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Author: Rob Natelson

Balancing Local Control and Individual Rights

Balancing Local Control and Individual Rights

This article originally appeared in The Hill.

“Local control” is something politicians promote or ignore at their convenience. The U.S. House of Representatives, led by a Republican majority supposedly dedicated to returning power to the states, just voted to override state design and safety rules for self-driving cars. In Colorado, opponents of hydraulic fracturing (fracking) began touting “local control” over fracking only when they lost a bid for a statewide ban. And their so-called “local control” proposal would have allowed cities and counties only to tighten anti-fracking rules, not to loosen them.

Political hypocrisy aside, keeping government close to the people is generally a good idea. Most of the famous bursts in human intellectual and technological progress have occurred in places featuring considerable — sometimes extreme — political decentralization. They have included the city states of ancient Greece and of Renaissance Italy, 17th and 18th century Britain, and 19th century America, among others.

So when is local control good in reality rather than merely as a slogan?

In drafting and ratifying the U.S. Constitution, the American founders devoted much principled consideration to this question, and as long as their formula was respected the system usually worked very well. Indeed, the seeds of current federal dysfunction were sown when the courts stopped enforcing the Constitution’s boundaries on federal power.

Based on our experience under the Constitution, therefore, some argue for granting cities and counties the same freedom from state control as states are supposed to enjoy from federal control.

However, the analogy is not wholly valid. This is not merely because local governments are creations of state government, while the states are semi-sovereignties. A more important reason is that local governments do not feature the checks and balances — and therefore the protections for individual rights — characteristic of all, or almost all, states.

All states but one (Nebraska) have bicameral legislatures. But nearly all local councils are small, unicameral bodies. State constitutions divide power among the legislative, executive, and judicial branches. Local charters usually blend legislative and executive authority, and in practice municipal law enforcement and courts may serve as revenue-raising agencies.

Most states harbor a variety of special interests (or in James Madison’s term, “factions”) that monitor and check each other. Local units frequently are dominated by so few special interests that they can readily (in Madison’s words) “concert and carry into effect schemes of oppression.” Most state governments are monitored by a vigorous local press; many municipalities are too small to support an effective working press.

Under such conditions, it is no wonder that “local control” may become local tyranny.

On the other hand, the Constitution does offer at least one idea for how to divide state and local spheres: The Constitution grants the federal government extensive authority to protect individual rights from state assault.

The original Constitution banned states from adopting certain kinds of laws, such as ex post facto laws, that violate individual rights. The document also required the federal government to ensure that states not degenerate into monarchies or dictatorships.

Constitutional amendments have carried this further. Today the Constitution allows the federal government to prevent states from re-instituting slavery or unduly infringing voting rights. In addition, the Fourteenth Amendment permits the federal government to interfere if a state denies equal protection of the laws or violates certain protections in the Bill of Rights.

This allocation of federal and state power offers a clue for allocating state and local power. Local governments should be free to operate schools, parks, and police forces, but the state should ensure local government does not oppress individual rights.

Some states have been implementing this idea. Several have passed or are considering laws to protect the free speech rights of students at state universities, which are functionally a kind of local government. Colorado recently adopted a measure curbing municipal judges from abusing their fining power. After a long struggle the Montana legislature restricted cities’ practice of effectively taxing people who neither resided within the city nor owned land there.

State protection of landowners is crucial, because they can’t escape oppression merely by picking up their land and moving away. The same regulations that infringe their rights as owners may prevent them from selling their property at a reasonable price so they can relocate.

Accordingly, Arizona now largely forbids localities from regulating away property rights without compensation, while Colorado curbs local laws that purport to restrict landowners’ oil and gas rights.

To define the ideal boundaries between state and local control, we should ignore the political hypocrites and weigh sound principles. One such principle is that state governments should protect citizens’ fundamental rights from local oligarchs who try to take them away.

John Dickinson’s ‘Farmer’ Letters on Their 250th Anniversary

John Dickinson’s ‘Farmer’ Letters on Their 250th Anniversary

This article originally appeared in the Washington Times.

This year, 2017, marks the 250th anniversary of one of the most influential series of writings in American history: John Dickinson’s Letters from a Farmer in Pennsylvania, the first of which appeared in 1767.

