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George Will’s Constitution

George Will has enjoyed a long career as a public intellectual, an especially illustrious one for a Right-of-center figure. For over four decades, Will’s commentary has appeared in intellectual magazines and newspapers including National Review, the Washington Post, and Newsweek. He has many books to his name as well as a widely syndicated newspaper column, for which he won a Pulitzer Prize in 1977. A Ph.D. from Princeton, he’s also a familiar talking head on television, often sporting a bow tie and playing the role of the sober, erudite Washington insider.

Those four decades have been a tumultuous period in our political culture; it would not be surprising if Will’s political views had evolved over that time, and indeed they have. His 1983 book, Statecraft as Soulcraft, was a full-throated paean to strong-government Tory conservatism, in the Burkean tradition. He has lately been tacking in the libertarian direction.

Will’s current orientation is evident from a recent essay of his in National Affairs, entitled “The Limits of Majority Rule,” in which he addresses the topic (familiar to readers of this site) of judicial review: What is the appropriate role of the judiciary in a democratic society?

The issue is often—albeit superficially—framed as a dichotomy between unchecked majoritarianism (with accompanying judicial deference), on the one hand, and freewheeling judicial intervention to protect the rights of the individual, on the other. Will has been interested in this question for almost 50 years. His 1968 doctoral dissertation, “Beyond the Reach of Majorities: Closed Questions in the Open Society,” alluded to a famous phrase from the Supreme Court decision in West Virginia State Board of Education v. Barnette (1943).

In Barnette, which upheld on First Amendment grounds the right of Jehovah’s Witnesses to refuse to recite the Pledge of Allegiance in public schools, Justice Robert Jackson declared:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. . . . [F]undamental rights may not be submitted to vote; they depend on the outcome of no elections.

According to Will, this language from Barnette embodies the commitment of Abraham Lincoln—whom he describes as “the largest influence on my life’s work”—to the primacy of constitutional principles over majority rule. (He compares the anti-majoritarian logic of Barnette to the basis for Lincoln’s opposition to the 1854 Kansas-Nebraska Act, which repealed the Missouri Compromise and, Will believes, ultimately provoked the Civil War.)

Barnette frames the so-called “counter-majoritarian difficulty” but does not answer it. Jackson was a superb wordsmith, and this oft-quoted passage—which Will characterizes as “a constitutional and even judicial philosophy”—perfectly expresses what it means for a nation to have a written constitution: certain rights are placed off-limits from political interference, unless and until the polity amends its founding charter by super-majority vote to re-define the scope of individual rights.

As elegant and eloquent as those words are, they state the obvious and shift attention away from the real controversy: just what rights are protected by the Constitution, and at what point is a protected liberty impermissibly infringed?

Few scholars today dispute the validity (or legitimacy) of judicial review recognized in Marbury v. Madison (1803) or doubt (at least in the abstract) the paramount status of constitutional rights over executive or legislative action. Few if any advocate absolute legislative supremacy. So what is Will’s point?

He avers in his National Affairs essay that “For many years and for several reasons, many of my fellow conservatives have unreflectively and imprudently celebrated ‘judicial restraint.’ For many years, I, too, was guilty of this.” Without providing examples, he implies that conservatives generally believe that “the things legislatures do are necessarily right because they reflect the will of the majority.” He now disavows that position and declares it “high time” that conservatives “rethink what they should believe about the role of courts in the American regime.”

This is a big statement. What does he offer his unreflective and imprudent fellow conservatives as an alternative? Unfortunately, not much besides some disappointingly vague generalizations. There is little meaningful guidance, nor does Will unveil any grand theories of constitutional interpretation. He does not even explain why he thinks Barnette, which overruled the 8 to 1 decision in Minersville School District v. Gobitis (1940), was correctly decided.

The hard questions in constitutional law (frequently discussed on this site, for example here, here, and here) include these: What rights are protected by the Constitution, and how should courts discern those rights? What standard or standards of review should be used when reviewing claims that a challenged law violates constitutional rights? How should the state’s justifications for challenged laws be evaluated? Which party has the burden of proof in such challenges?

