July 8, 2007

Dreaming of a heroically liberal Supreme Court.

Linda Greenhouse has a piece today about liberals scheming to "take back" the Supreme Court.
[S]ome liberal legal scholars suggest that beyond political tactics, what the left urgently needs is a long-term strategy built around an affirmative message of what the Constitution means and what the enterprise of constitutional interpretation should be about....

Exactly what that vision should encompass is now the question. It is easy enough to find consensus on a checklist that would include a robust reading of the guarantees of the Bill of Rights, including the notion that some rights are fundamental; a constitutional interpretation not tethered to a search for the framers’ original intent; invigorating the right to privacy to include personal privacy in the electronic age; restoring the shield of habeas corpus; and recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans.
Recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans. That's one hell of a snappy phrase.

Actually, the reason that item looked so awkward on the checklist is that it's different from all the other items. Greenhouse had to strain to try to make it not look different. Everything else is about expanding constitutional rights, and that one's about narrowing rights. The way you "recapture" "ability" (AKA power) for the government is by cutting out the rights.

Greenhouse interviewed a few liberal lawprofs who bemoaned the loss of the "heroic" liberal Supreme Court justice and spoke of a long time line for getting back to a Court that would resemble what we had in the days of Earl Warren. But there's no substance to this plan. It's just the expression of a wish about the future (or a longing for the past).

This grand vision for a Court that would expansively and actively enforce rights will be seen by present day voters as a political proposal. If people today really want that vision, they can get it from the political branches. They don't need a reactivated liberal Court.

The liberal lawprofs' dream seems to be that you could get people to believe that the expansive vision of rights is the proper way to do constitutional interpretation and they'd be willing to go along with that even if they didn't want these rights enough to support enacting them into law through statutes. But what are the chances that people today would allow liberal academics to convince them of such a thing?

117 comments:

Jeff said...

The "liberal" contempt for democracy continues.

Steven said...

Elections have consequences.

Gahrie said...

a constitutional interpretation not tethered to a search for the framers’ original intent;

Then what should it be tethered to? And isn't a tether to the framers' intent the ultimate form of stare decisis, something liberals are supposed to be so fond of today?

What use is a Constitution with no tether? That means it has no fundamental meaning. What use is a Constitution that only means what a simple majority of five thinks it means on a particular day? How would a concept of stare decisis have any value under such a document?

Would the robust reading of the guarantees of the Bill of Rights include the right of the individual to bear arms? Would it restore rights to the states that have been abrogated by the federal government?

invigorating the right to privacy

How do you invigorate a penumbra? How do you invigorate something that doesn't exist. There is no right to privacy in the Constitution, the word never even appears!

Let's be honest. What these liberal law profs are asking for is the right to say that "the Constitution means what we say it does, and gives the rights we say it does".

Frankly after comparing these liberal law profs to our Founding Fathers, I would much rather rely on the Framers' interpretation and meaning.

Simon said...

Pieces like this - absolutely blatant lamppost journalism - I think directly supports the points that John Stodder made here after WRTL came down ("the mainstream media's unanimous despair over this [WRTL] ruling can only be intepreted one way. In the weeks before an election, they want as close to a monopoly on what the public hears and sees about candidates as they can get"), and exemplifies a similar point that I made in another place, viz., that "[t]here's a kind of 'those in glass houses' feel to the New York Times - which is owned by the multi-billion dollar corporation NYT Company, 'a leading media company with 2006 revenues of $3.3 billion' - criticizing a ruling that protects the ability of corporations and unions to do more or less exactly what the New York Times does daily, i.e. running thinly-disguised advocacy pieces" (emphasis added).

Ann says:
"[I]f people today really want that vision, they can get it from the political branches. They don't need a reactivated liberal Court."

And that, of course, is the key point: you don't need to litigate to abolish the death penalty or legalize abortion. You don't need substantive due process voodu to abolish sodomy laws or equal protection incantations to get gay marraige. You can accomplish all these things at the ballot box, and Wisconsin is a perfect example: a state that abolished the death penalty, all on its own, with a federal court saying it had to.

And of course, my mind alights on a familiar passage - that a short while ago among legal liberals,

"there was passion in the critique and urgency in the preservation project. The belief that we had seen the Golden Age still warmed us, and we remained optimistic about our ability to return to the work of the Warren Court after this inappropriate, destructive interlude. ... [Yet] [a]ll of the Justices from the Golden Age have moved on. The clumsy artisans now fancy themselves architects. They propose sweeping new plans that scarcely refer to the plan of the Golden Age. Pointing out deviations from the old plan seems more and more outmoded. The metaphor of a Court that has simply taken a 'wrong turn' no longer seems descriptive. We might close ranks and persevere in writing articles demanding a return to the Warren Court’s plan. But over the years this work has grown tiresome ... [and] the Golden Age seems less and less like the True Law and more and more like a historical period, the result of a social context and intellectual fashions that no longer hold sway. Even if the Court were repopulated with liberals, one must doubt whether they would simply return to the old project."

Althouse, Late Night Confessions in the Hart & Wechsler Hotel, 47 Vand. L. Rev. 993, 1000-1 (1994).

Fen said...

Recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups

ie. laws based on the color of one's skin. Lovely.

michilines said...

Ann advertises conservatively, no?

Let's be honest. What these liberal law profs are asking for is the right to say that "the Constitution means what we say it does, and gives the rights we say it does".

Frankly after comparing these liberal law profs to our Founding Fathers, I would much rather rely on the Framers' interpretation and meaning

Oh those naging lawsuits. Oh the bother of those pesky little girls disemboweled. Just because some MAN thought the drain was ok.

Oh the naging lawsuits.

gahrie -- I hope you never have a little girl -- who like my godddaughter -- finds drains interesting.

If there is a god, may he watch
over your girls.

As for me, I protect my girls -- all three -- my self.

Fen said...

Oh the bother of those pesky little girls disemboweled. Just because some MAN thought the drain was ok.

What?

Zeb Quinn said...

I've always wondered what their theory of the raison d’ĂȘtre of Article 5 is if all that is necessary to amend is for 5 justices on Court to get together and make the document or any part of it say whatever they want it to say.

TMink said...

Simon wrote: "You don't need substantive due process voodu to abolish sodomy laws or equal protection incantations to get gay marraige. You can accomplish all these things at the ballot box.

Well, if you could sway the hearts and minds of the average American voter you could. But that is not the plan. Bypassing the voter, bypassing the Constitution, that is the plan.

Because they know so much better than the voters and framers do. Such amazing hubris.

How is this different than an coup against democracy? How is this not a plan to undermine the republic?

Legislate it, or give it up. Persuade the voters, or do without. People are getting angry, and bad things will start to happen if they are not heard.

Trey

Theo Boehm said...
This comment has been removed by the author.
reader_iam said...

I'm trying to decide if that's a literal reference, or a metaphor for abortion. In any case, that's one alarming comment, Michilines, and I do not mean that as snark.

A lot of pain there.

dave in boca said...

At a Cato Institute C-Span talk, David Brooks noted that conservatives believe that culture is the ultimate determinate & that libs believe govt's changing the culture is that ultimate d.

Greenhouse's elitist gibberish and apodictic arrogance make her a poster-person for all that's wrong with "liberal" thought.

Her mind is tethered to the whim of the moment, and the NYT should consider her vapid spurious exhalations as reason to look for a less-senile SCOTUS commentator.

It's illiberal, for starters!

Gahrie said...

While I still have no idea what it has to do with my previous post, what Michilines is apparently referring to is this:

http://www.startribune.com/462/story/1285137.html

Sloanasaurus said...

The article really is incredible. Liberals moaning the loss of their chance to rewrite the constitution.

It just seems crazy to me that after fighting a civil war where a million soldiers were killed, that we can still pass laws which discriminate based on race and that we have a large segment of thoughtful people who support that.

Palladian said...

Do Liberal Legal Scholars Dream of Electric Earl Warrens?

reader_iam said...

Gahrie: Ah. Thanks.

