This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary’s role. Herewith some pertinent questions:
▪ Lincoln’s greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act’s premise was that “popular sovereignty” – majorities’ rights – is the essence of the American project. Is it, or is liberty?
▪ Justice Robert Jackson wrote, “The very purpose of a Bill of Rights was to … place certain subjects beyond the reach of majorities.” Was that not also the purpose of the 14th Amendment’s Privileges and Immunities Clause? It says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Was this amendment’s purpose to ensure that the natural rights of all citizens would be protected from abridgment by their states?
▪ If so, was the court wrong in the 1873 Slaughterhouse Cases? It essentially erased the Privileges and Immunities Clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.
▪ Chief Justice John Roberts says the doctrine of stare decisis – previous court decisions are owed respect – is not an “inexorable command.” The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?
▪ The court, without warrant from the Constitution’s text or history, has divided Americans’ liberties between those it deems “fundamental,” such as speech and association, and others, many pertaining to economic activity and the right to earn a living, that are inferior. Abridgments of the latter have been given less exacting judicial scrutiny. The court calls this “rational basis” scrutiny; it should be called “conceivable basis” scrutiny. If a legislature asserts, or the court can imagine, a rational basis for the abridgment, it stands. Do you think judges should decide which liberties to protect or neglect? Should courts examine evidence of whether economic regulations are related to public health and safety or merely reflect rent seeking by economic interests?
▪ The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Robert Bork said this is akin to an “inkblot” on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress’ powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?
▪ Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress’ power over interstate commerce?
▪ The Fifth Amendment says no property shall be taken “for public use” without just compensation. In the 2005 Kelo case, the court upheld a city’s seizure of private property not to facilitate construction of a public structure or to cure blight, but for the “public use” of transferring it to a wealthier private interest that would pay more taxes. Did the court err?
▪ Madison worried that Congress would draw “all power into its impetuous vortex.” For many decades, however, our centrifugal Congress has been spinning off essentially legislative powers, delegating them to presidents and executive agencies. The Constitution says “All legislative powers herein granted shall be vested in a Congress.” Should the court enforce limits to Congress’ power to delegate its powers?
▪ Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?
▪ Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?
▪ You commendably believe that judges should adhere to the “original public meaning” of the Constitution’s text. Would you feel bound to follow a previous court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?
▪ Oliver Wendell Holmes, a deferential, majoritarian jurist, said: “If my fellow citizens want to go to Hell I will help them. It’s my job.” Discuss.
Washington Post Writers Group