How Much Democracy is too Much Democracy?

Abstract

Despite their widespread use, many rightfully question the prudence of using popular elections to fill state courts. A key difference between federal and state courts is that while federal judges are nominated by the president and confirmed by the Senate, the majority of jurists at the state level are elected. The reason federal judges, at least judges on the Article III courts, are made by executive selection is the same reason that Supreme Court justices are given life tenure: to insulate them from the whims of public opinion. In this passage, Hamilton articulates the fundamental paradox of democracy, a question that genuine republics have always grappled with: how can we control for the “tyranny of the majority?” In other words, how can we entrust people with the power to govern themselves but also prevent them from stripping away the rights of minority groups or from posing a danger to others?