July 1, 2022

"[T]he framers believed that a republic— a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable 'ministers.'"

Writes Neil Gorsuch, citing Federalist No. 11, concurring in yesterday's case, West Virginia v. EPA.

He continues:
From time to time, some have questioned that assessment.1 
That footnote goes to an attack on Woodrow Wilson (I've replaced the citiation with a hot link and added boldface):
For example, Woodrow Wilson famously argued that “popular sovereignty” “embarrasse[d]” the Nation because it made it harder to achieve “executive expertness.” The Study of Administration. In Wilson’s eyes, the mass of the people were “selfish, ignorant, timid, stubborn, or foolish.” He expressed even greater disdain for particular groups, defending “[t]he white men of the South” for “rid[ding] themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant [African-Americans].” He likewise denounced immigrants “from the south of Italy and men of the meaner sort out of Hungary and Poland,” who possessed “neither skill nor energy nor any initiative of quick intelligence.” To Wilson, our Republic “tr[ied] to do too much by vote.” 
Sometimes the Critical Race Theory comes from the right!

That's at page 4 of his opinion. At page 16, attack the dissent, he brings back Woodrow Wilson:
In places, the dissent seems to suggest that we should not be unduly “ ‘concerned’ ” with the Constitution’s assignment of the legislative power to Congress. Echoing Woodrow Wilson, the dissent seems to think “a modern Nation” cannot afford such sentiments. But recently, our dissenting colleagues acknowledged that the Constitution assigns “all legislative Powers” to Congress and “bar[s their] further delegation” [quoting Gundy v. United States]. To be sure, in that case we disagreed about the exact nature of the “nondelegation inquiry” courts must employ to vindicate the Constitution. But like Chief Justice Marshall, we all recognized that the Constitution does impose some limits on the delegation of legislative power.
Back to the discussion on page 4:
[B]y vesting the law-making power in the people’s elected representatives, the Constitution sought to ensure “not only that all power [w]ould be derived from the people,” but also “that those [e]ntrusted with it should be kept in dependence on the people.” [Citing Federalist No. 37, written by James Madison.] The Constitution, too, placed its trust not in the hands of “a few, but [in] a number of hands,” so that those who make our laws would better reflect the diversity of the people they represent and have an “immediate dependence on, and an intimate sympathy with, the people.” [Citing Federalist No. 52, written by James Madison.] Today, some might describe the Constitution as having designed the federal lawmaking process to capture the wisdom of the masses. See P. Hamburger, Is Administrative Law Unlawful? 502–503 (2014).

(That's my Amazon Associates link on Philip Hamburger's book. Don't buy the book that way unless you want to support this blog.)

Gorsuch stresses democracy as a structural safeguard, intended by the framers to protect us from abuse by the elite, who would prefer to do what they, in their wisdom, think will be best for us. He nudges us to feel that those who argue for executive law-making — like Woodrow Wilson — regard the people as "selfish, ignorant, timid, stubborn, or foolish" — deplorables. 

59 comments:

Mark said...

Sometimes the Critical Race Theory comes from the right!

The racist and discriminatory aspect of the Democrat Party imposing white supremacy on Black people has only been pointed out for many, many decades.

gilbar said...

Can't we take it, as axiomatic; That if the Racist Fascist Woody Wilson supports something..
That Something isn't Just Racist and Fascist.. But WRONG??

AlbertAnonymous said...

Executive Expertness. Lol…

Pretty sure the current set of 535 all think they have it and we don’t. They’re gonna shove it down out throats whether we like it or not….

It’s a banana republic if we can keep it…

Mark said...

Gorsuch stresses democracy as a "structural safeguard"

No, he stresses it as the default, as a central and fundamental aspect of self-government.

Mike of Snoqualmie said...

Woodrow Wilson was a fascist and racist. He prosecuted people who objected to the U.S. entering WWI and demonized German-Americans. He resegregated the civil service. His highpoint was showing "Birth of a Nation" at the White House.

Clyde said...