These “Letters”—12 newspaper op-eds later collected in book form—asserted the colonial cause against imperial British overreach and helped to lay the groundwork for the U.S. Constitution drafted two decades later. The letters also presented important ideas about resisting usurpation.

John Dickinson (1732-1808) did not sign the Declaration of Independence, but in other respects, he was an American Founder of the first rank. With homes in Delaware and Pennsylvania, he served both states. Pennsylvania sent him to the 1765 Stamp Act Congress and, after publication of the Farmer letters, to the Continental Congress in 1774. Dickinson authored most of those assemblies’ public pronouncements. He also chaired the congressional committee that drafted the Articles of Confederation.

During the Revolution, Dickinson served two stints in the American armed forces, after which Delaware returned him to Congress (1779). In 1781, he was elected president (governor) of Delaware. The following year, he was elected president of Pennsylvania. In 1786, representing Delaware, he chaired the Annapolis Convention, which recommended a constitutional convention the following year. Delaware sent Dickinson to the latter meeting, where he impacted the results in ways not fully understood until his convention notes were rediscovered a few decades ago.

Dickinson wrote the Farmer letters in response to the British Parliament’s Townshend Acts (1767). (The Townshend Acts imposed duties on goods imported to America.) They explained why the Townshend duties were improper and how and why Americans should resist them.

The Farmer letters took America by storm. They were reprinted in Britain and Europe. In accordance with the Founding-era understanding of freedom of the press, Dickinson had written anonymously, but the authorship soon became known. Dickinson eventually became one of the most famous Americans in the world, second only to Benjamin Franklin.

The letters maintained that the colonists, as British subjects, had the right not to be taxed without the consent of lawmakers elected by them. They also contended the Townshend duties were “taxes” because they were imposed to raise revenue rather than to regulate behavior. Thus, only the colonists’ elected legislatures could impose them on Americans. Parliament, where Americans were unrepresented, could not.

Dickinson’s case was largely legal and constitutional, but he supported it with appeals to natural law and human welfare. “We cannot be happy without being free … We cannot be free without being secure in our own property … We cannot be secure in our property, if, without our consent, others may take it away,” Dickinson wrote.

In furtherance of the same principle, Dickinson worked two decades later to ensure the Constitution prescribed that revenue bills could originate only in the House of Representatives.

The Farmer letters went well beyond asserting the case against taxation without representation; they also helped clarify American constitutional thinking on other questions, including: Which government responsibilities should be exercised centrally and which locally?

Dickinson argued the central government should regulate commerce among the political units of the British Empire, but individual colonies should control civil justice and other domestic matters. In this respect, the letters foreshadowed the split between federal and state powers embodied in the Constitution 20 years later. Early in the convention, Dickinson advocated dividing federal and state authority by “enumerating” federal powers. His fellow delegates eventually adopted the idea.

The letters defended the existence of the British House of Lords by observing the nobility needed a separate legislative chamber to protect them against the king and the commons. At the Constitutional Convention two decades later, Dickinson persuaded his fellow delegates to extend similar protections to the states. He successfully advocated the United States adopt a Senate that represents the states equally and is composed of legislators who are selected by state legislatures for long, staggered terms.

The Farmer letters further examined how a free people should respond to governmental usurpations. Dickinson recommended opposing small usurpations immediately to prevent them from acquiring the force of precedent. “A perpetual jealousy regarding liberty is absolutely required in all free states … Slavery is ever preceded by sleep,” he wrote.

But Dickinson also emphasized opposition should be carefully calibrated, avoiding both under- and over-reaction. Violence should never be the first step. Citizens should begin by petitioning for redress. If that proved unsuccessful, the next resort was lawful resistance, followed by peaceable civil disobedience.

Dickinson, like other Founders, emphasized the need to protect liberty by frequently resorting to “first principles.” This 250th anniversary offers Americans an opportunity to do just that.

Convention of States: How the States Meet to Bypass Congress

Convention of States: How the States Meet to Bypass Congress

This article was originally published in

The idea of a convention of states such as the one scheduled for Phoenix, Arizona on September 12 may be unfamiliar to most people, but similar conventions have gathered throughout American history.

