Daniel J. Mitchell

I have to give the Washington Post credit. It may have a bias for statism, but at least they have some diversity on the op-ed pages. Less than two months after E.J. Dionne wrote an embarrassing column showing he didn’t understand the difference between untrammeled majoritarianism and a constitutional republic, the Post publishes a terrific piece by George Will on the proper role of the Supreme Court.

Here’s some of what George Will wrote.

…a vast portion of life should be exempt from control by majorities. And when the political branches do not respect a capacious zone of private sovereignty, courts should police the zone’s borders. Otherwise, individuals’ self-governance of themselves is sacrificed to self-government understood merely as a prerogative of majorities.

The Constitution is a companion of the Declaration of Independence and should be construed as an implementation of the Declaration’s premises, which include: Government exists not to confer rights but to “secure” preexisting rights; the fundamental rights concern the liberty of individuals, not the prerogatives of the collectivity — least of all when it acts to the detriment of individual liberty. Wilkinson cites Justice Oliver Wendell Holmes as a practitioner of admirable judicial modesty. But restraint needs a limiting principle, lest it become abdication.

Holmes said: “If my fellow citizens want to go to Hell I will help them. It’s my job.”

No, a judge’s job is to judge, which includes deciding whether majorities are misbehaving at the expense of individual liberty. …The Constitution is a document, one understood — as America’s greatest jurist, John Marshall, said — “chiefly from its words.” And those words are to be construed in the bright light cast by the Declaration. Wilkinson worries about judges causing “an ever-increasing displacement of democracy.” Also worrisome, however, is the displacement of liberty by democracy in the form of majorities indifferent or hostile to what the Declaration decrees — a spacious sphere of individual sovereignty.


Daniel J. Mitchell

Daniel J. Mitchell is a top expert on tax reform and supply-side tax policy at the Cato Institute.