From National Affairs George Will writes The Limits of Majority Rule. I strongly recommend you read the entire essay.
Another reason many conservatives favor judicial deference and restraint is what can be called the conservative populist temptation. Conservatives are hardly immune to the temptation to pander — to preach that majorities are presumptively virtuous and that the things legislatures do are necessarily right because they reflect the will of the majority.
But the essential drama of democracy derives from the inherent tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority deems necessary and proper. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. Timothy Sandefur of the Goldwater Institute in Phoenix, in his book The Conscience of the Constitution, rightly emphasizes that the Declaration is not just chronologically prior to the Constitution, it is logically prior. Because it “sets the framework for reading” the Constitution, it is the Constitution’s “conscience”: By the terms with which the Declaration articulates the Constitution’s purpose — the purpose is to “secure” unalienable rights — the Declaration intimates the standards by which to distinguish the proper from the improper exercises of majority rule. “Freedom,” writes Sandefur, “is the starting point of politics; government’s powers are secondary and derivative, and therefore limited….Liberty is the goal at which democracy aims, not the other way around.”
The progressive project, now entering its second century, has been to reverse this by giving majority rule priority over liberty when the two conflict, as they inevitably and frequently do. This reflects the progressive belief that rights are the result of government; they are “spaces of privacy” that government “has chosen to carve out and protect.”
The Progressive Era marks the point in our history where democracy took precedence over liberty; where majority rights took precedence over individual rights. This was contrary to the intent of the Framers. This departure was the critical argument that converted the administrative state, meant to delivery efficiency in government unpolluted by politics, to the welfare state which grew to serve majoritarian impulses.
When Cops Seize Property from Michael Haugen at The National Review
If this situation sounds like an abuse of constitutional due process, it is — and it gets worse. Because the property itself “commits” a crime under civil forfeiture, the burden of proof is on the property owner, who must prove that the property was not involved in criminal activity, or that he didn’t know, or couldn’t have known, that it would be used for that purpose. And since law-enforcement agencies usually get to retain most, if not all, forfeiture proceeds upon final disposition, this creates a perverse incentive to be as aggressive as possible in pushing civil forfeiture to its limits.
It isn’t just the government that’s making money, either. DEA agents paid one Amtrak secretary $854,460 over two decades to provide information on travelers. Initially this was done only at an agent’s request, but soon the secretary “began making queries on his own initiative.” The potential for civil forfeiture to corrupt otherwise well-intended law-enforcement activity is very significant, and evidently isn’t limited to government actors. Ordinary citizens should not be co-opted to aid in a constitutionally dubious practice with the allure of hefty remunerations, nor should they be incentivized to take law into their own hands.
“We want the cash,” proclaimed a former drug-task-force supervisor who oversaw one such operation attached to Chicago’s O’Hare International Airport. “Good agents chase cash.” This sort of sentiment is an unfortunate example of how the perverse incentives behind asset forfeiture can transform an otherwise legitimate crime-fighting tool into a constitutional nightmare, and well-meaning law-enforcement officers into de facto revenue generators.
Good agents don’t chase cash, they combat crime.
Asset forfeiture laws are morally and legally reprehensible.
from Kevin Williamson at National Review, Merrick Garland’s ‘Moderation’
It should not matter — if the law were the law. If the law is whatever our black-robed secular clerics say it is, then it does matter what sort of political views justices hold. And if it matters what sort of political views justices hold, then the Supreme Court is not a court, but something else.
Conservatives should not accept an extreme left-wing judicial activist. They should not accept an extreme right-wing judicial activist, if there were such a thing. They should not accept a moderate judicial activist, for the same reason that they would not shoot themselves in the foot with a firearm of moderate caliber. Litmus tests may be in bad odor with our self-proclaimed sophisticates, but here one is very much in order: The law is the law is the law, and it isn’t anything else. Those who believe otherwise do not belong on the Supreme Court any more than moderate phrenologists belong on medical-school faculties or moderate foxes should be assigned guard duty at the henhouse.
Aside from the political controversy about replacing Scalia, the court reflects an intellectual bias rarely considered.
We consider bias in terms of race, religion or sex, but there is an intellectual bias when we consider different people with the same education background. If we ask ten people about history and they all had the same professor are we really getting any diversity of opinion.
The current Supreme Court has five Catholics and three Jews- no Protestants of any denomination. Scalia had added one more Catholic. This is a stunning lack of diversity in a country that is only 20% Catholic and less than 2% Jewish.
Not that affirmative action should apply to the courts; we should be more interested in their intellectual competence. Yet every justice went to either Harvard or Yale to study law with the exception of Ruth Ginsberg who went to Columbia. There are wide differences of opinions within the alumni of any of these schools, but there remains a different dynamic or culture to be considered from lawyers trained at one of our many fine state schools.
In a nation obsessed with diversity in so many areas it is worth noting how one of our most influential political institutions is so totally lacking in the important areas of religious and intellectual diversity
from George Will at National Review, A Jurist of Colossal Consequence:
Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. But as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that “governments are instituted among men.”
Scalia’s death will enkindle a debate missing from this year’s presidential campaign, a debate discomfiting for some conservatives: Do they want a passive court that is deferential to legislative majorities and to presidents who claim untrammeled powers deriving from national majorities? Or do they want a court actively engaged in defending liberty’s borders against unjustified encroachments by majorities?