British-American colonies first met in convention in 1677 to negotiate an Indian treaty. After that first meeting, inter-colonial conventions gathered on average every four to five years, up to the time of Independence. They considered Indian relations, defense, and other common issues. The famous Stamp Act Congress (1765) and the First Continental Congress (1774) were both inter-colonial conventions, and the Founding generation referred to them as such.

After the Declaration of Independence, the pace of conventions accelerated. State commissioners (delegates) met ten times between 1776 and 1786, including conclaves in Providence, Rhode Island (1776-77), Yorktown, Pennsylvania (1777), New Haven, Connecticut (1778), Philadelphia, Pennsylvania (1780), and Annapolis, Maryland (1786). These gatherings focused mostly on defense and economic matters. The 11th convention of the Founding era became the most famous: the 1787 Philadelphia conclave destined to draft a new Constitution.

Not all these early conventions were successful, but the convention mechanism proved invaluable. Conventions frequently resolved difficult problems that otherwise would have gone unsolved. And contrary to some of the claims you hear today, commissioners stuck by their agendas and did their jobs. This is why Article V of the U.S. Constitution authorizes a convention of states as a way to propose needed constitutional amendments Congress refuses to propose.

Each convention of states is a temporary task force of duly authorized state representatives convened to address and propose solutions to one or more specific issues. A convention results when states accept an invitation (referred to as a “call”) sent by a state, a prior convention, or, occasionally, Congress. The 2017 Phoenix convention was called by Arizona’s state legislature to prepare for the likelihood that a convention will soon meet to propose an amendment requiring Congress to balance the federal budget.

The Phoenix convention is not the first to be held since the Constitution was adopted. In fact, some of the most interesting conventions of states met in the 19th and 20th centuries. The New England states met in 1814 in Hartford, Connecticut to discuss how those states should respond to the unpopular War of 1812. The Hartford Convention proposed several amendments to the U.S. Constitution.

Southern states assembled twice in Nashville, Tennessee in 1850 to coordinate a response to what they saw as overreach by the North. In early 1861, Virginia called a general convention for Washington, DC. That assembly proposed a constitutional amendment it hoped would stave off the Civil War. (The amendment was not adopted.) At the same time, several seceding states met in Montgomery, Alabama to draft the Confederate Constitution.

Lasting success was enjoyed by the 1889 convention of states called by Kansas for St. Louis, Missouri. It successfully proposed state and national anti-trust laws. During the 20th century, a series of small conventions negotiated the allocation of western river waters. The best known of these was the seven-state Colorado River Compact Commission of 1922. The latest was the five-state convention that divided the waters of the Upper Colorado River in the 1940s.

Historically, most conventions of states have consisted of only a few states within a particular region, such as New England or the Midwest. But seven have been national in scope (“general conventions”). Whether regional or general, however, conventions have followed certain common protocols, including the rule by which participating states have equal votes.

The Article V Information Center in Denver recently posted a list of prior conventions of states. The list shows there have been 38 fully verified conventions and another five for which the Center has partial information. The Center website contains a great deal of additional information about conventions of states and the constitutional amendment process.

How the States Have Used the “Convention of States”

How the States Have Used the “Convention of States”

This article first appeared Aug. 15, 2017 in The Hill.

Representatives of state legislatures from across the nation will converge in Phoenix, Arizona on Sept. 12 to participate in a traditional American institution called a “convention of states.”

Conventions of states are valuable. They help ensure Washington, DC doesn’t dictate all decisions on every subject.

The purpose of the meeting in Phoenix is to plan for another, even more important convention — one to propose adding a balanced budget amendment to the U.S. Constitution. The latter event is likely within the next two to three years.

Most people know the U.S. Constitution was drafted at a convention of states held in 1787. What few know is that there have been many other conventions of states. They and their colonial predecessors have met periodically for more than 300 years.

Apologists for unlimited federal power have done a good job of suppressing public awareness of that fact. They often claim or imply interstate meetings are “constitutional conventions” and that they are largely unprecedented, but the truth is dramatically different.

The Article V Information Center I run recently posted a list of prior conventions of states. The list shows there have been 38 fully verified assemblies of this kind and another five for which the Center has partial information — seven of which happened since 1787.

