Supreme Court

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.

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  1. If it should happen – as it often does – that the text and history of the Constitution are on one side, and a temporary majority is on the other side, it would be nice if the judges went with the text and history of the Constitution.

    Instead, we have cases where the majority, plus the text, plus the history of the Constitution are on one side, and the whims of the judges are on the other side.

    1. *cough* Lochner dissent *cough*

      1. What?

        The Lochner decision at least protected the right to make and enforce contracts, for which there is some basis in constitutional history.

        1. He’s talking about the dissent from Holmes (at least). I doubt trsh actually dislikes the final ruling.

          1. Ah, yes, the one where Holmes said the constitution was neutral as between laisser faire and state supremacy.

            1. That’s the one. I was just affirming your point about the whims of the judges. Holmes can rot, in my opinion.

            2. “But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

              1. “When in doubt, leave it to Government. Letting the proles handle it is just too emasculating of our power structure messy.”

                1. Shorter George Will:

                  We bow in homage to 2 primary ideas, lip-service-wise at least, in USA politics and courts: Liberty and majority rule. And the courts have been yelled at so terribly much about “legislating from the bench”, that sometimes it’s right there in the judicial ruling: The local politicians have made a mockery of themselves, passing out special economic privileges to licensed flower arrangers and interior decorators? The judges will blatantly make fun of the rent-seekers and the politicians, right there in their rulings? And then rubber-stamp the rent-seekers and the politicians anyway! In the name of the MECHANICAL RULES of majority rule having been followed! Thwarting both liberty AND the will of the majority! What majority has ever mentally blessed the obvious rent-seeking of the licensed flower arrangers?!?!
                  Then WTF are we paying these judges for, if they respect neither freedom nor the REAL will of the majority?

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


    1. One of my pet peeves is when I hear liberals say that since Obama was elected, he should be able to implement what he wants because he has a “mandate”. When I hear this I always asked would they say the same thing if someone from the GOP won the White House?

      1. No, but the GOP does say that when they win the white house. And as we know, everything is OK if the other side did it too.

      2. “If Congress doesn’t act, I will” . . . .Gee, it’s great being King

    2. Losing Our Liberty?

  3. The other day this guy who was commenting on my friend’s FB status, called the US a secular democracy. I wrote that we live in a democratic/constitutional republic. He said I was wrong. I mean how could I argue with that?

    1. What are you, some kind of Republican?

    2. What are you, some kind of Republican?

    3. Explain to him that in a democracy if a majority of people voted for him to be executed he would be killed.dead

      1. In a democracy, a majority population of white voters is fully entitled to enslave a minority population of black voters.

      2. That’s exactly how it worked in the Ancient Greek democracies. There was no judicial branch – just public trials and vote counting. Most of the Founding Fathers were properly educated and understood how democracies inevitably fail.

        1. And yet they kept trial by jury where guilt is determined by the vote of 12 random (OK, once you let lawyers pick, semi-random) idiots off the street. Not sure why determining the guilt by vote of 100-200 random idiots who listen to accuser and defendant speak is substantially worse.

          As far as inevitable failure goes, some 400+ years (~ 500ish BC – somewhere early in reign of Augustus) isn’t terrible. Not unexpectedly, since Oligarchy of Thirty were supposed to put more people to death in one year than Athenian democracy in couple centuries up to then.

          1. I don’t think survival necessarily equals success, and the Golden Age of Athens was quite short. Things went downhill after the Peloponnesian War.

            Rome’s greatest golden age, incidentally, was not during the era of the Republic but during the Nerva-Antonine dynasty (excluding Commodus). The interesting feature of that dynasty, aside from the fact that it consisted of an unprecedented five consecutive decent emperors, was that none of the five were biological heirs of their predecessors; all we chosen by their predecessors and adopted as adults to secure their succession. Commodus was the first biological son to succeed his father in nearly a century, and not unrelated was the firs bad emperor in almost a century.

