Thursday, April 15, 2010

Jennifer Rubin Gives George Will a Lesson in Constitutional Law

Jennifer Rubin takes George Will to the woodshed on his understanding of constitutional law and the role of the Supreme Court.

In a recent column Will claims that the Court's role is to protect liberty:
"So conservatives should rethink their rhetoric about 'judicial activism.' The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?"
Rubin points out that the role of the Supreme Court justices is not to "protect liberty" (an amorphous phrase that can mean anything depending on the circumstances) but to interpret the Constitution.
"Will has it wrong. There is no roving mandate for the Court to protect liberty (or income equality or anything else) from depredations of any sort. The Court — like all courts engaged in textual interpretation — has a single mandate, one consistent with democratic governance and with the structure of the Constitution: to divine the meaning and the intent of the Constitution and the statutes at issue in the cases that come before it."
Rubin not only knows the law in the cases Will cites, but understands the difference between rule by philosopher-kings and rule under a written constitution.

George Will has become more aristocratic and anti-democratic in his conservatism as he ages. Fortunately, there are young, knowledgeable conservative pundits like Rubin to correct sloppy thinking by such as Will.


Gordon R. Durand said...

I disagree, and suggest both you and Rubin read David's Hammer: The Case For An Activist Judiciary, by Clint Bolick.

T. D. said...

Thanks for your suggestion, Gordon.

At this point I still think Rubin is right.

Partly that's due to the bit of law school I have under my belt.

But it's mostly due to not trusting someone else's judgment on how to better my life.

I'd rather go before a judge who was applying the law as written (where I would at least know what to expect) than a judge who would apply his/her own opinion of what was best for me.

We can agree to disagree on this.