I wonder if perhaps the connection would be that, given there have been incidents since 1990, and the fact that Congress is considering pool safety regulations, if Michilines isn't referring to the slowness of the legislative process (and its vulnerability to lobbying) vs. the effectiveness of lawsuits in product liability and public safety cases.

In any case, that would explain the "lot of pain" I was detecting, if Michilines is implying that her/his goddaughter was involved in a drain-related incident.

Benefit of the doubt.

Horrible, horrible story.

Seven Machos said...

The Congress and the executive should take back their own power to determine constitutionality, by asserting that what they are doing is constitutional when they do it and, as a corollary, by not doing things they think are not constitutional (e.g., people who sign McCain-Feingold should not expect the court to strike it down).

The Congress and the states should also make efforts to pass constitutional amendments more frequently.

In the absence of amendment, the Court has no right to find constitutional rights or restrictions that did not exist before.

A good start would be an amendment calling for the systematic reaffirmation or recall of federal judges by legislative bodies.

Kirk said...

Simon,

Re Wisconsin as the perfect example, don't you mean without a federal court saying it had to?

Reader_iam,

If your conjecture about michlines' initially-confusing comment is correct, it certainly shows an unfounded belief in the speed of the courts. As just one instance, any idea how many years transpired between the events described in Loving v. Virginia and the eventual Supreme Court decision?

Zach said...

a constitutional interpretation not tethered to a search for the framers’ original intent

There's some unresolved tension in this sentence which I wish liberal theorists would put some more effort into resolving. The tension is between interpretation of the Constitution which is not tethered to some original meaning. (Many conservatives draw a line between framer's intent and original public meaning; I'm presuming that the theorists quoted in the article would be unhappy with either.)

If you interpret a written document, isn't a tether actually a very good metaphor for what you're doing? You can stay close to a fixed point or wander away from it, but a tether forces you not to stray too far. You can move the fixed central point, but that requires some effort and deliberation. (And with too long a tether, you can get terribly tangled up if you're not careful.)

I can see the desire to make Constitutional interpretation more like theatrical interpretation, where the same text is applied to a radically different setting. But even a radical interpretation of an original work should translate the original meaning into the new context.

What I would like to see from the living Constitution crowd is some assurance that a reinterpreted Constitution must have only *one* reasonable interpretation if it is placed in the new context, that this interpretation should be predictable to an intelligent layman or at least a dedicated lawyer, and that this interpretation must hold long enough for people to rely on it.

The problem I see with modernizing the Constitution is that nothing looks as ridiculous as the last generation's version of modernity. You only have to look back to the '70s to see the hideous artificial fabrics and the slablike concrete bunkers that people thought was cutting edge.

Would you honestly want to live under a 1970s version of the Constitution? If it fit the rest of the decade, it would be ugly, artificial, opressive, and tailored to the whims of an estranged elite. Written by Andrea Dworkin and the Black Panthers, with Jimmy Carter as chair of the convention.

Mr.Murder said...

Libs should stop fighting this, and just buy their burkhas to wear like the fundamentalist colony of Iraq.

That place is a GOP wet dream- firearms in every house, flat taxes, no tacky procedure for detention or torture...

Why not have that peacefully? The gavel should fall before the hammer should strike, no?

B said...

But what are the chances that people today would allow liberal academics to convince them of such a thing?

Today, very slim, thank God.

But last November, when voters were in a "mr murder" mood and put the Democrats in charge, chances were dangerously high.

Dangerously.

Mr.Murder said...

Thanks for 2006 B. Also for 2008.

John Stodder said...

Greenhouse tries hard to make the court's current status a matter of politics and actuarial tables. You get the feeling she and her sources would consider the problem solved if there was a Democratic president -- and two premature deaths among recent Republican appointees.

I don't think so. Correct me if I'm wrong, but I don't believe Breyer and Ginsburg have made any attempt to break new ground to the left. They are preservationists, not pioneers.

Liberalism is exhausted, philosophically in part because it has been so successful, as it defines itself.

If progressives want to be part of something dynamic, they should focus on technology and intellectual property. If they want to correct injustices, they should focus on the war on drugs and the nation's prison system. If they want to bring one man, one vote closer to reality, they should focus on gerrymandering and the liberation of political speech. (The liberal attachment to McCain-Feingold is a total mystery to me.)

There are lots of dragons for the left to slay. Look at the banking industry and its tailor-made revisions to bankruptcy laws. Look at Big Pharma. Think freshly about the Tragedy of the Commons as it applies to how states and the feds deal with global warming. No serious environmentalist thinks emissions can be reduced without a vast expansion of government power. Don't liberal legal minds want to be at that table? And, of course, the war on terror. So far, the left's approach to it has been ostrich-like, but they ought to get engaged with it.

The nostalgia for Earl Warren is quaint nonsense, and it's sad that top liberal legal minds think the way Greenhouse represents them. Ray Davies should write the soundtrack to Greenhouse's article.

Ann Althouse said...

Michilines' howl about bowels shows exactly what liberals don't need. It's all emotion and no brains. It also has nothing to do with the subject of constitutional law. He thinks it's related, because he's heard some conservatives complain about too many lawsuits and tort reform. But this tort law, which allows people to sue each other for things like badly designed products, is mostly state law, and it's not constitutional law at all. No matter how defective that drain is, even if it were designed for the purpose of killing children, it wouldn't raise a question of constititional law.

Pogo said...

The current old guard of the left came to power complaining about the tired old guard of the left as it existed in the 1950s. It deposed them in the sixties and began a more radical venture.

But within a decade they had returned to the same comfortable methods as their predecessors. And there they remain.

So lacking are they in new ideas, Cass Sunstein even rehashes the New Deal in proposing how liberal court decisions can operate entirely without reference to the Constitution.

Why the dream? They have a hammer, and everything looks like a nail. They'll hammer in the morning, and all over this land, given half a chance.

Simon said...

Kirk - you're right, sorry that was a typo on my part.

John:
"Correct me if I'm wrong, but I don't believe Breyer and Ginsburg have made any attempt to break new ground to the left. They are preservationists, not pioneers."

You're wrong. :) I mean, just the instant examples that spring to mind are U.S. v.Virginia, Atkins, Stenberg, Lawrence, McConnell, Roper, Hamdan and Mass. And look at Breyer's dissents from denial of cert in Knight v. Florida, 528 U.S. 990 (1999) and Elledge v. Florida, 525 U.S. 944 (1998). That's just ahandful of examples off the top of my head, and that's without even touching on the positions they've advocated in dissent. I'mcertain that if we sat down and really looked at the cases over the last decade and a half, we'd find a lot more examples.

Birkel said...

"Liberalism is exhausted, philosophically in part because it has been so successful, as it defines itself." -- John Stodder @ 3:25am

This is fundamentally true, imho. As an example, unions won 30 or 40 years ago. Labor negotiated retirement packages and work safety rules and turned Sinclair's "The Jungle" into a rumor of times long past. But once collective bargaining proved successful the leaders of the movement had to continue doing something. That doing of something can be most easily witnessed in the America (ha!) steel industry, the airline industry and the US-based auto industry.

The same can be said of the women's rights movement. Suffrage and certain other rights were established. Those were the concrete goals of early leaders of the movement. But at some point the people who were activists had to remain active or risk losing their social status for doing something and so they kept going. (Non-gendered bathrooms can't be seriously considered as important as the right to vote, and yet some of the current debate revolves around whether the ERA would demand that result.)

In the military it's called mission creep.
Some might define it as agency capture.

But either way reactionary-liberals ought to recognize that they largely won the battles of the 1930s through 1960s and that the terrain of the current debate has shifted significantly.

P. Rich said...

Althouse.

I was about to comment on Michiline's off-topic emotional outburst when I reached your last comment. Better said, that; so I won't.

steve simels said...

I always get a warm fuzzy over interpretations of constitutional law from the sort of deep thinker that obsesses over the fate of a loser on American Idol.

But who wouldn't?