“Selfish, ignorant, timid, stubborn, or foolish” also sometimes describes our so-called experts as well.

gilbar said...

Let's play a Fun Game!
I'll list a list of Famous Democrats (Leaders and Founders of their party). You say if they're Racist?
Thomas Jefferson... Racist? Or just a slave owner that used his slaves as sex toys?
Andy Jackson....... Racist? Or just a genocidal MURDERER?
Woody Wilson....... Racist? WELL?
Lyndon Johnson..... Racist? Or just someone that thought "N-words" were property of the demo party?

That leaves, Who? FDR? O'Bama? I guess it's time to play Say if they're Fascist?

Tom said...

Of all the rulings, the WV v EPA ruling is probably the most profound to the country. The administrative and regulatory law state has grown into a leviathan. I personality thing that all regulatory rule making authority should come from and be assented to by Congress.

So, I would propose that when a agency like the EPA or OSHA makes a rule, that rule must be voted on by Congress. The rule can be voted up or down or can be amended by Congress. But we should have the people’s approval before executive rule making can occur.

AMDG said...

On that train all graphite and glitter
Undersea by rail
Ninety minutes from New York to Paris
(more leisure for artists everywhere)
A just machine to make big decisions
Programmed by fellows with compassion and vision
We'll be clean when their work is done
We'll be eternally free yes and eternally young

WWIII Joe Biden, Husk-Puppet + America's Putin said...

Woodrow Wilson is the perfect Democrat. Asshole.

who-knew said...

Ann Althouse says "He nudges us to think that those who argue for executive law-making — like Woodrow Wilson — regard the people as "selfish, ignorant, timid, stubborn, or foolish" — deplorables. "
Not to brag, but I don't need any nudging in that direction because I can hear the self-appointed elites saying it nearly every day.

typingtalker said...

In Wilson’s eyes, the mass of the people were “selfish, ignorant, timid, stubborn, or foolish.

In my eyes, that applies also to the mass of the popular press.

rhhardin said...

The theoretically proper balance shifted more toward experts once women were voting, but then women voted for the wrong experts instead of the wrong stuff. Bad voting seems to be the problem. Less feelings more structure.

Bob Boyd said...

Sometimes the Critical Race Theory comes from the right!

You seem to be saying Wison was on the right...but that can't be right. Wilson was a Progressive...heck, he was thee Progressive.
What does "right" mean when you use it? I guess is the question.

gspencer said...

Wilson should be attacked. Relentlessly.

Politically speaking, 1913 was the worst year in the nation's history,

Four disastrous events,

February 3, 1913 - the 16th Am (income tax) became part of the Constitution

March 3, 1913 - Democrat Wilson became president; Wilson the internationalist made the hard break from Americanism (government’s sole role being to protect natural rights), and set America on the pattern of endless world wars with America as the world’s policeman

April 8, 1913 - the 17th Am (direct election of federal senators) became part of the Constitution

December 23, 1913 - the bill creating the Federal Reserve became law; signed by Wilson the internationalist

n.n said...

Diversity [dogma], Inequity, and Exclusion (DIE) is libertarian? Perhaps anarchist in a left-right leftist model.

A constitutional republic of the right (i.e. limited government) is the resolution of the democratic/dictatorial duality.

n.n said...

There was another man of the left, socialist, steeped in Critical Racists' Theory (CRT), subscribed to the nominally secular Pro-Choice ethical religion, from the same period.

Sean Gleeson said...

I don't think it is fair to characterize Gorsuch's reference to Wilson as "an attack" on him. It seems like a perfectly accurate quote of the man's own words, and all Gorsuch noted about him was he exemplified those who "have questioned that assessment," which also seems accurate.

Two-eyed Jack said...

Gorsuch trims the quote in a manner that I would regard as biased.

Wilson wrote of white men of the South, denied suffrage, ridding their states of "the intolerable burden of governments sustained by the votes of ignorant negroes and conducted in the interest of adventurers: governments whose incredible debts were incurred that thieves might be enriched, whose increasing loans and taxes went to no public use but into the pockets of party managers and corrupt contractors."

