How Should the American Republican Government Work?
While watching the confirmation hearings for Judge Amy Coney Barrett, I was struck by how much more these hearings were than just about her nomination to the Supreme Court. In addition, they were a civics lesson and a plea by both political parties to the American electorate. Both Democrats and Republicans were appealing to the voters to adopt their alternative visions of how the American republican government should work.
Biases Revealed by Barrett’s Confirmation Hearings
During the Senate Judiciary Committee’s questioning of Judge Barrett, they naturally asked her about her views on the purpose and function of the U.S. Supreme Court. They interrogated her on her beliefs concerning the Court’s rightful powers versus those of the political branches of government, Congress and the Executive Branch.
As the hearings wore on, everyone could see the very different beliefs that each political party possessed about how the various government branches should operate. The prejudices of the Republicans are a more traditional sort, born from the Age of Enlightenment and Reason. Those of the Democrats should properly require major changes in the social contract, which resides in the U.S. Constitution and statutes enacted by the U.S. Congress.
The hearings were much more than an investigation of the qualifications of Judge Barrett. In addition, they were an appeal to the electorate by both Democrats and Republicans. Each side tried to convince voters that their view of how the government should operate is the correct, most desirable one. During that process, a subtext for each side was the villainy of their adversaries.
Progressive Biases on How American Republican Government Should Work
The Democrats on the panel clearly showed their belief that the Supreme Court should act as an alternative legislature. That is, the Court should act that way only if they possessed the same policy preferences as the Democrats. This explains why Democrats are so desperate to install Supreme Court justices who not only agree with the Democrats’ view of the federal courts but who also agree with Democrats’ policies. The hostility of the committee’s Democratic senators toward Judge Barrett displayed a projection of their beliefs of an activist court onto her. They fear Barrett would legislate Republican policies from the bench, just as they would have friendly justices legislate for Democratic policies.
Yet, Judge Amy Coney Barrett constantly replied that her policy preferences should and would be irrelevant to any case she adjudicated. The only thing that was important to her was what the U.S. Constitution and the applicable law’s text said. If this required a judgment conflicting with her own policy preferences, she profoundly believed her duty would be to vote for that judgment. Such a textualist judicial philosophy would forbid her from being a so-called “activist” judge, effectively legislating from the bench.
Some words of explanation are now required on how progressives came to believe in the Supreme Court as an alternative legislature. Ever since the administration of Woodrow Wilson approximately a century ago, progressive Democrats have been at war with the separation of powers established in the Constitution. Modern-day Democrats have inherited President Wilson’s views.
President Wilson believed both the Constitution and the Declaration of Independence had out-lived their usefulness. He declared there needed to be a change in the way we viewed those two documents. Instead of the old view of the Constitution limiting the powers of government with a separation of powers between the branches of government, he wanted Americans to take the Constitution as a “living”, evolving document. Instead of a Constitution guaranteeing ironclad rights for individuals, Wilson wanted a Constitution constantly evolving the relationship between government and its citizens.
Instead of a separation of powers between the government’s branches, Wilson believed society’s needs required cooperation between the branches, enforced by a changing interpretation of the Constitution. His belief that the Constitution was a “living”, evolving thing was decidedly hostile to the classically liberal value of limited government.
Activist judicial philosophies have this in common: They find ways to reinterpret the Constitution to apply to modern values and culture. Often this is done by an activist judge detecting in the tea leaves what the ultimate goal of the founding fathers was in any particular Constitutional requirement. The Swindle Law Group makes the following judgment:
‘Activist judges; can significantly upset the supposed co-equal three branches of government. The legislative branch is affected the most. For example, an activist judge may invalidate a law that Congress has created if he or she opposes the political reasons, ramifications, or consequences of the law.
Swindle Law Group
On the other hand, an activist judge could uphold a law that otherwise would have been considered unconstitutional. As an example of this, consider Chief Justice Roberts’ upholding of Obamacare by reinterpreting a fine as a tax. Progressives are all in favor of such activist judges, so long as those judges share their progressive values.