Will provides no specific answers. Clearly, majorities have the right to pass laws, even though laws frequently burden some individuals. This is the essence of democracy. Just as clearly, majorities do not have carte blanche; in some areas, the Constitution limits the will of majorities and protects the rights of individuals. In our system of government, the judiciary plays umpire when laws are challenged.

All we have from Will is his suggestion to judges that deference is not always appropriate. This sets up a proverbial straw man, since I can think of no legal scholar—other than University of Texas law professor Lino Graglia—who believes that courts should always defer to the legislature. Most modern proponents of “judicial restraint” (such as Ed Whelan, Judge J. Harvie Wilkinson, or the late Robert Bork) criticize specific rulings that they contend are not supported by an honest reading of the Constitution. To them, “deference” means that courts should not make up “rights” not actually contained in the Constitution or invalidate laws simply because they disagree with their wisdom or efficacy.

As for the libertarian position on judicial review that has been advanced by Randy Barnett, Clark Neily, and others, Will flirts with this but (at least in this essay) does not explicitly endorse it.  Instead he bemoans the modern administrative state (which he describes as “promiscuously intrusive in the dynamics of society”) and questions whether the current leviathan state accurately reflects the will of the people or merely the interests of powerful special interests.

These are, indeed, valid concerns, but they do not qualify as an epiphany in conservative circles.  Will offers as examples of “the rent-seeking state” certain regulatory excesses and restrictive occupational licensure laws that impede economic competition (apparently drawn from cases litigated by the Institute for Justice, whose work Will has lauded). He complains that such ill-conceived laws are often upheld because courts “only reluctantly and rarely engage in the judicial supervision of democracy, because majority rule is the essence of the American project.”

In light of the Supreme Court’s recent willingness to overturn many states’ laws regarding marriage (Obergefell), and abortion (Whole Woman’s Health v. Hellerstedt), and the regular interference of lower federal courts in the operation of state prisons, public schools, and even the public display of religious symbols (to offer just a few examples), Will evidently has in mind a particular application of “deference.” He decries insufficient judicial support for “the unenumerated, but surely implied, constitutional right to economic liberty.”

In doing so, he finally shows his hand. He is apparently not condemning judicial restraint across the board—in the above-mentioned cases, he might even support it—but only where it concerns inadequate enforcement of the right to free labor that was “at the core of the slavery crisis.” He accurately points out that during the New Deal, the Supreme Court effectively abandoned meaningful judicial review of legislation affecting economic liberties, but fails to note that Justice Harlan Fiske Stone, one of the principal architects of this abdication (and the author of what Will calls “the most famous and consequential footnote in the Court’s history”), was also the lone dissenter in Gobitis, a dissenting view that was eventually adopted by the majority in Barnette.

Will does not dwell on the origins or scope of the economic rights he sees as “basic” and “natural,” but he intimates that the 1873 Slaughter-House Cases were incorrectly decided; implicitly criticizes the so-called “rational basis” test as inadequate to prevent rent-seeking; refers to the concept of “judicial engagement” (but not Neily’s 2013 book expounding that concept, Terms of Engagement); and approvingly cites Timothy Sandefur as advocating a conception of natural rights affirmed by the Declaration of Independence and embedded in the Constitution (to which the Declaration is “logically prior” in Sandefur’s estimation). These are all clues that Will favors the libertarian model (at least in the area of economic liberty) but, ironically, in his essay he displays considerable restraint by not directly endorsing it.

He ends with several quotes from a lengthy, widely noted concurring opinion authored by Texas Supreme Court Justice Don Willett in Patel v. Texas Department of Licensing and Regulation, a 2015 case in which the Institute for Justice successfully challenged, under the Texas Constitution, a state law requiring extensive training prior to licensure for individuals performing a cosmetic procedure known as “eyebrow threading.” The Texas Constitution is not identical to the U.S. Constitution, of course, and in construing it the Texas Supreme Court is not bound by the New Deal precedents Will finds objectionable. Willett’s concurring opinion is noteworthy primarily for eschewing the deferential “rational basis” standard of review in favor of a more Lochner-like analysis. (Patel was decided by a 6 to 3 vote, and only two other justices joined Willett’s concurring opinion.)