This is not an "expression of disdain for particular groups." Slaves in the South were kept in ignorance and illiteracy. Wilson disdained blacks, but this quote is an explanation of why disenfranchised whites turned to KKK terrorism and an expression of outrage at corruption by self-serving office holders.

You can read Wilson's statement in context here:

https://books.google.com/books?id=UsEwAQAAMAAJ&pg=PA58&lpg=PA58&dq=%22to+rid+themselves,+by+fair+means+or+foul,+of+the+intolerable+burden+of+governments%22&source=bl&ots=VPEsfqFrVk&sig=UTKVsUdXZUzoZwpGjBwPhhiiPG8&hl=en&sa=X&ved=0CDIQ6AEwBWoVChMIjsCRir-lyAIVgiYeCh3IOgiv#v=onepage&q=%22to%20rid%20themselves%2C%20by%20fair%20means%20or%20foul%2C%20of%20the%20intolerable%20burden%20of%20governments%22&f=false

Dave Begley said...

What would one expect from the former President of Princeton?

Dave Begley said...

Gorsuch's mom ran the EPA. Nice touch with his dissent.

Howard said...

I like SCROTUS holding congress accountable. Hopefully there will be a ruling against executive orders that go beyond the scope of actual federal laws. Also, executive privilege needs to be eliminated. Then in my wet dreams, the Black Robed pontiffs will overturn Marbury vs Madison

Mr Wibble said...

Alexthechick over on Twitter had a good Twitter Law School rant about this.

https://twitter.com/alexthechick/status/1542839902399782912

Yancey Ward said...

I think the rule really is simple- do you think the Congress that passed the Clean Air Act would have passed the law if they had known the EPA would use the power to treat carbon dioxide as a pollutant and thus ban fossil fuel use? Anyone who claims that Congress would have passed the law anyway is fucking fool and/or a liar (probably both). If told that, the older Congress would simply have amended the law to make it explicit that carbon dioxide isn't a pollutant, and then passed the act anyway. Given that, it is necessary for today's Congress to explicitly authorize the EPA to treat carbon dioxide as a pollutant, and if you can't get Congress to that, then tough fucking shit.

Lloyd W. Robertson said...

I think boomers have always had some difficulty admiring any president other than JFK. They sort of gritted their teeth and did their best for Carter, then admired Clinton as part of the sexy, perhaps boozy boomer world. Obama, like anybody or anything praised by the boomers, was over-praised; he actually didn't personify the end of racism in America. The woke will have none of that shit, so they are pretty much stuck with JFK. Better not look too closely.

Limit the rule of experts in the guise of delegation to executive agencies: check. The CDC has recently propagated a phony study to support Covid vaccines for children. Obviously they are keeping up a narrative, and for all I know they are worried that if doses that have been purchased are not used, that will be another scandal. But twisting and distorting data to encourage compliant behavior is something like the exact opposite of what they are supposed to do. Any blowhard in any bar can do that; no Ph.D. required.

Speaking of Ph.Ds, I'm shocked shocked at the comments about Woody Wilson. A Kant scholar who taught at Princeton for Christ's sake!

How does West Virginia keep coming up as the center of political discourse: Manchin, etc? A bit like the outbreak of the Civil War, the border lands or whatever.

Humperdink said...

"In Wilson’s eyes, the mass of the people were “selfish, ignorant, timid, stubborn, or foolish."

This brought back memories of the book "The Best and Brightest" (David Halberstam 1972) based on the whiz kids - leaders of academia and industry John F. Kennedy hired. Robert McNamara was the worst. They initiated the highly successful(sarc) Viet Nam war. The country has never been the same.

Lyle Smith said...

