The awesome power of this democratic polity, with people becoming judges in their own causes, was such that our political leaders over the past two centuries have struggled to constrain and mitigate its effects. In fact, that is what our current concern with campaign financing is all about. From the very beginning of our national history we Americans have used a variety of devices and institutions to immunize ourselves from the harmful consequences of too much democracy, too much factious promotion of private interests in the name of the people. No doubt the most important of these devices has been the judiciary, the institution most removed from the people and most resistant to the pressure of private interests. Indeed, by playing the role that Madison had wanted the legislatures to play-impartially adjudicating among contending parties and interests-the judiciary suddenly emerged out of its colonial insignificance to become the principal means of protecting minority rights and individual liberties against interest-mongering popular legislatures. Many, including Madison in his later years, eventually concluded that the judiciary was the only governmental institution in America that came close to resembling the disinterested and impartial umpires that the revolutionaries had earlier yearned for.


The Sixty-Ninth Cleveland-Marshall Fund Lecture