The final Senate vote on the confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court is today. We should put aside, even for just a moment, discussions about what this means for the judicial-nomination process, the filibuster, and the election. It’s worth exploring how a Justice Barrett would influence American policy-making. The reason I’m so strongly in favor of her confirmation is because, based on her testimony and previous work, Barrett may very well help restore key aspects of American governing.
I believe the most pressing problem in policy-making today, and the issue at the root of much of our political dysfunction, is that we’ve forsaken self-government—rule of, by, and for the people. Our Constitution creates a republic, a nation where the federal government and state governments are run by officials elected by our citizens. Various provisions, like the separation of powers, slow the policy-making process so that reasoned, stable majorities rule (instead of rash, temporary factions). And individual rights and enumerated powers set limits on what governments can do. Otherwise, our representatives—constantly subject to democratic dismissal from office—are empowered to decide what statutes and ordinances are passed, how dollars are spent, and so on.
Self-government is indispensable, especially in a diverse nation of free-thinking people. It gives individuals a sense of agency in public life. It allows different communities to live differently, based on their particular histories and priorities. Since self-rule makes us masters of our own fates, our energies are directed to real problems and practical solutions instead of abstract concepts and conspiracy theories about distant, invisible forces. The deliberative democratic process also makes us better citizens by fostering civic virtues like public participation, civility, accommodation, and compromise.
But in recent decades a number of trends have undermined self-government. The judiciary has invented new rights under the Constitution and statutes and then used them to invalidate democratically produced policies. This devalues the will of the people in at least two ways: It disregards what voters and their representatives actually did when ratifying the Constitution or passing a law, and it reduces the space for today’s voters and representatives to govern. We also have an overactive administrative state, through which unelected officials in executive-branch bodies make more and more rules with the force of law. This shifts policy-making from a transparent process of debate and compromise led by elected representatives in a legislature to a veiled process of applying “expertise” led by technocrats in agencies.