Not every interstate conclave qualifies as a convention of states. A true convention of states is a temporary task force where commissioners from three or more states consider possible solutions to problems on the agenda. They are essentially diplomatic meetings among sovereignties and, historically, have followed well-established procedures and protocols. For example, each state generally has one vote, and a formal recommendation requires approval by a majority of states present and voting.

Most interstate conventions have been regional affairs, involving just a handful of participants. But at least seven have been “general conventions” — that is, meetings in which states from all over the country take part. The Phoenix gathering will be a general convention.

The first conclave of this kind occurred in 1677, when several colonies convened in Albany, New York to negotiate a treaty with Indian tribes.

Later conventions negotiated additional Indian treaties. They also planned defense against hostile tribes and French Canada. A 1754 convention negotiated a treaty and recommended a plan by Benjamin Franklin to unify the colonies.

When tensions with Great Britain arose, the 1765 Stamp Act Congress and the 1774 First Continental Congress — both formal conventions of colonies — coordinated America’s response.

The 1776 Declaration of Independence converted the colonies into states, and those states continued to meet in convention. Their conventions addressed problems the Continental Congress could not solve. For example, a general convention met in Philadelphia in 1780 to propose a solution to rampant wartime price inflation.

Conventions of states continued into the 19th and 20th centuries. Not all these gatherings were successful. The 1780 convention broke up without proposing anything. The assemblies in Hartford, Connecticut in 1814 and Washington, DC in 1861 recommended constitutional amendments, but their proposals went nowhere.

On the other hand, some conventions produced great things. The 1744 conference in Lancaster, Pennsylvania negotiated a significant Indian treaty. The 1786 Annapolis Convention proposed the outstandingly successful Constitutional Convention. Recommendations from the 1889 St. Louis Convention led to passage of state and federal anti-trust laws. A 1922 convention (called the Colorado River Commission) negotiated the Colorado River Compact. During the 1940s, an interstate convention allocated water in the Upper Colorado River.

James Madison pointed out that under our Constitution the states have crucial responsibilities in national governance. Conventions help the states meet those responsibilities.



Bruce Ledewitz is a very smart man who teaches constitutional law at Duquesne University in Pennsylvania. He recently wrote an article for the Philadelphia Inquirer—also reproduced in other news outlets. In his article, he contends that the Supreme Court’s decision this year in Trinity Lutheran Church v. Comer discredited “originalism.” Originalism, of course, is the approach of interpreting the Constitution as the Founders adopted it.

Several leading originalists—including Professor Randy Barnett (Georgetown) and Professor Michael Ramsey (San Diego)—already have published good rejoinders.  I’ve been strongly urged to write one as well.

I normally avoid getting into arguments about what kind of interpretation is best. My focus is on researching the Constitution’s history and meaning rather than arguing about it.  However, I finally agreed to respond for one reason: I believe Professor Ledewitz’s article illustrates how even intelligent and mature law professors usually are unprepared for the tasks of writing and teaching about the Constitution.

Most law professors focus, both in study and teaching, on Supreme Court cases. Most know little about the Founding Era record. Most lack the historical training needed to assess that record. Very few have studied the law of the Founding Era. Very few are familiar with the materials the Founders studied during their education, especially the Greek and Roman classics. Exceedingly few law professors are competent in Latin, the Founders’ second language.

Finally, law professors often corrupt their understanding of the Constitution with their own political preferences—either by claiming it means whatever they want or by underestimating it because it doesn’t give them what they want. These problems afflict faculty even at the nation’s most prestigious law schools.

Following are excerpted passages from Professor Ledewitz’s article with a corrective response appended to each excerpt:

Professor Ledewitz: “It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation.”

Answer: Professor Ledewitz apparently is unaware that, as explained below, “originalism” is merely the constitutional name for the method of documentary interpretation that has prevailed for centuries in the English and American judicial systems. Failing to take it seriously would be a far more radical change than I think even he would recommend.

Professor Ledewitz: “Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.”

Answer: Textualism is not quite the same thing as originalism. Textualism focuses on the meaning of words while generally avoiding resort to materials generated during the legislative process. It is usually applied to the interpretation of statutes. Pure textualism is more defensible in modern statutory construction than in constitutional interpretation because legislative history is sometimes manipulated in ways that the Constitution’s background was not.

