Strengthening Constitutional Self-Government

No Left Turns

Should the Court be "balanced"?

Andrew Busch explains why those who object to President Bush trying to shift the balance of the Supreme Court are wrong: They participate in a species of aristocratic elitism that is wholly inappropriate in our constitutional regime. This reveals a "profoundly anti-democratic understanding of the Constitution and the role of the Supreme Court." Of course, what lies behind all this is partisanship and ideology. These same people would not be making such an argument of Kerry had won the election, nor would they have advised Franklin Roosevelt "to appoint a strict constructionist so that the balance of 1935 would not be altered."

Discussions - 10 Comments

Peter, I do not disagree, but these are hard terms with great ambiguity, are they not? The court is a check on the will of the people in some ways, right? Similar to the much lamented and totally misunderstood "gridlock" that the founders deliberately wrote into the Constitution to protect the property of the wealthy, the rights of minorities, and to obstruct, as best they could, Aristotle’s "mob rule." Are we really small-d democrats, here? I would think our argument should not be anti-elitist, but legal. Nothing in the plain writ of the Constitution says anything about "balance;" it does give the president the right to appoint members of the court, and now the president has appointed. Period. We should object to the novelty of the left’s approach here, surely, not to its elitism. I am sometimes alarmed by the populism of some conservative rhetoric; it is the institutions of Federalism to which we should appeal, not the desires of the "majority." The latter will shift again and change, will shift against us, and one day we will need the constitution with its gridlock and checks to protect us. Novelty will erase those protections which allow us to live with each other, not elitism. The novelty of the liberal argument is why it is wrong and should be resisted.

Wm: I do not disgagree with anything you say, save perhaps the emphasis on the word "elite". I do not use populism nor elitism in my ordinary discourse. (I am not a populist.) Constitutionalism, federalism, separation of powers, checks and balances, etc., all good and fine. Certainly the law and certainly representation! Neither elitism nor populism, constitutional discourse as much as possible on all occassions.

Neither elitism nor populism, constitutional discourse as much as possible on all occassions.

amen to that

I will not pretend to understand much (anything!)about constitutional law, but here is my response to what I have been reading, including this post:

(1) Why should an argument be considered wrong because it is novel?(2) In my (limited) view, liberals are understandably nervous when this particular president has at least two chances to affect the distribution of liberal vs conservative thinkers on the Supreme Court. First, we have Bush’s overt efforts via "Faith-Based" initiatives to blur the line between government and religious entities. Second, we have the unfortunate recent Terry Shiavo (sp) example of Bush (both governor and president) disdain for the courts when they don’t agree with court decisions. Tom DeLay even threatened what he called "activist judges," and (to my knowledge) earned no reprimand from the president.Certainly, no Republicans called for the Bushes or Delay or other complainers to "sit down and shut up."

Finally, as contributors to this blog have demonstrated recently in the arguments about "Liberal faculty" no party, or group is comfortable when important social institutions seem to be come dominated by the other group, whether that institution is the local School Board, the Supreme Court, or Higher Education. Why is it so difficult to understand that half of this country is uneasy?

Hey, Fung, were you his "reasonable" in the 1960s when Republicans and conservatives controlled squat? When’s the last time we actually had a "conservative" SC? Where were all the "reasonable" liberals like yourself when Left-dominated courts mandated 1) state-sponsored racism (i.e., affirmative action), 2) infanticide on demand (i.e., abortion), 3) massive busing for racial balance, 4) equal funding for women’s sports in education, 5) the exclusion of all religion from public schools (and several other realms of our society), and several other things? You’re problem is that we are coming into our own, and you don’t want to let us have our turn.

And there is nothing wrong with "novel" arguments except when they are extra-Constitutional, as the whole "balance" idea is. Just suck it up, Fung. We lived through your reign of "progress," now it’s your turn to be a bit uncomfortable.

And for the grammar police, I meant "your" instead of "you’re" in the second-to-last line of my first paragraph.

If we are defined in part by our enemies or opposition, then it is a good day when I am told what my "problem is" by an opponent of Title IX , civil rights, and the separation of church and state.

One of the differences that I perceive between the left and the right is that it is difficult to distinguish between what is good for the "right," and what is good for rich white men. Even allowing for some problems, the left strikes me as less selfish and less ethno- and gender-centric. So, I am not surprised that you have picked those particular issues to represent what happens when the right wing fails to get its way.

I am also not surprised that you have failed to address my questions, but have instead, made my point. The only institution that is not dominated by the right these days, is higher education, and we have witnessed no end of whining about that! And, given the evidence of Bush’s corporate allegiances, his "faith-based bias, and his disrespect for certain elements of the Constitution, and given the propensity of righties to whine when they don’t get their way, why waste time wondering why the lefties engage in some whining and lamenting of their own?

As for what I was doing during the 60’s: In the early part of the decade, I was learning to read and do long division. Toward the end , I was learning about segregated and integrated schools first-hand.

And yes, I have always been reasonable!

Hey, that’s my point, Fung. The end justifies the means. Who cares if more qualified white men get passed up for promotion or admission...they’re rich...screw ’em. Who cares if those snotty white kids have to ride a bus for half an hour...Fung’s sense of justice is what matters! Who gives a rat’s behind if the majority of Americans have to feel that they are aliens in their own country...Fung and his minions are taking over!

No sir, you are not reasonable. Leftists don’t tend to be...they brook no denial of the "true" vision, and care not at all for who gets hurt in bringing that vision to fruition. Who are YOU to decide how we should feel about these issues? What overweening certainty you possess...it’s almost religious, isn’t it?

The bottom line is this -- you and your ilk were (and are) eager to skip democratic process and use robed oligarchs to dictate to the rest of us. Totalitarianism, that’s called. Well, it will be our turn very soon, and we will restore respect for our people and our culture. We are legion, Fung. You are starting to realize that, I think.

Apparently, this is the wrong forum to discuss balance.

Peter, or wm, would either of you care to address my sincere questions? Dain appears to be having a "moment."

Oh, very soon, we’ll all have a great many "moments."

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