Self-government is worth defending from an illegitimate Supreme Court
Washington Post columnist Jennefer Rubin is apparently confused about which revolution created this country—the French Revolution or the American Revolution. Well, it was the American Revolution that we are descendents of. Her (accidental?) confusion is plain in her Washington Post column Self-government is worth defending from an illegitimate Supreme Court.
Ruben begins with the false, reactionary premise that America is a Democracy (upper case “D”), rather than the constitutionally limited republic it actually was founded as. This gives her the opening to condemn the Supreme Court as “illegitimate” every time it defends individual rights, the Constitution, or even our republic’s democratic process. She mentions four recent major decisions—Dobbs, which overturned Roe v. Wade; the Affirmative Action case, which outlawed racism in college admissions; the student loan “forgiveness” case, which overturned Biden’s $450 billion taxpayer money grab on separation of powers grounds; and the web designer case, which sided with a Christian woman who refused to design a website for a same sex couple.
Because these cases ran afoul of her Leftist beliefs, Rubin accuses the Court’s “right-wing majority” of waging an “intolerable war on self-government.” We must end this war by radically restructuring the high court. Her “solution?” “Simply put, if we want democracy to survive, each election must be a referendum on the court’s legitimacy.” In other words, Rubin wants to politicize the Supreme Court, shredding its independence from the whims of elections.
So, what is self-government in the America concept? She explains:
On this Independence Day, we should reaffirm the twin pillars of democracy: Voters (not the mob) pick their leaders, and elected leaders (not unelected judges) make policy decisions for which they are held accountable. Just as we need to preserve the sanctity of elections (by prosecuting coup instigators), democracy defenders need to address judicial radicals’ gross distortion of our system, resulting in the current Supreme Court’s subversion of democracy.
No mention of America’s primary pillar, unalienable individual rights. Is there any check on the power of elected leaders to make policy? Apparently not:
Something must change if we want to preserve rule by the people’s elected leaders responsible to voters.
“Rule by the people’s elected leaders?” That is not Locke. That is Rousseau. Not Revolutionary America, but Revolutionary France. France is about rule by “the people”—absolute majoritarianism. America is about individual self-rule, under which elected leaders are servants restrained by a constitution. Freedom is not the right to vote. Freedom is the right to act regardless of the outcome of any election, or the dictates of elected leaders.*
Self-government, in the American sense, is not primarily about majoritarianism, in which legislatures or presidents are empowered to do whatever they want simply because they were elected. Rather, self-government begins with the individual, and secondarily extends to a government of limited powers chosen by a democratic process subordinate to the principle of individual rights. The elected government’s job is to secure the rights of individuals to self-govern their own lives based upon their own values, goals, and choices, limited only by the duty to respect the same rights of all others.
Rubin’s conception of America is totalitarian, in which the constitution is toothless as a check on government power, and in which the rights of individuals to self-government is neutered—e.g. To Rubin, the Supreme Court is basically a rubber stamp, always deferring to “policy.” A web designer can be forced to serve a gay couple against her conscientious beliefs, which is a form of slavery. Why? Because the people’s elected leaders mandate that she must. According to Rubin’s concept of self-government, LGBTQ+ rights include the “right” to enslave, smuggled in under the rubric of anti-discrimination law. But by American standards, self-government means self-ownership, which forbids anyone from imposing involuntary servitude on anyone.**
The current Supreme Court is inconsistent. But most of its decisions so far have advanced individual rights, constitutional limits on government power, and respected the separation of powers. These principles stand in the way of the Left’s totalitarian designs on America. To the Left, that makes the current court illegitimate. That is why Rubin and her Leftist ilk are so up in arms.
Rubin labels the current Supreme Court “illegitimate” because it (mostly) sides with individual rights and the U.S. Constitution. But in fact, the Supreme Court is doing its job. It is judging political policy according to the constitution. Given how far toward statism that America has drifted in the last century or so, that will lead to some very dramatic rulings. But that’s what America needs.
* [Dobbs actually was a bad decision, from a pro-liberty standpoint. But the hypocrisy of the Left (and, in fact, the Right too) shines through like a neon light. Roe recognized abortion as a constitutionally sanctioned individual right. Dobbs switched abortion from a constitutionally protected inalienable individual right to a matter to be decided by elected representatives at the state level. As an advocate of “rule by the people’s elected leaders,” Rubin should cheer this ruling. So much for her vaunted Democracy.]
** [The web designer case was actually decided on free speech, First Amendment grounds. That is important. But more fundamentally, this was more a 13th Amendment case, in my view. The 13th Amendment explicitly forbids “involuntary servitude. Clearly, a law forcing the web designer Lorie Smith—the owner of 303 Creative LLC, the plaintiff in the case—to design a website against her will is involuntary servitude. Freedom of contract also figures prominently in this case. Article I, Section 10, Clause 1 forbids any state from enacting any “Law impairing the Obligation of Contracts.” Implied here is the right to freely contract. Freedom of contract implies the right not to contract, just as freedom of speech protects not only your right to speak but the right not to be compelled to speak against one’s conviction. Compelled speech doctrine is what this case turned on. That aside, let me state unequivocally that I find the web designer’s refusal to serve the gay couple abhorrent. But it’s her right. Her refusal does not in any way, shape, or form “roll back LBGTQ+ rights”—as the Left frames it—since no one has the “right” to force Smith, even by law. The government doesn't create rights by fiat. The American Revolution was fought to escape that totalitarian premise, in favor of natural rights theory, which holds that rights precede government, as the Declaration of Independence makes crystal clear.]
Related Reading:
The Gay Wedding Website Case—The “Right” to Enslave is Rolled Back
Recent Supreme Court rulings alienate the left but are hardly unpopular by Aaron Blake for The Washington Post
QUORA: Why does the Pledge of Allegiance say the USA is Republican not Democratic?
America; Democracy or Republic or Both--Why it Matters
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty—Timothy Sandefur
In SCOTUS’ Draft Opinion Overturning Roe Abortion Ruling: Double Standards of Left and Right Exposed
Lincoln Understood the Indispensable Connection Between Rights and Self-Government
New Textbook of Americanism edited by Jonathan Hoenig
On This Constitution Day, Remember the Declaration of Independence
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