George Will writing in the Summer 2016 issue of National Affairs. Excerpted from The Limits of Majority Rule:
First as a graduate student, then briefly as a professor of political philosophy, and now for more than four decades as a Washington observer of American politics and governance, I have been thinking about the many vexing issues implicated in these two flag-salute cases. The issues include the source of American rights, the nature of the Constitution and the role of the Supreme Court in construing it, and what fidelity to democracy requires regarding the rights of majorities.
This is why I say that the Kansas-Nebraska Act reverberates in my professional life: It forced the nation and, decades later, me, to confront a question that constantly takes new forms but never goes away. It is the question of the limits of our commitment to majority rule. It is the question of how majoritarian we should be in our public life.
The question concerns two daunting quandaries that are, I hope and assume, at the center of American legal thought, education, and scholarship. The first is the nature and purpose of a written constitution. The second is the legitimacy of judicial review, and particularly whether judicial review really does involve what has been called a “counter-majoritarian difficulty.”
There are those, and they might be an American majority, who believe that majority rule is the sovereign American value that trumps all others. They believe that the degree of America’s goodness is defined by the extent to which majorities are able to have their way. Such people are bound to believe that it is the job of the judicial branch of government to facilitate this by adopting a modest, deferential stance regarding what legislatures do.
Many also implicitly believe that such an attitude should shape the attitude of courts toward what executive branch officials and agencies do. Here, judicial deference is said to be dictated by the plebiscitary nature of the modern presidency. This began with the presidency of Andrew Jackson, but did not fully flower until modern communications technologies — especially radio and then television — changed the nature of the American regime by changing the nature of political campaigns and of governance. Many have argued that, because presidents alone are elected by a national constituency, they are unique embodiments of the national will, and hence should enjoy the maximum feasible untrammeled latitude to translate that will into policies.
The two-fold problem with such an attitude of deference, however, is that majorities can be abusive, and that some questions are not properly submitted to disposition by majority rule because there are some — actually, there are many — closed questions even in an open society.
So, we must ask: How aberrant, or how frequent, are abusive majorities? A related but different question is: When legislatures, which are majoritarian bodies, act, how often are they actually acting on behalf of majorities? My belief, based on almost half a century observing Washington, the beating heart of American governance, is that as government becomes bigger and more hyperactive, as the regulatory, administrative state becomes more promiscuously intrusive in the dynamics of society and the lives of individuals, only a steadily shrinking portion of what the government does is even remotely responsive to the will of a majority.
Rather, the more that government decides that there are no legal or practical limits to its proper scope and actual competence, the more time and energy it devotes to serving the interests of minority — often very small minority — factions. So, paradoxically, as government becomes bigger, its actions become smaller; as it becomes more grandiose in its pretensions, its preoccupations become more minute…
…The government action used to prevent a Pakistani immigrant from entering into his chosen profession of operating a transportation company, and the government action that blocked an aspiring flower arranger from exercising her skill and consigned her to die in poverty, and the government action that blocked the monks from supporting themselves by making and selling wooden boxes were violations of a basic right. All three actions, and thousands like them from coast to coast, should be, but usually are not, considered unconstitutional. They should be struck down even though they have issued from majoritarian processes — from elected officials or from regulatory agencies created by elected officials.
They should be struck down as violations of a natural right, the right that Lincoln understood as the right to free labor, the right that was, of course, at the core of the slavery crisis. It is the unenumerated, but surely implied, constitutional right to economic liberty. But laws abridging that right survive and proliferate because courts at least since the New Deal have stopped doing their duty to defend this economic liberty against its rent-seeking enemies.
In a sense, the problem began in Louisiana 16 years before the monks’ monastery was founded in 1889. It began across Lake Pontchartrain from the monastery, in New Orleans. That city had awarded some rent-seeking butchers a lucrative benefit. The city had created a cartel for them by requiring that all slaughtering be done in their slaughter houses. Some excluded butchers went all the way to the U.S. Supreme Court to challenge this law. They lost when, in the 1873 Slaughterhouse Cases, the Court, in a 5-4 decision, upheld the law that created the cartel. In doing so, the Court effectively expunged a clause from the 14th Amendment. The clause says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The court construed the phrase “privileges or immunities” very narrowly. It construed that phrase so narrowly, in fact, that the phrase essentially disappeared from constitutional law. A melancholy fate for a phrase that was intended as shorthand for the full panoply of rights of national citizenship.
Intermittently since then, and steadily since the New Deal, courts have abandoned the protection of economic rights, including the fundamental right to earn a living without arbitrary and irrational government hindrances. Instead, courts have adopted the extremely permissive “rational basis” test for judging whether government actions are permissible. Courts almost invariably hold that if a government stipulates a reason — any reason — for a law or regulation that burdens economic activity, or if the court itself can even imagine a reason for the law, even if the law reeks of rent-seeking, then the court should defer to the elected legislature, elected city council, or other majoritarian institution that is the ultimate source of the law or regulation.
Indeed, in 2004, the 10th Circuit Court of Appeals upheld a notably ludicrous Oklahoma law requiring online casket retailers to have funeral licenses. To obtain such licenses, applicants are required to take several years of course work, serve a one-year apprenticeship, embalm 25 bodies, and take two exams. Upholding this travesty, the court wrote, with breezy complacency, that “while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.”
The court did not say, but it might as well have said, that majority rule requires that courts only reluctantly and rarely engage in the judicial supervision of democracy, because majority rule is the essence of the American project. There are, however, two things wrong with this formulation.