B said...

what steve simels said, except for all the words after "steve simels said" . . .

hdhouse said...

it is regretable that the right wing feels it is their right and duty to shape the court on preservationist grounds. at least we can hope that the tables will turn, given the ineptitude of the right wing in the other branches of government.

I also read with some glee the opening editorial in the new yorker regarding the nomination of harriet as bush strayed off dick's reservation....if this is the thought process that rests behind nominations, then we are in more trouble than can be imagined.

last, my little neogops, if Linda Greenhouse and the NYTs are such a plaugue on your houses, why do you read them and why do you demonize them so? Can it be that she and that paper still represent a higher quality of journalism than say, Ann Coulter? Can that be?

Ann Althouse said...

"I always get a warm fuzzy over interpretations of constitutional law from the sort of deep thinker that obsesses over the fate of a loser on American Idol."

Of course, I've never "obsessed" over anything about American Idol. I just enjoy writing about the show. But why on earth would you think that good sensibility about law would occur in a head that only thought about deep things all the time? I wouldn't trust such a person to do constitutional law myself. And that, by the way, actually is a deep thought about constitutional law. Can you tell?

steve simels said...

Ann Althouse said...
"I always get a warm fuzzy over interpretations of constitutional law from the sort of deep thinker that obsesses over the fate of a loser on American Idol."

Of course, I've never "obsessed" over anything about American Idol


You're right, of course. I must have been dreaming about all the stuff you posted about Sanjaya.

My bad.

Palladian said...

Isn't it rich when a freakin' POP MUSIC CRITIC criticizes people for writing about POP MUSIC?

And the mental image of the desiccated simels getting a "warm fuzzy" is a bit distasteful at this hour of the day...

steve simels said...

Palladian said...
Isn't it rich when a freakin' POP MUSIC CRITIC criticizes people for writing about POP MUSIC?


Isn't it rich when a freakin' LAW PROFESSOR criticizes people for writing about LAW?

Fixed your typo.

TMink said...

Steve Simels, the music critic, can write. Our Steve Simels is a snarky troll.

This is not Steve Simels.

Trey

B said...

hd,

I try to hear what someone else might be saying because I know that I don't have the corner on political wisdom.

This conservative isn't afraid - as are so many of my liberal friends - of gleaning through the talents of the misguided.

I find that, though the Times is either seriously deluded or seriously disingenuous regarding it's slanted reporting, it is best to still read it and learn the major opposition talking points for the day.

I can also read the rantings of someone such as simels - who has commenters on his site openly wishing for the death of their political opponents - and not be afraid of converting to the mostly mindless drool that he champions.

Linda Greenhouse is a talented leftie, going as far as she can in framing her "news article or analysis" within her political views as possible. And who can blame her for trying - Anyone would take as much opportunity as the editor allows or even encourages. But Linda Greenhouse doesn't self-publish. She's just a flunkie for what the publisher of the Times has on his agenda.

Pogo said...

steve simels is to blog comments what Andrew Ridgeley was to Wham!.

Simon said...

hdhouse said...
"it is regretable that the right wing feels it is their right and duty to shape the court on preservationist grounds."

1) Accepting the framing of the question, arguendo, why would that be a bad thing? And what do you mean by "preservationist" - other than "makes rulings that Harold D. Houe doesn't like"?

2) Isn't it somewhat risible for you to castigate "the right" for seeking to shape the court of "preservationist" grounds when "the left" has sought to make every nomination hearing about "preserving" Roe v. Wade?

reader_iam said...

Simon: I was simply trying to get a handle on that out-of-the-bizarre-blue comment, not advocating a position, much less one that involves muddling branches of government.

Simon said...

^ reader_iam - I think that comment was mis-labeled as a reply to something I said. I don't think I commented on the pool thing.

MadisonMan said...

steve simels: Please write You. A Law Professor in your comments critical of AI blogging. Far more entertaining to read that. (I wonder if anyone said to the Dr. Car bombers in Scotland: You. A doctor.)

I think the SC should strive for more unanimity in its decisions. A slew of 5-4 decisions only makes the losers think if only we had another justice! So the dream shouldn't be heroically liberal, it should be heroically more unanimous. Liberal and conservative justices should be able to find common ground.

Bissage said...

Mr. Simels,

I hope you won’t mind my being so impertinently forward (I normally know how to keep in my place), but you broke my heart when you didn’t respond to my request for a list of POP MUSIC especially appropriate for a 4th of July party.

We had a good time, and all, but it wasn’t the extra special Shindig! it would have been with a play list prescribed by that most learned of doctors of musicology, the POP MUSIC CRITIC

No matter. Time heals all wounds and I forgive you. I’m sure you would have helped out a fellow Althousian if only you had the time. You probably had something more important to do, like, . . ., I don’t know, . . ., well, review a POP MUSIC record or something.

That would have been time better spent, anyway. I was merely throwing a party.

You sir, were making the world a better place!

And well you should!

No hard feelings.

Love, Bissage.

SteveR said...

Hey Simels, how's that impeachment drive going? I know it was a long weekend but I've not heard anything. Forty six percent of Americans are for it so with your credibility as a POP MUSIC CRITIC, justice is in sight.

Bissage said...

And the cat's in the cradle and the silver spoon, little boy blue and the man in the moon, . . .

steve simels said...

Pogo said...
steve simels is to blog comments what Andrew Ridgeley was to Wham!.


That's actually the first genuinely funny thing I've read here in a while.

Dewave said...

Greehouses's long and awkward wish essentially boils down to "We want the freedom to discriminate racially, as long as it's against races we don't like"

Ann Althouse said...

steve simels: "I must have been dreaming about all the stuff you posted about Sanjaya."

You, a writer, should know that words have meaning. Show me where I've "obsessed" -- as opposed, say, to making assorted lighthearted observations.

steve simels said...

Ann Althouse said...
steve simels: "I must have been dreaming about all the stuff you posted about Sanjaya."

You, a writer, should know that words have meaning. Show me where I've "obsessed" -- as opposed, say, to making assorted lighthearted observations.

Jeebus, Ann.
I saw that video of you doing a running commentary on AI. Looked like obsession to me.

If you claim not to get that then either you lack any shred of self-awareness or you're deliberately being obtuse. Or maybe both.

In any case, I'm outta here. Life's too short.

Mindsteps said...

steve simels said...
I always get a warm fuzzy over interpretations of constitutional law from the sort of deep thinker that obsesses over the fate of a loser on American Idol.

But who wouldn't?

I wanted to respond much earlier to your post but was distracted by the demands of the real world. I don't believe that deep thinking about constitutional law and interest in American Idol are mutually exclusive. The article selected by Ann to post on her blog is batting practice for her. This is her territory and this is her blog. As she has reminded us on other occasions, she can write about whatever catches her fancy.

Personally, the article she selected break down was of no challenge to her....indeed, I believe she could knock it out of the park with her eyes closed....and some of her critiques could actually be incorporated to sharpen the liberal message.

However, while Ann continues to struggle against her elite liberal demons (both real and imagined), many in the rest of the country are reacting to the wreakage created by the Bush-Conservative coalition. Bush and company have proven to be a boon to the liberals at this point...and while the Dems, in my opinion, are not burning up the highway with ideas, the levels of corruption, grandiosity, and polarization embodied by the Bush GOP have left many with the perception that the dems are currently the lesser of two evils. In this sense, Ms. Althouse's knee-jerk right leaning oppositionalism is a step behind the reactions of many of the american people who are wrestling with their own deteriorating economic conditions, Iraq, healthcare, bankruptcy, crime, etc.

John said...

Really what this amounts to is a "heads I win, tails you loose" view of liberal policies. If Republicans win at the ballot box, leftists judges can just reverse policies they don't like by inventing new rights through more contemporary (read convenient) interpretations of the Constitution. If liberals win at the ballot box, they are then free to enact whatever policies they want and know that they will be affirmed by a compliant court. Don't like political speech, no problem just pass campaign finance reform restricting political speech and you can depend on a liberal judge to affirm the infringement because the right to a "clean and fair election" trumps the right to free speech. If the peasants in some place like Kansas decide that you can no longer discriminate against Asians and whites in favor or preferred minorities, then a enlightened federal court not only strikes down the law but creates a new one requiring them to do the right thing by discriminating. Really all this is is a "if only I were king, life would be wonderful" piece. It also shows just how much contempt the typical liberal holds voters and the public at large.