Willett’s decision is praised for having “cogently addressed, and largely dissolved, the supposed counter-majoritarian difficulty,” by meaningfully scrutinizing a state law in conflict with an asserted constitutional right to determine whether the law is justified. (Not acknowledged is that Willett, like all judges in Texas, faces the voters in partisan elections; in Texas, courts are “majoritarian institutions.”)

The essay ends with a re-framing of the question he never answers: “The challenge is to determine the borders of the majority’s right to have its way, and to have those borders policed by a non-majoritarian institution—the judiciary.” That majority rule is “not inevitably reasonable,” and that a proper reading of the Constitution will place “many things” beyond the reach of majorities are banal platitudes with which few scholars would disagree.

Thus Will does little to resolve the tension between the emerging libertarian model of constitutional theory and the traditional conservative approach he purports to disavow. Not all on the Right agree with the post-1937 marginalization of economic liberties, and many conservative legal scholars are open to arguments (such as Willett’s concurring opinion in Patel) in favor of economic liberties provided that they are supported by constitutional text and consistent with originalist principles (for example, here and here).

Rather than plowing new ground, George Will succeeds only in knocking down a straw man.

Reader Discussion

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on August 09, 2016 at 09:27:34 am

Will has lost my respect as a serious commentator on national issues with his unrelenting attacks on Donald Trump. For some reason, Will has shown a deep animus toward Trump from the beginning and continues with an almost bi-weekly drumbeat of culumny even though Trump won a resounding primary victory. On the other hand, Will has (to my knowledge) shown only insouciance references to the mendacious Mrs. Clinton.

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William R. Casey
on August 09, 2016 at 09:46:32 am

Will belongs in a museum. His discourse is akin to first class passanger's on the Titanic discussing whether God himself could sink this ship while comfortably insulated from reality

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lehnne
on August 09, 2016 at 10:06:07 am

...doubt (at least in the abstract) the paramount status of constitutional rights over executive or legislative action. Few if any advocate absolute legislative supremacy.

The court has a large body of precedent establishing not legislative "supremacy" per say, but legislative deference. There is a presumption that laws are Constitutional unless proven unconstitutional, which gives the citizen filing suit an uphill battle. The court has also graded some rights as more important than others, requiring "strict scrutiny" in only a small number of cases.

When you look at the judicial history of the commerce clause and the second amendment, it's impossible to believe that the court really believes in "the paramount status of constitutional rights over executive or legislative action" in any but the most limited of contexts.

The net effect is de facto legislative supremacy.

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Cloudbuster
on August 09, 2016 at 10:06:10 am

That is pretty much all Will does these days, argue with strawmen. I guess it beats arguing with clouds. I mean, does anyone today seriously argue that the majority is always right? Or that the courts should always defer to the popular will? Of couse not. What people do argue is that the system has gone out of balance, that the combination of reading the vaguest principles into the Constitution completely unconnected to its actual language in the name of implied rights with the Court's increasingly grandiose view of itself as some sort of superlegislature (Ginsburg in her recent, infamous interview sounded more like a president talking about a political agenda in her final term than a neutral justice) and a self-serving contempt for democracy, a view that the people are secondary to the will of "experts" and technocrats that seems to have permeated Western democracies, has created a legitimacy crisis. It reminds me of Jaffe's book about Lincoln and the Crisis of the House Divided. Lincoln understood that government that departed too far from the popular will was not legitimate even as he argued that certain rights could not be denied in our constitutional system.

