much more so administrative, practice are ALREADY counter-majoritarian to an enormous degree. The ability of democratically elected representatives to directly influence these things is much more limited than any of us would like to believe. The focus on the paper Constitution is such a sideshow compared to that. The Supreme Court doesn't even have any power at all except in that so many other institutional actors respect their decisions due to norms embedded in the small-c constitution.

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