John said...

"Ms. Althouse's knee-jerk right leaning oppositionalism is a step behind the reactions of many of the american people who are wrestling with their own deteriorating economic conditions, Iraq, healthcare, bankruptcy, crime, etc"

A deteriorating economic condition of a 4.6% unemployment rate and better growth than almost any point during the Clinton adminstration. Yeah, that is the ticket, if you don't know the facts just make them up as you want them to be. A Republican is in the Whitehouse, everything must be bad right?

Simon said...

MadisonMan:
"I think the SC should strive for more unanimity in its decisions. A slew of 5-4 decisions only makes the losers think if only we had another justice!"

That's true, to some extent - I think the dissenters in the commerce clause and SovIm decisions from the 1990s have never accepted those decisions and would overrule them given the chance. I think this is what our Fearless Leader has been driving at when he talks about desiring greater unaminity: that the stability of the rule of law is best-served when you have stronger majorities (I've argued that minimalism is a tool for Roberts, not a goal, although after this term, I may have to step back from that thesis a little) because people feel more confident that the law really is what a 7-2 majority says it is, and it seems less likely to be overturned.

However:

"So the dream shouldn't be heroically liberal, it should be heroically more unanimous. Liberal and conservative justices should be able to find common ground."

Well, that's very easy to say, but much harder to do, MM. There's been a lot of 5-4 decisions this term, but it's not immediatley clear how they could have been anything else. How could Ledbetter have been written to attract another vote or two? Or Carhart? How about Hamdan - of course, as with all of these cases, you can imagine scenarios where they all line up behind one opinion, but not realistic scenarios that don't involve four Justices joining an opinion that they totally disagree with. All the Justices could have signed on to the Scalia opinion in Hamdan or the Roberts opinion in Mass v. EPA, which said regardless of the merits, the court lacked jurisdiction. It could have happened. Was it likely to? No. Lookit, I'm all for unaminity, MadisonMan - but the only way you're going to have a prayer of it is if you retire Stevens, Kennedy, Souter, Ginsburg and Breyer and replace them with, say, Diane Sykes, Frank Easterbrook, Steve Calabresi, Sai Prakash and Robert Young, and even then, as this term's made clear, you're far from assured unaminity (and even if you would be, I doubt that's a price you'd be willing to pay).

George said...

Every time I see photos of the stupefyingly large Chinese factories and their colossal dormitories and gigantic cafeterias, I dream of a heroically anything industrial America.

We need more smokestacks, not more laws.

al said...

steve simels said...
...
In any case, I'm outta here. Life's too short.


A good day for all!

P. Rich said...

Modern liberals would benefit from an understanding of "gross generalization" as an obvious and common flaw in what passes for their thought processes. Introducing an argument with "BushCo" and following with a laundry list of "evils" is apparently supposed to represent a rational basis for disparaging the terrible Right - as opposed, apparently, to the caring Left.

Sorry. Trite, childish repetition of Democratic talking points and NYT editorials is not a substitute for thought and a genuine attempt to engage in meaningful, fact-based dialog. Try harder, Pookie.

hdhouse said...

Simon said...
"Isn't it somewhat risible for you to castigate "the right" for seeking to shape the court of "preservationist" grounds when "the left" has sought to make every nomination hearing about "preserving" Roe v. Wade?"

Because Roe has been the litmus test for getting through the GOP nomination process. I'm surprised that you haven't nominated Pat Robertson, no law degree should be a deterrent..where in the constitution does it say "law degree"?

You like to use litmus tests but you decry them for everyone else...and if that isn't typical neoGOP i don't know what is.

Mindsteps said...

John said...

A deteriorating economic condition of a 4.6% unemployment rate and better growth than almost any point during the Clinton adminstration.

John:

A great deal of polling suggests that middle class Amcericans are concerned about their economic status.....4.6% employment rate or not. (this is from Pew polling data reported on 6/20/07: "Cheerful outlooks about either the current or near-term future of the nation's economy are, however, in relatively short supply. Overall, by a two-to-one margin, Americans rate economic conditions as fair or poor rather than excellent or good. The portion of the public giving the economy the thumbs up is down slightly from the 38% who did so in December 2006, but is in line with readings on this question over the last few years. Only among Republicans does a majority (56%) call conditions good or excellent although those in higher income categories generally ($75,000 and above) split about evenly on the subject.http://pewresearch.org/pubs/516/are-americans-out-of-sync-with-economic-reality). The American Research Group polling data for the past year have found that almost 2/3rds of those polled are not happy with how Bush is handling the economy.

I don't think it is a stretch to make the interpretation that the general citizenry are not happy with our current administration. So while Ann continues on her quest for individuation from the liberal elites that surround her, many in the rest of the country are trying to gain some distance from Bush and his second in command, Hannibal Lector.

ricpic said...

Liberals won't stop until they've utterly wrecked an imperfect society that nevertheless WORKS.

Pogo said...

"the government’s ability to intervene for the benefit of African-Americans and other minority groups"

And here I thought the government was meant to benefit all its citizens.

Simon said...

HDH:
"Roe has been the litmus test for getting through the GOP nomination process."

If that were so, David Souter and Anthony Kennedy would never have been nominated.

"You like to use litmus tests but you decry them for everyone else."

I didn't decry using Roe as a litmus test, I said it was a bit odd for you to decry a "preservationist" approach when you're part of a political party that regards preserving Roe as the issue which trumps all else. You would have all the laws go unenforced but that one, if that were the cost of preserving it, something I find totally incomprehensible given your simultaneous insistence that there is a "majority for choice" - the central paradox of the pro-choice crowd being that they desparately seek to protect a supermajoritarian protection for a right they claim enjoys majority support.


"I'm surprised that you haven't nominated Pat Robertson, no law degree should be a deterrent..where in the constitution does it say law degree?"

Of course the Constitution doesn't require a J.D. for membership of the Supreme Court, but anyone who has the remotest clue what the Supreme Court spends its time doing understands why it needs to be staffed with lawyers. There have been, I think, four abortion cases argued and decided in the last ten years (Stenberg, Ayotte, and the two caes consolidated as Carhart), while the court takes that many cases per term dealing with ERISA, the bankrupcy code, and so forth. For the most part, the court does lawyer's work. They aren't sitting there deciding weighty moral questions, and they shouldn't be. They're doing law.

al said...

A great deal of polling suggests that middle class Americans are concerned about their economic status

This is what happens when the MSM spins the news rather than just report it. It can be rather fun to challenge people when they say the economy is terrible - ask them what is so terrible. Present facts rather than opinions.

Is is great for everyone? Nope. Never will be as some people don't want to put anything into improving themselves. Complaining about someone else letting them down is so much easier...

Roger said...

Whle not necessarily a total MSM conspiracy theorist, I do think their reporting of economic news has focused on negative rather than positive news. That said, wage stagnation, budget deficit, and trade imbalance seems to the main things that drive public perception. I suspect growth in personal wages is what most critics find the easiest to accept--you are reminded every month.

Mindsteps said...

al said...

This is what happens when the MSM spins the news rather than just report it. It can be rather fun to challenge people when they say the economy is terrible - ask them what is so terrible. Present facts rather than opinions.

Boy, you sure have a condescending view of the general populace. And you seem to underestimate their perceptiveness. I guess you think they need to be schooled on the facts. I suspect that many middle income people are reacting to increased energy expenditures and chronically high medical inflation. I could be wrong.....but these are the day-to-day economic realities that many people deal with.

Roger said...

Mindsteps--In some areas it is probably good to have a cynical view of the American public--the same public apparently who widely believed the President was able to manipulate gas prices. I suspect some degree of cynicism about the American publics economic knowledge is justified.

An Edjamikated Redneck said...

Well Mindsteps, what an attitude!