            Good thing we don’t have a nepotism problem in our country /sarc.

        2. The Greeks had views almost diametrically opposed to the founders of the US (maybe excepting Hamilton). In Athens, everything, including your life and freedom, belonged to the state, your duty to it was absolute. It was a sort of Rousseauist society where the ‘collective will’ (ostensibly) had absolute power over all individuals. The founders were far more pragmatic in their democracy, seeing it more as a better means to preserving individual liberty than despotism. That’s what most people (especially Progressives) get backwards, or where they unwittingly disagree with the premise of the country’s foundation: democracy is not the goal, and freedom is not a means to effective democracy. Rather, democracy is a means to preserving freedom, which is the goal.

    4. Tell him to go look at what is printed on his money? Or more substantively, tell him to check out all the non-secular institutions that receive support in one form or another from the government.

      Also, if he meant secular in the French sense of the word, you could suggest that he go out in public wearing religious garb (of a minority religion, of course).

      1. He’s one of those sorts who is so personally invested in their political beliefs, that there’s no way to reason with him.

    5. Your friend was right. We don’t live in a constitutional republic.

      1. Yes, yes we do.

        1. What part of our Republic is “constitutional”? And what part of our republic is… a republic? I mean sure, we elect some dudes every few years, I estimate 80% of their authority was long-ceded to the executive.

          1. Just because some assholes ignore it, doesn’t mean it isn’t true.

              1. I’m ignoring it (cuz, I’m an asshole)

    6. You accept that the term has moved on from the days of Aristotle and Cicero? Having a term for “Every voter gets to vote on every issue presented to the assembly of all voters” is less useful than having a term that can include the US (presidential system with strict separation of powers), France (presidential/parliamentarian mixture) and the UK (parliamentarian monarchy with a weak king) as separate from, say, Egypt, North Korea or Vatican.

      1. the US (presidential system with strict separation of powers),

        Speaking of things that used to be true, but aren’t any more.

        1. We’re talking ‘systems’ not ‘practice’ because then political theory becomes either ridiculously over-specific (‘cronyism and corruption of 2010 Congress’), or boils down ‘whatever the fuckers can get away with, and the main thing stopping them being other fuckers’!

      2. Then create a term for it (I vote for ‘Western neoclassical separation of powers’), don’t turn a pre-existing term with a vast philosophical discussion around it into a meaningless buzzword (which has admittedly already happened somewhat).

        Accept this and you’ll get the same problem we have with ‘rights’ now, where people who utterly lack any understanding of the historical or philosophical frameworks for the concept of rights declare that everything is their ‘right’. Don’t let dummies decide the definition of words.

        1. You mean – I don’t have a right to health care and education? You’re mean! 🙁

        2. Is it really that big a deal? Athens had it for a good few centuries, other city states (Thebes, Argos, few others) dabbled in it and did OK, but in the last 2200+ years I can’t think of a single place that had it, and something much closer to the current meaning has been hanging around for couple centuries at least. You may as well rage against the drift of words like ‘regulated’ or ‘prove’ (although if we are talking ‘literally’, I am very sympathetic).

          And ‘vast philosophical discussion’ is, what, three guys (Aristotle, Plato, Cicero) giving it some thought while explaining why oligarchy is superior, and a few dozen others dismissing it out of hand because obviously you can’t let any cretin off the street make decisions – you may as well free the slaves/serfs while you are at it?

          1. And ‘vast philosophical discussion’ is, what, three guys (Aristotle, Plato, Cicero) giving it some thought while explaining why oligarchy is superior,

            Well three guys, and then the thousands of other people who wrote and committed on their works for a thousand and a half years afterwards.

