by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Since four U.S. Supreme Court justices are at least 77 years old, the next president’s judicial philosophy could play an important rule in setting the high court’s course for decades to come.
George Will notes this fact in his latest column at National Review Online. Will also notes the importance of appointing new justices who respect the views set forth hundreds of years ago by John Locke.
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, and that we have more choices about living as we wish. 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. It is, as Lincoln said, dedicated to the proposition that all persons are equal in possession of natural rights.