Ifa member of the Great Unwashed agree with you, its because they are peceptive; if they don't its because they are in need of education.

Sorry- I believe the economy is going fine (everybody I know who wants a job has at least one, some two) and although I agree medical costs are excessive, the last thing I want is the government interfering. If you think medicine is expensive now, wait until the Feds get their hands on it.

But then, since that money will be tax revenues instead of private sector revenue, then it won't matter how much it costs, right?

John Kindley said...

I highly recommend Randy Barnett's Restoring the Lost Constitution: The Presumption of Liberty. There's a whole lot in there that would appeal to both people who now think of themselves as liberals and people who now think of themselves as conservatives (e.g., for conservatives, taking the Ninth Amendment seriously on textualist/originalist principles).

The problem with Greenhouse's list of things a heroically liberal Supreme Court would do is that it amounts to nothing more than a mishmash of liberal policy preferences, expanding civil rights here and expanding government intervention there. Barnett's book, on the other hand, presents a comprehensive and principled way to rationally interpret the Constitution that seems in line with its underlying purposes.

Barnett envisions a stronger role for the judiciary in striking down legislation. Basically, the government would have the burden of demonstrating that any legislation which infringes on liberty is both proper and necessary to protect others' liberty, instead of the Carolene Products Footnote Four approach which gives the presumption not to liberty but to the consitutionality of government legislation.

I historically have been a big skeptic of "judicial activism," mainly because of how it historically has been exercised in an arbitrary manner. However, government legislation, the product of lobbyists and self interest and political campaigns won by big bucks, is just as arbitrary if not more. It rarely truly represents We the People.

Mortimer Brezny said...

For the most part, the court does lawyer's work. They aren't sitting there deciding weighty moral questions, and they shouldn't be. They're doing law.

Except most of those boring cases have practical consequences of moral valence. Leegin was a boring case, but it overturned century old precedent and will certainly hit the pocketbooks of many a consumer. And part of "doing law" is making and considering the "open the floodgates" argument.

So a judge who refuses to weigh the impact of his decision is not a very good judge or a very good lawyer.

John Kindley said...

Consistent with the above, I also highly recommend Lysander Spooner's No Treason and The Unconstitutionality of Slavery (the method and ideas of the latter seem to inform Barnett's Restoring the Lost Constitution). Barnett maintains a website, lysanderspooner.org, which makes available most of the writings of this great eighteenth-century American lawyer.

Gahrie said...

What no one tells you about those surveys of the American public:

When asked how they themselves are doing, people say I'm doing Ok or even great.

When asked how things are for everyone else (or the economy in general) people respond much more negatively.

Jason said...

I don't suppose it would occur to these nitwits that one of the reasons energy costs are relatively high is BECAUSE the economy is strong?

Naaaaah.

Hoosier Daddy said...

I suspect some degree of cynicism about the American publics economic knowledge is justified.

Not to mention history.

Mindsteps said...

Gahrie said...

When asked how they themselves are doing, people say I'm doing Ok or even great.

Interesting...do you have a citation?

Sorry- I believe the economy is going fine (everybody I know who wants a job has at least one, some two).

An Edjamikated Redneck said...

Sorry- I believe the economy is going fine (everybody I know who wants a job has at least one, some two) ....

Yea...I need two to try to stay afloat. Although I sacrifice alot of time with my family.

Birkel said...

And I'm supposed to care that you've made choices that make it difficult to both work and spend time with your family? Okay, fine. I'll pretend I care.

Have you considered joining the Mennonites or Amish? They work as a families, raise barns as families and are never unemployed.

You're welcome.

Wade Garrett said...

Althouse,

What's the point of passing a statute when the President (who you support) can use a signing statement to render it irrelevant?

Once you've answered that question, tell me what statute was at issue in, for instance, the recent school busing case? That wasn't a statute, it was just an elected school board's policy.

Mindsteps said...

Birkel said...

I'll pretend I care.

Birkel:

Look...I'm sorry the Dukies had a rough year....and I'm here for ya....if you need a shoulder to cry on.

Gahrie said...

http://www.washingtonpost.com/wp-dyn/content/article/2006/12/26/AR2006122600772.html

Jason said...

I don't know. Is it your position that the President should zealously enforce unconstitutional laws?

It seems to me that it's not signing statements that render Congress's stupider statutes irrelevant. It's prosecutorial discretion.

Which is usually considered a good thing.

Would it be better not to have signing statements? In that case, there would be no accountability or public guidance at all from the Oval Office.

All you would have is a dog that doesn't bark.

I notice that Bill Clinton refused to enforce certain provisions of the Health Insurance Portability Act of 1996 ("The Grandma Goes to Jail law.")

Clinton also refused to enforce a provision requiring that HIV positive servicemen and women be discharged from the military.

I don't recall much bitching and moaning about that either. (Apparently, in the Liberal universe, US Attorneys have unlimited bandwidth, resources and time to prosecute every little thing with equal zeal. But if your goal is to put every living thing with a pulse on the public payroll, that might not be so outlandish).

Bush is hardly the first to use signing statements. And he is hardly the first to decline to enforce certain provisions of the law. (Andrew Jackson comes to mind).

I suspect your problem with it isn't constitutionally based, but issue-based.

Birkel said...

Mindsteps,

That was a shallow response even by your dismal lights.

I mock in your general direction. Fehh.

Jason said...

Come to think of it, it occurs to me that given that sodomy is still a crime under the UCMJ (which is law passed by Congress), the Don't Ask, Don't Tell policy is the biggest, hairiest refusal to "Take care that the laws be faithfully executed" in existence today.

Did anyone challenge the President's constitutional authority to issue this policy at the time?

No?

So what, precisely, is your problem with the signing statements?

Wade Garrett said...

Don't Ask, Don't Tell wasn't a signing statement.

You're missing the entire point of Don't Ask, Don't Tell. The Army's policy is that soldiers will be dishonorably discharged for being homosexuals, even if they have not committed sodomy (or rather, even if they military cannot prove that they have committed sodomy since they have enlisted.) Thus, a chaste homosexual, or a homosexual who has not engaged in sodomy since he joined the army, or an in-fact sexually active gay soldier who the military cannot prove to have committed sodomy, can still be dishonorably discharged.

The military used to demand people to admit their sexual orientation, and the penalty for lying was not only dishonorable discharge, but also various penalties for lying to one's superior officers.

Don't Ask, Don't Tell is a policy that merely prohibits officers from inquiring into a given soldier or sailor's sexual orientation without probable cause.

Thus, Congress' decision to outlaw sodomy in the UCMJ isn't implicated. In fact, it is practically irrelevant.

Mindsteps said...

Gahrie said...
http://www.washingtonpost.com/wp-dyn/content/article/2006/12/26/AR2006122600772.html

Thanks for this. I went directly to the websiteof the Economic Policy Institute and here is their take:

Why then do people hold these seemingly conflicting views about the economy? We returned to the reasons Americans offer for why they think they themselves are doing well -- not because of positive trends in the economy but rather because of their own hard work and personal sacrifices in the face of great obstacles. Expressing pessimism about their own conditions or their children's chances would amount to admitting that their own efforts have been unsuccessful. But discussing the challenges confronting the nation and their neighbors and co-workers comes much easier because it doesn't amount to an admission of personal failure or despair. We don't claim to have come up with this explanation ourselves. The public opinion analyst Stanley Greenberg reached similar conclusions during the corporate downsizings of the mid-1990s."

As for Birkel:

You have offered nothing substantive....stick with the ACC.

Simon said...

John Kindley said...
"I highly recommend Randy Barnett's Restoring the Lost Constitution: The Presumption of Liberty. There's a whole lot in there that would appeal to both people who now think of themselves as liberals and people who now think of themselves as conservatives (e.g., for conservatives, taking the Ninth Amendment seriously on textualist/originalist principles)."

