Source: Richard A. Posner, How Judges Think (2008). p 332 Middle.

  The problem is not that he is asking the court to weigh impondera. bles. For while "weighing imponderables" sounds like an oxymoron ("imponderable" is from the Latin ponderare, meaning "to weigh"), it isn't quite. Often a judge can know, even without quantification, that one interest at stake in a case is weightier than another. In a negligence case neither the burden of precautions nor the probability and magni- tude of the accident that will occur if the precautions are not taken may be quantified or even quantifiable, yet it may be apparent that there isa grave risk of a serious accident that could easily be averted (negligence), or that the cost of the precautions would be disproportionate to the slight risk of a minor accident (no negligence). That is the "tolerable windows" approach that I advocated in chapter 9. But the key terms in Breyers test, such as "impact upon the publicS confidence in, and ability to communicate through, the electoral process" and the "importance" of a challenged law's "electoral and speech-related benefits," are so nebu- Ious that they cannot be weighed against each other at all. High-level ab- stractions such as "democracy" and "active liberty" can be arrayed with equal plausibility on either side of constitutional questions. They are makeweights. A decision invalidating a statute on constitutional grounds may seem undemocratic, but even if it is not a democracy-enhancing de- cision (as reapportionment decisions are widely thought to be) it can be defended as an application of the "higher democracy" embodied in the Constitution. So originalists are democrats along with loose construc- uonjsts. Likewise federalists. who want to honor the democratic choices made at the state and local levels, and nationalists who want to honor the democratic chojces made at the federal level.

Googling yields nothing.


First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept.

That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows.


The constitution does not use the term "higher democracy", nor do most constitutional scholars. This particular author seems to be using it to mean that while overtuning a law on constitutional ground may seem undemocratic, in that it goes against the acts of the democratically elected legislature (or possibly against the direct will of the people, if the law was created by a popular imitative) It is a democratic act in that it preserves the validity of the original democratic decision to adopt the constitution, which was a national decision, and which by its own terms takes precedence of ordinary laws.

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