George F. Will: Like NFL referees, judges should learn to throw the flag more on laws

Published: Thursday, Jan. 23 2014 12:00 a.m. MST

The beginning of wisdom is recognizing the implications of this fact: Government is almost never disinterested. Today's administrative state is a congeries of interests, each of which has a metabolic urge to enlarge its dominion and that of the private-sector faction with which it collaborates. As Neily says, "Much of modern constitutional law depends on denying — or at least ignoring — the realities of the political process." Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals says of "rational basis" jurisprudence: "The judiciary justifies its reluctance to intervene by claiming incompetence — apparently, judges lack the acumen to recognize corruption, self-interest, or arbitrariness in the economic realm — or deferring to the majoritarian imperative," which means "the absence of any check on the group interests that all too often control the democratic process."

This process, Neily rightly insists, is not self-legitimizing, which is why judicial passivity is inconsistent with constitutional government. Between 1954 and 2002, the Supreme Court invalidated 103 of the 15,817 laws that Congress passed — 0.65 percent. It struck down about 0.5 percent of federal regulations and less than 0.05 percent of state laws. Neily says, "In light of history, experience, and common sense, it is implausible to suppose the federal government hits the constitutional strike zone 99.5 percent of the time."

Neily argues that to say that judicial invalidations of legislative acts should be rare is no more sensible than saying NFL referees should rarely penalize players for holding. Conservatism's task, politically hazardous but constitutionally essential, is to urge courts to throw as many flags as there are infractions.

George Will's email address is georgewill@washpost.com.

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