Neil Gorsuch

Glenn Reynolds: Majoritarianism in the Courts Is a Bad, Bad Thing

Following Randy Barnett, Instapundit makes a clear compelling case for originalism and limited government.

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With Senate Democrats going for a filibuster against the nomination of Supreme Court nominee Neil Gorsuch, things are about to get hairy in the Capitol. It seems without question that Gorsuch is a competent, qualified jurist and the Dems almost surely are shooting themselves in the foot by trying to block his appointment. Most Americans don't care overly much about judicial philosophy, but nothing Gorsuch has written and discussed disqualifies him or marks him as incompetent. Making his nomination a pure political play will alienate everyone except strict liberal ideologues.

Writing in USA Today, Glenn Reynolds of University of Tennessee Law School and Instapundit.com has a sharp, concise column up about the role of the Supreme Court in deciding whether laws are constitutional or not. Citing libertarian legal school and Georgetown professor Randy Barnett's recent book, Our Republican Constitution, Reynolds explains that the Constitution's animating principle was decentralizing power, especially of a simple majority.

The powers of government were limited, and separated among various branches, and divided between the federal government and the states, while some things were placed beyond the power of the government entirely. This was intended to ensure that minority groups could go about their business unmolested by the majority.

During the Progressive Era of the 19th century, these limitations on majority power chafed Progressives who were in the legislative majority. They wanted to make big changes, and the Constitution's limitations made that hard. Progressive legislation kept losing in the courts, who kept pointing out that it was inconsistent with Constitutional limits on government power, and Constitutional protection of things like private property rights.

This led to a rule of judicial restraint that was the beginning of the democratic constitution, where majority power reigned supreme. Its first major appearance was in an article by Harvard law professor James Bradley Thayer, arguing that courts should not strike down laws as unconstitutional, so long as they could imagine a reasonable person thinking them valid. Only in cases of clear mistake should judicial review lead to laws being held unconstitutional.

This thinking found its first Supreme Court application just a few years later in the 1896 case of Plessy v. Ferguson, upholding segregation under the famous "separate but equal" formulation (though this phrase was not part of the opinion). Echoing Thayer, Justice Brown wrote "We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable." Also at that time, as Barnett notes, writers stopped talking about courts' duty to strike down unconstitutional laws and started talking about their power to do so. Not exercising a duty is a dereliction; not employing a power could be characterized as self-restraint.

Nonetheless, in other cases, the Court applied the republican constitution, striking down (in Buchanan v. Warley) a Kentucky racial zoning law backed by a majority, and (in Bailey v. Alabama) barring enforcement of labor contracts for black people that, in reality, amounted to involuntary servitude. In both cases, the importance of individual rights trumped the majority's desire.

Read the whole piece.

Barnett and Reason's Damon Root have written a lot about the problems that come from the courts showing too much deference to elected officials. Ironically, conservatives are quick to bitch and moan about "judicial activism" but often the bigger problem is when courts look the other way as legislators arrogate more and more power to themselves.

However the Gorsuch confirmation plays out, this larger argument about activism and deference is a key battleground, especially in a country that is sharply polarized and in which partisans want more than anything to punish the other side. It's also a place where the libertarian rejection of majoritarianism is an attractive alternative to the right and left, who seem happy to go along with the wisdom of crowds as long they like a particular outcome.

Reason TV talked with Barnett the day after Gorsuch's nomination was announced. Click below to learn "Everything You Need To Know about Neil Gorsuch":

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  1. To me, activism is when the bench creates new powers. Striking down a law can be consistent with “governmental” restraint.

  2. Activism, it seems to me, is when the Court ignores things that are in the Constitution or a statute or invents things out of whole cloth to get to the conclusion they want. Activism should be properly defined as process, not result.

    1. If we weren’t supposed to “invent” new rights, then the Constitution wouldn’t have included so many un-enumerated rights.

      1. The government does not get to tell you rights you have, only protect those rights deemed natural or codified by legislatures.

  3. …often the bigger problem is when courts look the other way as legislators arrogate more and more power to themselves.

    But that’s only because the electorate collectively wants a strong and beneficent government. And with just a little more centralized power, they’ll eventually get it! Is it for the courts to stand in the way?

  4. Dems promised to block ANY appointment to the court, and then Trump goes and (in true broken clock fashion) appoints possible the most qualified candidate in the past twenty years. What’s a faithful party-uber-alles Democrat to do? Gorsuch does not have a D after his name and so much be opposed by all correct thinking cogs.

    1. They’re are relying on “he’s not for the little guy” mantra and are using the case of the cold truck driver to support their claim; for their pro big beneficent [Democrat] government constituency back home, that will be enough. And of course it’s pay back time for Garland.

  5. Making his nomination a pure political play will alienate everyone except strict liberal ideologues.

    Not how it worked out for republicans who started this mess. I wish it was a true statement but people are so hyper partisan it’s ridiculous.

    It’s such a shit show too because Gorsuch seems like the best option we could ever reasonably hope for.

  6. Seems to me the GOP started this most recent issue by not even pretending to be willing to do their job. Are the Dems doing the right thing, I don’t know, but to forget to frame what’s being done by including the GOP actions or inaction more appropriately about Garland is short sighted.

    1. What job do you speak of?

      Not considering Garland? Joe Biden advocated the same behavior in 1992 with H.W. Bush’s lame duck 1st term.

      1. There’s a weird thing going on in Republican talking points lately in that they are so lame and so transparently bullshit that you’d think they wouldn’t even bother for risk of damaging their credibility.

        On the other hand, when bullshit is all you have. Joe Biden saying something a gazillion years ago justifies the GOP’s wholesale invention of a “no justice appointments in the entire year preceding an election” rule? Mitch was positively forced to take this action by Bumbling Joe!

        1. Yes I distinctly remember you railing about how stupid that Biden comment was when he made it.

          1. Well, I was 10 years old and still a Republican, so it’s possible.

  7. And Gorsuch is a social conservative that will be majoritarian when its the government enforcing morality that he agrees with.

    1. And you’re a babbling fucking idiot troll……

      1. This is a libertarian site, you fuckwad. We don’t like conservatives like Gorsuck.

  8. 1 “The powers of government were limited, and separated among various branches, and divided between the federal government and the states, while some things were placed beyond the power of the government entirely. This was intended to ensure that minority groups could go about their business unmolested by the majority.”
    Indeed. I would go so far as to assert that the United States Constitution *exists* to suppress the power of an unrestrained majority. (And to resolve conflicts between conflicting local majorities, of course.)

    2 “This is a libertarian site We don’t like conservatives like Gorsuck.”
    If they occasionally act libertarian we do!

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