Did a Revolution Just Occur?

Thoughts on the Gorsuch confirmation

Myron Magnet

April 10, 2017 

Politics and law

You could not ask for a clearer demonstration of how today’s Democratic Party embodies all the forces most contrary to the Founders’ Constitution than the reasons party officials gave for their adamant opposition to Neil Gorsuch’s nomination to the Supreme Court.

Start with the Democrats’ main line of attack against the distinguished jurist, painting him, as a New York Times headline put it with patronizing folksiness, as NO FRIEND OF THE LITTLE GUY. Senate minority leader Charles Schumer of New York was the party’s most relentless barker of this charge: Gorsuch is “someone who almost instinctively favors the powerful over the weak, corporations over working Americans,” Schumer claimed. “Far too often, he sides with the powerful few over everyday Americans just trying to get a fair shake.”

The allegation that Gorsuch is a biased judge is about as serious a charge as one can level against a jurist, though it’s not clear that Schumer realized the gravity of his slur against a man whose integrity seems impeccable. Fortunately, the Senate Judiciary Committee’s ranking Democrat, Diane Feinstein of California, thought to ask Gorsuch if he could cite cases where he “had given the worker a fair shot.” Out of some 2,700 decisions, the judge replied, he could list quite a few, and proceeded to do so, before Feinstein realized she had just blown up the Democrats’ main weapon and stopped him.

In the play-acting world of politics, it’s not surprising that the party of the multimillionaire Clintons, who saw their opportunities and took them, or the overpaid public-sector unions should pretend that it is still the party of FDR’s working man. What is noteworthy is that Schumer and crew want voters to think that the interests of the rich and the bosses are not equally important; they can take care of themselves, with no one to protect them. The Framers’ worry in constructing the Constitution was exactly the opposite. The principal danger in a democratic republic, wrote Madison in Federalist 10, would be the tyranny of the majority: by which he meant that the unpropertied many would gang up on the rich few to dispossess them of their wealth by disproportionate and unfair taxation, or by inflating away the value of their money. Accordingly, the top 5 percent of taxpayers now pay almost 60 percent of federal income taxes, while many non-taxpayers receive government benefits worth the equivalent of a full-time unskilled job.

Madison imagined that senators, originally chosen by state legislatures rather than by the voters directly, would be men of prudence, experience, reputation, and property, who would serve as a counterweight to the more demotic, and potentially more redistributionist, House. But the Seventeenth Amendment, ratified in 1913 and mandating the direct election of senators, changed all that; and the last remnant of Madison’s dream of the Senate as a brake on majoritarian tyranny, or flightiness—the need for 60 votes to do much of the Senate’s business (though that was not part of Madison’s original design)—has been shorn to a nubbin in the confirmation fight that ended Friday.

It was Senator Feinstein who, with what seemed like chronic naivety in the Judiciary Committee hearings, cast into sharp focus the Democrats’ second great subversion of the Framers’ Constitution. Gorsuch, the senator charged, opposed the Supreme Court’s 1984 Chevron-deference doctrine, “a long-standing legal doctrine that allows agencies to write regulations necessary to effectively implement the laws that Congress passes and the president signs,” the senator explained, not quite correctly. “Congress relies on agency experts to write the specific rules, regulations, guidelines, and procedures necessary to carry out laws we enact”—the rules that enable “the Clean Air Act and the Clean Water Act to protect our environment from pollution,” and allow “the FDA and the agriculture department [to] safeguard the health and safety of our food supply, our water, our medicines.

“We in Congress rely on the scientists, biologists, economists, engineers, and other experts to help ensure our laws are effectively implemented,” the senator went on, now waxing lyrical. “For example, even though Dodd-Frank was passed nearly seven years ago to combat the rampant abuse that led to our country’s worst financial crisis since the Great Depression, it still requires over a hundred regulations to be implemented by the Securities and Exchange Commission, the Commodity Futures Trading Commission, and other regulators in order to reach its full effectiveness, as intended by Congress when it was passed.”

There was something endearing in the senator’s obtuse frankness, however horrifying it became as she went on. What she was saying is that the American people no longer govern themselves by laws that they themselves have made through their representatives—their senators and congressmen. Legislators instead gauge some vague national feeling, articulate it by decreeing “Let there be clean air and water,” and set loose an army of supposed experts to make the rules ensuring that their broad and general vision becomes reality, in whatever form and by whatever means the experts deem best. This process, the senator admitted—or, rather, boasted—“has been fundamental to how our government addresses real world challenges in our country and has been in place for decades.”

