Strengthening Constitutional Self-Government

No Left Turns

Manent on Judicial Activism

Other than MANLINESS, the best political analysis I’ve read this year is the English translation of a series of lectures by Pierre Manent--A WORLD BEYOND POLITICS? (I should put an amazon link here, but that would encourage dependency and insult your intelligence.) One glimpse of Manent’s contemporary wisdom:

"...the power of judges today [in many nations] rests ulimately not on the laws of the nation, not on its constitution, but on the foundation of the laws and the constitution, that is, ’human rights’ and the idea of ’humanity.’ Setting aside local laws, accepted usages, and international conventions and treaties, judges more and more claim to speak immediately in the name of humanity....[T]he new power of judges illustrates our impatience with mediations, in particularly political mediations, and our desire to recognize and achieve humanity immediately."

We can, of course, recognize Justice Kennedy’s unmediated interpretation of the single world "liberty" in the Fourteenth Amendment here in Lawrence v. Texas.

We can also see that the true division in American politics might not be, as James Ceaser contends, between the foundationalist conservatives and the non-foundationalists liberals.

Instead, it might between the left that insists on transforming all of life according to an abstract understanding of rights unmediated by the social, political, and religious truth about human nature and a right that insists that our understanding of rights must be mediated by that truth. It is between the "Europeans" and their American imitators who live lost in a postpolitical, postreligious, and postfamilial individualistic fantasy and Americans and their European sympathizers who think realistically of themselves not only as free individuals by as citizens, creatures, parents, children, and so forth.

The understanding of our country as divided into those devoted to mediated and those devoted to unmediated rights explains why we conservatives, despite our differences, are united in our opposition to judicial activism.

Before being too convinced too fast, remember that Manent is a controversial figure among readers of The Claremont Review. (Here there should be a link to articles in that review dealing with Manent, especially the strident criticism given by Bill Allen.)

Discussions - 14 Comments

Peter: It’s hard to argue that conservatives are not united in opposition to judicial activism - think of the Schiavo incident, for example, where the right stridently complained that the judiciary was not, in effect, activist enough. Or think of the neo-Lochnerian revival among folks like Janice Rogers Brown; you can avoid calling that kind of jurisprudence "activist" only if you lay claim to a kind of originalism that legitimates the assertion of judicial power in the name of some (controversial) set of principles.

The result preferred by the right in San Remo, or Lingle, or Kelo, even, is an activist one. To be a bit provocative, what better example of mediation is there than that of the New London Development Corporation, which engaged in an intensive, open, politically responsive process about how to develop the city for the common good? The individualist in Kelo is the holdout, not the city.

Brett: That’s a very thoughtful response. My answer is that the neo-Lochnerian revival is not genuinely conservative. I’m a Scalia man on such issues. See my article in the July/August 2006 SOCIETY on how conservatives, if they think about it, should be relatively consistent in the advocacy of judicial restraint. From my view, the least conservative writer on judicial review is Randy Barnett, who wants to combine LOCHNER and LAWRENCE v. TEXAS in what would be an absolute orgy of activism. His understanding of rights is mighty unmediated.

Well the second link only gets you half way there, but if you type in Manent into the search thingy you’ll get what you want.

Thanks UG. And typing the name into the search thingy is unfailingly good advice.

I probably should say something about Manent and his book and his work, but let me say something about con law (constitutional law).

Griswold begat Eisenstadt which engendered Roe; after twenty years of intense scrutiny and alleging of "misbegotten!", Casey upheld Roe’s "essential holding." It also innovated by introducing "liberty" (and "dignity) as "autonomy" into our jurisprudence. (The famous "sweet mystery of life" -as Scalia put it - passage.) Lawrence v. Texas furthered its implantation and extension.
Without going into any details or even argument(there’s a lot of both to acknowledge and talk about, I know!): a handful of American justices reworked federalism, expanded the private sphere, and populated it with "the autonomous individual." In so doing, they took a lot of power away from the states, which the states traditionally (and correctly) employed under the rubric of "police powers" for purposes of health, safety, good order, and morals (yes, morals). The Casey and Lawrence decisions have put the authority of the Constitution (perhaps I should put that in scare-quotes) behind permissive egalitarianism (I first heard the phrase from Bob Faulkner at Boston College) and/or radical autonomy. So, the recent course of privacy/equal dignity/autonomy jurisprudence here in the states very much confirms what Manent detects, analyzes, and decries over in Europe. Advanced "democracy" is pretty much the same in both regions.

I’d say some more about Kelo and economic liberty, but this is already too long. You would get to hear me talk about Justice Taney’s (yes, that one) decision in Charles River, as well as our standard (and correctly designated) whipping boys: the Progressives.

Perhaps I missed my cue with the original posting. A thought or two on Manent’s book and thought.

