Tuesday, May 08, 2012

When bigger isn't better

"Wilkinson is right that judges are prone to misreading the values of the broader society.

"But even if judges read those values correctly, judicial restraint can mean giving coercive sweep to the values of contemporary majorities. That a majority considers something desirable is not evidence that it is constitutional. "

George Will, The Washington Post, "The Right to Be Left Alone"
This issue often comes up when discussing Obamacare. Too many people believe that because Obamacare's intentions are good it ought to be constitutional. Put another way, the constitution should put no limits on the virtuous intentions of congress. Or the most vulgar interpretation of them all, "The constitution's general welfare clause ordains and encourages congress to do what is good for us."

Against this position, and in addition to Mssrs Wilkinson and Will, is C.S. Lewis:
"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."
Or as PLF attorney, Timothy M. Sandefur, said at the Alternatives to Originalism forum in 2011,
"I think all the concern about democracy is overblown because the constitution lays out very clearly what it’s intended to accomplish and democracy is not among those. Protecting the blessings of liberty is the purpose of the constitution, and so where that clashes with democracy we should reject democracy."
All these people are warning against the tyranny of the majority over the minority, and that the constitution makes it clear, or does to some, that individual rights should be protected from popular fashions.

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