Mark Pulliam Aug. 9, 2016, 4:10pm


Those four decades have been a tumultuous period in our political culture; it would not be surprising if Will’s political views had evolved over that time, and indeed they have. His 1983 book, Statecraft as Soulcraft, was a full-throated paean to strong-government Tory conservatism, in the Burkean tradition. He has lately been tacking in the libertarian direction.

Will’s current orientation is evident from a recent essay of his in National Affairs, entitled “The Limits of Majority Rule,” in which he addresses the topic (familiar to readers of this site) of judicial review: What is the appropriate role of the judiciary in a democratic society?

The issue is often—albeit superficially—framed as a dichotomy between unchecked majoritarianism (with accompanying judicial deference), on the one hand, and freewheeling judicial intervention to protect the rights of the individual, on the other. Will has been interested in this question for almost 50 years. His 1968 doctoral dissertation, “Beyond the Reach of Majorities: Closed Questions in the Open Society,” alluded to a famous phrase from the Supreme Court decision in West Virginia State Board of Education v. Barnette (1943).

In Barnette, which upheld on First Amendment grounds the right of Jehovah’s Witnesses to refuse to recite the Pledge of Allegiance in public schools, Justice Robert Jackson declared:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. . . . [F]undamental rights may not be submitted to vote; they depend on the outcome of no elections.

According to Will, this language from Barnette embodies the commitment of Abraham Lincoln—whom he describes as “the largest influence on my life’s work”—to the primacy of constitutional principles over majority rule. (He compares the anti-majoritarian logic of Barnette to the basis for Lincoln’s opposition to the 1854 Kansas-Nebraska Act, which repealed the Missouri Compromise and, Will believes, ultimately provoked the Civil War.)

Barnette frames the so-called “counter-majoritarian difficulty” but does not answer it. Jackson was a superb wordsmith, and this oft-quoted passage—which Will characterizes as “a constitutional and even judicial philosophy”—perfectly expresses what it means for a nation to have a written constitution: certain rights are placed off-limits from political interference, unless and until the polity amends its founding charter by super-majority vote to re-define the scope of individual rights.

As elegant and eloquent as those words are, they state the obvious and shift attention away from the real controversy: just what rights are protected by the Constitution, and at what point is a protected liberty impermissibly infringed?

Few scholars today dispute the validity (or legitimacy) of judicial review recognized in Marbury v. Madison (1803) or doubt (at least in the abstract) the paramount status of constitutional rights over executive or legislative action. Few if any advocate absolute legislative supremacy. So what is Will’s point?

He avers in his National Affairs essay that “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.” Without providing examples, he implies that conservatives generally believe that “the things legislatures do are necessarily right because they reflect the will of the majority.” He now disavows that position and declares it “high time” that conservatives “rethink what they should believe about the role of courts in the American regime.”

This is a big statement. What does he offer his unreflective and imprudent fellow conservatives as an alternative? Unfortunately, not much besides some disappointingly vague generalizations. There is little meaningful guidance, nor does Will unveil any grand theories of constitutional interpretation. He does not even explain why he thinks Barnette, which overruled the 8 to 1 decision in Minersville School District v. Gobitis (1940), was correctly decided.

The hard questions in constitutional law (frequently discussed on this site, for example here, here, and here) include these: What rights are protected by the Constitution, and how should courts discern those rights? What standard or standards of review should be used when reviewing claims that a challenged law violates constitutional rights? How should the state’s justifications for challenged laws be evaluated? Which party has the burden of proof in such challenges?

Will provides no specific answers. Clearly, majorities have the right to pass laws, even though laws frequently burden some individuals. This is the essence of democracy. Just as clearly, majorities do not have carte blanche; in some areas, the Constitution limits the will of majorities and protects the rights of individuals. In our system of government, the judiciary plays umpire when laws are challenged.

All we have from Will is his suggestion to judges that deference is not always appropriate. This sets up a proverbial straw man, since I can think of no legal scholar—other than University of Texas law professor Lino Graglia—who believes that courts should always defer to the legislature. Most modern proponents of “judicial restraint” (such as Ed Whelan, Judge J. Harvie Wilkinson, or the late Robert Bork) criticize specific rulings that they contend are not supported by an honest reading of the Constitution. To them, “deference” means that courts should not make up “rights” not actually contained in the Constitution or invalidate laws simply because they disagree with their wisdom or efficacy.

