George Will on the Limits of Majority Rule

"What we need is an engaged judiciary asserting the fact that the essence of America is not majority rule, it is liberty."

Reason's Matt Welch and Nick Gillespie sat down with Pulitzer Prize-winning columnist George Will back in March for a free-wheeling discussion about the current state of American politics. According to Will, "the most interesting argument in American governance today" is not the conflict between Democrats and Republicans; instead it is the argument between those conservatives "who believe that we need, as conservatives have been saying for years, a deferential judiciary, passive and deferential to the majoritarian branches of government," and those libertarians "who argue on the contrary that what we need is an engaged judiciary asserting the fact that the essence of America is not majority rule, it is liberty." Will made it clear that he came down squarely on the side of the libertarians.

In a new National Affairs essay titled "The Limits of Majority Rule," Will explains and defends his position in detail. It's a fascinating piece, well worth reading in full, particularly for Will's account of how he came to reject his own prior support for judicial deference. Here's a brief excerpt:

For many years and for several reasons, many of my fellow conservatives have unreflectively and imprudently celebrated "judicial restraint." For many years, I, too, was guilty of this. The reasons for that celebration of restraint include an understandable disapproval of some of the more freewheeling constitutional improvisations of the Warren Court, and the reasonable belief that the law schools that train future judges, and the law reviews that influence current judges, are, on balance, not balanced?—?that they give short shrift to conservatism. It is, however, high time for conservatives to rethink what they should believe about the role of courts in the American regime….

The principle of judicial restraint, distilled to its essence, frequently is the principle that an act of the government should be presumed constitutional and that the party disputing the act's constitutionality bears the heavy burden of demonstrating the act's unconstitutionality beyond a reasonable doubt. The contrary principle of judicial engagement is that the judiciary's principal duty is the defense of liberty, and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the Constitution's architecture, the purpose of which is to protect liberty. The federal government can dispatch this burden by demonstrating that its action is both necessary and proper for the exercise of an enumerated power. A state or local government can dispatch the burden by demonstrating that its act is within the constitutionally proscribed limits of its police power.

Read the whole thing here. Watch Will, Welch, and Gillespie below.