George Will’s Natural Rights Judicial Philosophy

George Will has established a reputation for being an idiosyncratic thinker, and in his masterful new tome, The Conservative Sensibility, Will demonstrates this idiosyncrasy in his chapter on judicial philosophy. Will rejects originalism, preferring instead what could be described as libertarian or natural rights activism. Will chides originalists for bowing to legislative majorities – state or federal – unless they have clearly circumvented the constitutional text. Will argues that the judiciary should be active guardians against encroachments of the natural rights of citizens.

Will’s approach is reflected in his discussion of Brown vs. Board of Education. He dismisses the Warren court’s rationale for overturning the separate but equal doctrine established in Plessy vs. Ferguson. The Warren court’s decision was seeped in social psychology, twisting itself to find a justification for its decision.  Brown has been a source of dissension among some conservatives. For instance, Michael McConnell agrees with the outcome but not the rationale, while others think that – lamentably – there really was no originalist justification for the outcome (a point many progressives make in attempting to debunk originalism in toto).

Will casts aside all of these approaches and instead postulates:

The threshold question when evaluating any particular mode of construing the Constitution is whether the mode would dictate declaring public school segregation unconstitutional. No acceptable theory for construing the Constitution can invalidate the Court’s conclusion in Brown; the conclusion invalidates any theory that rejects it. If a theory of constitutional interpretation cannot find in the document’s text, when the text is construed to serve the document’s purpose of framing a government that secures natural rights, grounds for striking down racial segregation in schools, a practice facially inimical to equal enjoyment of the blessings of liberty, then this theory must be discarded.

Will follows up with an important framing of his basic constitutional philosophy: “The phrase the ‘blessings of liberty’ is of course from the Constitution’s Preamble. But the Preamble is not a mere decorative filigree on the Constitution. It is a statement of the objectives of all that follow.”

To Will, the Constitution “is John Locke’s political philosophy translated into institutional architecture.” He thus views the Constitution as the written document making concrete the principles established in the Declaration of Independence. He echoes Abraham Lincoln in calling the Declaration the “apple of gold,” surrounded by the “frame of silver” which is the Constitution.

Will sides with Randy Barnett in professing what Ilan Wurman (A Debt Against the Living: An Introduction to Originalism) describes as “libertarian originialism.” The case which distinguishes Barnett and Will from most originalists is Lochner vs. New York, the 1905 Supreme Court case involving a New York state law limiting worker hours. In a decision Will applauds, the Court overturned New York’s law, invoking the idea of the “liberty of contract.” This is a right that is not enumerated specifically in the Constitution, but which is implied via the Ninth Amendment.

In supporting the Lochner court’s decision, Will accepts a concept anathema to many conservative originalists: substantive due process. Will writes, “The Due Process Clause, properly construed, prohibits arbitrary government actions, particularly actions that unjustifiably restrict individuals’ liberties. The Due Process Clause is not purely about process.”

This reading of the due process clause would animate many Supreme Court decisions over the next three decades. These cases generally centered on economic questions. It was not until FDR appointed an entirely new court over his tenure in office that substantive due process would die a sudden death, only to be revived by the Warren court, only this time generally to protect socially libertarian ideas.

Will also does not completely dismiss the idea of a constitution as a living, breathing document. Will himself uses the term “living originalism,” a term coined by Jack Balkin. He quotes Balkin’s description: “In every generation, We the People of the United States make the Constitution our own by culling upon its text and its principle and arguing about what they mean in our own time.” The prohibition against cruel and unusual punishment is used as an example. What was considered “cruel and unusual” in 1789 America is not the same as what would be considered cruel and unusual in 2019. Each generation can read the constitutional intent in light of new revelations and modes of thinking. This differs from progressive judicial activism because the constitution would still be interpreted to support a Madisonian respect for natural rights, just with a more modern flavor.

Will lambasts the conservative originalist approach because it is far too deferential to majorities. He specifically calls out Antonin Scalia’s dissent in Lawrence v. Texas, where the majority struck down Texas’s anti-sodomy laws. Will accuses Scalia of being a majoritarian, and decries the originalist impulse to defer to legislative majorities.

There are thus two principles which underlay Will’s judicial philosophy: a defense of natural rights, and a suspicion of majoritarianism. While there is some division within conservative circles, both of these ideas are within the mainstream of traditional conservative thought, particularly the anti-majoritarian impulse. Will is on solid ground in citing Madison and the Framers and their distrust of majorities and the damage that unrestrained majorities could wreck on our republic. Neither of the principal authors of the Federalist Papers – Hamilton or Madison – were exactly Jeffersonian democrats. (Madison may have forged a political partnership with Jefferson, but he never shared similar philosophical ground with Jefferson when it came to ideas such as democracy and the permanency of the constitution.)

