THE MAJORITARIAN DIFFICULTY II.

THE MAJORITARIAN DIFFICULTY II. Looks like it's Jonah Goldberg Monday here on Tapped. Kevin Drum finds him claiming that the last "100 years" of liberalism has been about "shoving things down people's throats." Drum identifies the most obvious problem: the core elements of the liberal accomplishments of the last century -- most importantly the New Deal/Great Society safety net and civil rights protections -- are very popular, which is why conservatives get power only when they don't oppose them.

But what's particularly remarkable is Goldberg's list of examples: "bussing, racial quotas, gay marriage, Title IX." He can't even cherry pick four without destroying his underlying argument. Busing, I'll give him, was unpopular and in some cases ordered by courts (although I'd love to hear what he would have done as a federal judge facing school boards with long histories of transparent constitutional violations trying to nullify judicial opinions striking down school segregation). But the states in which judicial decisions have legalized gay marriage or civil unions are also states where the practice is hardly unpopular. But, you might say, maybe he's discussing institutional procedures rather than public opinion per se? Then it gets worse for him, because affirmative action is a case where conservatives want judges to ram a policy "down the throats" of publicly accountable officials. (It's also worth noting that the claims of conservative heroes Scalia and Thomas that the Constitution forbids affirmative action in all cases, while a plausible reading of the text, is completely inconsistent with their alleged "originalism." The idea that the 14th Amendment was understood at the time of its ratification to forbid even racial classifications that were intended to ameliorate injustices is frankly absurd, which is presumably why neither Scalia or Thomas has ever bothered to defend their outcomes in "originalist" terms.) And Title IX was dutifully passed by both houses of Congress and signed into law by the President. There's no coherent democratic theory here; just a bald conviction that if reactionaries don't like a policy outcome it must be undemocratic irrespective of what institution is responsible or whether or not the policy is popular.

--Scott Lemieux

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