            Democracy needs to be discussed in the context of the philosophical tradition that it has developed in. Reducing it to a meaningless and broad platitude actively dumbs down political discussion. This is a form of newspeak I cannot stand, where people want to voice their political opinions, lack the knowledge or philosophical insight to use terminology correctly, so the rest of us have to dumb down the subject material (or accept their dumbed down version). ‘Democracy’ becomes a useless buzzword that people try to pass off as vapid and shallow concepts like “the things we agree to do together.” Allowing people with a vested interest to redefine these terms is not a good thing.

            1. Well three guys, and then the thousands of other people who wrote and committed on their works for a thousand and a half years afterwards.

              Right, but how much of that discussion actually centres on Athenian idea of what “democracy” is? When everyone involved in commenting on it has a vested interest in making sure such a system is never implemented, it’s not much of a discussion, after all.

              Since redefinition took place in what, 18th? 19th? Century, it’s a bit too late for that. Nor does it make a lot of difference – “Popular Will” was a phrase much used in 19th century, for example, and fuck me if the concept of “Republic” isn’t what the Statists actually want (Top Men deciding for Idiot Herd below them, and Herd gets to ritually give up the sovereignty to Top Men with no chance of keeping it).

              1. I guess that’s a valid point about people turning from democrats to republicans (not, small ‘r’ and ‘d’) when and where they find themselves in disagreement with the majority, though they rarely use the term ‘republic’ which has more of a, dare I say, ‘obstructionist’ connotation. That is, when we say ‘republican’ as opposed to democratic we are usually thinking of a government that restricts the ability of the majority to impose their will, rather than thinking of a republic in the ‘vanguard of the people’ sense of the word.

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

    George’s ass is still sore from the spanking he and the snooty classes got from the Trumpists. It would be nice to know what he thinks liberty is. To me it includes freedom of association, but George and the better class of people will have nothing to do with that ever again.

    1. Geo. Will started writing columns on this subject long before Trump announced his campaign.

      1. And, even if Will hadn’t been writing prior to it, some come by the realization through unpleasant experiences.

        And, I say that as understanding that his backing of a political party ended up being publicly dissatisfying for him.

        If it sticks, outstanding. If not, others will need to remind him.

  5. the most interesting argument in American governance today…

    These arguments always seem to be on the margins, though. Should the judiciary require this or that standard, should we preserve or get rid of certain procedural maneuvers, should donors be anonymous, what’s the proper amount of regulation? etc. I understand why — the margins are where you might actually be able to change things. But I don’t see many people going back and looking at the assumptions that Madison and the other founders had and examining which stood the test of time, which didn’t, and what that implies for the larger structure of a government that is serious about issues like individual liberty, separation of power, federalism, etc.

  6. It is, however, high time for conservatives to rethink what they should believe


    1. The same could be said for the Johnson/Weld ticket. “Fiscally conservative/socially tolerant” still doesn’t protect individual liberty. How the tell did these two ever get to be LP nominees?

      1. Name recognition and a palatability for a broader group? I mean, we are talking about an American society where “radical individualism” is a legitimate term for a good many people, and a negative one, at that.

        1. I thought the negative term was “rugged individualism”, not “radical individualism”.

          1. I’ve not read the “rugged” one in a truly negative context. Anecdotal, for sure.

            Most out-leftist writers I’ve seen in the last few years have used “radical”, because we all have to obey our Masters, and anyone who doesn’t is superawfulbad.

            1. Dude, that’s pretty radical.

      2. That is a terrible comparison. The Johnson/Weld ticket has only been around for a few months; the conservative movement – or at least the current version – has been around for a couple of decades. The culture war obsession killed it, and it was always going to kill it.

        The commenter formerly known has Trouser-Pod is right about why they were chosen. I would add that for all of Gary Johnson’s faults, he is head and shoulders above almost everyone currently in Congress. There are four or five people, maybe, who are more liberty-oriented then he is.

        1. So, you’re the “lesser evil” type of fella, hey Crusty? Because, call me crazy but I think it’s important that the LP nominee has at least some passing familiarity with individual liberty. The bar is higher for us than say, the typical Republican or Democrat.

