66 Geo. Wash. L. Rev. 1373 (1997-1998)
Textualism and the Countermajoritarian Difficulty

handle is hein.journals/gwlr66 and id is 1381 raw text is: Textualism and the Countermajoritarian
Difficulty
Steven G. Calabresi*
At least until the 1950s, the principal focus of constitutional law
was not on personal liberty as such, but on the division of authority
between the states and the federal government, and the allocation
of powers among the branches of the central government. In keep-
ing with Hamilton's observation in Federalist No. 84 that the Con-
stitution is itself, in every rational sense, and to every useful
purpose, A BILL OF RIGHTS, the theory was that individual
freedom was protected mainly through these structural features of
our political regime.'
The genius of our written Constitution lies in its use of textually speci-
fied structural devices to preserve liberty and promote the general welfare.
The constitutional text's overarching concern is with questions of institu-
tional competence, and its main theme is the division and allocation of power
with a focus on who decides what questions and subject to what checks and
balances.2 The text of our amended Constitution reflects the Framers' desire
that [a]mbition must be made to counteract ambition so that the private
interest of every individual may be a sentinel over the public rights.'3 Our
written Constitution allocates and divides power so that our government will
in the first place control the governed; and in the next place... control
itself.'4 A dependence on the people, i.e., democracy, is the first line of
defense wrote James Madison, but experience has taught mankind the ne-
cessity of auxiliary precautions.'5
* Professor of Law, Northwestern University. I am indebted to my brother-in-law Greg-
ory E. Maggs for one of the core ideas that led to this Article. I am also grateful to Gary Lawson
and Thomas W. Merrill for their helpful comments and to Christopher Rohrbacher, my research
assistant, who provided invaluable assistance. Finally, my thinking on the matters discussed
herein has benefited greatly from past discussions with Michael J. Perry and Martin H. Redish.
1 MARY ANN GLENDON, RiGHrs TALK: THE IMPOVERISHMENT OF POLmcAL Dis-
COURSE 4 (1991) (quoting THE FEDERALIST No. 84, at 515 (Alexander Hamilton) (Clinton Ros-
siter ed., 1961)).
2 See Steven G. Calabresi, A Constitutional Revolution, WALL ST. J., July 10, 1997, at A14.
3 THE FEDE-RALsT No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961); cf 1
ADAM SMITH, AN INQUIRY INr THE NATURE AND CAusEs OF THE WEALTH OF NATIONS 18
(E. Cannan ed., 1976) (It is not from the benevolence of the butcher, the brewer, or the baker,
that we expect our dinner, but from their regard to their own interest.). See also Steven G.
Calabresi & Gary Lawson, Foreword: Two Visions of the Nature of Man, 16 HAv. J. L. & PUB.
PoL'Y 1 (1993); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary
Executive, Plural Judiciary, 105 HARv. L. Rnv. 1153, 1155-56 n.2 (1992).
4 THE FEDERALIST No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961) (empha-
sis added).
5 Id.
JuneAugust 1998 Vol. 66 No. 516

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