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astrodog
on August 09, 2016 at 10:15:10 am

So long as we have judicial review we will have no true foundation in a Constitution. In this one article you cite several times in which the Court has "interpreted" the Constitution differently from time to time based solely on their own desires and whims. If the Constitution and its plain clear language was always the basis for determining what is and is not Constitutional, rational and intelligent judges would not be constantly split as to outcome, and the Constitution would not have totally different meaning today than it had when written. Not only is there no basis in the language of the Constitution for judicial review, it is anathema for any republic purporting to be governed by the people. British Common Law, often cited as the basis for our original system, once allowed judicial review. After one case in which the laws of Parliament were overturned (Dr Bonham), Parliament passed the Parliamentary Supremacy Act of 1685 ending judicial review in their system forever. I would also argue that your own statement "In our system of government, the judiciary plays umpire when laws are challenged." is not supported by any words to be found in the U.S. Constitution. In fact, the exact opposite is true, Congress regulates the courts under Article III. Section II. No words to the effect of courts regulating Congress are to be found anywhere in that Document. Government of, by, and for the people is a sham so long as the will of those people can be thrown out on a whim by a single "King" (or Queen) in a black robe.

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Marvin Tyson
on August 09, 2016 at 10:36:09 am

Sigh. "per se."

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Cloudbuster
on August 09, 2016 at 10:50:18 am

Knocking down a straw man? REALLY? You disclaim that any “judicial restraint” conservatives say that because “economic liberty” (for instance the right to enter into a voluntary contract with another) is not explicitly mentioned in the constitution that courts should ignore it? I mean, my god, what do you think this whole debate is about then? There are some provisions of the constitution that the “judicial restraint” people think are too vague to be enforced (the 9th amendment, the privileges or immunities clause, or even the substantive parts of the due process clause). The more “judicial engagement” supporters agree that these clauses might seem vague on their surface say that there is actual meaning to them and that they should be enforced by the courts. That doesn’t mean “judicial engagement” supporters think ANY such interpretation of this provisions is valid, but at the very least it should incorporate economic liberty (under all 3). “Judicial restraint” supporters disclaim ANY protection under the 5th amendment “nor be deprived of life, liberty, or property, without due process of law” or the 14th amendment clause to ANY non “procedural” protections. Such people are claiming that the legislature can take away your life, liberty, or property at their whim if only they give you a chance to come before a neutral judge who will follow the statute. While “judicial engagement” supporters claim that the power to take away a person’s life, liberty or property does not reside within the legislature. That a person must commit a wrongful act, and then be judged in neutral procedures that the actually committed that wrongful act, before their life, liberty or property can be taken. Economic liberty is also included within the definition of liberty (which includes ANY action by one or more people that do not cause harm to anyone else). “Judicial restraint” supporters claim that “liberty” means solely bodily liberty of movement (ie you cant be placed in jail), and that economic liberty is not a part of the word liberty. These are big, HUGE, differences that go to the heart of the disagreement, to claim like you do that it is a strawman that they are attacking suggests you may not really understand the conflict.

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Devin Watkins
on August 09, 2016 at 11:26:12 am

One of the great values of the articulations of George F. Will is that they can bring forth careful inspections by other intellectuals like Mark Pulliam, who are not just "wordsmiths" (see, Robert Nozick).

However, there is a rather persistent tendency in such inspections, somewhat reflected in this essay to critique Will's articulations for particular omissions.

Will is now 75. His analyses seem mostly "Popperian" (Sir Karl Popper) in that he focuses on determinations and identifications of **what is false** rather than creating assertions of **the Truth.**

Thus it is we will not always see those who delineate the false attempt to establish something to be considered as a countervailing truth. Some do; but, as in science, it usually boils down to "Conjectures and Refutations."

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R Richard Schweitzer
on August 09, 2016 at 11:30:02 am

This reflects the confusion about what our rights (immunities) are (in the Ninth Amendment and elsewhere). I have tried to codify them at
http://www.waywardmovie.com/?page_id=162 and further codified them at
http://www.waywardmovie.com/?page_id=297

It is a fundamental error to look for "rights" to be explicitly codified. That is not what the Framers of the Ninth Amendment tried to do.

First, "judicial review" is only the constitutional review that all us are supposed to do when statutes and legal practices conflict with the Constitution. It is only "judicial" when judges do it, but ultimately we all do it.

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Jon Roland
on August 09, 2016 at 11:30:45 am

AMEN! Marvin! AMEN! There isn't a word to be found in the Constitution that would grant the court the power of judicial review! It's a power invented and usurped by John Marshall and the court itself!