Woodrow Wilson was an early 20th century progressive and an academic; he was not "right wing".

wendybar said...



who-knew said...
Ann Althouse says "He nudges us to think that those who argue for executive law-making — like Woodrow Wilson — regard the people as "selfish, ignorant, timid, stubborn, or foolish" — deplorables. "
Not to brag, but I don't need any nudging in that direction because I can hear the self-appointed elites saying it nearly every day.

7/1/22, 8:31 AM

THIS^^^^

AND THIS....

typingtalker said...
In Wilson’s eyes, the mass of the people were “selfish, ignorant, timid, stubborn, or foolish.

In my eyes, that applies also to the mass of the popular press.

7/1/22, 8:32 AM

Enigma said...

Many leftists are merely hardcore conservatives out of power. They have a different vision for how things "should be," but achieving a new framework requires domination, force, and breaking eggs to make the omelet. They use and abuse the blindly compassionate left -- who are always the first to die. Mothers give their lives for the young... Hardcore lefties also exploit the bohemian/artsy left for their votes and contributions, but will clean up their unacceptable behavior (sin taxes/prison/reform camps) in due course.

The right accepts and defends the status quo, so they range from rigid enforcers of tradition to tolerant libertarians. But, they never push or allow big changes because they like what they've got for the most part. Just don't bring your dirty, stinking, ugly outsider people here.

Both sides absolutely suck when they run wild.

Mark said...

Two-eyed Jack(ass), your attempt to justify and excuse the KKK is a total fail.

ConradBibby said...

Pointing out that Wilson was a racist, and that his racism motivated his view of democracy, is not "critical race theory." I think AA is trying to be cute, but someone who is known for being scrupulous in pointing out other writers' careless use of language should be more clear and precise.

CRT asserts that all racial disparities in American society are due to whites' innate and inexorable sense of superiority over blacks.

Rollo said...

Isn't it unbelievable that WEB Du Bois actually supported Wilson in 1912? He was taken in by Wilson's intellectual veneer, and saw him as the right sort of White Southerner (a scholar and a gentleman, rather than a crude, race-baiting demagogue), as well as the man who would put the experts in charge.

Of course, when it came to race, Wilson disappointed Du Bois. You are free to believe that the right sort of people should rule, but they are also free to believe that you are the wrong sort of person.

Joe Smith said...

He attacked Wilson because Wilson was a KKK member in all but name only.

Yet another racist Democrat politician...go figure.

n.n said...

The people of white, black, and red of the South believed that the right of slavery and diversity [dogma] should be safe, legal, and reliable.

n.n said...

He attacked Wilson because Wilson was a KKK member in all but name only.

Yet another racist Democrat politician...go figure.


Wilson was a national socialist with diversity [dogma] amendments.

Narayanan said...

time to get ready to lose the Republic since you cannot keep it

minnesota farm guy said...

Thank you, Humperdink for bringing up "The Best and The Brightest" saving me, and the other commenters, from my well rehearsed rant about that whole crew that immersed us in the swamp of Viet Nam. Though I will take advantage of the moment to once again cast aspersions on Robert McNamara and hope that he and LBJ are keeping company in Hell!

Two-eyed Jack said...

Mark said "Two-eyed Jack(ass), your attempt to justify and excuse the KKK is a total fail."

I would point out that it is not my attempt to justify and excuse the KKK that has failed to convince you, but Woodrow Wilson's.

My point was that misrepresenting peoples' statements through editing is not a mark in favor of a Justice of the Supreme Court, even if the person attacked is unsympathetic.

Your point appears to be that only a jackass would care about honesty and accuracy in historical citation when there are points to be scored in political disputes.

rcocean said...

That quote from Wilson is NOT in that article. Is this another "Made up quote" designed to make Wilson look bad? The 27 page article is a rather boring discussion of "Public administration" and has almost nothing to do with foreigners or negroes.

Why do we keep getting these freaks on the SCOTUS? Even Trump can't give us another Alito or Thomas, he has to give us someone oddball rightist SJW who wants to destroy and slander America 1.0. Do you want the truth? There was no way in hell, the South having fought for 4 years to keep fucking slavery, was going to let their former slaves have poltical power equal to them. Period. The only way you could have gotten civil rights in the 19th century was with a bayonet. And the North wasn't willing to do that. They were willing to kill southerners to end slavery. They were NOT willing to kill to give the Negro the vote.

gilbar said...