As for the libertarian position on judicial review that has been advanced by Randy Barnett, Clark Neily, and others, Will flirts with this but (at least in this essay) does not explicitly endorse it. Instead he bemoans the modern administrative state (which he describes as “promiscuously intrusive in the dynamics of society”) and questions whether the current leviathan state accurately reflects the will of the people or merely the interests of powerful special interests.

These are, indeed, valid concerns, but they do not qualify as an epiphany in conservative circles. Will offers as examples of “the rent-seeking state” certain regulatory excesses and restrictive occupational licensure laws that impede economic competition (apparently drawn from cases litigated by the Institute for Justice, whose work Will has lauded). He complains that such ill-conceived laws are often upheld because courts “only reluctantly and rarely engage in the judicial supervision of democracy, because majority rule is the essence of the American project.”

In light of the Supreme Court’s recent willingness to overturn many states’ laws regarding marriage (Obergefell), and abortion (Whole Woman’s Health v. Hellerstedt), and the regular interference of lower federal courts in the operation of state prisons, public schools, and even the public display of religious symbols (to offer just a few examples), Will evidently has in mind a particular application of “deference.” He decries insufficient judicial support for “the unenumerated, but surely implied, constitutional right to economic liberty.”

In doing so, he finally shows his hand. He is apparently not condemning judicial restraint across the board—in the above-mentioned cases, he might even support it—but only where it concerns inadequate enforcement of the right to free labor that was “at the core of the slavery crisis.” He accurately points out that during the New Deal, the Supreme Court effectively abandoned meaningful judicial review of legislation affecting economic liberties, but fails to note that Justice Harlan Fiske Stone, one of the principal architects of this abdication (and the author of what Will calls “the most famous and consequential footnote in the Court’s history”), was also the lone dissenter in Gobitis, a dissenting view that was eventually adopted by the majority in Barnette.

Will does not dwell on the origins or scope of the economic rights he sees as “basic” and “natural,” but he intimates that the 1873 Slaughter-House Cases were incorrectly decided; implicitly criticizes the so-called “rational basis” test as inadequate to prevent rent-seeking; refers to the concept of “judicial engagement” (but not Neily’s 2013 book expounding that concept, Terms of Engagement); and approvingly cites Timothy Sandefur as advocating a conception of natural rights affirmed by the Declaration of Independence and embedded in the Constitution (to which the Declaration is “logically prior” in Sandefur’s estimation). These are all clues that Will favors the libertarian model (at least in the area of economic liberty) but, ironically, in his essay he displays considerable restraint by not directly endorsing it.

He ends with several quotes from a lengthy, widely noted concurring opinion authored by Texas Supreme Court Justice Don Willett in Patel v. Texas Department of Licensing and Regulation, a 2015 case in which the Institute for Justice successfully challenged, under the Texas Constitution, a state law requiring extensive training prior to licensure for individuals performing a cosmetic procedure known as “eyebrow threading.” The Texas Constitution is not identical to the U.S. Constitution, of course, and in construing it the Texas Supreme Court is not bound by the New Deal precedents Will finds objectionable. Willett’s concurring opinion is noteworthy primarily for eschewing the deferential “rational basis” standard of review in favor of a more Lochner-like analysis. (Patel was decided by a 6 to 3 vote, and only two other justices joined Willett’s concurring opinion.)

Willett’s decision is praised for having “cogently addressed, and largely dissolved, the supposed counter-majoritarian difficulty,” by meaningfully scrutinizing a state law in conflict with an asserted constitutional right to determine whether the law is justified. (Not acknowledged is that Willett, like all judges in Texas, faces the voters in partisan elections; in Texas, courts are “majoritarian institutions.”)

The essay ends with a re-framing of the question he never answers: “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.” That majority rule is “not inevitably reasonable,” and that a proper reading of the Constitution will place “many things” beyond the reach of majorities are banal platitudes with which few scholars would disagree.

Thus Will does little to resolve the tension between the emerging libertarian model of constitutional theory and the traditional conservative approach he purports to disavow. Not all on the Right agree with the post-1937 marginalization of economic liberties, and many conservative legal scholars are open to arguments (such as Willett’s concurring opinion in Patel) in favor of economic liberties provided that they are supported by constitutional text and consistent with originalist principles (for example, here and here).

Rather than plowing new ground, George Will succeeds only in knocking down a straw man.

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