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Earl Carter
on August 09, 2016 at 12:08:20 pm

Clearly, majorities have the right to pass laws...

They do? Whence does it derive?

Majorities have no "right" to pass laws. They have the power to pass laws, if done in accordance with Constitutional and charter provisions for that process: i.e., they have the might. But rights exist only as they can be derived from laws of nature as expressed in the nature of Man.

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Francis W. Porretto
on August 09, 2016 at 12:15:46 pm

Interestingly, I copied "In our system of government, the judiciary plays umpire when laws are challenged," on which to comment.

The literal preamble says willing people in their states "in order to " accomplish state goals create a limited national government to serve the people in their states. The articles that follow include provisions for amendment.

I write "willing people" then "the people" to distinguish those who agree to the civic contract that is stated in the preamble. Thus, while the subject, "We the People of the United States," is ideal in that it is a totality, in practice few people are aware beyond fruitless claiming to be of "we, the people." Almost no one is aware of the claim that willing people in their states authorize the USA.

The 1791 constitutional orientalists were influenced by Protestantism/diesm and British common law. However, the goals of the preamble are neutral to those two practices. Intellectuals use words and phrases for political power, and the preamble became "secular" and common law became "Blackstone." However, the people demand justice and with the American "bread basket" in 2016, both Protestantism and Blackstone's derivatives--opinion based morality--are obsolete.

The people who are willing to trust and commit to the goals in the literal preamble, or essences in 2016 terms, must impress the administration, the Congress, and the judiciary, as well as the media, that the age of opinion-based morality is obsolete and is to be replaced with civic morality--iterative collaboration based on the indisputable facts of reality.

For example, a family-man who decides his psychological person is female is expected to uphold promises to himself, his spouse, his children, his grandchildren and therefore must get civic counseling to help him contain the psychological woman in order to maintain the commitments to his physical man. A man deciding to compete with his wife over womanhood is as erroneous as a man whose wife has breast cancer deciding to divorce her in order to remarry. This does not mean it can't be done; all it means is that a civic people do not condone such weak regard for fidelity.

Civic issues do not involve religious beliefs and are not limited by Blackstone derivatives. However, the people gradually cultivate benefits from the indisputable facts of reality.

BTW, I became disappointed with Will in 2014: see https://plus.google.com/112057074688454021253/posts/SBbFX3XGXXw . I commented on his article “Religion and the American Republic,” (National Affairs, No. 16, Summer 2013).

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Phil Beaver
on August 09, 2016 at 12:22:16 pm

So no judicial review eh? In other words congress can do whatever they want? What about that whole pesky oath thing that a Judge has to swear to defend the constitution, should he ignore that to?

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Devin Watkins
on August 09, 2016 at 13:33:25 pm

Congressmen and Senators take that same oath, do they not?
Yet you seem to be content in having one person hold that power without any recourse of the people than to entrust it to 535 Americans who are answerable to those people at the ballot box. Strange.
Ask yourself this; would a group of men who had just fought a long and bloody war to cast off a king because there was no appeal from his "opinions" and rulings, and because he was answerable to no one, then grant those same powers and authorities to a judge or justice from whose opinions there would be no appeal, and who would be answerable to no one? Was the entire struggle simply to change the color of the tyrant's robe from royal purple to black?
Further, I would challenge you to find anything in the U.S. Constitution that grants this authority to the court to overrule the Legislature. The Legislature regulates the courts under Article III, Sec. II. Any words authorizing the court to regulate the Legislature are not to be found.

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Marvin Tyson
on August 09, 2016 at 13:53:31 pm

Yes, Congressmen and Senators take the same oath of office, to defend the constitution, which is why they ALSO have the obligation to make sure whatever they pass is constitutional. Only when ALL three branches of government ALL agree something is constitution then the government can act. The Supreme Court isnt the only one who can decide what is constitutional, it requires agreement that something is constitutional by all the branches of government (thats why they are co-equal branches, not a system of judicial supremacy). But the judges must uphold and defend the constitution by striking down unconstitutional statutes enacted by the congress, thats their part in the process of the triple check that everything is constitutional.

