Against the tyranny of the majority 3

Clark M. Neily III and his colleagues at the libertarian Institute for Justice believe the United States would be more just if judges were less deferential to legislatures. In his book Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, Neily writes that the United States is not “a fundamentally majoritarian nation in which the ability to impose one’s will on others through law is a sacred right that courts should take great pains not to impede.” America’s defining value is not majority rule but individual liberty.

Democracy may be better than all other systems of government, but it has a serious flaw. It allows a majority of the electorate to exert its will over the rest. A majority does not by virtue of sheer numbers know what’s best for the nation. A majority can be dangerously wrong – as when it elects a Hitler, an Allende, a Putin, a Mugabe, a Chavez, a Carter, an Obama.

Democracy needs to be restrained. Americans look to their courts to preserve them from the tyranny of the majority. Conservatives, whether in power or not, should be firmest in upholding the power of the judicial branch. Knowing this, many conservatives speak out against “judicial activism”, thinking that all activist judges are creatures of the Left. But judicial activism could be a protection against the Left.

Our introductory paragraph comes from an article by George Will, who further writes at the Washington Post where he is one of a very few voices of conservatism and reason:

Many judges …  in practicing what conservatives have unwisely celebrated as “judicial restraint,” have subordinated liberty to majority rule. Today, a perverse conservative populism panders to two dubious notions — that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.

Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained.

This leaves people such as Sandy Meadows at the mercy of government acting as protector of the strong. Meadows was a Baton Rouge widow who had little education and no resources but was skillful at creating flower arrangements, which a grocery store hired her to do. Then Louisiana’s Horticulture Commission pounced. It threatened to close the store as punishment for hiring an unlicensed flower arranger. Meadows failed to get a license, which required a written test and the making of four flower arrangements in four hours, arrangements judged by licensed florists functioning as gatekeepers to their own profession, restricting the entry of competitors. Meadows, denied reentry into the profession from which the government had expelled her, died in poverty, but Louisianans were protected by their government from the menace of unlicensed flower arrangers.

What Louisiana does, and all states do in conferring favors through regulations that violate individuals’ rights, is obviously unjust and would be declared unconstitutional if courts would do their duty. Their duty is to protect individual liberty, including the right to earn a living, against special-interest legislation. Instead, since judicial abdication became normal during the New Deal, courts almost invariably defer to legislatures’ economic regulations, which frequently are rent-seeking by private factions.

Courts justify dereliction of judicial duty as genuflection at the altar of majority rule, as long as the court can discern, or even imagine, a “rational basis” for a regulation — even if the legislature never articulated it. …

Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.

The beginning of wisdom is recognizing the implications of this fact: Government is almost never disinterested. Today’s administrative state is a congeries of interests, each of which has a metabolic urge to enlarge its dominion and that of the private-sector faction with which it collaborates. …

Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit says of “rational basis” jurisprudence: “The judiciary justifies its reluctance to intervene by claiming incompetence — apparently, judges lack the acumen to recognize corruption, self-interest, or arbitrariness in the economic realm — or deferring to the majoritarian imperative,” which means “the absence of any check on the group interests that all too often control the democratic process.”

This process, Neily rightly insists, is not self-legitimizing, which is why judicial passivity is inconsistent with constitutional government. [And he] argues that to say that judicial invalidations of legislative acts should be rare is no more sensible than saying NFL referees should rarely penalize players for holding.

Conservatism’s task, politically hazardous but constitutionally essential, is to urge courts to throw as many flags as there are infractions.

If conservatives never forgive Chief Justice Roberts for validating the anti-American “Affordable Care Act”, they will be exercising better judgment than he did when he disregarded the essential fact that “America’s defining value is not majority rule but individual liberty”. 

  • REALBEING

    “A majority can be dangerously wrong-as when it elects a Hitler, an Allende, a Putin, a Mugabe, a Chavez, a Carter, An Obama.”

    I’m under the impression that each and every lawful citizen in this country has a “vote” in our Democracy…..a MAJORITY of voters ALWAYS elect our Republic’s representatives, no matter what their intelligence quotient is!!

    And apparently unknown to this majority of folks who vote, it is everyone’s responsibility to investigate their potential candidates thoroughly before any election.

    The people living in a country deserve the government wrought by the officials that the MAJORITY of voters put in place. If we go down as a Democracy, it will be because of the immaturity that they, the majority, display at the polls.

    These folks are a real “tribute” to the uninterested, mis-informed, irresponsible voters in all epochs of time, as well as all places on this planet where this sort of irresponsible action ever strove to facilitate a country’s downfall.

    In our Democracy, the only lawful, Constitutional answer to these self-server’s desolate actions is to allow their actions to complete their assigned task…IOW, letting the country, fail by their vote….letting EVERYONE (especially the majority of voters responsible for installing said elected officials) feel the pain of America becoming the newest third-world country…at their hand!

    Unfortunately, we will ALL learn this lesson through the entire country suffering from the actions and in-actions of these elected officials, because of the widespread, self-delusional irresponsibility of the majority of voters.

    This insanity is akin to allowing the inmates of the asylum access to the institution’s drug cabinet.

    And as the popularity of this sort of laxity in thinking becomes even more widespread through the demotion of the individual’s moral compass, America will become a miserable example of the “irresponsible, uninformed voters” extreme power over a once great idea.

    I myself am only one vote against them.

    • liz

      That is exactly what I said when Obama got re-elected – it’s as if we’re now in an insane asylum that’s been taken over by the inmates.
      The system has been completely trashed and broken, but the media willingly projects their fantasy version of reality to cover for them.
      And the deliberately misinformed, undereducated propaganda sponges eat it up! Total disconnect is the new norm.

      • REALBEING

        The media is motivated by their ratings. The ratings drive their revenue. The media knows that there is a great majority of these “low information” voters that only want to hear low information, the kind that supports their Socialistic, hypnotic way of life.

        I’ve talked to these folks about this, and they are quite happy NOT hearing anything but the drivel on the T.V.! Researching a candidate’s worthiness just seems too much like work to them.

        “Besides,” they tell me, “he has such a great smile!”

        Sadly, they promote a lower way of life for us all, they themselves, the hypnotized, as well as the folks who’ve awakened……knowingly, or unknowingly.