From The Washington Post and George Will, Progressives are wrong about the essence of the Constitution:
The fundamental division in U.S. politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom, and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected.
The argument is between conservatives who say U.S. politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty preexists governments, which, the Declaration says, are legitimate when “instituted” to “secure” natural rights.
Progressives consider, for example, the rights to property and free speech as, in Sandefur’s formulation, “spaces of privacy” that government chooses “to carve out and protect” to the extent that these rights serve democracy. Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification.
Sandefur says progressivism “inverts America’s constitutional foundations” by holding that the Constitution is “about” democracy, which rejects the framers’ premise that majority rule is legitimate “only within the boundaries” of the individual’s natural rights. These include — indeed, are mostly — unenumerated rights whose existence and importance are affirmed by the Ninth Amendment.
Many conservatives should be discomfited by Sandefur’s analysis, which entails this conclusion: Their indiscriminate denunciations of “judicial activism” inadvertently serve progressivism. The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is “basically about,” which is making majority power respect individuals’ rights.