The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Gorsuch Cancels Woodrow Wilson
The one President everyone agrees should be cancelled.
As a general matter, conservatives oppose cancel culture. They will defend to the hilt most historical figures who do not meet modern progressive standards. Washington, Jefferson, and Madison must be saved. But there is one President that conservatives, as well as liberals, are happy to destroy: Woodrow Wilson.
The first footnote of Justice Gorsuch's concurrence in West Virginia v. EPA opens fire on Wilson:
It is vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable "ministers." The Federalist No. 11 (A. Hamilton). From time to time, some have questioned that assessment. [FN1]
[FN1] For example, Woodrow Wilson famously argued that "popular sovereignty" "embarrasse[d]" the Nation because it made it harder to achieve "executive expertness." In Wilson's eyes, the mass of the people were "selfish, ignorant, timid, stubborn, or foolish." He expressed even greater disdain for particular groups, defending "[t]he white men of the South" for "rid[ding] themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant [African-Americans]." He likewise denounced immigrants "from the south of Italy and men of the meaner sort out of Hungary and Poland," who possessed "neither skill nor energy nor any initiative of quick intelligence." To Wilson, our Republic "tr[ied] to do too much by vote."
Gorsuch hits every note. Wilson rejected Hamilton. Wilson hated black people. Wilson hated Italians. (I bet Wilson supported the Blaine Amendment and the Sullivan Act.) Wilson hated democracy. But Wilson loved bureaucrats.
Was Woodrow Wilson at all relevant to the major questions doctrine, or the Clean Air Act. Of course not. But we should never pass an opportunity to dump on the former Princeton President.
Indeed, Justice Gorsuch links Justice Kagan's dissent with Wilson.
In places, the dissent seems to suggest that we should not be unduly "'concerned'" with the Constitution's assignment of the legislative power to Congress. Echoing Woodrow Wilson, the dissent seems to think "a modern Nation" cannot afford such sentiments. But recently, our dissenting colleagues acknowledged that the Constitution assigns "all legislative Powers" to Congress and "bar[s their] further delegation." Gundy (plurality opinion of KAGAN, J.).
Fighting words.
More recently, Judge Andy Oldham opened up on Wilson in Cochran v. SEC:
Wilson and Landis fundamentally disagreed with the Founders' vision. Wilson and Landis thought the accumulation of all powers into one set of hands was—far from a vice—a virtue. And they wanted those all-powerful hands connected to an administrative agency, far away from the three branches of government the Founders worked so hard to create, separate, and balance. And most of all, Wilson and Landis wanted power as far away from democracy and universal suffrage as possible. . . . .
Notwithstanding his reassurance that German political principles could be Americanized, Wilson elsewhere made clear that he would scrap the Constitution if he could. One of his most notable departures from the Constitution was his distaste for democracy and popular sovereignty—especially after the document was amended to allow for an increasingly diverse electorate.
#CancelWoodrow.