Will might encounter more resistance to his passionate advocacy of natural rights. Again, though, he is on generally solid ground in interpreting the Framers as being natural rights advocates. Thomas West, in The Political Theory of the American Founding, does a convincing job of demonstrating the Framers’ commitment to natural rights, sorting through varied and various writings to demonstrate this propensity.

Yet there are three fundamental issues with this judicial philosophy. Neither one is perhaps lethal to Will’s argument, though in combination they suggest that it is not an approach conservatives should take.

The first issue with manifests itself is that of states’ rights, a concept Will himself defends in the book. Leaving aside the judiciary’s rulings on federal matters, absent a clear contradiction of the constitutional text and meaning, a philosophy of judicial restraint with regards to state laws would be not only sensible, but in fact would be the correct way to honor the Framers’ intent as Will calls us to do.

Will defends this seeming tension with respect for state sovereignty by noting that states cannot abrogate the constitution. That is certainly true. Obviously no state can take it upon itself to legalize slavery, which is clearly prohibited by the 13th Amendment. Will wants to go a step further to recognize that the Ninth Amendment is not just an empty set of words, and establishes a principle for supporting rights not clearly laid out in the Bill of Rights and the Constitution in general.

The problem for Will is that the Constitution is a document meant to lay out the rules for the federal government, and not the states. As originally drafted and ratified, there was very little in the constitution that directly impacted and/or curtailed state actions. The republican guarantee and commerce clauses, for instance, constrained state actions. Otherwise, the Constitution was meant to enumerate (and limit) the powers of the federal government.

The reluctance to superimpose a federal viewpoint over the states is best demonstrated by the convention’s rejection of Madison’s proposal for Congress to have a veto over state laws, a veto Madison thought to be essential for the Constitution to have any teeth. Initially it was generally supported, but as the convention wore on, more delegates – particularly from the small states – argued against this provision, and it ultimately went down to defeat. Madison greatly lamented this, and he thought the lack of such a provision was one of the severest flaws in the Cconstitution.

But even Madison’s advocacy of a veto over state laws stemmed largely from his fear of state interference with federal laws. He didn’t begrudge the states from passing their own laws per se, but rather worried that certain state laws would contradict federal action. Thus even this proposal is less about protecting natural rights and more about protecting the federal government from state encroachment.

Will would rightly counter that the 14th Amendment changed the relationship of the Constitution to the states, at least in practice. He laments the Court’s Slaughterhouse decision, which practically nullified the privileges or immunities clause. But the due process clause has been used to bring the states to heel on a number of issues, and has essentially federalized the Bill of Rights. The question conservatives have to tackle is: how much power do the states retain?

This leads to the second problem with Will’s approach. Progressives mock originalism by contending that it turns judges into historians. A conservative could contend that Will’s natural rights approach turns judges into philosophers, arguing over the meaning of natural rights.

Many (though not all) on the right would agree with Will about the natural rights inclinations of the Framers. Natural rights advocates also believe that we’re constantly discovering what our natural rights entail. And that’s the rub. While a natural rights reading of the Lochner decision could stand upon the idea of the liberty of contract, it is not implausible to picture a progressive natural rights reading of the New York law as supporting the legislation. FDR’s “four freedoms” should provide insight into how a much different concept of natural rights would lead to outcomes Will – and conservatives – would very much disapprove of. Though I agree with Will’s natural rights reading of the Lochner decision and the liberty of contract, it’s not at all far-fetched to see a much different philosophy of natural rights reaching the opposite conclusions.

It’s commendable that Will recognizes that the Ninth Amendment and the privileges or immunities clause of the 14th Amendment are still parts of the Constitution, but how much power to interpret the meaning of those clauses in light of natural law should we give the courts? That leads us to the final objection. While Will again should be commended for not taking the easy conservative path of bashing the courts and questioning the judicial branch’s legitimacy, and is correct in highlighting the anti-majoritarian impulse of the Framers, this approach tilts the balance far too much towards the judiciary.

Conservatives have an uneasy relationship with democracy. I am certainly guilty of being reflexively anti-majoritarian. But we run the risk of going too far in our – let’s call it suspicion of democracy, or at least the democratic aspects of republicanism.

But it is, nonetheless, a republican form of government the Framers created and we’re trying to keep. And what is a republican government? According to Madison, in Federalist 39:

If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.

