As predictable as the sun’s rising in the East is NRO’s Ed Whelan’s rush to the barricades when George Will (or many others, for that matter) is found defending a judiciary “actively” engaged in defending a right not expressly found in the Constitution.
The occasion this time was Will’s piece in yesterday’s Washington Post, “The false promise of ‘judicial restraint’ in America.” In it, Will notes that, given the advanced age of several Supreme Court justices, a supremely important presidential issue is being generally neglected in the presidential debates, namely, the criteria by which a candidate would select judicial nominees. And that is “because Democrats have nothing interesting to say about it and Republicans differ among themselves about it.” Drawing on a speech that Randy Barnett recently gave at UC Berkeley, Will defends what we at Cato have long defended, namely, a judiciary actively engaged in reading and applying the Constitution as written. And that includes accurately reading the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”
It’s on that matter, especially, that Whelan leaps to the defense of “judicial restraint.” When the Constitution’s text “fails to yield a sufficiently clear answer to a constitutional question,” he writes, judges should not be inventing rights “that are not in the Constitution” but instead should defer to the people—to democratic majorities.
But when one reads not only the Ninth Amendment itself but about why it was written—to make it clear that the rights we “retain” when we establish government are far more numerous than could ever be enumerated in a constitution—then it becomes clear that the discovery and protection of those rights cannot be left to the very political majorities against which they are most likely being invoked in a legal action before a court. Indeed, if Whelan were right—that we enjoy only those rights that are expressly stated in the Bill of Rights—then prior to the ratification of the Bill of Rights, two years after the ratification of the Constitution, we enjoyed almost no rights against congressional majorities—save for those few mentioned in the original document.
To make good, then, on the Ninth Amendment’s plain text, to say nothing of the Constitution’s larger promise, judges have to actively discover the rights we retained—enumerated and unenumerated alike—when we created a limited government and later incorporated those limits against the states through the Civil War Amendments. That takes an engaged judiciary, one that is cognizant of the basic theory of the Constitution—a document that secures liberty as our first principle, majoritarian democracy as merely the means for securing that liberty.
I’ll give Whelan this much: He raises a serious practical problem with Will’s proposal:
I confess that I don’t understand what Will expects Republican presidential candidates to do with Barnett’s vocabulary. I don’t think that we’ll see candidates accusing each other of being Hobbesians. And if they try to go deeper into the Lockean propositions, there are lots of traps that await them. Do we want to make it easy for Hillary Clinton, or whoever the Democratic candidate will be, to allege that the Republican candidate will appoint justices who will repeal the New Deal and strike down civil-rights laws?
We’ve reached a point in our public discourse at which constitutional understanding is at the nadir. When so many American’s believe that the purpose of government is to provide them with all manner of goods and services, as demanded by democratic majorities, it’s difficult to explain the proper role of the courts under a Constitution for limited government. But neither will it help to feed that appetite for public goods by justifying the majoritarian force that satisfies it. Better it would be to appeal to the liberty we all want and the constitutional means for securing it.
Addendum: As I send this to be posted, I note that Whelan has just sent around a new post responding to Barnett’s response to him, none of which I’ve yet read.