Strengthening Constitutional Self-Government

No Left Turns

School choice in Utah

You’ve probably heard by now that the good people of Utah voted down a comprehensive education voucher proposal earlier this week. Despite the gleeful crowing from my hometown newspaper, I’m disappointed. Responding to this editorial, Rick Garnett gets it just about right:

The anti-choice argument is, in the end, the argument that parents who want to form their children in and through a religious education should have to pay twice, and that poor parents and children who cannot afford to escape government schools that are organized around principles determined primarily by teacher-union members’ self-interest should not be permitted to escape. Yuck.

And Richard John Neuhaus
calls our attention to this article, while also wondering whether it isn’t time to consider tax credits.

Discussions - 19 Comments

I've not yet seen any analysis that explores why the voters of Utah went the way they did. Was it poor presentation of the value of vouchers? Or superior campaigning by the teachers' union?

In this particular state, the defeat of a voucher initiative is depressing evidence of the liberal establishment's ability to propagandize the conservative base.

Frustrating, I agree. Any data on how much the different sides spent campaigning?

IIRC, the unions in California spent about $200 million defeating a package of reforms Arnie tried to pass. Think of what that could have done for the children ...

Browsing around, I've seen that Giuliani opposed vouchers in the ninties, saying they were "unconstitutional".

I don't know if he's flipped on this.

Very interesting about Giuliani. If true, it's disturbing. Buying the liberal interpretation of the First Amendment to this extent, even 10-15 years ago, would be a poor comment even on a Republican candidate for the state legislature, let alone a candidate for the presidency.

Looking further, he did say it, and he has flipped.

Here we go.

'I believe the voucher system in New York City would be very, very troublesome,'' said Mayor Rudolph Giuliani in a speech to the Wharton Club of New York in August 1995. ''Our system is so large that making that kind of transition would pose tremendous difficulties. Not to mention the constitutional and legal difficulties that would be entailed in providing tax relief and tax dollars for religious education.''

Sorry, its a Bob Herbert article from 1999. Not my favorite person to link to.

It seems he also called vouchers "unconstitutional" in a 1993 speech, which I have not located.

He is backing vouchers today however.

The constitutional difficulties, such as they ever were, were largely resolved by the Supreme Court in the Zelman case. RG could plausibly say that his constitutional scruples were resolved for him.

RG could plausibly say that his constitutional scruples were resolved for him.

Only by saying that the constitution means whatever the Supreme Court says it means. That's not a popular viewpoint on the right.

No . . . but its a viewpoint that may make good fiscal sense (also a conservative principle) for a mayor trying to run a complicated big city and school system. It's a real question whether that fight was one that would have been responsible and productive for him to enter at that time and in those conditions. Was that the best use of the city's resources? Would fighting it (and losing) really do something to improve the conditions for New York's students or were there other more effective means to promote positive changes? I don't know enough about the particulars here to pass judgment . . . but any fair accounting of his position would have to consider this.

its a viewpoint that may make good fiscal sense (also a conservative principle) for a mayor trying to run a complicated big city and school system

Whatever the merits of a voucher system in NYC, the fact is that he did not oppose it simply on pragmatic grounds. He claimed that vouchers were unconstitutional. That's something to give judical conservatives pause. As David Frisk indicates, it shows a man who has absorbed the left-wing interpetation of the First Amendment.

I admit that "judicial conservatives" does not seem to describe most people at Ashbrook.

And the notion that the man who opposed George Pataki for governor out of fear that he would lower state taxes is a "fiscal conservative" is just laughable.

It is still a fact that people (particularly ordinary politicians in the performance of their practical duties) may use the term "unconstitutional" in the loosest sense. In other words, he might have just meant that vouchers had been found "unconstitutional" by the court. I doubt he thought as deeply about the statement as you have done since he said it. This is the way people talk. It is worthwhile to consider whether they should talk that way and to point out reasons for them to think more deeply about the words they choose and the real meaning of the constitution apart from court interpretation. But we do have to live with the precedents of the court (whether we believe they are correctly decided or not) unless or until the court reverses itself. Is it necessary for a politician to enter into that debate every time he opens his mouth? Things may be exactly as you describe with Rudy's position on the voucher question. But I do not have to buy it based on the evidence you have supplied. If he says he's for them in a general way, I do not even have to believe that he has reversed himself because he opposed them in NY. It's interesting to note and it would be a good question to ask him. But I don't think it is fair to conclude that you have proven duplicity.