To paraphrase something Robert Bork once said of Alex Bickel, Randy's a great guy, very smart, wonderful writer, but wrong. His interpretation of the Ninth Amendment is simply wrong, as Kurt Lash and others have explained at some length, primarily because Randy is a serious libertarian and believes the framers were too. This is a topic I've been meaning to write about for a couple of years and have never really


Mortimer Brezny said...
"most of those boring cases have practical consequences of moral valence. Leegin was a boring case, but it overturned century old precedent and will certainly hit the pocketbooks of many a consumer."

Speaking of Bork, as I understand it, Leegin essentially applies Bork's view of antitrust to the last bastion that had resisted it all these years, and I'm sure that in each of the previous cases on this long march out of the paradox, someone piped up and said that this approach is going to be bad for consumers. All of them were wrong then, and I very much suspect that you are now. We shall see.


"And part of 'doing law' is making and considering the 'open the floodgates' argument. So a judge who refuses to weigh the impact of his decision is not a very good judge or a very good lawyer."

This consequentialist argument is the sort of thing that's more likely to appeal to Ann -- see, e.g., Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035, 1039-40 (1990) ("By professing unconcern for practical reality and a pure, unalloyed love for an idea, one loses control over outcomes and argues unwittingly for bad results ... [T]here is something unprincipled about embracing an abstraction and taking it to its logical limit, without the stabilizing effect of considering policy implications. The vision of the Court reasoning abstractly about textual language and disembodied principles, insensible to the effects of its decisions, is truly frightening. Fortunately, the Court has never pursued that kind of blind role" (footnote omitted)) -- than to me. I'm not wholly opposed to consequences ever being considered, but consequentialist reasoning is an open invitation to subjective judgment, I would consider it only as an absolute last resort when all other applicable sources of law have run out and the case remains undecided. What's that pithy epigram? Something to the effect of, "if Congress wants to go to hell, the courts' job is to help it get there faster"? It's kind of like purposivism. I have no objection to using purposivism to try and clarify ambiguous text, but that just isn't what purposivism is usually used to do: more frequently, it's deployed to get around perfectly clear text. Likewise, I don't mind consequentialism if a judge has eliminated all other posssible sources of authority and is still left to choose between two equally-reasonable readings of the text and she chooses the one that avoids unpalatable consequences. (Of course, what is an unpalatable consequence to Judge Dodd is going to be rather different to Judge Brezny, I suspect - hence the subjectivity problem, and hence why I would prefer a conservative formalist judge over a liberal formalist judge, because these cases do come up. But they come up very infrequently.) But where it's not valid is to take a perfectly clear text and say "this text has horrible consequences, thus it is ipso facto void." You can use consequentialism to choose between equally-plausible readings, but not to prefer an implausible reading over a reasonable one you don't like.

Simon said...

Wade Garrett said...
"What's the point of passing a statute when the President ... can use a signing statement to render it irrelevant?"

Huh. I thought you were a law student. Not a very good one, I guess.

Simon said...

Wade:
"You're missing the entire point of Don't Ask, Don't Tell. The Army's policy is that...."

There's some irony in your placing those two statements back to back. You refer to a provision of statutory law - passed by Congress and signed by the President - as an "Army policy" a heartbeat after you accuse someone else of missing the entire point of DADT.

Wade Garrett said...

Nope. That was the army's policy - not codified in statute - before Don't Ask, Don't Tell changed it.

Xrlq said...

"Everything else is about expanding constitutional rights, and that one's about narrowing rights."

That may be true about everything else mentioned in the column, but it's probably NOT true about everything else the author has in mind. Few liberals would like to see a Supreme Court adopt a "heroically" broad interpretation of the Second and Tenth Amendments, or of the takings clause of the Fifth, to name a few of the most obvious examples.

Thorley Winston said...
This comment has been removed by the author.
Thorley Winston said...
This comment has been removed by the author.
Thorley Winston said...

In the absence of amendment, the Court has no right to find constitutional rights or restrictions that did not exist before.

I’m not sure how this squares with the Ninth Amendment which seems to say that just because a right isn’t listed in the Constitution, doesn’t mean that it doesn’t exist or that the government can violate it. I suppose it comes down to whether one believes that one’s rights come from government which gets to determine what rights you do or do not have or whether they already exist (from God, nature, reason, etc.) and government exists to protect those rights.

peter jackson said...

What the Greenhouse piece intimates is the easy flow of the left's rationalism into discretionism. They will choose rulers over rules every time.

yours/
peter.

John Kindley said...

To paraphrase something Simon once said of Robert Bork, Simon's a great guy, very smart, wonderful writer, but wrong. His interpretation of the Ninth Amendment is simply wrong.

And his hero-worship of Scalia and Bork is misplaced too.

Thorley Winston's comment above aptly highlights what is probably your fundamental error.

I suggest you actually read Barnett's book (Spooner's No Treason wouldn't hurt either, for some much needed perspective). He addresses at length Bork's mistaken view of the Ninth Amendment. And I'll in turn look into what this Kurt Lash guy has to say.

Jason said...

Wade,

Don't Ask, Don't Tell wasn't a signing statement.

Did I assert that it was?

John Kindley said...

"To paraphrase something Simon once said of Robert Bork, Simon's a great guy, very smart, wonderful writer, but wrong."

Oops. Should have said "To paraphrase something Simon once said of Randy Barnett." Simon would never have said that Bork was wrong.

Gahrie said...

Mindsteps:

I prefer to quote these paragraphs from that article:

So the middle class is furious, as portrayed. Well, not exactly. What's striking is the huge gap between people's views about "the economy" -- an abstraction -- and their own personal situations:

· Although only 32 percent rate the overall economy as "excellent" or "good," 52 percent judge their personal situation as excellent or good (35 percent said "fair" and 13 percent "poor").

· Most Americans (60 to 37 percent) think their own living standards are rising; parents of children under 18 overwhelmingly (54 to 24 percent) think the same will be true for their children.

· Almost 70 percent of Americans say they've attained or will attain the "American Dream," as they define it. More than half say success comes from a good education and hard work, not from connections (18 percent) or being born wealthy (13 percent).

Just as Americans often criticize public education but like their local school (or hate Congress while supporting the local congressman), they rationalize personal economic success with national economic shortcomings.

Cedarford said...

Greenhouse has a serious fantasy of the glory days of the Warren Court coming back....but political movements in America usually have a finite life cycle and do not resurrect. The ideal of absolute States Rights is gone as a driver in politics. The Jefferson-Jackson ideal of the yeoman farmer as the final determinant of who runs the country was over before the farmer declined to well less than a majority of the populace. (Now it is only 5% of voters). Same with courts and lawyers as educated elites having their way and bypassing democracy...I think we are in the twilight of that. It has eroded confidence in the judiciary and the open warfare that now accompanies confirmation of any lawyer to be a lawyer entitled to wear robes is an abherration that alienates the public because it tells us that the public will is less important than the New Sanhedrin...

The People, I believe, want the days of Court Diktats usurping the People and their elected officials to be further and further minimalized...and when done, done by clear judicial majorities...not "the wishes of one single or court-swinging judge"


*****************
ON the economy:

An Edjamikated Redneck said...

Sorry- I believe the economy is going fine (everybody I know who wants a job has at least one, some two) and although I agree medical costs are excessive, the last thing I want is the government interfering. If you think medicine is expensive now, wait until the Feds get their hands on it.


The short term economy is fine. The people though, have a growing fear about the economy their children will have in a debt-shattered nation with few good, well-paying jobs and a profound misdistribution of wealth more like African and Latin American nations now forming:

America is alone of any major industialized nation in not having a central health care system administered by the government. America spends 50% more of it's GNP than any other major industrialized nation on health care - yet has 1/6th of our citizens uncovered by medical care insurance, 1/4th dental. We have the highest medical eror rates and highest hospital infection rates of any nation. We have higher child mortality and lower life expectancy than most industrialized nations.

Conservatives can be brainless in areas of dogma. Examples are jigoistic: "The American worker can out-produce and out compete any worker on the planet - so we have nothing to fear from outsourcing, borderless economies." "Our health care system has to be the best in the world because....well, because it is America's!!!" "Private corporations always act in our best interests because they reflect the genius of the free market!" "Of course Muslims want Democracy imposed on them! Our mission is to use our military to invade and help free people such as the grateful Iraqis"...