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Devin Watkins
on August 09, 2016 at 13:56:04 pm

Also the congress does not regulate the Supreme Court. It can make exceptions to the jurisdiction of the courts (but not the original jurisdiction of the Supreme Court), but that's not "regulating the courts."

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Devin Watkins
on August 09, 2016 at 14:21:43 pm

Okay. That's why the U.S. Constitution, in plain, clear English, says "under such REGULATIONS as Congress shall make." in Article III, Section II. because Congress DOESN'T regulate the courts.
Got it! LOL

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Marvin Tyson
on August 09, 2016 at 15:14:00 pm

Actually American rights were most clearly established in the Declaration and Resolves of the 1774 Continental Congress.

(Full text here: http://www.constitution.org/bcp/colright.htm)

The 1774 declaration laid the groundwork for the more famous 1776 Declaration of Independence and the Constitution of 1787 and its Bill of Rights. The 1774 declaration stated the grounds of rights which were being violated. After two years of continued oppressions, not by the King of England but by the parliament of Great Britain, the rights declared in 1774 were restated in the 1776 declaration.

The principal lines of the 1774 declaration were these:

"Whereupon the deputies so appointed being now assembled, in a full and free representation of these colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, declare,

That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following rights:"

Then the declaration goes on to list some important rights relevant to the disagreement with G.B.

Our descendant American rights derive from the laws of nature, from our commonly accepted principles and practices of government, and from legal writings. Our rights are a combination of natural principles (as in games theory), governmental practices that were "To Be Determined" on a case by case basis as they grew and evolved, and writings such as the Constitution and its amendments.

Rights are not all fixed. Some can change over time. Natural rights cannot change at all. Legal rights can change by alteration or by mutual agreement. When mutual agreement changes a writing but the writing itself is not altered to properly reflect the agreement, then we have fiat law.

HTH

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Scott Amorian
on August 09, 2016 at 17:11:45 pm

No, but try reading Hamilton and Madison in the Federalist Papers and one can see that the founders recognized the need for a (theoretically) impartial judiciary.
In fact, the very Madisonian *structure* of government and its underlying theory REQUIRE judicial review.

Devin is quite correct in his responses.

We may not like it, as the Black robes have apparently become as corrupted (morally / politically, if not yet economically) as the Legislative and Executive Branches but this does not negate the need for a judiciary that exercises its power of review in a responsible and "dutiful" manner.

A Baseball Umpire who is pretty sh*tty at calling balls and strikes does not necessitate the elimination of umpires - except, of course, when the call goes against our own team!

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gabe
on August 09, 2016 at 17:18:31 pm

Yep, if you think this was bad, check out his pomposity on baseball.

sorry, Georgy, there is far less going on than you (and other dilettante intellectual baseball *afficianados*) suppose going on in baseball - just as in the rest of Wills writings.

Methinks he wears his bowtie a tad bit too tightly - the resultant lack of oxygen may make one *heady.*

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gabe
on August 09, 2016 at 17:30:55 pm

The full sentance from the constitution is: " In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Its the appellate Jurisdiction that congress has control over, not the court. Congress has no control over the original jurisdiction of the court.

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Devin Watkins
on August 09, 2016 at 18:12:28 pm

You have a hard time comprehending what the sentence you quote says.
"With such exceptions and under such regulations as Congress shall make" expressly gives Congress unlimited authority to regulate the Courts in any case whatsoever.
When read correctly this sentence says the courts have appellate jurisdiction over cases enumerated as Federal, but even then they can be regulated by the courts. And again I challenge you to show one word in the Constitution that grants authority to the courts to regulate or overrule the Congress.
You are,also in error about "three equal branches". The branches were never meant to be equal.
To say they are is like saying the employee is equal to his boss.
One branch can fire anyone in the other two branches. One branch must approve the money for the other two branches to operate. And one branch is immune to any punishment, removal, or restriction by the other two branches.
That branch is the Congress.
"Equal branches"is another nationalist lie, giving hope to anyone who disagrees with the people that they can simply find another "equal branch" that will stand the Constitution on its head and give them what they want. That has been the case with this unconstitutional court fir decades, and it spells the end of our Republic.

