This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary’s role. Herewith some pertinent questions:
– Lincoln’s greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act’s premise was that “popular sovereignty” — majorities’ rights — is the essence of the American project. Is it, or is liberty?
– If so, was the Court wrong in the 1873 Slaughterhouse Cases? It essentially erased the privileges-and-immunities clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.
– Chief Justice John Roberts says the doctrine of stare decisis — previous Court decisions are owed respect — is not an “inexorable command.” The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?
– The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Robert Bork said this is akin to an “inkblot” on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress’s powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?
– Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress’s power over interstate commerce?
– The Fifth Amendment says no property shall be taken “for public use” without just compensation. In the 2005 Kelo case, the Court upheld a city’s seizure of private property not to facilitate construction of a public structure or to cure blight, but for the “public use” of transferring it to a wealthier private interest that would pay more taxes. Did the Court err?
Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?
– Madison worried that Congress would draw “all power into its impetuous vortex.” For many decades, however, our centrifugal Congress has been spinning off essentially legislative powers, delegating them to presidents and executive agencies. The Constitution says “All legislative powers herein granted shall be vested in a Congress.” Should the Court enforce limits to Congress’s power to delegate its powers?
– Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the Court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?
– Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?
– You commendably believe that judges should adhere to the “original public meaning” of the Constitution’s text. Would you feel bound to follow a previous Court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?
– Oliver Wendell Holmes, a deferential, majoritarian jurist, said: “If my fellow citizens want to go to Hell I will help them. It’s my job.” Discuss.
— George Will is a Pulitzer Prize–winning syndicated columnist. © 2017 Washington Post Writers Group