Your points are well taken. I obviously was simply chatting with a friend and did not intend to cover all my bases. I did not know (and never told Stuart) that he could post this conversation (though I don’t mind).

First you point about the constitution as less than a democratic document, or perhaps better stated, a poor example of deciding rights by a popular vote. Other than the fact that the first line of the document states plainly that it is “we the people” establishing these rights, I would agree with you. The point about state conventions was to demonstrate that it was NOT the state legislatures who established the constitution (though, as you aptly point out they did do most of the amendments where most of the rights are indeed found). In any case, this argument makes little difference because the “rights” in the constitution were thought to exist independent of the text of the constitution. In the late 1700′s and early 1800s rights were thought to naturally exist and it was the duty of judges to “discover” these rights and apply them. They existed (as the 9th Amendment makes clear) regardless of whether they were enumerated.

Fast forward 250 years. We no longer believe that rights exist in a “brooding omnipresence” (Justice Holmes’s phrase) waiting for judges to “discover” upon rational inquiry. Rights must be grounded in the constitutional text (why the 9th amendment now means nothing), While we may hold judges out as experts on the law, we do not grant them the power to discover new law whole cloth from simple deduction.

I would like also to point out that you have not provided an alternate method for determining the substance of fundamental rights? If not by vote then how? The only way to establish rights are by a “vote” whether by delegates or directly with the people. I was simply saying that we are most likely to be correct when the most people are involved in the process. I never said it was guaranteed to be right.

I like your thoughts. Thanks,
Friend

I don’t know about wisdom in crowds, but I’m pretty sure the empirical evidence doesn’t support the assumption that men are innately good [in the sense implied here]. Maybe with a few qualifications it could work [innately good insofar as it promotes genetic fitness or provides higher-level, self-serving benefits].

How does your friend feel about the federal legal system as a necessary balance of power? Also, what about the fact that judges are nominated by our elected officials? US District Court Judge Vaughn Walker was nominated by Presidents Ronald Reagan and George H. W. Bush (his first nomination was held back by Nancy Pelosi).

Additionally, Condorcet’s jury theorem only works when p is greater than 1/2, meaning the voters are more likely than not to vote “correctly.” Looking back at history, there seems to be ample evidence that voters would have reached “incorrect” decisions if given the chance. Segregation is the most obvious example; popular sentiment would have held on to segregation for many more years in certain states. A popular vote in Georgia would NOT have granted women’s suffrage prior or concurrent to the 19th Amendment to the Constitution (which thankfully was ratified by enough other states — Georgia’s legislature rejected it in 1919 and didn’t officially ratify until 1970). This is all assuming that your friend finds desegregation and suffrage to be “correct.” If he doesn’t I would be even more alarmed than I already am that a recent law school grad is arguing for defining fundamental rights by popular vote.

Of course, your friend might argue that, over time, states (and/or the nation) eventually would have popularly approved desegregation and women’s suffrage. Following that reasoning, however, he would have to acknowledge that pro-same-sex-marriage voters will most likely be California’s majority in the not too distant future.