This broad definition doesn’t necessarily lead us to a satisfactory conclusion as to the rightful powers of the judiciary, but it indicates Madison’s frame of mind. Suspicious as he was of democratic majorities and of state power in general, he recognized there had to be an element of popular choice. Ultimately the people of the United States are sovereign. That sovereignty may be expressed in incompletely democratic forms, and the judiciary is itself a tangential product of popular sovereignty, as they are appointed by (indirectly) elected presidents and confirmed by (indirectly, at the time) elected Senators, and served during good behavior (thus subject, theoretically, to impeachment).

Though we created a republican government with limited democratic forms, there is a general sense that the genius (to borrow from Madison) of the people requires some aspect of popular choice and control. An unelected judiciary consistently overturning legislative majorities based on philosophy rather than the constitutional text will only embitter the citizenry, especially if it feels it has no ability whatsoever to undo the judiciary’s actions. This notion of almost complete judicial supremacy over the legislature, one which extends beyond the original concept of what the judicial branch was intended to be, goes well beyond simple anti-majoritarianism and is seemingly at odds with the very core of our national identity.

That’s not to say there isn’t a good deal of merit in Will’s advocacy of greater judicial activism. First of all, the term judicial activism, like so many political terms, has been abused to the point it merely means “Courts rendering decisions I don’t agree with.” And Will is right to urge courts to adjudicate based on the constitution. In other words, judicial restraint can itself be a form of political activism. For example, John Roberts deciding to find a curious rationale for upholding Obamacare was almost certainly motivated by his desire to restrain the Court from becoming involved in a political debate. Yet this decision itself was political, and lacked any defensible constitutional merit. Judges should judge, and then they may let the political chips fall where they may.

In general, Will isn’t far afield of the Famers. Though Will takes his cues from Madison, it is perhaps unsurprisingly Alexander Hamilton who comes closer to providing support for Will’s judicial philosophy. As Hamilton writes in Federalist 78, “[the judicial branch] is a no less excellent barrier to the encroachments and oppressions of the representative body.” Hamilton adds:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This supports Will’s counter majoritarian argument. Hamilton here expresses the idea that judges must rule against democratically elected legislators when the latter act against the Constitution. But only the most ardent majoritarian would dispute that. The question remains: how do we know precisely when legislators have acted in defiance of the Constitution? And which aspects of the Constitution apply to state legislators? Hamilton provides something of an answer in Federalist 80:

It seems scarcely to admit of controversy, that the judicial authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.

The first point is most relevant here. As Hamilton explains, “What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government.”

It is this last point which resounds: the principles of good government. It is sufficiently vague to countenance a higher degree of judicial interference in state affairs than one would have imagined by the plain text of the Constitution. But again, this doesn’t quite provide a wholly satisfactory answer. State laws that contravene the Constitution should be declared null by the federal judiciary. But what of laws that run amok against “the principles of good government?”

Hamilton even addresses the privileges and immunities clause of Article IV, but here the reference is to states violating the rights of citizens from other states. This does not address internal laws impacting the state’s own citizens.

Will is on solid ground in defending the importance of an independent judiciary. Conservative frustration with court decisions has led many to call for reforms, some of which would strip the courts of their independence, or would limit their jurisdiction. While understandable, it is as true today as it was over two centuries ago that there must be an independent branch of government acting as a barrier against untrammeled majoritarianism.

But Will goes further than that. It would be an exaggeration to suggest Will is proposing the courts act like a council of ephors, but not much of one.

In a sense, Will is contradicting his own philosophy, and not just because this is a nationalistic judicial philosophy disruptive of state’s rights. As a libertarian-conservative, Will understands that human nature cannot be perfected, and that not all social ills can be corrected or cured. His is an anti-utopian philosophy. Will is also rightly at odds with the “post liberal” strand of conservatism which is so much in vogue, precisely because it has the faintest whiff of utopianism. Yet Will’s vision of an omnipotent judiciary acting as the guardian of natural rights is also semi-utopian. States may err in judgment and pass laws offensive to libertarian sensibilities. But just as post-liberals don’t seem to recognize the dangers of giving the government more power to discern “the good,” Will doesn’t seem to fully appreciate the dangers of giving the judiciary the unrestrained authority to declare what does and does not accord with natural rights. A court so fully invested with such a power may not act in strict accordance with libertarian principles. Just as conservatives should appreciate the importance of pluralism in acting as a safeguard for their practice of their values, a “libertarian orginalist” ought to appreciate the necessity of judicial deference. The alternative system may look a lot different than what is hoped for.

