Tenth Amendment Center: America Could Use More “Out of the Mainstream” Judges

From Tenth Amendment Center

...from Tenth Amendment Center

by Gary M. Galles

Brett Kavanaugh’s impending confirmation hearings have sustained what has been over a decade-long Democrat “go to” Supreme Court strategy—calling nominees they don’t like “out of the mainstream.”

In 2007, incoming Senate Minority Leader Charles Schumer asserted that any Bush nominee “must prove…they are in the mainstream rather than we have to prove that they are not.” In 2018, Schumer has been joined by many other Democrat colleagues in the “out of the mainstream” accusation, with the only important change being the name of the nominee.

So what is the point of all the mainstream rhetoric? To be in the mainstream sounds good; to be out of it sounds bad. But it rests on a distortion.

“Mainstream” Doesn’t Always Equal “Correct”

In common usage, mainstream is equated to “normal,” or current majority views, which are further equated to “correct” views. But in choosing justices, whose primary role is preserving the Constitution against majority abuses, that equation fails. To recognize that, one need only remember the few federal powers the Constitution enumerated in order to constrain it, backed by a rigorous standard for changing the Constitution, and what the Bill of Rights put off-limits with all its nos and nots.

People being created equal, with unalienable rights against government abuse, is far from the once-mainstream belief in the divine right of kings.

Further, where the mainstream is and how far from its supposed center is acceptable are undefinable. That makes the core issue where the mainstream should be, not whether one is in the current mainstream. Respecting the Constitution as truly the highest law of the land is the real issue.

That is, the mainstream may be in the wrong place. It has clearly changed in America but only because some were out of the previous mainstream. People being created equal, with unalienable rights against government abuse, is far from the once-mainstream belief in the divine right of kings. And our Bill of Rights-protected freedoms to speak, write, and worship as we choose, and to have our property protected from government predation, arose because they were not always mainstream.

Federalist 78, America’s most famous statement of the judiciary’s role, reveals that the political mainstream has indeed jumped its constitutionally-enumerated banks, arguing for re-routing it toward its original course:

A limited Constitution…can be preserved in practice no other way than through…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Further, “whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter…to guard the Constitution and the rights of individuals.”

We Need Less “Mainstream,” Not More

If the mainstream has moved from its original American course, only those now out of it can shift it back. For example, the now-common view that using government to rob Peter to pay Paul is acceptable means anyone acting to overturn such an affront to any sensible meaning of “General Welfare” falls outside today’s mainstream, though clearly not that of our Founders. As Jefferson said, “The majority, oppressing an individual, is guilty of a crime, abuses its strength, and… breaks up the foundations of society.”

In fact, only at least partly “out of the mainstream” nominees could resist further expanding government encroachments.

In fact, only at least partly “out of the mainstream” nominees could resist further expanding government encroachments or reclaim eviscerated freedoms once taken for granted. Mainstream nominees, in contrast, could easily embellish the current pattern with “new and improved” encroachments.

Expanding the divide between the Constitution and current interpretation increasingly threatens our Founders’ mainstream belief in liberty and the Constitution they designed to defend it. Consequently, advocates for the modern mainstream are opposing the prior mainstream that made America great. It is also why Americans don’t need more justices from what Democrats call the modern mainstream, but more from its original channel.

Gary M. Galles is a professor of economics at Pepperdine University. His recent books include Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013). He is a member of the FEE Faculty Network.

This article was originally published on FEE.org. Read the original article.

Tenth Amendment Center
August 16, 2018 at 07:31AM