Manent’s book is the description and analysis of a giganchomachia, a great struggle on the contemporary European scene (and in its soul) between a dream and project of a transpolitical world and the sempiternal political condition of mankind. Manent is a POLITICAL philosophy, i.e., he’s a partisan of man’s political nature, he believes that the political community as such has a distinctive nature and humanizing character (he’s no libertarian!), and that the human world will always be a political condition (i.e., characterized by relatively independent self-governing bodies with distinct "material and moral interests" (the phrase is Chateaubriand’s), engaged in cooperation and rivalry, sometimes even conflict and war. He is a big supporter of the European nation (or, nation-state for us ’mericans). (Don’t believe either one of the Claremont Review critics on this, or any other, Manent-point.) Contemporary advanced democratic Europeans believe that all human differences can be acknowledged, satisfied, and accomodated by the proper world order, what Manent calls the "empire of democracy." This empire has three components or dimensions: international law, promulgating an increasing list of rights; this requires the ascendancy, even sovereignty of judges;; a democratic or humanitarian morality, with several components (compassion, the afore-mentioned rights), and especialy "dignity" understood as radical autonomy, which is the source and legitimation of any and all "identities" or "differences."

To this point, Manent sounds pretty much like a typical American conservative and a good Straussian. His brilliance, though, resides in his distinctive understanding of "the political" (which Peter’s original post was trying to get at). I’ll say something about that most important topic tomorrow. It has to do with the concept of "mediation"; the contemporary democratic impulse is to hate and deny "mediations" or "differences" and to demand "immediacy." One of Manent’s fine formulations contrasts "the long slow hermeneutics of love" with "the brutal immediacy of ’sex.’"

Manent got part of this idea (politics requires mediations; democracy hates them) from Tocqueville, who perceived democrats - both as a mass and as individuals - as very impatient with "forms." The great Harvey C. Mansfield has a wonderful article on this, "The Forms of Liberty." He starts with the wisdom of Miss Manners (on the necessity of conventions and manners in democratic society), moves to property rights (Kelo, anyone?), and then moves to the "form of forms" in democratic life: the Constitution. It’s the limit that the sovereign people puts upon itself, to help it "be all that it can and should be": deliberate, hopefully prudence.

Manent knows and accepts all that, but he’s got even deeper insights and formulations. Believe me.

Believe Paul on the deeper insights. But I’m disappointed that nobody has commented on the plausibility of American being divided into mediated vs. unmediated rights factions.

previous comment: America being divided into mediated vs. unmediated factions...as opposed to foundationalists vs. nonfoundationalists, as James Ceaser claims.

Peter, I’m going to the coffee shop; I’ll "commit social science" and try to work out the possible relations using Venn diagrams, the famous "4 squares" method of analysis, and the spectrum/continuum method.

I don’t know what to make of the "mediated - unmediated" distinction. It seems to me that if anything they might be styles of argument that can be employed by anyone in particular contexts, and they don’t map well with well-worn political distinctions. The Schiavo case was about right wing or conservative impatience with mediation, no? (Remember Bush flying back to sign the bill.)

So, mediation for what ends is the appropriate question. Paul misses the point on property rights, I fear, for the same reason; the holdout in Kelo is making an appeal to an unmediated right, and the city is talking the language of mediation. You might say that protection of property rights is itself a form of mediation, which is fine but that doesn’t solve the question of how to protect them, and preventing governments from exercising their legitimate power of eminent domain is not, in an of itself, a property-rights protecting move. It depends on the context. The law imposes process requirements in ED cases, which is a mediation-solidifying move.

Brett, Let me tick Paul off by saying I agree with you more than not. I think there’s a strong (if not absolutely overpowering) argument that KELO was rightly decided, and that our more extreme libertarians fall into the unmediated rights camp. My mediated-unmediated distinction does point in the direction of a certain kind of REALIGNMENT. I’ll say more later if you want, but this is a very busy day.

Paul’s not ticked, mainly because I really didn’t/don’t want to talk about Kelo (it was chosen as exemplifying a certain worldview and tendency; to address IT would require a good deal of analysis of constituional law and liberal democratic political theory.) My main point (admittedly only alluded to via the Mansfield piece) is that property and property rights are "formal entities." As such they put some distance between humans, their desires, and their actions, and their objects. (You could say the same thing about wedding rings.) On the other hand, there is a prima facie case that public use is not the same as public purpose(s), although one doesn’t have to go as far as Justice Thomas in making that distinction. When I referred to Taney’s Charles River decision, it was to indicate what I take to be the first case involving these issues (although one also would want to look at the famous Dartmouth case, argued successfully by the great Daniel Webster).

I think we can connect these cases and issues with Manent’s thought a bit in the following way: Manent shows that politics (the political order as such and political action) always involve the bringing together in a certain (partially just, partially unjust) form. Our liberal democratic constitutional order is a particular (or specific) way of effecting this political work. We’ll always, therefore, have to acknowledge and work with the plurality of principles at work - liberty, equality, majority rule, minority rights; property rights and public good - ; I’m not much of an absolutist on any of that; however I think the Living Constitution, New Deal jurisprudence, Privacy-and-Autonomy jurisprudence is way skewed; and as a prudential judgment in that context, I tend to see the (very closely decided) Kelo decision as too "Progressive Liberal." But that’s not exactly the same thing as a true con law analysis on its merits.

Paul: I’m not sure how far apart we are, really, on the issue of whether property rights are mediating concepts, if the concept makes sense. And it seems that we agree that that basic fact isn’t outcome-determinative; both majority and dissent in Kelo take property rights seriously and both could be read as being concerned with a kind of mediation.

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