What’s at Stake in the ACB Confirmation Hearings?

Constitutional lawyer Randy Barnett simplifies the looming debates over competing judicial philosophies

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Transcript

Bob Zadek: How did we get to a point in our country’s history where Americans are required to understand the dynamic of the Supreme Court if they wish to intelligently participate in government? Is it healthy that a branch of government with no budget or power to enforce its rulings, composed of nine, unelected public servants has become so important?

Originalism vs. “Living Constitutionalism”

Bob Zadek: You are a strong advocate for a concept of interpretation of the Constitution which has been called “originalist” — looking at the original meaning of the Constitution. The alternative philosophy, which you and I do not subscribe to, is called the “living Constitution.” Help us understand those two very different interpretations.

“If judges can undo the original Constitution, why couldn’t they just undo any amendment that would change it?”

If the Supreme Court were ever to enforce the original meaning of the Constitution and that meaning completely flew against modern contemporary opinion, I would predict a rapid amendment. They would have the virtue of having a text that judges can follow in the future when they have to interpret the meaning of the new amendment. In fact, anyone who proposes a new amendment surely wants that amendment to be read as it was meant to be read at the time it was enacted, or else why propose the amendment itself? If judges can undo the original Constitution, why couldn’t they just undo any amendment that would change it?

An Argument for Originalism: Safeguarding the Voice of the People

Bob Zadek: There is an intellectual passion behind originalism. It’s not just Bears versus Giants versus Niners. Tell us why you are intellectually committed to originalism? Not just because it is conservative and perhaps we are conservative — it has nothing to do with that. There is a deeper, more important reason.

“What a written constitution provides is a rule of law to govern those who govern us.”

Not only that, we could change the law, as we wish to as it fits our needs of the moment. And I think everybody would agree that would be a very chaotic way to have a society, where each individual person would make up their own law. It would be like having living speed limits instead of a speed limit for everybody.

“[E]very national election is a fight to the death to prevent the people we disagree with from having their way and imposing their will on us.”

Living Constitutionalism: A Usurpation of “We the People”

Bob Zadek: What makes it seem like our disagreement and polarization is more intense? I concluded that the problem was that the devolution of power from the states to Washington means the stakes in Washington elections get increasingly higher, because it’s a fight to the death. If you lose the battle in a national election, then the other side gets to impose their political philosophy on you. Whereas with diffused power at the state level, you are not painted into a corner. You are not stuck with having the choice of staying here or moving to another country, you can just vote with your feet. You have a safety valve. Before you get that angry, you just get up and move.

“The Supreme Court is usurping the role of the people, not the role of the legislators, because the legislators also are supposed to be servants of the people as well.”

So it is complicated, because you have to get into a specific discussion of rights on the one hand or powers on the other hand. The methodological problem is that they’ve taken it upon themselves to make these calls. I don’t think I would analogize that with the legislature. I think I would analogize that with “We the People” ourselves, because we are the ones that are supposedly speaking through the Constitution. The Supreme Court is usurping the role of the people, not the role of the legislators, because the legislators also are supposed to be servants of the people as well.

Amy Coney Barrett and the Lost Presumption of Liberty

Bob Zadek: There are two very important words that we are going to segue into. The words are
“presumption,” as in a “presumption of unconstitutionality.” Presumption is a powerful word because it puts the burden on the other side to prove something. The related word is “deference.” Those words, of course, are related. You are an advocate of the court assuming a presumption of unconstitutionality. Please explain your view.

“As long as any reasonable person would think that the law was reasonable, then that is constitutional as far as we’re concerned.”

The judges will get out of the way as long as there is a conceivable rational basis for the law. A citizen will not be able to come in and offer evidence and arguments to rebut a presumption of constitutionality, much less give the benefit of the doubt to the individual citizen.

The Pitfalls of Barett’s “Double Deference”

Bob Zadek: When Amy Barrett reviewed your book, The Republican Constitution, I think she specifically took issue with the concept of “deference.” Help us understand what her point was, because it gives us an insight into her constitutional view as compared to yours. What was the point she was trying to make?

“Why is the Supreme Court upholding it? Well, because they’re deferring to Congress. What is the Congressman doing when you ask them about constitutionality? They are deferring to the Supreme Court.”

The Court says, “Oh, no, we’re going to defer to Congress on this issue, because we don’t want to get into the business of deciding that question.” Then you go across the street to the Capitol. You go up to a Congressman or a Senator and you say, “Okay, it’s up to you to decide whether this is within your power or not. Is it within your power?”

“Originalism says that the Constitution should be constraining everybody — not just the Courts, but Congress as well. … If nobody’s checking your work, you can get away with a whole lot more than if somebody is checking your work. “

As a felony review assistant in the Cook County State’s Attorney’s office, I used to look over the shoulder of the police, because charges in Chicago cannot be brought unless a felony review assistant signs off on it. So the police knew before they came to me that I would be checking their work, and therefore that would cause them to do better work before they even asked for approval of felony charges. If nobody’s checking your work, you can get away with a whole lot more than if somebody is checking your work. And that’s really the role the Supreme Court is supposed to be playing.

The Heart of the Matter: Exposing Progressivism

Bob Zadek: It’s almost as if we the people need a public defender in every case, arguing and protecting the Constitution since the other branches will not do it. We need another branch of government to always be the guardian of the people’s rights under the Constitution, because you describe a system when there’s an abdication by both of the other branches of government, the legislative branch and the executive branch — what you have described as double deference.

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http://bobzadek.com • host of The Bob Zadek Show on 860AM – The Answer.