Conservatives without ideological blinders on see huge problems in those dogmatic assertions of rigid-minded conservative corporate crony sloganeers...

Jason said...
I don't suppose it would occur to these nitwits that one of the reasons energy costs are relatively high is BECAUSE the economy is strong?


1. Energy costs are high because of the rise of China and others that out-compete us and transfer our production economy away from us while hopefully propping up our consumer market for them and the wealthy Elites in the West to feed off of for another few decades. The rise of China and India, the population explosion in the 3rd world - has created a voracious demand for all the energy sources that can be found...

2. Energy is high because the richest of market speculators - from Tokyo to Tel Aviv - since 2001 have figured out how to manipulate markets and governments in order to permanently tack a 10-15 dollar fear premium on the price of each barrel.

3. Energy is expensive because we have had activist lawyers paralyze new exploration and nuclear power, efforts to build new refineries while uncontrolled legal and illegal immigration and their spawn have added 40 million new Americans since the last refinery was built.

4. Energy is expensive mainly for Americans and Chinese. Us in America because the value of the dollar is slowly collapsing, the Chinese for holding their currency artificially low to continue to wipe out American Industries on behalf of themselves and the wealthy Elites here. Price of gas in better-run nations and with workers & economies blessed with a Euro or Yen based paycheck is almost stable from 2001.
(Euro has gone from being worth 0.81 per USD in 1998 to 1.39 now)

5. The ethanol boondoggle foisted on us by the hugely wealthy agribiz players.

Sorry Jason, the only nitwits are the Americans too stupid to see the obvious way the wealthy Elites are ripping them off on energy costs plus a number of other attacks the wealthy have launched as economic piracy against the masses of dumb working schmoes...

*******************
Wade - If there is any truth to how there is a pent-up pile of gays wishing to serve in the military or the "indispensible 43 gay Arab linguists who could win the war on terror" as the NYTimes trumpets these gay superheroes....

Why then are these hordes of homos not lining up for jobs and serving the nation in other agencies that do not bar salami-smokers? Any gay that wishes to be in Iraq now could be - in a private security company or peel off from the "indispensible 43 homo linguists" and serve right with US Army and Marine units as a translator from a private contracting company....

Simon said...

Wade - DADT is blackletter law, not army policy. Period. The Army may have had a policy before it became law, but right now - as it has been for over a decade - the army's policy is mandated by statute. You have no way to get around that point.

John - you make a number of assumptions in your comments replying to mine, most of which are wildly inaccurate. First, you assume that I "hero worship" Bork - false. Second, you assume I've not read Randy's book - also false (if you're assuming without stating that I've not read Randy's scholarship generally and on the 9th Amendment specifically, that is also false). Third, you assume what my view of the Ninth Amendment is (and make the auxilliary assumption that I share Bork's view of it, which is also false) premised on no more evidence than my rejection of Randy's view - not only false but a logical fallacy to boot. And in a subsequent comment, building on the false assumptions that I (a) hero worship Roberb Bork, which I don't, and (b) agree with him about the Ninth Amendment, which I don't, you overreach yet further and conclude that I "would never have said that Bork was wrong," which is not only a non sequitur from its premise, but is also false as an original matter. This just isn't a good day for you, John.

Mortimer Brezny said...

Speaking of Bork, as I understand it, Leegin essentially applies Bork's view of antitrust to the last bastion that had resisted it all these years

That the action was lawless activism was not the point of my comment, nor was it that no RPM is economically justifiable. The point was that some consumers will be hurt because some collusion will take place and that harm will be real and any judge deciding a case would be a bad judge if he failed to consider that. Your response does no work toward rebutting my claim.

Mortimer Brezny said...

And in a subsequent comment, building on the false assumptions that I (a) hero worship Roberb Bork

Based on your internet writings, which I realize is an incomplete account of your mind, I would guess that you hero worship Bork also, despite your explicit denials, assuming a reasonable and non-perjorative definition of hero worship.

Wade Garrett said...

I am fully aware that DADT is a statute. It is a black letter law. PRIOR to the passage of DADT, the Army merely had a policy in place, not a statute passed by Congress.

Mortimer Brezny said...

(Of course, what is an unpalatable consequence to Judge Dodd is going to be rather different to Judge Brezny, I suspect - hence the subjectivity problem, and hence why I would prefer a conservative formalist judge over a liberal formalist judge, because these cases do come up. But they come up very infrequently.)

I was not projecting myself into the role of Herculean judge. My point is that a Herculean judge would be a bad one.

Mortimer Brezny said...

I'm not wholly opposed to consequences ever being considered, but consequentialist reasoning is an open invitation to subjective judgment

My point is not that judges should be capital-C Consequentialists in some sense of a grand unifying theory of adjudication. My point is that judges are pragmatic and constrained and lawyers make floodgates arguments. A judge who refuses to consider the arguments before him and the practical realities of his docket is a bad judge.

Mortimer Brezny said...
This comment has been removed by the author.
Mortimer Brezny said...

You can use consequentialism to choose between equally-plausible readings, but not to prefer an implausible reading over a reasonable one you don't like.

First, show me this rule in the Constitution. Second, how does Dodd's Rule Against Consequentialism (DRAC) avoid the subjectivity problems inherent in Consequentialism? A judge has to determine what "plausbility" and "reasonable" mean. You cannot seriously be arguing that reasonableness and plausibility are objective facts. It seems that DRAC is CRAP.

Palladian said...

"Why then are these hordes of homos not lining up for jobs and serving the nation in other agencies that do not bar salami-smokers? Any gay that wishes to be in Iraq now could be - in a private security company or peel off from the "indispensible 43 homo linguists" and serve right with US Army and Marine units as a translator from a private contracting company...."

There are plenty of gays, covert and otherwise, currently serving in all branches of the military.

Anyway, us "salami smokers" prefer not to keep company with hysterical paleo-con Jew-haters, so why don't you take your sorry, soggy little Vienna saugage back to the Buchananite buffet with the rest of the wieners, nuts and cheese-balls?

John Kindley said...

Oh come on, Simon. The only assumption in my post that might have been "wildly" inaccurate is that you hadn't actually read Restoring the Lost Constitution. (After all, you did say Barnett is a "wonderful writer.) Your omission of your reason for thinking Barnett's interpretation of the Ninth Am. is wrong in making your assertion that he is "simply wrong" led me to assume that you knew you agreed with Scalia/Bork's interpretation and you knew from somewhere that Barnett has a contrary interpretation and that was enough for you.

I note that you conspicuously don't deny my assumption that you hero-worship Scalia, and that Scalia basically shares Bork's view that the Ninth Amendment is without legal effect:

"[T]he Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people." Troxel v. Granville (2000).

". . . laws duly enacted by the people." That's a laugh. "Consent of the governed" is a legal fiction, which is really the fundamental reason why only laws which can be demonstrated by government to be necessary to protect rights have a claim to legitimacy. What are those unenumerable rights retained by the people? Basically, the freedom to do anything that doesn't harm another, which state courts have been delimiting for centuries through tort, contract law, etc. The federal courts would still need a measure of discernment and judgment in recognizing these unenumerable unenumerated rights, but at least the burden of proof would be where it belongs and there would no longer be an unjust presumption in favor of the products of what passes for majoritarian "democracy" today.

So if you have some view of the Ninth Amendment between Scalia/Bork's view that it is without legal effect and Barnett's view that it has legal effect I'd like to hear it.

Lowell said...

Mort:
That the action was lawless activism was not the point of my comment, nor was it that no RPM is economically justifiable. The point was that some consumers will be hurt because some collusion will take place and that harm will be real and any judge deciding a case would be a bad judge if he failed to consider that. Your response does no work toward rebutting my claim.


And that's why we have the Rule of Reason, Mort! RPM is not per se legal, it's just no longer per se ILLEGAL. Thanks to the wonder of economics (ss opposed to Hugo Black's entrail-reading), we can say that RPM should not be wholly barred because it's not always or almost always likely to hurt competition.

