Few things grate like fingernails on a chalkboard to a constitutional attorney more than hearing the United States labeled a "democracy."

It’s even more grating when attorneys who know better employ the label.  Attorneys, after all, pass bar examinations that test on constitutional law, which in turn requires rudimentary proficiency in the subject.  

When a sitting United States Supreme Court justice commits that elementary constitutional faux pas, however, it borders on the intellectually criminal.  

Labeling the United States a democracy to advance her ideological crusade, however, is precisely what leftist Supreme Court Justice Elena Kagan recently did.  Perhaps we should consider adding a remedial civics requirement to judicial confirmation hearings going forward.  

During an October 20 appearance at Catholic University law school, Justice Kagan lamented that recent Supreme Court decisions protecting political speech, limiting government censorship of political campaign messaging and declining to micromanage congressional redistricting somehow undermine American democracy.  The Court's constitutionalist majority, she alleged, disregards the harmful consequences of its decisions and “created a democracy that does not work as well as it should.”  

Ironically, for decades before Justice Antonin Scalia’s brand of constitutional originalism achieved consensus supremacy even according to Justice Kagan herself, judicial activists like her routinely disregarded the more democratic legislative process to impose leftist policy preferences rejected by American voters. 

“Democracy” only became sacrosanct when judicial fiat gradually approached oblivion.  

In any event, the Supreme Court and our judicial branch were designed deliberately as undemocratic, and Americans should remain grateful for it.  

After all, to the Founders who created the greatest form of government ever devised, “democracy” was more synonymous with mob rule than some idyllic form of governance.  

Consequently, the Constitution established a republic, incorporating representative elections while deliberately restraining democratic power through separation of powers, federalism, enumerated authority and individual rights.  

In other words, the Founders didn't somehow overlook democracy as an alternative.  They studied it, understood its dangers and explicitly rejected it.  

First among them was James Madison, justifiably celebrated as the Father of our Constitution.  In Federalist No. 10, Madison warned that democracies offer no effective protection against tyranny by the majority, which tramples unpopular minorities and their natural rights.  He accordingly described historical democracies as “spectacles of turbulence and contention,” incompatible with secure individual rights and vulnerable to violent collapse.  

Instead, Madison and the other Founders championed republican representation, which filters popular impulses through elected representatives and enlarges the political community to frustrate oppressive factions.  

Immediately afterward, the Bill of Rights explicitly placed fundamental liberties beyond ordinary democratic majorities.  

The First Amendment, for instance, prohibits Congress from restricting unpopular speech whenever 51% of Americans demand censorship.  The Second Amendment doesn't condition Americans' individual natural right to keep and bear arms for self-protection upon favorable polling results.  Nor does the Fifth Amendment authorize confiscation of private property merely because ephemeral electoral majorities covet its redistribution.  

That's not a constitutional defect, it's constitutional design.  Its architecture reflects that wisdom, and Justice Scalia’s originalism restored it.  

Nowhere does that design become more evident than within the federal judiciary itself.  

Article III judges receive lifetime tenure during good behavior, subject to impeachment, and constitutionally protected compensation.  They don't campaign for office, solicit electoral approval or face removal whenever their decisions offend prevailing political fashions.  

Fellow Founding Father Alexander Hamilton explained in Federalist No. 78 that judicial independence would protect Americans’ rights against democratic majorities’ oft-oppressive passions and potential Congressional overreach.  He emphasized that judges must uphold the Constitution even more protectively when elected representatives act upon majority demands incompatible with the rights that it protects.  

Accordingly, whenever the Supreme Court contravenes Justice Kagan’s “democratic” political preferences by safeguarding free speech against congressional restrictions, protects religious liberty against governmental coercion or enforces the Second Amendment against “gun control” prohibitions, it doesn't betray its constitutional responsibility, it fulfills that responsibility.  

To be sure, our constitutional system simultaneously incorporates democratic accountability.  

Democratic elections, however, operate within constitutional boundaries, not above them.  Otherwise, constitutional rights become temporary privileges, perpetually subject to revocation whenever political majorities change.  

Justice Kagan's complaint thus inadvertently underscores the genius of the constitutional system she criticizes.  

Following this week's midterm elections, conservatives and libertarians must acknowledge that electoral victories merit celebration, but electoral defeats shouldn’t mean surrender of fundamental liberties to democratic majorities.  

Regardless of which party controls Congress, which political passions temporarily prevail or which ideological faction demands additional governmental power, Americans retain constitutional protections that democratic majorities cannot extinguish.  

Our Founders deliberately established an independent judiciary to enforce that principle.  

Accordingly, when Justice Kagan or anyone else maligns the Supreme Court for acting “undemocratically” by protecting constitutional rights, the appropriate response is simple:  Precisely.  That's the point.