Neoliberal (aka Conservative) Biases on How American Republican Government Should Work
American neoliberals proceed with much different assumptions about social reality. Instead of viewing government as the solution for all social and economic problems, neoliberal Republicans believe governments more often than not are the creators of our worst problems. An agency of the Federal government, the Federal Reserve, was the primary cause of the 1930s Great Depression. Then, as the Franklin Delano Roosevelt administration attempted to get the nation out of depression, FDR’s programs simply prolonged the misery. Yet another example is the Great Recession of 2008-2009, created in the U.S. by misguided federal government housing policies.
This jaundiced view of the government’s societal roles informed the founding fathers’ crafting of the U.S. Constitution. For at least a century prior to the American Revolution, political and social ideas birthed by the Age of Enlightenment and Reason caused increasing numbers of people to question the value of totalitarian government by absolute monarchs. These are the fundamental ideas about governments that are embraced by all neoliberals today.
A precursor to the Age of Enlightenment was the first of the social contract philosophers, Thomas Hobbes. He himself believed in totalitarian government by a sovereign. In his masterwork Leviathan, Hobbes asserted that in a state of nature with no government restraining our behavior, social relations would degenerate into a “war of all against all.” Our lives would then be in a state of “continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short.”
To avoid this miserable state, we should agree among ourselves to a social contract. In this contract, we would agree to surrender some of our powers to a sovereign. This sovereign (i.e. the government) would then use the powers surrendered to him/her/it to protect the lives and well-being of the citizens. Although Hobbes preferred a monarchial form of government for practical reasons, the government could also take any other form.
The most important of the following social contract philosophers was the Englishman, John Locke. He is universally considered to be the father of classical liberalism. In his Second Treatise of Government, Locke added to what should be included in the social contract. Not only should the state protect the lives of its citizens, but their rights to their property as well. Later on, in three Letters Concerning Toleration, Locke asserted the state should respect freedom of religion as long as its practice did not threaten public order.
In addition, Locke stated that if the government did not defend the people’s rights to life, liberty, and estate, the people could revolt. They could then replace the government with another one of their choosing. This right to revolution was only implied in Hobbes’ philosophy.
Besides John Locke, another extremely important influence on the creation of the U.S. Constitution was the French noble, Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, usually referred to as Montesquieu. The ideas in his book The Spirit of the Laws were the inspiration for the U.S. Constitution’s separation of government powers into three separate, coequal branches. Each of the three branches — legislative, executive, and judicial — could then check any power-grabbing tendencies of one of the other two branches.
Without such a power separation, unscrupulous government officials in one of the branches could accumulate enough power to institute authoritarian rule. The social processes that could send us along this path are what caused the collapse of the Weimar Republic into Nazi Germany. The Austrian economist Friedrich Hayek, who witnessed the collapse, called this path “The Road to Serfdom.”
What impresses neoliberal Republicans the most is not the promise of government to solve social problems, but the threat of government to take away our personal freedoms. In addition, the government is ultimately not competent to solve most social and economic problems, but that is a different story.
So, How Should Republican Government Operate?
The hearings into the fitness of Amy Coney Barrett to be on the Supreme Court publicly revealed these profound disagreements on the nature of our republican form of government. Repeatedly, Judge Barrett emphasized over and over that her policy preferences should and would be irrelevant in any case she adjudicated. However, the Democratic senators questioning her seemed to be incapable of believing her. They kept insinuating (if not outright accusing) Barrett would legislate from the bench in favor of more traditional or Republican values. To decide a case in such a way would, of course, make Barrett into a policymaker, a legislator. Unlike Democrats, she believes government policies should be made only by Congress, not by the courts. The courts should be restricted to a literal and textual interpretation of the meaning of the Constitution and the laws.
In light of these disagreements, there is a particular quote from James Madison that should be taken as a warning by everyone.
“The accumulation of all power, legislative, executive, and judiciary in the same hands…may justly be pronounced the very definition of tyranny.”
James Madison, Federalist 46
Progressive Democrats have been at war with the Constitution’s separation of powers for such a long time they attribute their faults to everyone else. You, the voter, along with your fellow citizens, will decide in the 2020 election whether we continue to be a constitutional republic. How will you decide?
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