The Supreme question for candidates
A supremely important presidential issue is being generally neglected because Democrats have nothing interesting to say about it and Republicans differ among themselves about it. Four Supreme Court justices are into the fourth quarters of their potential centuries — Stephen Breyer (77), Antonin Scalia (79), Anthony Kennedy (79), and Ruth Bader Ginsburg (82). So, presidential candidates should explain the criteria by which they would select judicial nominees.
Regarding jurisprudence, Democrats are merely result-oriented, interested in guaranteeing three outcomes: Expanding government's power to prevent protection of unborn babies, expanding government's power to regulate speech about the government (“campaign finance reform”) and expanding government's power to discriminate for the benefit of certain government-preferred groups (“race-based remedies”).
Republicans cannot speak their minds about the judicial supervision of democracy because their minds are unsettled. Fortunately, they are being urged, by thinkers like Randy Barnett, to adopt a vocabulary that is disconcerting to conservatives who have grown lazily comfortable with rhetorical boilerplate in praise of “judicial restraint.”
Barnett, a professor at Georgetown's law school, recently took to a place that needs it — the University of California, Berkeley — this message: “The judicial passivism of the Supreme Court has combined with the activism of both congresses and presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be.”
In his lecture “Is the Constitution Libertarian?” Barnett acknowledged that in many respects American life “feels freer” than ever. In many other ways, however, the sphere of freedom is too constricted, and individual rights are too brittle, because for decades America's Lockeans have been losing ground to Hobbesians: “The Lockeans are those for whom individual liberty is their first principle of social ordering, while the Hobbesians are those who give the highest priority to government power to provide social order and to pursue social ends.”
Not all Hobbesians are progressives, but all progressives are Hobbesians in that they say America is dedicated to a process — majoritarian decision-making that legitimates the government power it endorses. Not all Lockeans are libertarians, but all libertarians are Lockeans who say America is dedicated to a condition — liberty.
Government, says Barnett, serves liberty when its regulations “coordinate individual conduct as do, for example, traffic regulations mandating driving on one side of the street or the other.” Lockeans say that our natural rights, only some of which are enumerated in the Constitution, place on government the heavy burden of justifying restrictions of these rights. And, Barnett argues, a nonpassive, properly engaged judiciary bears the burden of saying when the government has not justified its restrictions as necessary and proper.
Republican presidential aspirants must be forced to join their party's intramural argument about the judiciary's proper function. Then we can distinguish the Lockean constitutionalists from the merely rhetorical conservatives whose reflexive praise of “judicial restraint” serves the progressives' Hobbesian project of building an ever-larger Leviathan.
George F. Will is a columnist for The Washington Post and Newsweek.