The awful truth is that she’s right. What she was describing is the working of the administrative state, constructed by progressive Democrat Woodrow Wilson explicitly as a replacement for the Constitution of 1787, which he considered an obsolete relic, its system of separated powers and checks and balances much too slow to deal with fast-changing modern reality; its elected representatives mere amateurs in a complex world needing constant management by experts with specialized knowledge. Instead, administrative agencies, such as the Federal Trade Commission, would make rules to carry out Congress’s enunciation of basic principles. They would administer those rules and adjudicate infractions of them by “administrative judges,” who are merely the simulacrum of judges, since they possess no independence and are employees of the agencies on whose disputes with citizens they are to rule. And in place of the Constitution, we’d have the Supreme Court sitting as a permanent constitutional convention, continually reshaping the basic law of the land in a Darwinian adaptation to ever-changing circumstances, “with boldness and a touch of audacity,” said Wilson, so as to shed a dead Constitution for what he called a “living” one.

Only during the New Deal did it became clear how audacious this living constitution could be . At first, the Court repeatedly and properly overturned Franklin Roosevelt’s efforts to extend the Constitution’s commerce clause to give the federal government control over every nook and cranny of the nation’s economic life, right down to how much grain a farmer could grow to feed his own livestock, a matter having nothing to do with the interstate commerce over which Washington has authority. In response to its resistance, FDR threatened to expand the Court, pack it with left-wing justices, and curb its powers, persuading Justice Owen Roberts to change his implacable opposition to the New Deal’s grossly unconstitutional usurpation of power and endorse FDR’s wholesale replacement of a government of limited and enumerated powers, hedged with checks and balances, into an unlimited government with dictatorial powers. Not the Supreme Court’s finest hour in its spotty and sometimes sordid history.

So, instead of Americans ruling themselves, they are now ruled by expert (meaning politically correct) administrators making rules—that is, laws—through a legislative power which the original Constitution would see as illegitimate tyranny, and adjudicating transgressions of those “laws” by usurping the judicial power which the Constitution gives solely to the judicial branch—without even the grand or petit jury protection that Magna Carta vouchsafed to the English-speaking peoples 802 years ago. No longer do we have separated powers and checks and balances. Legislators, as Senator Feinstein admitted, really no longer legislate but instead illegitimately delegate their legislative power to administrators—metastasizing hordes of them under Obamacare and Dodd-Frank, as Feinstein pointed out in her horrifying description of what Dodd-Frank entails in government expansion, with all those employees lavishly paid, protected by their unions and by civil-service rules, and the opposite of expert and efficient. And the legislators get lavishly paid too, thanks to campaign contributors seeking waivers from the rules that the administrative state has threatened to impose on them.

The final nail in the coffin of democratic self-government—as Woodrow Wilson asked, who wants to be governed by representatives “not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes?”—is that Chevron deference that Feinstein upbraided Gorsuch for opposing. That doctrine requires a court, when faced with a litigant challenging the validity of an administrative agency’s application of a rule that it has made, to defer to the agency’s interpretation of that rule, rather than making an independent judgment of its import and providing genuine judicial review. So the whole system is a Kafkaesque hall of mirrors, from which you can’t escape into the clean air of liberty. And Gorsuch would like to start unlocking the federal funhouse.

If the Court has tied its own hands in this matter, in other respects it really is the permanent constitutional convention that Wilson envisioned, energetically making up the law as it goes along out of what it claims to be emanations and penumbras of the Constitution, the shadow of a dream. It has become a political, even a legislative, body—exercising “will instead of judgment,” which Alexander Hamilton warned in Federalist 78 is something that the Constitution forbids the Supreme Court from doing. And since the laws it makes up are almost always left-leaning, it is the third and biggest gun in the Democratic Party’s anti-constitutional arsenal.

But suppose the Court were not left-leaning. Suppose, now that Gorsuch has been confirmed and sworn in, it understood and intended to overturn the administrative state’s usurpation of the Constitution. Suppose, moreover, that it understood the promiscuous lawlessness with which the justices have been making laws out of thin air for half a century and more—claiming some vague basis in the Bill of Rights or the Fourteenth Amendment—and resolved to end that abuse, exercising only judgment, not will. Suppose President Trump got to appoint one more justice in the Gorsuch and Scalia mold, creating an irresistible majority that upheld Madison’s original Constitution instead of Wilson’s “living” one.

Then the spirit of James Madison might arise from its grave in the red Virginia clay, holding out the original Constitution in its ghostly hands and mildly and reasonably reminding Americans, as he said at the Virginia Ratifying Convention, that the powers it grants to government are “the gift of the people,” and that “every power not granted thereby remains with the people, and at their will.” The Constitution did not create an elective despotism, he might add, but rather a mechanism by which citizens could govern themselves. It is past time for Americans to relearn the art of self-government, an art that is the hallmark of American exceptionalism and that has made America a light unto the nations.