George Will has left us what an important contribution to the world of not just conservative thought, but political philosophy in general. His defense of natural rights and an independent judiciary, along with his anti-majoritarian impulse are all important countertrends to what we see in much of the conservative movement today. His judicial philosophy may place too much trust in the Solomonic wisdom of judges, but it is a worthwhile contribution and important guidepost.

The Emergency Order, Bad Arguments, and Logical Fallacies

Now that President Trump has issued the emergency declaration on the wall, I thought I would reiterate something I said multiple times during the Obama administration: there is no “The President thinks something is really really important but Congress won’t act so the President just gets to do whatever he wants” clause in the constitution. The Veruca Salt standard simply doesn’t exist. While I think the Democrat opposition to the wall is overwrought (and indeed now some have even indicated they want to remove the border barriers that doers exit), President Trump has had ample time to secure additional border wall funding. A changeover in Congressional leadership doesn’t constitute a national emergency.

I wanted to take the bulk of this post to address some of the responses I’ve seen, both in opposition and in defense of this action.

I’ll start with one argument made by opponents of the move that I deem to be overstated. They argue that this will set a precedent for future Democratic presidents to declare national emergencies over, say, climate change and healthcare*. There is a little bit of truth to this – as I said on twitter, each new precedent has a bit of snowball effect. But when looking at the cast of characters which constitutes the current Democratic presidential field, who doesn’t think that one of them will do this anyway? President Obama’s DACA order was arguably even less meritorious than President Trump’s actions here (where exactly was the crisis in not providing legal status to the children of illegal immigrants?), and it was President Obama who uttered his petulant “I’ve got a pen and a phone” threat when he grew frustrated with the constitution’s pesky limitations. If anything, Democrats have grown even more radical, and I don’t think President Trump increases the likelihood of future despotic actions.

* I’ve seen more than a few tweets in recent days about 28 million uninsured Americans being a graver national emergency. But I’m confused: wasn’t Obamacare supposed to solve this problem? I thought Obamacare was a “big fucking deal.” Well if there are still 28 million uninsured, maybe it was really nothing more than a “little useless clusterfuck.”

The flipside of the above is the argument from defenders of the administration is that we already have precedent, so Donald Trump’s actions are not unprecedented. Again, there’s an element of truth here, but that doesn’t make right-wing defenders of the president any less hypocritical. If you were (rightly) crying bloody murder every time President Obama used his pen and picked up his phone, you cannot now defend President Trump doing the same. If the “but daddy I want it” justification for emergency declarations is pathetic, even worse is the “but mommy he did it first” defense of the declaration. Speaking of setting precedents, you now have sent a clear message that the right-side of the political spectrum is cool with unilateral, unconstitutional, and unlawful presidential declarations so long as the end-result is fine by you. That seemingly less than about ten percent of the American public consistently even cares about constitutional law is indeed depressing.

As for the unlawful part of this, defenders say that “hey, Congress set us on this path, and the president is just doing what’s in his legal authority.” I’m not one to shy away from blasting Congress for cowering in fear to assert its rights as the superior  branch of the federal government, but I am not persuaded that the president is acting within the very generous parameters laid out by Congress. As David French explains in National Review, this is an abuse of the statutory authority given away by Congress.

Look at the list carefully. He’s listing criminal challenges. He’s listing humanitarian challenges. He’s listing the problems on the border that have existed for decades and that Congress has enacted comprehensive statutory schemes (including funding civilian wall construction and civilianimmigration authorities) to combat. Gang activity and drug-smuggling are grave problems, but they are crimes, not acts of war. The declaration doesn’t even try to argue that there is a precise, unique challenge that only the military can counter — such as a national disaster that would require the use of the military’s unrivaled heavy-lift capabilities or its immediate access to manpower.

Instead, the declaration cites the wasteful 2018 border deployment, but that is only evidence that the military has been used, not that it must be used. If the mere fact of a deployment were proof of the necessity of military intervention, then there would be no limiting principle on a president’s action. The message is clear — the military is “required” simply because he says it is required.

I was called a “neocon” on Twitter for having the temerity to argue that the president has no constitutional or statutory authority to justify issuing this emergency declaration. It is a sign of the lack of intellectual heft of much of the populist right that they believe defending constitutional norms is a sign of “new” conservative thinking.

I guess I could just sit back and laugh when President Harris issues a presidential emergency declaration shutting down the health insurance industry and forcing all Americans onto Medicare. It could be humorous to see the contortions of the overwhelming majority of Americans suddenly switching their opinions on such declarations. Instead I’ll just weep as our constitution becomes all but a dead letter.

