> And to top it off, we didn't even have Constitutional civil rights until 1982. We had a Federal Bill of Rights and some provincial laws along the same lines, but they were just ordinary laws and any other law could detract from them. And the Federal law didn't apply to the provinces. Before 1982, the Supreme Court pretty well admitted that it couldn't strike down a blatantly discriminatory law that was enacted within the confines of the Federal/Provincial division of powers.

What's interesting is until the 20th Century -- specifically around the time of the New Deal in the '30s and onward -- our Supreme Court refused to apply our constitutional Bill of Rights to the states. It's interesting, because the First Amendment, for instance, only forbids Congress from restricting speech (most of the other 10 amendments are a little vague). For a long time the reasoning was that these didn't apply to the states. It was only through an interpretation of the 14th Amendment, which says states must provide "equal protection under the laws," that (most of) the Bill of Rights came to apply to the states.

> Maybe I'm oversimplifying, or misunderstanding your paraphrase of Madison, but I think I'd rather rely on a centralized Court that can grant relief based on well-defined principles than hope that sheer bureaucracy will make it too hard for government to violate my rights.

I probably just paraphrased Madison poorly. What he's saying is not so much that bureaucracy will save you, but rather pitting interests against each other in a complex system will protect you. The idea is that it's very difficult even for slight majorities to influence both branches of Congress as well as the president because of the way power is separated, but also that competing factions will act to counter each other's powers.

The Founding Fathers specifically tackled this problem, and it seems clear from Madison and Hamilton at least that they considered an elected, bicameral legislature to be the primary safeguard. Madison even originally opposed the Bill of Rights, though he'd later write much of it, on the grounds that it simply wouldn't be needed or useful if the government was set up appropriately. The Senate, in theory, provides a way for minorities to exert extra influence, though in this case those minorities need to be geographically concentrated to have much influence.

I will admit that without a Supreme Court to exercise judicial review, the American federal system is very poor at representing minority groups if those groups are geographically spread out. Another point is that there's no way Madison could have predicted the rise of the modern political party or the ease with which factions can unite over large distances thanks to modern communication.

But this may just be an argument for a more proportional system of representation in the legislature. If you want minorities to have a say in the federal government, allow them to have a chance at getting seats in a congress or parliament that ignores where in the country you live. In very proprotional representation systems, big parties tend to have to work with small parties. It's more representative of minority views and *more* democratic than immediately falling back to the courts as defenders of minority rights.

> I'm not sure exactly what would happen in the Dutch system if the government decided it *wanted* to take away someone's civil rights.

The thing about the Dutch government, and the reason I used it as an example, is that since they instituted proportional representation after WWI they have never had a majority government in parliament. It has always been coalitions. Thus there is never a unified government, meaning you need the MPs from several parties to agree on something for it happen. It makes it harder for it to act in a unilateral way.

> I'm thinking of things like imprisoning people of Japanese descent during WWII or passing laws against gay rights, either of which might be tremendously popular and have the support of several parties. If they passed such a law despite the "culture", what recourse would be left for the oppressed?

I don't know, but I'd like to note that both of those examples you cite are things the American Supreme Court signed off on. It okayed the Japanese internment during the war and has historically not given any recognition to gays as a suspect class deserving of court protection (this may be changing, though I highly doubt it given the likely composition of the bench in the coming years). It speaks I think to the subjective nature of the Court. Though it may try to protect minority rights, unless those rights are specifically enshrined in law it's difficult for the Court to figure out if the rights exist at all (as in the case of gay rights) or how to balance the rights against other state interests (such as Japanese internment).

> I think this is more of an issue of procedural fairness anyway, so as long as you can make your case before a judge who will come to a fair and reasonable decision that balances everyone's rights and obligations, you have a remedy against the tyranny of the majority.

The question of judicial activism versus restraint isn't exactly a procedural one, though. How involved should a judge be in making policy is not a matter of law but of philosophy and legal theory. Other theoretical questions, such as how broadly or narrowly to interpret laws, whether to use original intent of legislators or legislative history in applying laws, etc. are also theoretical matters that exist outside of normal legal procedure. Those questions must be answered before a judge can begin applying the law.

They're political questions, frankly. There's no "correct" answer and reasonable people can disagree. Shouldn't we allow a political process, such as elections, to determine how we want our judges to feel on these matters?

> The basic idea is that the majority gets what it wants *almost* all the time, except when it wants to imprison people without due process or take away their stuff or something along those lines.

It's that "something along those lines" part that's so difficult. The problem with rights theory is that there's no way to ever prove that certain rights exist. It's all a matter of personal belief, and again reasonable people can differ on them.

I believe the right to live peacefully where you want to is a natural human right. The vast majority of the world disagrees with me, and I would be horrified were an American judge to begin striking down immigration laws on the basis of this "right."

I'm all for judges actively protecting the rights of minorities when those rights are clearly enshrined in the law. Nobody credible, not even Antonin Scalia, doubts that American judges have the duty to "say what the law is" and strike down laws that conflict with the Constitution. But when judges begin going beyond this it creates problems. Sometimes they're right to do so, but I argue that it's always a political decision when it's done.

I don't know that I can justify allowing people to make political decisions for the nation without being in any way accountable to that nation.

Stephen