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Marvin Tyson
on August 09, 2016 at 18:13:53 pm

I meant to say, "even then they can be regulated by the Congress."

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Marvin Tyson
on August 09, 2016 at 21:18:16 pm

You keep quoting the second half of the sentence without the part which describes what the word "with" refers to. The sentence in context is "the supreme Court shall have appellate Jurisdiction...with such Exceptions, and under such Regulations as the Congress shall make.” Its the "appellate Jurisdiction" of the court that congress has the power to make exceptions to (or regulate). What does the first part of your quoted part even mean if applied to the whole court? The congress can make "exceptions" to the court? That's just silly. But as applied to the appellate jurisdiction it makes perfect sense to create an exception to the appellate jurisdiction. Congress in other words can prohibit the court from being able to hear a case, but it cannot regulate the court and prevent it from hearing a case in original jurisdiction (if it is on the allowed list of original jurisdiction cases). Do you even know the difference between appellate and original jurisdiction?

The "boss" in this case is the american people. Both judges, and congressmen, and the president are all employees of the american people. As to the co-equal branches of government, don't believe me, believe Thomas Jefferson:

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

http://founders.archives.gov/documents/Jefferson/98-01-02-1540

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Devin Watkins
on August 09, 2016 at 22:07:24 pm

You write "It is a fundamental error to look for 'rights' to be explicitly codified" so you codified them? lol

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Devin Watkins
on August 09, 2016 at 22:13:24 pm

I'm just kinda joking from what I saw of the list (ok I skimmed it, its fairly long), they seem mostly right. Although you have a lot of stuff in there I would classify as due process rights. I'm not sure I would classify those as natural rights or what I would refer to as immunities (rights not granted by government). Although do process rights are close to natural rights there is a difference. Natural rights do not refer in any way to the government, because they pre-exist government. Your right to life, liberty and property are natural rights. Due process is the fair way we as a society try to adjudicate if those natural rights have been violated. Some of the things you list I would classify as natural rights (or immunities), others such as the due process rights I would call privileges, but its a minor distinction (as the constitution refers to the protection of privileges or immunities).

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Devin Watkins
on August 09, 2016 at 23:35:56 pm

Okay Devin, I have read your opinions all day it seems and you have successfully danced all around the fact that there us not ine word in the Constitution granting authority to any court to determine what is or is not constitutional, and now you've decided that since you couldn't win that debate that we should start debating what Thomas Jefferson said instead of what the Constitution says.
No thanks.
I have more to do with my time than debating stones.
You have a good evening.

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Marvin Tyson
on August 10, 2016 at 10:45:23 am

Nobody EVER said that the Titanic was unsinkable. That was a myth that was possibly created by the numerous movies about the sinking.

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Alan McIntire
on August 10, 2016 at 11:04:32 am

That's because I don't claim that the judiciary is the sole arbitrator to "determine what is or is not constitutional." As I do not claim that, I do not need to find support for it. Instead I claim that the oath of office clause: "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution" requires that they support the constitution above the opinion of the legislature. It is their responsibility to make their own opinion of what they believe the constitution means and do everything within the power granted to them to support that constitution regardless of what anyone else says. The same is true of every congressman and the president. That is what gives the Supreme Court the proper authority to declare for themselves what they believe the constitution means and to ignore anything contrary to that and to utilize the limited powers they have to protect that meaning (again the same is true of every congressman and the president).

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Devin Watkins
on August 10, 2016 at 12:15:54 pm

Star Line Vice President P.A.S. Franklin announced " We place absolute confidence in the Titanic. We believe the boat is unsinkable." Of course at the time he said those words the Titanic was already at the bottom of the ocean, but the words were said. And White Star Line publicity brochure produced in 1910 for the twin ships Olympic and Titanic did state "these two wonderful vessels are designed to be unsinkable." Here is a picture of that brochure http://www.historyonthenet.com/files/fs/titanic/images/publicitybrochure.jpg

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Devin Watkins
on August 10, 2016 at 18:45:56 pm

The author mistakenly conflates constitutional scholarship with legitimate government.

