In other words, if you believe in the American constitutional system of government, you think that a mixture of democratic and undemocratic elements is better than a simple majority democracy. You favor checks and balances, including checks on the power of elected legislators and the balance between popular will and individual rights. You’re not just comfortable with judges (including appointed ones) overturning laws that most voters favor. You would be upset if the judges does not have exercise such power.

Consider the Bill of Rights. The First Amendment states that “Congress shall not make any law” restricting the freedoms of religious exercise, speech, press, assembly and petition. The argument has never been that restricting fundamental freedoms is acceptable as long as the majority does it.

During segregation, the right of African Americans to vote in federal, state and local elections was routinely denied in many places. But even if it hadn’t been, even if the blacks had had voted in these places at rates compared to whites, the latter would often have prevailed in democratic elections. It would not have given white-led governments the moral authority to infringe on the personal and economic freedoms of their black neighbors. Nor would it have prevented such Jim Crow policies from being overturned by federal judges to defend constitutional rights.

In Aristotle’s classic work, Politics, he articulates two different definitions of freedom. “One of the principles of liberty,” he writes in part 2 of book 6, “is that all rule and be governed in turn”, by which he means that “the majority must be supreme, and that whatever the majority approves must be fine and just. But this is only “a note of freedom that all Democrats claim to be the principle of their state,” he continues. “Another is that a man has to live as he wants.”

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