Populism and Conspiracy Thinking

Last week Tucker Carlson blew up the right side of the internet when he delivered this 15 minute monologue on his nightly show. It was ostensibly a response to Senator Mitt Romney’s op-ed in the Washington Post, blasting President Trump for his rhetoric and character. But in reality it was so much more, and represents a sharp divide between “populist” and traditional conservative/libertarian economic thought. It has spurred a number of critical responses as well as defenses. David French had one here, and Ben Shapiro has now written a pair of pieces as well.

This is just the tip of the iceberg. Frankly, I find this debate a refreshing change of pace because the focus is on fundamental principles. Most of Carlson’s critics concede the truth of much of what he says, though they are critical both of his solutions (or lack thereof) and the level of blame he places on elites.

There is a lot here to discuss, and indeed it touches on some of the topics I had been hoping to cover. Here I am just going to focus on one very narrow issue, and it’s one David French touched upon. Listening to – or reading – Carlson’s talk, I heard a lot of familiar notes. Whenever I read through populist screeds in various social media settings, a common refrain is that some external force is the reason for all that ails either the individual or society as a whole. By external force I mean some force outside the person himself. Some kind of nefarious group – politicians, Democrats, Republicans, masons, etc. – is pulling the strings and are the cause of our woes.

Carlson’s monologue was full of these indictments. Here’s French quoting Carlson:

And he talks about wealthier Americans as if they’re indifferent to the plight of their fellow Americans. Here’s Carlson: “Those very same affluent married people, the ones making virtually all the decisions in our society, are doing pretty much nothing to help the people below them get and stay married. Rich people are happy to fight malaria in Congo. But working to raise men’s wages in Dayton or Detroit? That’s crazy.”

As French notes, this just isn’t true.

In 2017, Americans gave more than $410 billion in charity, and the idea that this charity flows principally overseas is ludicrous. Gifts to international charities represented only 6 percent of total giving, and foreign aid represents roughly 1.2 percent of the federal budget, an inconsequential sum compared with the immense sums we spend in the United States on economic development and social welfare. America is consistently one of the most charitable countries in the world, whether measured by volunteerism or money.

The more subjective aspect of this claim is that the rich just don’t care about the plight of poor people or the folks in Appalachia. While it’s easy to pin bad policy choices on a lack of concern, this is not necessarily accurate. Or as French puts it, it’s less about rich Americans not caring as them just making poor policy decisions.

What struck me about all this is that there’s a common subtext with conspiracy thinking. For conspiracy theorists, there’s always some cabal working behind the scenes to destroy everything. The World Trade Center didn’t get taken out by a pair of planes flown by Islamic terrorists – oh no, it was Bush and Cheney and a neocon plot to eventually invade the Middle East and take all their oil. No, those kids in Connecticut weren’t gun down by a madmen, it was a plot by the US government to force gun control upon us.

The thing about conspiracy theorizing is that in some ways it serves as a comfort to those who espouse these ideas. Here’s why. It is unfathomable to think that terrible events could be random. Or, better yet, it’s difficult to accept that these truly events could have happened in the United States without some sort of sign off by the deep state. Because if some random mad man can just shoot up a school, or if 19 well-funded terrorists could take out the World Trade Center and the Pentagon and kill thousands, the world becomes a much less ordered place. I mean just look at the paranoid discussion centering around the new world order – and I don’t mean that one, brother. The key word there is “order.” Because if the world isn’t being run by such cabals, then there’s decidedly less order in the world.

In many ways I think this is what motivates populist thinking. If there is an opioid crisis in Appalachia, then the remote cause can’t be the choices those individual living there made. The crisis must have been precipitated by men of evil intent. Because the flip side of conspiracy and populist thinking is that if we get rid of the bad men and replace them with well-intentioned people, then there is a solution to the world’s ills.

The chaos and tragedy of the world is not just that – it’s not the natural state of a fallen world, but a predetermined outcome. It’s unthinkable that bad things could just happen in the United States or the citizens of the country. Ultimately, if we just adjust the gears, then things will be okay.

I recognize that this this is not an entirely fair comparison, and there’s a little bit more complexity to Carlson’s and others thinking. Yet I can’t help but see this underlying connection. It’s an outlook that is both fatalistic and yet naively optimistic, because the subtext is that a fix is just a flick of the light-switch away. It is a shared worldview that is uncomfortable with disorder. Ultimately both modes of thinking are dangerous in their own ways, but more on that to follow.