Neil Gorsuch Rightly Advocates Inching Away from 'Judicial Deference'

Neil Gorsuch Rightly Advocates Inching Away from 'Judicial Deference'
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Neil Gorsuch is about the best we could expect to see for a Supreme Court appointment. Gorsuch advocates inching away from one of the worst doctrines infecting courts: "judicial deference"--the subordination of the courts to Congress.

Conservatives' opposition to "activist" courts represents the same mistake. The notion that the courts should be passive means that courts should assume that laws passed by the legislature are Constitutional, not meddle, not "make law."

But the courts are the defenders of the Constitution, and the Supreme Court is the Constitution's ultimate defender. A deferential court, a passive court, is not holding the legislature to the limits on its power set by the Constitution.

In our system of checks and balances, the Supreme Court's role is to be a check on the power of Congress, to look upon every act with suspicion.

Far from bowing to Congress, the Court's job is to make Congress to bow to the Constitution.

When Constitutional challenges are brought before the court, the burden of proof is on the government. The government has to show authorization for their (so often destructive) acts.

It is not the citizen who has to show that an Act of Congress is wrong, it is the government that has to show it is right--i.e., that the Constitution gives it the authority to make such a law.

Remember: a law is a rule enforced by the police. A law is not a recommendation, but a command, backed up by physical force.

The use of force by the government is justifiable--when and only when it is used to counter the force initiated by a criminal or foreign aggressor. Laws against theft, extortion, murder are proper: in such cases, the government is using force in retaliation, to defend rights, not to violate them. (See Ayn Rand, "Man's Rights," and "The Nature of Government,").

The Framers of the Constitution understood what "deference" to governmental power means in actual practice. They had lived under the rule of His Highness, His Majesty, George III and the various Your Lordships and Your Ladyships under him. They had just fought a long and painful war to release themselves from having to give deference to arbitrary authority. They understood that government exists "to secure these rights."

That's why the Constitution states:

"The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." That limits Congress to what's necessary and proper to the severely limited Powers (not rights) granted to the state. It places the burden of proof on Congress to show that its enactments are in fact necessary and are in fact proper.

Deference to the legislature is deference to power. Deference makes the default assumption be: might is right.

"It cannot be repeated too often that the Constitution is a limitation on the government, not on private individuals--that it does not prescribe the conduct of private individuals, only the conduct of the government--that it is not a charter for government power, but a charter of the citizens' protection against the government." ("The Nature of Government")

Judicial activism? An inactive judiciary means one that does not defend our rights. "Judges shouldn't make law?" Judges should stop Congress from making laws that violate individual rights.

It wasn't by declaring acts of Congress null and void that the leftist Courts imposed the regulatory state on this nation. It was precisely by upholding the constitutionality of acts that were actually unconstitutional. The upholding of Obamacare was the latest in this ugly, century-old record.

Consider the argument offered in defense of deference to the legislature: the legislature is composed of elected representatives of the people; Congress is enacting the will of the electorate.

This objection comes from a collectivized approach to the issue. "The people," and "the electorate" do not exist as such. Only individuals exist. The legislature represents the will not of some mystical Collective but of the majority. But what about the minority? Do they not have rights?

Once foggy group-talk about "the people" is cleared away, we see what judicial inactivism and deference to the legislature come down to: letting the majority victimize the minority.

If two people gang up on a third, beat him, and take his property, that is understood as criminal. When two hundred million people do the same, through their Congressional representatives, to one hundred million people, the increase in the numbers doesn't sanctify the crime. Is this what the judiciary should give deference to?

Hitler was elected, and he certainly embodied the will of the German majority. Should the German judiciary have shown deference to Hitler's orders?

The Supreme Court's members are not elected and they serve for life. This set-up is designed to insulate them from the passions of the mob. The Justices are the defenders of the minority against "The Will of the People." And, as Ayn Rand observed, "the smallest minority on earth is the individual." The Supreme Court is charged with protecting your rights from the power-grabs of Congress.

When courts give deference to the legislature, it is your rights that aren't being protected. It is you they are making kneel in submission.

Harry Binswanger is an Objectivist philosopher, and was a close associate of Ayn Rand. He blogs at  

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