Ques­tions for Judge Gor­such

The Washington Post Sunday - - SUNDAY OPINION - GE­ORGE F. WILL georgewill@wash­post.com

This week, the Se­nate Ju­di­ciary Com­mit­tee will ques­tion Neil Gor­such about the ju­di­ciary’s role. Here­with some per­ti­nent ques­tions: Lin­coln’s great­ness be­gan with his re­coil from the 1854 Kansas-Ne­braska Act, which em­pow­ered res­i­dents of those ter­ri­to­ries to de­cide whether to have slav­ery. The act’s premise was that “pop­u­lar sovereignty” — ma­jori­ties’ rights — is the essence of the Amer­i­can project. Is it, or is lib­erty?

Jus­tice Robert Jack­son wrote, “The very pur­pose of a Bill of Rights was to . . . place [cer­tain sub­jects] be­yond the reach of ma­jori­ties.” Was that not also the pur­pose of the 14th Amend­ment’s priv­i­leges and im­mu­ni­ties clause? It says: “No state shall make or en­force any law which shall abridge the priv­i­leges or im­mu­ni­ties of cit­i­zens of the United States.” Was this amend­ment’s pur­pose to en­sure that the nat­u­ral rights of all cit­i­zens would be pro­tected from abridg­ment by their states?

If so, was the court wrong in the 1873 Slaugh­ter-House Cases? It es­sen­tially erased the priv­i­leges and im­mu­ni­ties clause, hold­ing that it did not se­cure nat­u­ral rights (e.g., the right to en­ter con­tracts and earn a liv­ing), for the pro­tec­tion of which, the Dec­la­ra­tion of In­de­pen­dence says, gov­ern­ments are in­sti­tuted.

Chief Jus­tice John G. Roberts Jr. says the doc­trine of stare de­ci­sis — pre­vi­ous court de­ci­sions are owed re­spect — is not an “in­ex­orable com­mand.” The rul­ing in Plessy v. Fer­gu­son (1896), up­hold­ing racial seg­re­ga­tion in sep­a­rate but equal fa­cil­i­ties, has been un­done. Should the Slaugh­ter-House Cases rul­ing be re­vis­ited?

The court, with­out war­rant from the Con­sti­tu­tion’s text or his­tory, has di­vided Amer­i­cans’ lib­er­ties be­tween those it deems “fun­da­men­tal,” such as speech and as­so­ci­a­tion, and oth­ers, many per­tain­ing to eco­nomic ac­tiv­ity and the right to earn a liv­ing, that are in­fe­rior. Abridg­ments of the lat­ter have been given less ex­act­ing ju­di­cial scru­tiny. The court calls this “ra­tio­nal ba­sis” scru­tiny; it should be called “con­ceiv­able ba­sis” scru­tiny. If a leg­is­la­ture as­serts, or the court can imag­ine, a ra­tio­nal ba­sis for the abridg­ment, it stands. Do you think judges should de­cide which lib­er­ties to pro­tect or ne­glect? Should courts ex­am­ine ev­i­dence of whether eco­nomic reg­u­la­tions are re­lated to pub­lic health and safety or merely re­flect rent-seek­ing by eco­nomic in­ter­ests?

The Ninth Amend­ment says: “The enu­mer­a­tion in the Con­sti­tu­tion, of cer­tain rights, shall not be con­strued to deny or dis­par­age oth­ers re­tained by the peo­ple.” Robert Bork said this is akin to an “inkblot” on the Con­sti­tu­tion that judges should ig­nore. Do you agree? How can judges be faith­ful to this amend­ment? Was James Madi­son cor­rect that it should dis­pose us against a lat­i­tu­di­nar­ian in­ter­pre­ta­tion of Congress’s pow­ers? Is the Ninth Amend­ment per­ti­nent to, say, the right to earn a liv­ing free from un­rea­son­able li­cen­sure re­quire­ments or other bar­ri­ers to en­try into an oc­cu­pa­tion?

Other than a law that abridges a lib­erty enu­mer­ated in the Bill of Rights, are there lim­its to Congress’s power over in­ter­state com­merce?

The Fifth Amend­ment says no prop­erty shall be taken “for pub­lic use” with­out just com­pen­sa­tion. In the 2005 Kelo v. City of New Lon­don case, the court up­held a city’s seizure of pri­vate prop­erty not to fa­cil­i­tate con­struc­tion of a pub­lic struc­ture or to cure blight, but for the “pub­lic use” of trans­fer­ring it to a wealth­ier pri­vate in­ter­est that would pay more taxes. Did the court err?

Madi­son wor­ried that Congress would draw “all power into its im­petu­ous vor­tex.” For many decades, how­ever, our cen­trifu­gal Congress has been spin­ning off es­sen­tially leg­isla­tive pow­ers, del­e­gat­ing them to pres­i­dents and ex­ec­u­tive agen­cies. The Con­sti­tu­tion says, “All leg­isla­tive pow­ers herein granted shall be vested in a Congress.” Should the court en­force lim­its to Congress’s power to del­e­gate its pow­ers?

Cit­i­zens United held that unions and cor­po­ra­tions, par­tic­u­larly in­cor­po­rated non­profit ad­vo­cacy groups, can en­gage in un­reg­u­lated spend­ing that is not co­or­di­nated with can­di­dates or cam­paigns. Was the court cor­rect that Amer­i­cans do not for­feit their First Amend­ment rights when they come to­gether in in­cor­po­rated en­ti­ties to speak col­lec­tively?

Is it con­sti­tu­tional for Congress, by reg­u­lat­ing po­lit­i­cal spend­ing, to con­trol the quan­tity and tim­ing of po­lit­i­cal speech?

You com­mend­ably be­lieve that judges should ad­here to the “original pub­lic mean­ing” of the Con­sti­tu­tion’s text. Would you feel bound to fol­low a pre­vi­ous court de­ci­sion that did not eval­u­ate ev­i­dence of original mean­ing and was, in your view, in con­flict with it? If not, would you be el­e­vat­ing the views of judges over those of the Framers?

Oliver Wen­dell Holmes, a def­er­en­tial, ma­jori­tar­ian ju­rist, said: “If my fel­low cit­i­zens want to go to Hell I will help them. It’s my job.” Dis­cuss.

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