George Will’s latest column uses the nomination of Judge Gorsuch as the occasion for an argument about judicial review and majoritarianism—which is certainly more interesting than most of the commentary to which the nomination has given rise. Gorsuch, he says, has the chance to correct a philosophical mistake of the late Justice Antonin Scalia and the late Judge Robert Bork. Will’s hope is that Gorsuch, once installed on the Court, will be an exponent of a jurisprudence of natural rights that Scalia and Bork opposed. It seems to me, though, that Will is more mistaken than those eminences were.
Item one in Will’s indictment of the duo—granted, it’s a gentle indictment—is that Scalia wrongly denies that the Constitution contains any “philosophizing” and says it is instead “a practical and pragmatic charter of government.” Note, though, that Will never establishes that Scalia was wrong on this point. He merely establishes that the Constitution reflects and attempts to put into effect a political philosophy, which is something that Scalia did not dispute.
Considering the context of Scalia’s remarks strengthens the late justice’s point. He was responding (in A Matter of Interpretation) to the liberal legal theorist Laurence Tribe, who had written that the First Amendment reflected “the aspirations of the former colonists about what sorts of rights they and their posterity would come to enjoy against their own government.” When Scalia denies that the Constitution contains “philosophizing,” what he means is that the First Amendment is a rule rather than an aspiration.
Item two is that Judge Bork was wrong to dismiss the Ninth Amendment as an “inkblot.” “If you believe, as Robert Bork did, that this amendment is a meaningless ‘inkblot’ you must believe that the Framers were slapdash draftsmen about this, and only this, provision.” But Judge Bork didn’t say that the amendment was “a meaningless inkblot” either in his confirmation testimony in 1987 or in his book about his defeated nomination, The Tempting of America.
He advanced two views that have been misremembered. First, he said that he was not completely sure what the amendment meant (which is not the same thing as saying that the amendment was meaningless). Second, he said that a judge who does not know the meaning of a constitutional provision—any constitutional provision; he created a hypothetical one in his testimony—cannot use it as a license to nullify a law. He would be duty-bound to treat that provision as an ink blot. If there’s a good argument against that proposition of Judge Bork, I haven’t run across it.
Item three is that Justice Scalia was wrong to describe “the majority rules” as “the whole theory of democracy,” and to add: “You protect minorities only because the majority determines that there are certain minority positions that deserve protection. . . . The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.” (These remarks came during a question-and-answer session.)
Will doesn’t dispute Scalia’s claims here, either. He doesn’t, that is, deny that majority rule is the basic meaning of democracy (even if a democratic government, to be defensible, must have other features), and he doesn’t deny that when democracies recognize minority rights it is because a majority has decided to recognize them.
Instead Will writes, “If that is the ‘whole theory’ of democracy, then democratic theory is uninteresting. What is interesting begins with the institutional and cultural measures necessary to increase the likelihood that majorities will be reasonable and respectful of the natural rights of those in the minority.” Fair enough. Then the great columnist steals a base: “It is the judiciary’s job to construe the ‘document of government’ — the frame of silver — in the light cast by the apple of gold.”
What Will means by this allusion to an insufficiently famous Lincoln quote is that the courts have to read the Constitution in light of the theory of natural rights in the Declaration of Independence. Previously in the column, Will had written that “a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.”
The basic difficulty with which Will does not grapple—and which I do not believe he can overcome—is that the conclusion he asserts simply does not follow from his premises. It is true that we possess natural rights, and it is true that our government was instituted to protect those rights. But there are a variety of ways that a constitution-maker might arrange a government so that those rights may be protected. He might empower judges, trusting them to reason about natural rights and strike down laws that conflict with their best understanding of them. Or he might create a complicated system of checks, balances, and divided powers in which judges play a subordinate role: for example, vindicating only those natural rights that have been spelled out in the Constitution.
This post has now gone on for longer than Will’s column, so I will come to rest on two bare assertions: The latter set-up is a wiser one, and it is the one our Constitution actually adopts. Actually, make that three assertions: Bork and Scalia were right.