{"id":93941,"date":"2020-10-21T03:08:24","date_gmt":"2020-10-21T00:08:24","guid":{"rendered":"https:\/\/en.buradabiliyorum.com\/americas-courts-are-supposed-to-frustrate-the-majority-will\/"},"modified":"2020-10-21T03:08:24","modified_gmt":"2020-10-21T00:08:24","slug":"americas-courts-are-supposed-to-frustrate-the-majority-will","status":"publish","type":"post","link":"https:\/\/buradabiliyorum.com\/en\/americas-courts-are-supposed-to-frustrate-the-majority-will\/","title":{"rendered":"#America\u2019s courts are supposed to frustrate the majority will"},"content":{"rendered":"

“#America\u2019s courts are supposed to frustrate the majority will<\/strong>”
\n<\/p>\n

\n Making its case against the re-election of President Trump this week, The New York Times complains that the president has been \u201cfilling the benches of the federal judiciary with young, conservative lawyers as a firewall against majority rule.\u201d While it is hardly surprising that the Times would be dismayed by the app<\/a>ointment of conservative judges and justices, the suggestion that courts are acting improperly when they check the power of \u201cmajority rule\u201d is puzzling.<\/p>\n

Courts are supposed to frustrate the will of the majority when it violates the Constitution. Americans on the left and right \u00adexpect courts to do that, although they disagree about which constitutional constraints judges should be enforcing.<\/p>\n

In the same package of anti-Trump essays, the Times worries about the fate of Roe v. Wade, the 1973 decision in which the Supreme Court said broad abortion bans violate the 14th Amendment\u2019s due-process clause. Roe and its progeny clearly impose restrictions on majority rule, telling democratically elected legislatures how far they can go in regulating abortion.<\/p>\n

Most conservatives \u2014 probably including Amy Coney Barrett, the originalist Trump picked to replace Justice Ruth Bader Ginsburg \u2014 believe Roe was wrongly decided, since it relied on the dubious concept of \u201csubstantive due process\u201d to discover a right to abortion. Ginsburg herself questioned the court\u2019s reasoning, saying an \u00adargument based on the 14th Amendment\u2019s guarantee of equal protection would have provided a firmer foundation.<\/p>\n

But if you think the Constitution, under whatever provision, imposes limits on abortion laws, there is no escaping the conclusion that it requires courts to override some decisions by legislative majorities, even when those decisions are supported by most citizens in a particular state. The same is true of the Court\u2019s 2015 ruling in Obergefell v. Hodges, another precedent that progressives worry could be threatened by Barrett\u2019s appointment.<\/p>\n

In Obergefell, a five-justice majority concluded that both the due-process clause and the equal-protection clause require states to recognize same-sex marriages. No matter which argument you prefer, the conclusion that the Constitution forbids state discrimination against same-sex couples necessarily means the issue can\u2019t simply be decided by a popular or legislative vote.<\/p>\n

While Democrats overwhelmingly support abortion and marriage rights, they are notably less enthusiastic about judicial \u00adintervention in other areas. When it comes to gun control and campaign-finance regulation, for example, most Democrats seem to think majorities should be free to do pretty much whatever they want.<\/p>\n

In the landmark 2008 case District of Columbia v. Heller, the four dissenters, all but one of whom were nominated by Democrats, took the view that \u201cthe right to keep and bear arms\u201d imposes no limits at all on gun-control laws. The Democratic Party\u2019s platform, which this year talks a lot about gun control but doesn\u2019t even pay lip service to the Second Amendment, likewise seems to view it as a nullity.<\/p>\n

In the 2010 case Citizens United v. FEC, the Supremes overturned restrictions on the political speech of corporations, including an ideologically diverse array of nonprofit advocacy groups. The four dissenters \u2014 again, all but one Dem appointees \u2014 were unfazed by the facts of the case, which involved the government\u2019s threat to fine a group for airing a movie critical of Hillary Clinton close to an election.<\/p>\n

Democratic presidential nominee Joe Biden, who wants not only to \u201cend Citizens United,\u201d but to \u201cprevent outside spending from distorting the election process,\u201d seems to take an even narrower view of what Americans should be \u00adallowed to say about politicians. But at least he recognizes that a constitutional amendment would be necessary to authorize such sweeping censorship.<\/p>\n

During Barrett\u2019s confirmation hearing last week, Democrats warned that Republican Supreme Court nominees threaten constitutional rights. Sen. Ted Cruz (R-Texas) had a similar complaint about Democratic nominees.<\/p>\n

While Democrats and Republicans agree that majority rule doesn\u2019t trump the Constitution, they disagree about what that means in practice. Whichever firewall you favor, it is apt to have some holes.<\/p>\n

Twitter<\/a>: @JacobSullum<\/em>\n <\/div>\n

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Source<\/a><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

“#America\u2019s courts are supposed to frustrate the majority will” Making its case against the re-election of President Trump this week, The New York Times complains that the president has been \u201cfilling the benches of the federal judiciary with young, conservative lawyers as a firewall against majority rule.\u201d While it is hardly surprising that the Times…<\/p>\n","protected":false},"author":1,"featured_media":93942,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"fifu_image_url":"https:\/\/nypost.com\/wp-content\/uploads\/sites\/2\/2020\/10\/USA-COURT_BARRETT.jpg?quality=90&strip=all&w=1200","fifu_image_alt":"","footnotes":""},"categories":[70897],"tags":[76409,70327,71434,10701,991],"class_list":["post-93941","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","tag-10-20-20","tag-2020-presidential-election","tag-courts","tag-democrats","tag-joe-biden"],"_links":{"self":[{"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/posts\/93941","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/comments?post=93941"}],"version-history":[{"count":0,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/posts\/93941\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/media\/93942"}],"wp:attachment":[{"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/media?parent=93941"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/categories?post=93941"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/tags?post=93941"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}