In its most precise form, originalism is the view that judges and other officials should be faithful to the Constitution the people actually ratified (as amended). Originalists believe that judges and other officials should avoid the temptation to substitute a “constitution” they might prefer for the actual, historical document.

Writers often use the phrases “original public meaning” and “intent of the framers” as shorthand for originalism. In the 18th century, the common shorthand for originalism was “finding the intent of the makers.” All those labels can be confusing. According to the rules prevailing when the Constitution was adopted (and today as well, as to almost all other documents), an interpreter tries to recover the understanding of the parties (ratifiers). If, because of insufficient or conflicting evidence the interpreter cannot do so, then he or she applies the original public meaning as a substitute.

Professor Ledewitz: “The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs.”

Answer: Whether one can obtain “truth in political affairs” is not really relevant to the issue of the meaning of a written constitution. One reason for putting the Constitution in writing was precisely to create a rule book to contain and civilize the tumult of politics.

Professor Ledewitz: “Nevertheless, originalism has achieved a real rhetorical dominance.”

Answer: He writes as if originalism were a recent development. But seeking “the intent of the makers” has been the prevailing Anglo-American legal method of interpretation for centuries. The Founders absorbed it from, among others, the 16th century legal scholar Edmund Plowden. During the 18th, 19th, and early 20th centuries it was the prevailing way of interpreting the Constitution. Originalism’s “rhetorical dominance” was achieved because of this history and also because (1) that is how we construe most other legal documents (certain real estate instruments partially excepted), (2) it is hard to justify the current double standard, and (3) non-originalists have failed to agree on principled alternatives.

Professor Ledewitz: “But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap. In Trinity Lutheran, Missouri excluded a church playground from a state reimbursement grant program toward the purchase of safe playground surfacing material. . . .The church won, 7-2. Given the safety issue and the nonreligious nature of the playground, the decision was certainly a sensible outcome. But, from the point of view of originalism, the decision was ridiculous.”

Answer: Courts may err in applying any theory of interpretation. Assuming the decision in Trinity Lutheran was wrong, Professor Ledewitz does not explain why one error should discredit a procedure that has served us for centuries.

Professor Ledewitz: “If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches.”

Answer: This is incorrect. The primary principle underlying the Establishment Clause was that Congress must treat all religions impartially. The Clause did not extend to the states. Those seeking “disestablishment” at the state level opposed taxpayer subsidies to churches designed to promote particular religions. They did not object to paying a church for unrelated contractual obligations—the scenario in Trinity Lutheran. And they would have been outraged at Missouri’s practice of discriminating against churches generally.

Moreover, as Professor Barnett has pointed out, the part of the Constitution most relevant to Trinity Lutheran is the Fourteenth Amendment, not the First. This is because the Supreme Court has applied First Amendment principles to the states only because of language in the Fourteenth Amendment. Professor Ledewitz’s article is devoid of any discussion—or even any mention—of the Fourteenth Amendment.

Professor Ledewitz: “The historical absurdity of the decision is why only the two dissenters, Justices Sonia Sotomayor and Ruth Bader Ginsburg, discussed the history of the religion clauses. But, since those two justices are not originalists, their discussion must be considered merely opportunistic. There are no originalists on the court.”

Answer: It is poor practice to conclude from a single decision—even assuming that it was erroneous—that there are “no originalists on the court.” Justice Clarence Thomas has applied originalist jurisprudence to countless cases throughout his long tenure. Based on several cases in his first term, Justice Gorsuch also appears to be an originalist.

Professor Ledewitz: “Although no one bothered to say so in the decision, a departure from historical understanding was justified in the Trinity Lutheran case because the modern sense of unjust discrimination is much more robust than when the First Amendment was adopted and government funding of private activity is much more prevalent than in the 18th century, when such spending was largely unknown. What would not have struck the framers as unfair discrimination against religious believers looks like that to us.”

Answer: There are a number of problems with this statement. First, Missouri relied on a section of its state constitution (the “Blaine provision”) designed to discriminate against particular religions, notably Roman Catholicism. This violated the central principle of the Establishment Clause as understood by the Founders, not merely by us.

