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Judge Barrett is an originalist, not a conservative activist

David Limbaugh on

I won't pretend to be surprised by this, but Senate Democrats, knowing they don't have the power to stop Judge Amy Coney Barrett's confirmation to the Supreme Court, have turned the confirmation hearings into a campaign platform to smear President Donald Trump.

The Democrats' approach to the hearings illustrates how disingenuous their professed commitment to preserve the integrity of "our democracy" is. Indeed, nothing better illustrates their failure to distinguish between a democracy and a constitutional republic than their misguided judicial philosophy.

The framers of our Constitution designed our system as a constitutional republic, not a democracy. As students of history and ancient democracies, they incorporated safeguards against pure democracy, which they knew could lead to mob rule. They aimed to maximize political liberty, and that required protecting the minority from the tyranny of the majority.

They divided and limited governmental power, as unrestrained governments tend toward tyranny. We all know the drill. They divided power between the federal and state governments (federalism) and distributed federal power among three separate branches of government (separation of powers).

They imposed an intricate scheme of checks and balances, pitting each branch against the other two to prevent any branch from becoming too powerful at the expense of the others and of individual liberties.

They included the Bill of Rights, which contained further express limitations on government, and they created a bicameral legislature to retard the governmental process and insulate it against impassioned mobs. George Washington described the upper chamber as the "senatorial saucer" that would cool legislation passed in the more democratic House.

 

Just as all of these structural safeguards are essential to maintaining our liberties against authoritarianism and absolutism, so is our ongoing jealous protection of these safeguards.

We have two political branches whose members are elected, directly or indirectly, by the people and that pass laws and otherwise make policy and enforce the laws. The judicial branch is a nonpolitical branch that should interpret, rather than make, laws. Courts must not act as super-legislatures because their members are not democratically chosen, because they are more insulated from accountability to the people and because the judicial branch serves the important function of interpreting laws.

When appellate courts make laws instead of interpreting them, they thwart the will of the people who elected the political branches. They violate the separation of powers and undermine the very system that was carefully crafted to preserve our liberties. We've seen examples of this throughout history, but especially since the '60s, where the Supreme Court, by fiat, employs elaborate legal fictions to strike down perfectly constitutional laws passed by the other two branches, or to uphold unconstitutional laws.

Democrats argue that Republicans are just as guilty as Democrats in seeking to install judges who will enact their policy agenda. Many Democratic senators alleged that Republicans support ACB because they want her to advance their policy agenda. According to them, the GOP needs Barrett on the court to eliminate Obamacare, abortion rights and same-sex marriage -- and to rule in Trump's favor if a legal challenge to the results of the upcoming presidential election arises.

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