Bob Boyd said...
Sometimes the Critical Race Theory comes from the right!
You seem to be saying Wison was on the right...but that can't be right. Wilson was a Progressive

RIGHT! and the Attacks on him (For Being a RACIST!) are coming from the right!
Get it? The Right is calling The Left RACIST.. It's really not that difficult to keep up with the class, if You Do your Classwork..
Oh, and Professor Althouse? I brought you an apple, and left it on your desk :)

Michael K said...

There is some question of whether Mussolini or Wilson was the author of Fascism. Certainly, Wilson began the practice of lying us into war. Roosevelt and LBJ continued the Democrats' practice of denying any intention of wanting war before elections. Wilson also enacted The Sedition Act of 1918. Eugene V Debs was imprisoned under that act. Wilson even refused him a pardon as his health was deteriorating. Harding commuted his sentence to time served. The country was saved by Harding and Coolidge who reversed most of Wilson's policies. The 1920s resembled the 1990s with innovation and prosperity but excess and the consequences of WWI brought on the Panic of 1929. Roosevelt's policies turned it into the Great Depression. WW2 brought the country out of the Depression.

Lem the artificially intelligent said...

Don´t know much about history
Don´t know much biology


I don't understand this post.

Jamie said...

I endorse Mr. Wibble's recommendation of the alexthechick Twitter thread, above.

Critter said...

My opinion of Gorsuch just went to the ceiling! He western the truth. But people like AA want to make the ordinal design and rationale for our government seem optional. It’s not, unless you believe in bait and switch.

I also wholly agree with those who believe we should relentlessly point out the racist and anti-inclusionary views and actions of Wilson and other Progressive ancestors. Democrats we’re the party of slavery, the Southern secessionists, Jim Crow, the KKK and now socialism/globalism. Their heroes are responsible for the deaths of at least 60 million people in political cleansing in the 20th century. And Trump is Godzilla? Please. Trump is a Boy Scout compared to all Democrat heroes.

Tina Trent said...

It's hard to imagine which modern-era president was most racist: Wilson, Johnson, or Obama.

John henry said...

For a good book on the concept of experts running the show read Edward house's 1912 book "Philip dru: Administrator"

House was Wilson's #1 political advisor.

Dru becomes "administrator" of the US and implements the programs Wilson really wanted if it hadn't been for roadblocks like laws constitutions, voters, courts etc.

A deeply disturbing book but an interesting read.

John LGBTQ Henry

M said...

CRT is not factual. It is intentional twisting of history and outright lies used to manipulate people’s emotions to tear down America for the benefit of leftism. What Wilson said is fact. What he meant is plain. There is no twisting of facts or meanings. Certainly no lies or manipulation.

Tina Trent said...

Enigma: Wilson was a Fabian Utopian Socialist. He engaged in their rituals and societies. These people were often extraordinarily racist. They endorsed eugenics as the solution to pretty much every social problem. And for them, there was no daylight between socialism and racist eugenics. They also believed that primarily wealthy whites should reproduce, with limited exceptions for a laboring class.

I lived in a house that was once a Wilsonian internment camp home for German Americans. In Atlanta. The women and children were rounded up and lived in starvation conditions behind barbed wire, and the men were imprisoned in the federal prison up the street, where, decades later, Castro's criminal emigrees unleashed on America in the boatlifts staged the Mariel prison riots.

Now WW is a Republican? A conservative? He was a complicated person and even more complicated liar. To understand his contradictions, you have to understand history, not just project back onto it. He was also a racist, Democratic revolutionary.

Lurker21 said...

Wilson's generation was very influenced by German thought, particularly by Hegel. Hegel was a very conservative German and his emphasis on historical development rather than natural rights was a conservative response to the French Revolution. The young Wilson was also conservative in many ways, but that emphasis on historical evolution and his strong elitist views led him to Progressivism.