Also, as noted above, the actual amendment governing the case was the Fourteenth Amendment, which was adopted in 1868, not during the Founding Era. Discriminating against churches in distributing otherwise generally-available funding probably violates that Amendment’s Equal Protection Clause. To contend that Missouri’s practice was consistent with the Constitution, one must argue both that (1) the Establishment Clause does not apply to the states and (2) the Fourteenth Amendment permits discrimination against churches. Professor Ledewitz does not make those arguments.

Professor Ledewitz: “That is how the living constitution works. We apply constitutional principles in ways that make sense today. We do not clone the thinking of political leaders who faced vastly different circumstances. . . .”

Answer: Following the Constitution does not require us to “clone the thinking” of anyone. It requires only that we follow the meaning of the words in a controlling document. Courts do that sort of thing all the time. It’s their job.

Moreover, what are the “constitutional principles” Professor Ledewitz would have us apply? Are they principles that we make up as we go along? In that case, we are acting politically, not constitutionally.

Or does he mean we should derive our constitutional principles from the Constitution? But the Constitution embodies a number of basic principles, and they sometimes conflict. The framers and ratifiers carefully crafted the document’s language to balance those principles in specific ways. Originalist interpretation enables us to understand the results. Non-originalist judges and professors often insist on re-balancing principles to suit themselves rather than inquiring how the Constitution balances them.  In doing so, they are acting politically, not constitutionally.

Incidentally, the Founders were thoroughly familiar with judicial balancing. In some parts of the Constitution, such as the Fourth Amendment (“unreasonable searches and seizures”) they authorized it. Basic principles of legal interpretation tell us that where the text, or its legal meaning, do not authorize balancing, then judges have no authority to engage in it.

Professor Ledewitz: “The Trinity Lutheran decision does not mean that the cottage industry of originalism will shut down. The reason for its continuation is that originalism as a political matter never had anything to do with interpretive theory. The real purpose of originalism is to overturn the expansion of federal government power associated with the New Deal. . . . .”

Answer: An interpretive method that has endured for centuries cannot have been designed to overturn the New Deal of the 1930s. On the contrary, it was “living constitutionalism”—not originalism—that was fashioned for political ends. It was designed to offer a constitutional fig leaf for a federal coup d’etat. Not surprisingly, most people who study constitutional jurisprudence find the fig leaf transparent.

Professor Ledewitz: “Even the Republican majority in Congress does not understand the bill of goods it is being sold under the name of originalism. Included in the healthcare reform proposals being debated in the Senate are proposed national caps on pain and suffering in medical malpractice cases. Whatever one thinks of these proposals, they concern a problem national in scope that Congress should have the power to deal with. Certainly the framers of the Constitution, who were practical men intending to create a federal government with the necessary powers to deal with national issues, would agree with that if they were alive today. But, from the perspective of the 18th century, any such legislation would be unconstitutional as invasive of the reserved powers of the states.”

Answer: Professor Ledewitz is correct that some aspects of Republican federal tort reform proposals violate the Constitution’s meaning—a conclusion I have previously documented. However, he misunderstands how the Constitution’s enumerated power scheme was designed. The Founders did not give the federal government power to deal with every issue one might think “national in scope.” They were, indeed, practical men, and as such they recognized human activities of some kinds (e.g., religion, manufacturing) often affect others (commerce, foreign relations). But precisely because they were practical, they also recognized that sometimes the advantages of allowing Congress to legislate in all connected areas were outweighed by the disadvantages (e.g. the threat to liberty of centralized power).

Accordingly, the Constitution’s scheme of enumerated powers deliberately reserves certain potentially-national issues to the exclusive jurisdiction of the states. Most aspects of civil justice, including tort law, are in this category. Legitimate interstate action is still possible, however—through uniform state laws, interstate compacts, and, as a last resort, by constitutional amendment.

Professor Ledewitz: “As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.”

Answer: Is Professor Ledewitz saying that judges should re-write laws to their liking simply because some or all of their sponsors are no longer around? That is a prescription for oligarchy—and the Constitution was designed to protect us against that.

Of course, Americans could have adopted a British-style unwritten (living) constitution. That would have permitted a sufficiently determined cabal of politicians and judges to change the rules. Although academia is filled with modern-day Tories who would be happier in such a system, most Americans, whatever they think of particular judicial holdings, seem quite content to have our Constitution fixed and in writing.