          1. The bar is higher for us than say, the typical Republican or Democrat

            There is no “us.” I am not a member of the Libertarian Party, so what they do is their business. However, in this election GJ is superior to Clinton and Trump in every way. Whether that merits your support is up to you.

            1. I html like Fist. How embarassing.

            2. I’m writing you in, Crusty. You’re honest and I have a crush on you now.

              Can I be your VP?

                1. Vote Crusty Jesus in 2016. Winning! Amen.

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

    unfortunately, judges are ill-equipped to determine what constitutes “liberty”.

    1. The judges believe in two out of John’s three key categories.

  8. two out of three ain’t bad

  9. Oh, FDR – the worst president ever and still lionized for ending the Great Depression.

    1. It’s funny that he did far worse things to the Japanese of this country than Trump is even threatening to do Mexicans or Muslims, and yet how much a person hates Trump seems to directly correlate to how much they revere FDR.

      1. Like Bernie Clinton

  10. Where is Tony and Michael Hiln? I bet they’re going bat shit crazy after reading this article.

    1. Ohhhh… Don’t pay the troll toll!

      1. I thought they were dead or jailed a week ago and now I feel a little guilty for the added spring in my step.

  11. The bulwark of our liberty has never been, and cannot be, a government institution.

    It can only be a cultural/societal allergy to the machinations of politicians and bureaucrats. We seem to have lost that, and until we retain it, the state will continue to metastasize.

    And, no, cooler IT and tolerance of/privileges for increasingly atomized identity groups is no substitute for it.

    1. Hey U RS-Cola Deanster-Weinster U?

      “?tolerance of/privileges for increasingly atomized identity groups ?”
      As an Officially Licensed Therapeutratron of Therpeutronic Aromatherapy for Traumatized Trans-Doggonian/Catonian Former People Who Are Now Companion Bi-Animals, I must say, you have violated my safe space, and macro-aggressed my trans-species Harmonic Vibes, BIG-TIME!!!! Unless you humbly submit to your Re-Education by the Tender Loving Mercies of Your Moral Superiors, I am afraid we will have to have you euthanized! -Yours Truly, Your Moral Superior in Loving Gaia Kindness

    2. Well, I know someone who isn’t getting a job at Reason any time soon.

  12. “Well, you know- we have this thing in this country; it’s kind of like a rule book. You should read it some time.”

  13. I’ve gotta say, I like George Will, always have. The man says a lot of correct things. I’ve not read everything he’s ever written so maybe he has failings, but what I have read I’m pretty much in agreement with.

    Admittedly he does look and sound like some kind of dark-arts preserved Knickerbocker, but what ever, the dude has a good brain.

  14. I love it when my dog whistle works. LOVE IT!

  15. Comments are probably dead here, but I’m commenting anyway.

    Fed judges defer to Congress and the president because that’s who promotes fed judges.

    You have to QA the people who do your performance reviews. It’s a conflict of interest.

    Judges shouldn’t be confirmed by the people they’re supposed to police.

  16. Look at the numbers. We do not have “majjority rule”. According to 2012 voting statistics, there were ~219m Americans eligible to vote, but only ~146m actually registered in 2012.

    Typically, fewer than 70% of eligible voters actually vote. Per the link, in 2012, the Presidential Election participation was a meager 57.5%. Unless the votes are nearly unanimous, you can hardly say that a majority of the voters == a majority of the people. Indeed, looking at 2012, Obama got 51.06% of the popular vote; Romney 47.2%; with the rest going to 3rd party candidates.

    With 57.5% of eligible voters participating, and 51.06% of those selecting Obama, then the actual result is just over 29% of eligible voters (which isn’t even to total population…) selecting the winning candidate. Granted, that was the presidential race and was not actually decided by the popular vote, but it is a valid illustration. Most elections are decided by fewer than 1/3 of the eligible voters; a minority of the people.

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