Constitutional Courts: Modern Aristocracies?

Hello! Welcome to the final lesson of our module on Individualist Philosophy and Modern Institutions.

In our last session, we analyzed the modern central banker as a Bagehot-style 'dignified' authority, whose power stems from technocratic expertise and institutional independence. We saw how this role serves as a check on the short-term incentives of politicians, but has a more ambiguous relationship with the power of wealth.

Today, we turn to another powerful, non-elected institution: the constitutional court. Our learning outcome is to: Analyze constitutional courts as a non-majoritarian institution, comparing the source of judicial authority to the 'rank' of historical aristocracies.

We will explore three key questions:

1. What is the historical origin of the idea that an independent judiciary, separate from the political fray, is essential for a constitutional government?
2. How do these courts function as "non-majoritarian" bodies within a democracy?
3. How does the "rank" of a constitutional judge compare to that of a historical aristocrat or a modern central banker?

This lesson will build directly on our previous discussions of Bagehot, non-majoritarian power, and the checks on political and economic influence.

1. The Source of Judicial Authority: From Social Rank to Institutional Role

To understand the authority of a modern judge, it's essential to trace its intellectual lineage. The idea did not emerge fully formed but evolved from an older concept: the "mixed constitution," which balanced the political power of different social orders.

The political theorist Jacob T. Levy provides a compelling history of this evolution. He explains how the French philosopher Montesquieu was the first to truly elevate the judicial power to an equal standing with the executive and legislative branches, and, crucially, how he linked that power to the social status of the aristocracy.

Levy’s analysis provides the direct link for our comparison. For Montesquieu, judicial authority was a form of rank. It was the pre-existing social status of the noble class that made them a credible check on the monarch. Their power wasn't granted by the state; it was inherent in their social position. They could be independent because they had their own power base, rooted in land, title, and a cultural code of 'honour'.

The American founders, as you know, were deeply influenced by Montesquieu, but they faced a fundamental problem: they were building a republic with no monarchy and no formal aristocracy. How could they create an independent judiciary without a social class of nobles to staff it? They substituted institutional design for social hierarchy.

Let's continue with Levy's article to see how they solved this.

This marks a pivotal shift. The source of judicial authority moves from who the judges are (nobles with inherent rank) to what their office is (an independent branch of government). The founders hoped that the structure of the system itself—the "constitutional rights of the place," as Madison put it in Federalist 51—would inspire judges to defend their institutional prerogatives against encroachment from the other branches. The authority is no longer personal or class-based, but institutional and procedural.

2. The "Nonmajoritarian Difficulty"

This institutional design creates what the legal scholar Alexander Bickel famously termed the "countermajoritarian difficulty": an unelected body of judges can strike down laws passed by the people's elected representatives. This seems to pose a direct challenge to democracy.

However, the political scientist Mark Graber offers a more nuanced view. He argues that judicial review is often not counter-majoritarian, but non-majoritarian. That is, courts often step in not to thwart a clear majority will, but to resolve issues where the political branches are deadlocked, divided, or even happy to pass the responsibility.

Graber's argument is a powerful lens for our analysis. It suggests that constitutional courts are not just a check on the majority, but also a functional part of the political system's machinery. They serve as a release valve for "crosscutting issues" (like slavery in the 1850s or abortion in the 1970s) that the two-party system is not structured to handle.

From the perspective of your background in game theory and institutional design, this is a form of strategic delegation. The legislature, facing a decision with high political costs (whichever way it decides, it alienates a key part of its constituency), delegates the decision to an independent actor—the court—which can absorb the political heat.

3. Evaluation: Judicial Authority as Modern 'Rank'

We can now synthesize these ideas to evaluate the constitutional court as a non-majoritarian institution and compare its authority to other forms of rank.

Comparison to Historical Aristocracy

• Similarity: Like Montesquieu's nobility or Bagehot's House of Lords, the judiciary is designed to be a stabilizing force, insulated from the passions of the masses and the short-termism of electoral politics. Its authority rests on a form of 'dignity'—a public belief in its impartiality, wisdom, and allegiance to a higher code (the Constitution). This commitment to principle and procedure is the modern, professionalized equivalent of the aristocrat's code of 'honour'.
• Difference: The authority is not inherited. It is, in theory, meritocratic, based on legal expertise and professional accomplishment. Furthermore, its legitimacy is not fixed but is constantly being negotiated through public and political debate. Unlike a duke, a judge can be "Borked."

Comparison to the Central Banker

• Similarity: Both are non-majoritarian institutions staffed by appointed technocrats. Both derive their authority from expertise and independence, and both are intended to check the power of elected politicians.
• Difference: The nature of their expertise and the basis of their legitimacy are fundamentally different.
  • The central banker's authority is economic and quantitative. Their legitimacy, as we saw, is largely instrumental, judged by their ability to deliver measurable outcomes like price stability or financial calm.
  • The judge's authority is juridical and interpretive. Their legitimacy is normative, resting on the perceived fairness and coherence of their reasoning in interpreting abstract principles like "due process" or "equal protection." The banker's goal is a well-functioning economy; the judge's is a just society under law.

A Check on Political and Plutocratic Power?

• Check on Political Power: This is the court's explicit function. By exercising judicial review, it directly checks the power of the legislature and the executive, forcing them to operate within constitutional bounds.
• Check on Plutocratic Power: This is far more ambiguous. On one hand, courts can protect the rights of powerless individuals and minorities against powerful corporate or state interests. On the other hand, Graber's analysis suggests that judicial policymaking often reflects the preferences of the elite wings of both major parties. This implies that while courts may check raw majoritarian or populist power, they may simultaneously reinforce the more subtle power of a professional, educated, and economic elite. The institution of the court, with its complex procedures and reliance on expensive legal expertise, is inherently more accessible to those with resources and education.

Conclusion

We have examined constitutional courts as a unique and powerful form of non-majoritarian authority in modern democracies.

Key Takeaways:

• The concept of an independent judicial power has its roots in the 'mixed constitution' tradition, where it was explicitly linked to the social rank and 'honour' of the aristocracy.
• In modern republics, this authority shifted from being based on social class to being based on institutional role and professional expertise.
• Courts often function not as counter-majoritarian bodies, but as non-majoritarian ones, acting in response to "legislative deference" on divisive issues that the political system cannot otherwise resolve.
• The 'rank' of a judge is a form of dignified authority based on impartiality and fidelity to the law, analogous to aristocratic honour but distinct from the quantitative, technocratic authority of a central banker.
• While courts are a clear check on the power of elected politicians, their role as a check on the power of wealth is complex, as their decisions may align with the preferences of a broader political and economic elite.

This lesson concludes our module's survey of institutions that create and wield non-elected, non-monetary authority. We have journeyed from Bagehot's England to modern central banks and constitutional courts.

In our next module, "Synthesis and Application," we will bring all these threads together. You will be asked to formulate and defend your own thesis on whether individualist philosophies are inherently antithetical to the existence of these forms of rank, drawing on the full range of thinkers and historical and modern examples we have studied.