I know, I know, you probably think that he's either paying me to link to him or I'm some sort of groupie, but the truth is I just think he tends to express the opinions we share on this subject better than I do, so why reinvent the wheel? And if he keeps writing great stuff on constitutional law I'm just going to have to keep sending people there to read it. His latest post is a follow up to the earlier discussion on judicial review, specifically a reply to the Curmudgeonly Clerk on the subject of the proper role of judicial review and the rhetoric of Orrin Hatch about courts usurping the will of the majority. It all began with Mr. Sandefur correctly pointing out that the founders intended the courts to do exactly what Mr. Hatch is complaining about - restrain the actions of the majority to prevent them from damaging the rights of individuals.
Every time a court overrules a law that they like, conservatives make the same claim, that "unelected judges" have "thwarted the will of the people" who passed a law through their duly elected representatives. Sandefur points out the universal use of such rhetoric:
The problem is, the exact same words could have been applied to criticize any of the great cases in the Supreme Courts history, from Brown v. Board of Education to Texas v. Johnson towell, you name it. In all of these cases, the fundamental question is whether the majority has a right to govern a certain aspect of our lives, or to govern them in a certain way. The plaintiff will say No, the Constitution forbids the majority from doing this. And indeed, the Constitution is fundamentally a limit on the extremely dangerous power of the majority. So, employing rhetoric that judges shouldnt usurp[] or shouldnt impos[e] or force is extremely dangerous, I think, because it undermines the most important role of the judiciary, which is to act as what the Clerk and others call a counter-majoritarian institution.
More importantly, he points out that the conservatives have it backwards when they claim that whenever the courts restrain the majority from passing a law that they have "discovered a new right in the constitution". It's backward because it starts from the assumption that the government has whatever power it chooses to take and the individual must assert a legitimate right against such efforts in order to defeat them. The reality, however, is that the presumption is in favor of individual liberty, not in favor of state power to regulate. The individual is presumed to have the right to do something unless the government (i.e. the majority) can assert a legitimate authority to regulate the conduct in question. As Madison put it, the US Constitution was not a "charter of liberty granted by power" but a "charter of power granted by liberty", and declared that this change was so important that it was "the most triumphant epoch of its history, and the most consoling presage of its happiness". As Sandefur puts it:
The burden is on those who would govern, not on those who would be free. In the cases that are usually criticized by those attacking the power of judicial review, the question is whether the majority has a right to take away a persons freedomnot whether the person should be free to begin with, since that is asking a person to prove a negative, which is clearly illogical. Morgan says that Justice Kennedys opinion for the Court in Lawrence v. Texas...created a new right to engage in homosexual relations without state interference. But it did no such thing. Instead, it demanded that the state justify itself when it attempts to deprive people of libertysomething the Fourteenth Amendment clearly requires of the state. When the state cannot meet that burden, it has no authority to govern, and it is therefore right for the judiciary to step in. Goodridge did not, as the Clerk claims, announce hitherto unknown rights. It simply said: 1) The Constitution prohibits the state from drawing certain distinctions without good reasons, 2) The state has drawn a distinction, 3) are its reasons for doing so good ones? It found that the answer was no. That is not the same as announc[ing] hitherto unknown rights, and the Clerk ought to be ashamed of mischaracterizing the case in this way, whether or not he agrees with its outcome...But the Constitution was not written in order to give power to the majoritythe majority already has power, with or without a Constitution, because they have strength. The Constitution was written to hinder the majority, to protect us, to pen up this massive monster that can crush us at a single blow. And we are seeing those who claim to believe in the Constitution arguing that we ought to open the gate, dismantle the fence, invite greater and greater power to the legislature, which is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.'
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