While there is a solid constitutional argument for the libertarian limited government and the role of the judiciary that Will advocates, there is a more compelling one - simply that Will is correct.

Our founders made clear that rights do not come from government. Progresses disagree to the point of entirely ignoring this. That conservatives by into this rot is one of the many problems with modern conservatism that disturb both Will and I.

We can argue the minutia of constitutional law with regard to what rights are protected, as well as the extent of that protection - the language of the constitution seems fairly absolute "Shall make no Law" does not seem to have much wiggle room to me. Nor does the assertion of the 9th and 10th amendments that the constitution is not to be taken as the only rights we have, and that the federal government is limited only to explicitly granted powers.

What is more important is the truth - not the text of the constitution. We are fortunate that the constitution fairly strongly reflects the proper purpose of government as written. But that is still a reflection.
Adherence to the constitution is critical - that is Adam's "Rule of Law not men", the constitution should be understood as written, not as we wish it was written, not as experts have rewritten it. "Stare decisis" is a good idea - it is not the law of god - and in fact it is dangerously close to "the rule of men" that Adam's feared. We can change the text of the constitution. We can not change that men transform the meaning of the words to suit themselves.

We should take the constitution as written, but we should not forget the underlying premise of "the rule of law not men", we can and should change laws including the constitution when they are wrong. Once our government rests heavily on the oppinions of men which is where we are after 250 years of constitutional interpretation, we have lost the rule of law.

Finally, the constitution is the final law of the land - but it makes no claim to be absolute truth.
The declaration of independence reads "we hold these truths to be self evident" - it defines the purpose of government as securing our inalienable rights.

To the extent the constitution should be interpreted at all, it should be interpreted to favor rights over government, as the purpose of government is to secure the rights of man.

So to answer the authors questions - Will need not address your questions as they rest on ultimately the same false presumptions as those of progressives - that the constitution is the absolute truth, and its meaning is subservient to ideology. The left's living constitution is no less ideological than the fealty of the right to some past understanding rather than the plain language.

Will asks you to start with the purpose of government as stated in the declaration - to secure individual rights, and if you doubt the meaning of the constitution - refer to that principle.

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jbsay
on August 13, 2016 at 13:58:27 pm

EXACTLY! You both hit the nail on the head. The fact that "scholars" doubt that this "power" exists is a pretty f***ing sad commentary on the "education" system in this country. For Christ's sake, the document has only been around for 225 years. I wouldn't want any of these "scholars" to rush into anything . . . you know, like actually reading it. This is where putrid, unconstitutional decisions like Roe v. Wade and Brown v. Board of Education came from.

Additionally, this garbage about the SCOTUS making "law" from the bench needs to be punted into the storm drain once and for all. The CONstitution states that "all" legislative power is granted to CONgress. Unless I miss my guess, that means that ZERO legislative power is given to either the Executive or Judicial branch. Jesus.

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Big M
on August 17, 2016 at 14:38:14 pm

[…] http://www.libertylawsite.org/2016/08/09/george-wills-constitution […]

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Image of Here’s another left unsaid momentYX | Doctissimus @ Port Urla
Here’s another left unsaid momentYX | Doctissimus @ Port Urla
on May 17, 2018 at 17:17:11 pm

[…] Nonetheless, cogent Will has a detractor here       http://www.libertylawsite.org/2016/08/09/george-wills-constitution/ […]

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Image of In praise of an American Original Performer, Willy DeVille 1950-2009 | Curtis Narimatsu
In praise of an American Original Performer, Willy DeVille 1950-2009 | Curtis Narimatsu
on July 12, 2019 at 06:17:08 am

[…] left me somewhat perplexed, for several reasons. Allow me to explain. First, although I have engaged Will directly in the past, he used his nationally-syndicated column to take issue with something I had written in […]

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George Will’s Libertarian Turn

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