First, it is utterly unrealistic and simpleminded to think that there is majority support for, or majority interest in, or even majority awareness of, even a tiny fraction of what governments do in “dishing out” advantages to economic factions. Does anyone really think that, when the Nashville city government dispenses favors for the taxi and limo cartel, it is acting on the will of a majority of the city’s residents? Can anyone actually believe that a majority of Louisianans give a tinker’s dam about who sells caskets or arranges flowers?
The second fallacy behind a passive judiciary deferring to majoritarian institutions is more fundamental. It is rooted in the fact that we know, because he said so, clearly and often, that Lincoln took his political bearings from the Declaration of Independence. We know that Lincoln believed, because the Declaration says so, that governments are instituted to secure our natural rights. These rights therefore pre-exist government. And they include the unenumerated ones affirmed in the Constitution’s Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Which brings me, by an admittedly circuitous route, back to 1854, to the Kansas-Nebraska Act, and to Lincoln’s noble recoil from “popular sovereignty in the territories.” That recoil propelled Lincoln out of semi-retirement from politics and into a debate that still reverberates.
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.
Another reason many conservatives favor judicial deference and restraint is what can be called the conservative populist temptation. Conservatives are hardly immune to the temptation to pander — to preach that majorities are presumptively virtuous and that the things legislatures do are necessarily right because they reflect the will of the majority.
But the essential drama of democracy derives from the inherent tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority deems necessary and proper. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. Timothy Sandefur of the Goldwater Institute in Phoenix, in his book The Conscience of the Constitution, rightly emphasizes that the Declaration is not just chronologically prior to the Constitution, it is logically prior. Because it “sets the framework for reading” the Constitution, it is the Constitution’s “conscience”: By the terms with which the Declaration articulates the Constitution’s purpose — the purpose is to “secure” unalienable rights — the Declaration intimates the standards by which to distinguish the proper from the improper exercises of majority rule. “Freedom,” writes Sandefur, “is the starting point of politics; government’s powers are secondary and derivative, and therefore limited….Liberty is the goal at which democracy aims, not the other way around.”
The progressive project, now entering its second century, has been to reverse this by giving majority rule priority over liberty when the two conflict, as they inevitably and frequently do. This reflects the progressive belief that rights are the result of government; they are “spaces of privacy” that government “has chosen to carve out and protect.”
If the sole, or overriding, goal of the Constitution can be reduced to establishing democracy, and if the distilled essence of democracy is that majorities shall rule in whatever sphere of life where majorities wish to rule, then the Court is indeed a “deviant institution.” But such a reductionist understanding of American constitutionalism is passing strange. It is excessive to say, as often has been said, that the Constitution is “undemocratic” or “anti-democratic” or “anti-majoritarian.” It is not, however, too much to say that the Constitution regards majority rule as but one component of a system of liberty.
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.
Justice Don Willett of the Texas Supreme Court has cogently addressed, and largely dissolved, the supposed counter-majoritarian difficulty. There are, he says, two different but not equal majorities involved. He begins, as judicial review began, in 1803, with Marbury v. Madison, in which Chief Justice John Marshall wrote: “The powers of the Legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written.” In distinguishing between proper judicial deference to legislative majorities and the dereliction of the judicial duty to police majoritarian excesses, Willett says that in our democracy the legislature’s policymaking power, “though unrivaled, is not unlimited.” The Constitution is supreme. And “desirable” is not a synonym for “constitutional.”
Although “[t]he political branches decide if laws pass,” it is for courts to decide “if laws pass muster,” he continues. So, “[i]f judicial review means anything, it is that judicial restraint does not allow everything.” To avoid a “constitutional tipping point” where “adjudication more resembles abdication,” courts must not “extinguish constitutional liberties with nonchalance.” This requires fidelity to the supermajority against which other majorities must be measured — the supermajority of those who wrote and ratified the Constitution.
“There must,” Justice Willett writes in a Texas case, “remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands.” Why “must”? Because, says Willett, the Texas constitution, like the U.S. Constitution, is “irrefutably framed in proscription.” It “declares an emphatic ‘no’ to myriad government undertakings,” even if majorities desire them. Judicial review means preventing any contemporary majority from overturning yesterday’s supermajority, the one that ratified the Constitution. Federal judges are accountable to no current constituency. But when construing the Constitution, they are duty-bound to be faithful to the constituency of those who framed and ratified it.
This, says Willett, is the profound difference between an (improperly) activist judge and a properly engaged judge. The former creates rights that are neither specified in nor implied by the Constitution. The latter defends rights the framers actually placed there and prevents the elected branches from usurping the judiciary’s duty to “declare what the Constitution means.”
It is not true that, as Dr. Stockman declares in Henrik Ibsen’s play An Enemy of the People, “the majority is always wrong.” It is true that the majority often is wrong, and that the majority, even when wrong, often has a right to work its will anyway. Often, but not always. The challenge is to determine the borders of the majority’s right to have its way, and to have those borders policed by a non-majoritarian institution — the judiciary.
And here, naturally, we return once more to Lincoln. By his noble rejection of the Kansas-Nebraska Act and the idea of popular sovereignty as the way to decide the question of slavery in the territories, Lincoln concentrated our minds on two timeless truths. One is that majority rule is inevitable, but not inevitably reasonable. The other is that moral reasoning properly done, and the Constitution properly construed, both affirm that many things should be beyond the reach of majorities.