Some ques­tions

The Record (Troy, NY) - - FRONT PAGE - Ge­orge Will’s email ad­dress is georgewill@wash­post.com. Ge­orge Will Colum­nist

“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 was adopted in 1791?

In the Civil War’s af­ter­math, the 14th Amend­ment de­clared that no state could abridge “the priv­i­leges or im­mu­ni­ties” of U.S. cit­i­zens, a phrase de­not­ing the full panoply of rights of na­tional 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 the pro­tec­tion of eco­nomic lib­erty. In­stead, they have adopted the per­mis­sive “ra­tio­nal ba­sis” test for judg­ing whether gov­ern­ment abridge­ments 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 it­self can imag­ine a rea­son, the court 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 sev­eral 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.” Does ju­di­cial tol­er­ance of such en­rich­ment of small fac­tions con­sti­tute dere­lic­tion of the duty to pro­tect the ba­sic right to strive for bet­ter­ment?

Given that es­sen­tially all po­lit­i­cal cam­paign spend­ing is for the dis- sem­i­na­tion 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 the 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”?

In 2007, Chief Jus­tice John Roberts said, “The way to stop dis­crim­i­na­tion on the ba­sis of race is to stop dis­crim­i­nat­ing on the ba­sis of race.” Is there a con­sti­tu­tional or statu­tory im­ped­i­ment to do­ing so?

Judge J. Harvie Wilkin­son of the 4th Cir­cuit says the ad­min­is­tra­tive state “has come of age in con­sti­tu­tional si­lence, or per­haps in the in­ter­stices of the doc­u­ment.” This state “filled a vac­uum left when the leg­isla­tive and ju­di­cial branches, for rea­sons of their own, ceded enor­mous au­thor­ity to bu­reau­cratic judg­ment.” This is akin to the ju­di­ciary’s “ra­tio­nal ba­sis” sloth: “The habit of def­er­ence to any ‘rea­son­able’ agency reg­u­la­tion or ad­ju­di­ca­tion un­der the agency’s en­abling statute be­speaks a will­ing­ness on the part of courts to take the easy way out.” “The great ca­su­alty of [the ad­min­is­tra­tive state’s] growth has been demo­cratic gov­er­nance” as “the gap be­tween gov­er­nor and gov­erned grows ever wider.” And “the noose around the pri­vate sec­tor grows ever tighter and the checks on the bu­reau­cratic ap­pa­ra­tus seem ever looser.” Do you agree with Wilkin­son? If so, how should the court re­spond?

Fi­nally: You will be the first jus­tice to have been born and raised in the mod­ern Wash­ing­ton metropoli­tan and to have lived there al­most your en­tire pro­fes­sional life. Has this im­mu­nized you against sen­ti­men­tal­ity about the gov­ern­ment be­ing of, by and for “the peo­ple”?

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