2014-01-23 – I hate to admit it: George Will had a good point in his column today in the Washington Post entitled “Judicial activism isn’t a bad thing.” I rarely agree with Will on anything but today I did.
The thing he said right was that judges are often called upon to balance two competing values: majority rule versus individual liberty. He believes that courts give undue deference to majority rule, which he says is fictitiously found in laws enacted by legislature. He thinks that judges should be more protective of individual rights.
So far so good. But then he goes wildly off the rails twice (at least), once in a small way and once in a big way.
The small way was a story about how a Louisiana state regulation put a poor woman out of a job. The Constitution should have weighed in favor of the woman’s individual right. I would probably agree given the story he told except for one thing. The US Constitution doesn’t govern state economic regulations. A small point in a philosophical argument, true. But he certainly knows better. He’s often on the side of saying that the federal government should not intrude on states’ rights.
The big flaw in Will’s argument is the way he sees individual rights. He is correct that many laws are passed by legislative majorities without any actual knowledge by the majorities that are symbolically invoked in an act of a governmental body, and that these acts are really passed at the behest of powerful special interests. But the conservative view of individual liberty is little more than a proxy for special interests: liberty for the rich and powerful.
Liberty for the majority of people who struggle day to day is not liberty to him. It is a majority wish to run roughshod over individuals.
So when a vast majority in Congress voted to extend the Voting Rights Act, courts were justified in invalidating that act because . . . What? Because it was the will of a majoritarian rabble? Labor rights that would give individual rights to workers (vis a vis employers) are similarly bad. Restrictions on the type of campaign spending that is only available to the rich is unconstitutional. The list goes on and on.
The Constitution does put restrictions on the rights of the majorities, but not in all areas. These are found primarily in the Bill of Rights. They include the right of free speech, freedom of religion, freedom to associate, freedom from unreasonable searches and seizure, privacy rights, and the right to vote.
But (aside from the right to keep and bear arms) Will-style conservatives don’t see these kinds of rights at all. Because these rights are owned by the majority of people. They only see rights claimed by the one percent. They’re all for individual rights, but only for certain individuals.