The other great influence on Wilson was the British system. Britain is a democracy now, but there's more emphasis on centralized power and control and party discipline than in America, and Wilson, whose grandparents were born in the British Isles, admired the British system. His longing for centralized power and the rule of experts didn't have much traction in 19th century America, but the Progressive movement gave him the opportunity to put his vision into practice.

Here's a very interesting essay on Canada, showing how Canada's 19th century conservative desire for order, deference, and subordination, a rejection of the American Revolution, made the country more accepting of progressivism in the late 20th and early 21st centuries than the United States was. The country underwent an evolution not so different from Wilson's own. What made the article interesting to me is that the author, a Canadian, seems in the beginning to be very critical of the dominant Canadian or "Laurentian" ideology of elite control, but ends up praising it.

Balfegor said...

I regularly make roughly the same poibt again and again in the comments, but I want to draw attention to "unaccountable," there in the title quote. In my opinion, it's the lack of accountability on the part of the civil service, not the fact that they're a pack of unelected bureaucrats, that creates the governance problem. Which is distinct from the actual constitutional solution to that problem.

effinayright said...

If the case had gone the other way, imagine the headline:

"EPA Declares CO2 a Pollutant: Plant Life Hardest Hit"

John henry said...

Co2 is yesterday.

The new hotness is nitrogen.

I've been asking climate whingers for years why they worry about 400ppm of co2 but not 780,000ppm of nitrogen.

I used to think I was joking.

John LGBTQ Henry

Readering said...

Gorsuch picks and chooses among the precedents and authorities to justify GOP policymaking.

I was a history major. But when I attended law school it was never suggested that legal analysis would come down to lots of historical thesisifying and research. That started after I (and AA) graduated.

Jupiter said...

In Wilson’s eyes, the mass of the people were “selfish, ignorant, timid, stubborn, or foolish.”

Give Wilson credit, he wasn't timid.

Mea Sententia said...

Wilson was the president of Princeton and a lifelong Presbyterian, but the Presbyterians and Princeton are certainly embarrassed by him now.

rcocean said...

You don't like wilson? Fine. i don't like him either. But if you're on the Right, attack him for being an internationalist freetrader, one-worlder, and big Government elitst. Instead so-called Conservatives attack him for "Democrats are the real racists" which is moronic. Since Wilson just believed what more or less everyone believed on race back in 1917.

Wilson was a very smart man, and in his own way a Patriot. But he was the worst kind of liberal. Intolerant, self-righteous, egotistical, and always willing to let the ends justify the means. Once he got us into WW1, he couldn't simply look after America, he had to become the savior of the world.

Its funny that Conservatives have decided to make wilson their figure of hate, when FDR was 10x worse. Both as a man and as a POTUS.

Readering said...

Southerner Wilson went backwards on race from his Northerner Republican predecessors.

I think Princeton took his name off a school. Probably other things too.

Drago said...

Readering: "Gorsuch picks and chooses among the precedents and authorities to justify GOP policymaking."

Uh huh.

Returning policy making to the congress from the unelected executive agencies as well as returning policy making to the states legislatures from the (improperly empowered) SC is really all about "GOP policymaking".

Readering's "logic" and arguments always strike me as quite similar to reading arguments from the Soviets in the 80's that Soviet citizens were actually freer than American citizens.

Mark said...

Conservatives attack him for "Democrats are the real racists" which is moronic. Since Wilson just believed what more or less everyone believed on race back in 1917.

No. Maybe YOU believed it back then (and maybe now). But "everyone" did not. Certainly not the Republicans.

You know how you can tell? BECAUSE THE REPUBLICANS DID NOT IMPOSE SEGREGATION ON THE FEDERAL GOVERNMENT. Because Republicans were and are the party of emancipation, not slavery, the party of civil rights and reconstruction, not continued resistance, the party of Union, not secession.