The antitrust standard is not whether "some consumers will be hurt" or "some competitors will be hurt", it is "how does this affect competition"?

Even under the Rule of Reason, there's still plenty of room to see how this hurts competition (consumers qua consumers are not relevant, only as an imperfect measure of competition); unfortunately for the economically illiterate populists, judges now also have to consider how much such policies will help competition as well.

Mortimer Brezny said...

Lowell:

I understand antitrust law. My point is that a judge who failed to consider that some consumers would be hurt, under either the per se rule or the rule of reason, would be a bad judge.

Your critique would be better posed to Simon, who seemed to imply that because Robert Bork believed replacing the per se rule with the rule of reason in the RPM context was a good idea, it necessarily means no consumers would be hurt by RPM under a rule of reason regime.

Cedarford said...

Palladian - There are plenty of gays, covert and otherwise, currently serving in all branches of the military.

Anyway, us "salami smokers" prefer not to keep company with hysterical paleo-con Jew-haters, so why don't you take your sorry, soggy little Vienna saugage back to the Buchananite buffet with the rest of the wieners, nuts and cheese-balls?


The point was that the military can get along just fine without open salami-smokers, and any patriotic homo who wishes to be in the open can "serve" alternatively in 100 other gov't agencies. So there is no dearth of other outlets for "eager-to-serve homos" to hook up with.

As for Jews, after 2 millenia of scorn and distrust, Jews had WWII warguilt forgiveness and their own new nation to prove they could make friends and influence people by means other than lawsuits, bribes, whispering in various ruler's ears behind closed doors.

That opportunity has been miserably squandered by Jews. Israel now loses UN votes by 179-2 or 176-5 (US Congress plus 4 small Pacific Island nations Jews steer money to.)
And Jews are losing credibility in America as well.
I guess you can continue to insist that the rest of the planet that does not subordinate themselves to Jewish demands are "haters" "evil" "people with psychological problems" or just "envious of the true Elite".

Your call. Except that after 3,000 years of antagonizing other nationals or neighbors one would hope that the self-described "smartest people on the planet" would finally wise up..

And homosexualiy is far more common in Jews, Saudis and other Semites than in other main ethnic groups...so I understand your denials and self-defensiveness..

Ann Althouse said...

Cedarford: Please don't use the word "homos" here. You can state your opinion without stooping to that. And it only detracts from what you're trying to say.

Jason said...

Ann,

Wow. After all that from Cedarford, and your objection is to the syntax?

His use of the word "homo" is the least of his problems, here.

Ann Althouse said...

Jason: He can state his opinions, and you can disagree with him. I object to the use of the word. I don't want that here. The other things he can say and you can either argue with him or ignore him.

Simon said...

Mortimer Brezny said...
"Based on your internet writings, which I realize is an incomplete account of your mind, I would guess that you hero worship Bork also, despite your explicit denials, assuming a reasonable and non-perjorative definition of hero worship."

You would guess wrong. I think Bork's contributed a great deal to American legal thinking, and I find myself in agreement with a lot of what he wrote about originalism and antitrust in The Tempting of America and The Antitrust Paradox. But I disagree with a lot of his views, and I wouldn't consider him to have been nearly as influential on my thinking (in a direct sense, that is) as, for example, Rehnquist, Easterbrook, Rappaport, Calabresi, Amar, or even Randy Barnett for that matter - to say nothing of Scalia, Black and Althouse, the three pole stars in my little constellation.


John,
My recollection of Bork's position on the Ninth Amendment was that at his confirmation hearings, he deployed the much-misunderstood "ink blot" metaphor, by which he actually meant that a judge faced with a constitutional provision that is indeterminate doesn't have free license to just make up what he'd like it to mean - she must simply set that text aside until further evidence can be brought to light. I disagree with that position - I don't think there are any provisions of the Constitution that are totally indeterminate, and I think the underdeterminacy problem is a much more common and problematic occurrence.

However, on checking his book before replying - always a good habit when characterizing someone's views - I see that his position (as expressed therein) isn't all that different from mine. Bork argues (disagreeing with John Hart Ely) that the Ninth Amendment doesn't provide a reservoir of power for judges to subsequently define rights - i.e. limitations on government - not otherwise enumerated in the Constitution, but rather, that it should be read in pari materia with the Tenth Amendment as a federalism provision. The protection of certain rights by the federal constitution is not intended as an exhaustive list of all the rights that exist, and the declination of the bill of rights to protect a right does not deny that the right exists, or suggest that they are undeserving of protections should the people so desire, and so enact at the state level (or even at the federal level by legislation or subsequent amendments). See Bork, THE TEMPTING OF AMERICA 183-5 (1990). This, by the way, is exactly what Scalia's Troxel concurrence that you quoted says. So I guess my view's closer to Bork's than I had remembered it being!

The bottom line is that the Constitution subtracts from the power of the states, and anything not so subtracted remains within the power of the states subject to whatever additional restraints are imposed on them by the people of a given state in its own constitution. The Constitution empowers and limits the federal government, but anything within the reach of federal power which does not infringe on another limitation - i.e. a right - is a valid exercise of federal power. This amorphous "no law that John Stuart Mill wouldn't approve of" vision of the Ninth Amendment is the stuff of libertarian fantasy.

Gahrie said...

The Constitution empowers and limits the federal government, but anything within the reach of federal power which does not infringe on another limitation - i.e. a right - is a valid exercise of federal power.

Wow. That seems kind of sweeping. Hopefully I'm mis-interpreting your statement.

I've always been among the crowd who believes that the government can and should only do what the Constitution explicitly gives it the right to do, and that the Bill of Rights was a mistake, because it changed the way people looked at our government. We went from a government with explicit powers enumerated by the Constitution, to a government of implicit powers limited by the Constitution.

Simon said...

Gahrie,
I think you are indeed misinterpreting my statement. My point is that so far as it relates to the Federal government, the Constitution creates the large-scale structure of the Federal government, assigns it various spheres of action, and then places limits on the exercise of that power. To take one example: the Constitution creates a Congress, and vests in it power to "[t]o regulate commerce ... among the several states," Art. I § 8, "that is, to prescribe the rule by which commerce is to be governed." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). That power is expansive: "like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Id. What limitations are those? Well, to begin with, the obvious import of the text itself: Congress may exercise the commerce power to its utmost extent, but its utmost extent is inescapably those matters which are (a) commercial and (b) move between or affect more than one state (this is of course not meant to be descriptive of current commerce clause jurisprudence). But the Constitution also limits that power in other ways: Congress can't regulate interstate commerce in a way that violates Art. I § 9, for example, or in a way that abridges the freedom of the press guaranteed by the first amendment, for example. Constitutional rights are most aptly characterized as negative rights rather than positive rights, that is a limitation on government rather than a specific entitlement. See Harris v. McRae, 448 U.S. 297, 317-8. So, as I've argued before, the First Amendment does not guarantee that you will speak, or that you will be heard - it guarantees only that the government can't prevent you from speaking.

So ultimatley, yes, it's a sweeping statement, but less so than it might at first appear - the point isn't that there are no limits on what the federal government can do (quite the opposite!) only that it is limited by the limits of the powers delegated to it by the Constitution and by the restraints placed on it by the Bill of Rights (and subsequent amendments), not any notions of what is a "fair" or "just" law. The restraints on the federal government's enacting a law that is dumb, or unjust, but which nevertheless falls within its delegated powers and outside of the proscriptions on the exercise of those powers embodied by the Bill of Rights etc., is the ballot box.

Hope that clarifies the point.

Gahrie said...

Simon:

Just to clarify using my terminology:

You're in the; "a government of implicit powers limited by the Constitution" camp, rather than the; "a government with explicit powers enumerated by the Constitution" camp.

Simon said...

Gahrie - it depends on the level of generality at which you understand th term "powers." Is regulation of interstate commerce a "power"? If that's the level of generality we're talking about, yes, I'm in the limited, enumerated powers camp.