Is government truly of, by and for ‘the people,’ judge?
George F. Will
“Why should we bother to reply to Kautsky? He would reply to us, and we would have to reply to his reply. There is no end to that. It will be quite enough for us to announce that Kautsky is a traitor to the working class, and everyone will understand everything.” — Lenin
Regarding the Supreme Court nomination of Brett Kavanaugh, Senate Democrats have a Leninist aversion to argument. However, Republicans could usefully ask these questions:
Would you dismiss, as Robert Bork did, the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) as an “inkblot”? If you do think that with it, as with everything else, the Framers were precise, how do you do the duty they imposed of determining retained rights? If judges should secure only enumerated rights, does that mean Americans had no rights against the federal government before the Bill of Rights’ 1791 adoption?
In the Civil War’s aftermath, the 14th Amendment declared no state could abridge “privileges or immunities” of U.S. citizens, a phrase denoting the full panoply of rights of citizenship. But in the 1873 Slaughter-House Cases, the court construed that phrase so narrowly that it was effectively expunged from the Constitution. Should the phrase be resuscitated?
Since the New Deal, courts have largely abandoned protection of economic liberty. Instead, they have adopted the permissive “rational basis” test for judging whether government abridgments of this liberty are permissible. Courts almost invariably hold that if government stipulates a reason for a law or regulation that burdens economic activity, or even if the court can imagine a reason, it should permit the burden. What in the Constitution’s text or structure makes the “rational basis” test — the consignment of economic liberty to inferior status — reasonable?
In 2004, the 10th U.S. Circuit Court of Appeals upheld an Oklahoma law — protectionism for funeral directors — requiring online casket retailers to have funeral licenses, which require years of coursework, a one-year apprenticeship, embalming 25 bodies and taking two exams. The court complacently said: “While baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.” Is judicial tolerance of such enrichment of small factions dereliction of the duty to protect the right to strive for betterment?
Given that essentially all campaign spending is for dissemination of political speech, are not restrictions on such spending presumptively unconstitutional?
All campaign-finance laws have two things in common: They are supposedly written to prevent, among other things, “the appearance” of corruption. And they are written by incumbent legislators. Is there an appearance of corruption in incumbents tinkering with rules that regulate the political competition in which their careers are at stake?
In 1963, President John Kennedy said Congress should “make a commitment ... to the proposition that race has no place in American life or law.” Is that proposition affirmed by the 14th Amendment’s guarantee of “equal protection of the laws”?
Finally: You will be the first justice born and raised in the modern Washington metropolitan area and have lived there almost your entire professional life. Has this immunized you against sentimentality about the government being of, by and for “the people”?