Hillary Clinton’s answer to moderator Chris Wallace’s opening question at the third Presidential debate has received a lot of attention. As many will know by now, when asked about the sort of Supreme Court justices she might nominate, Clinton said the Court ought to stand up to the wealthy and powerful and “represent all of us.”
Although it is worth noting the deep irony of her formulation, her sentiment in itself will probably strike many Americans as reasonable and unobjectionable. After all, who would want the court to serve the interests of the rich only? Every American should expect a fair hearing should they ever find themselves before the Court.
What if the law is biased in favor of the wealthy and powerful? What if the laws don’t recognize changing moral norms and societal standards? Shouldn’t the justices take all of this into consideration and represent all the people and reflect the will of the people in their judgments?
Well, no. As reasonable and fair-minded as this might sound at first, no, they shouldn’t. There are several good reasons why this is so, but let’s just focus on one important reason that many fail to appreciate.
School children around the country still recite the Pledge of Allegiance each morning at the start of school. Those who recite the Pledge say they not only pledge allegiance to the flag but also “to the Republic for which it stands.” To understand exactly why Clinton’s answer was misguided, we have to understand just what it means to be a republic.
Our word “republic” comes from the Latin res publica, which means “the public thing.” John Adams, in his Thoughts on Government, said a republic is the best possible form of government because it is the most likely to communicate “ease, comfort, security, or in one word happiness to the greatest number of persons, and in the greatest degree.”
A republic is the form of government most conducive to this end because it is, as Adams says, an “Empire of Laws and not of men.” This government is “the public thing” because these laws are determined by people elected to represent the public. These representatives “should be in miniature, an exact portrait of the people at large. [They] should think, feel, reason, and act like them.”
So, rather than government being “the only thing we all belong to” (as the DNC famously said at their 2012 convention), a republic is quite literally the thing that belongs to all of us.
Thus, it is necessary that these representatives are both elected according to the rules established by the Constitution that establishes the people as a polity and constrained in their law-making by this same Constitution. The job of the Court is to make sure these lawmakers respect these constraints.
When Hillary Clinton answered Chris Wallace’s question about the Court, she presented herself as standing up for the rights of all of us, and in particular for the least powerful among us. This is an honorable intention, but were the Supreme Court, a group of nine unelected and unaccountable individuals, officially tasked with creating new legal realities that represent the will of the people, we would effectively cease to be a republic.
The government would no longer be “the public thing,” but would instead be a private privilege granted to a handful of elites. Their so-called “representation” would be a myth. How would they know what the majority view is? How would we know whether the court had truly achieved the will of the people? Without campaigns and elections, we would never know. Should the majority become displeased with the court, there would be no way of knowing for sure — they could not be voted out of office.
Granting the Court this authority would be to take away the basic rights of all of us as citizens and make us subjects instead. Ironically, should this happen, the poor and powerless — the very people Clinton means to protect — would be the most vulnerable.
One of the Founders’ foremost concerns was ensuring minority rights even while establishing majority rule. This is why we have the Bill of Rights. One role of the Court has been to protect these individual rights when the laws passed by the representatives of the majority have encroached on those in the minority. A Court appointed to divine the will of the people and to legislate accordingly would no longer serve this fundamental republican role.
Allegiance to our republic requires work. It requires a citizenry that educates themselves and cultivates the virtues necessary for civil discourse and advocacy. Weariness with this work may explain why Mrs. Clinton’s proposal seems attractive to some. It would, at least, absolve us of responsibility for politics. Still, sympathy for this temptation should not lead us to trade in our citizenship.