Since I never claimed duplicity, it would be quite a trick for me to say that I have "proven" it.

I simply said that this is one more piece of evidence that Rudy Giuliani is not a judical conservative. And guess what? It is.

A man who claims, as he does, that he has spent his life surrounded by "strict constructionists" as friends and coworkers would not say that vouchers are unconstitutional, regardless of what the court says. But that is a point which only a judicial conservative would appreciate. And that's not you, is it?

Giuliani is not just some average schmuck throwing around the phrase "constitutional". He clerked for a district court judge. He worked in the Ford Justice Dept. He was in the number three spot in the Reagan Justice Dept for a year or two. He was a prosecutor for a number of years.

One of the big selling points for his is that he would supposedly appoint good judges. It's appropriate to look at his past opinions on legal matters for an idea of what his own legal outlook is.

If you do that, and you do so from a judicial conservative perspective, there are grounds for deep concern.

I've seem him use the phrase "strict constructionist" a few times now, and I can come to only two possible conclusions.

a) He does not know what the phrase even means.

b) He may know, but he is using it as a smoke screen to gull conservative voters.

This is a lawyer and former prosecutor who says things such as "illegal immigration is illegal, but its not a crime"! Good grief.

Now you are being duplicitous as you certainly at least imply duplicity in Rudy with your comments in #s 6 and 4. In any event, it is not my job to defend RG against the charge that he is not a judicial conservative. He will have to do that job himself. I doubt that he is a judicial conservative in the sense that I prefer . . . (I can only guess what you mean by the term as you have nowhere defined it except to say that no one on NLT is one . . .?!) But I also think he is likely to get closer (successfully) to my model of judicial conservatism than most of the other alternatives--and certainly closer than the Democratic alternatives. My only dog in this fight is to see that the charges leveled against RG are fair. If you can prove that he is a crazed anti-constitutionalist, "living constitution" whack job, then be my guest. I am not deaf to reason on this subject. My only problem with what you say is that, so far, I don't think your charge rises to the occasion based on the evidence you supply. Even a conservative law clerk or a law professor can say "constitutional" in the sense I suggest it is--at least possible--Rudy meant it, given the right context. One may wish for greater clarity but active men are not often known for their intellectual clarity and precision.

My only dog in this fight is to see that the charges leveled against RG are fair.

You certainly do not give that impression.

If you can prove that he is a crazed anti-constitutionalist, "living constitution" whack job, then be my guest.

That old "reading comprehension" bit has you stumped, hmm? Lets see what I have ACTUALLY said, shall we?

He claimed that vouchers were unconstitutional. That's something to give judical conservatives pause. As David Frisk indicates, it shows a man who has absorbed the left-wing interpetation of the First Amendment. .... I simply said that this is one more piece of evidence that Rudy Giuliani is not a judical conservative. ..... One of the big selling points for his is that he would supposedly appoint good judges. It's appropriate to look at his past opinions on legal matters for an idea of what his own legal outlook is.

But you are having such a great time whacking your strawman that I almost hate to discourage you.

I am not deaf to reason on this subject. My only problem with what you say is that, so far, I don't think your charge rises to the occasion based on the evidence you supply.

Given your determined misreading of what I wrote, I really can't buy this. I never claimed that Rudy was a Ruth Bader-Ginsberg clone.

To repeat it for the final time, the various legal remarks Giuliani has made give the impression, not that he is a liberal ideologue, but that he has never given much thought to legal/constitutional matters at all. I trust that this is sufficiently unambigious that you won't accuse me of saying something else again.

Even a conservative law clerk or a law professor can say "constitutional" in the sense I suggest

Do you base this on your familiarity with conservative law people? It is "possible" that Giuliani "mispoke" in a prepared speech. And that he has done so on several occasions. It's just stretching credulity a bit.

Here is another example to illustrate what I mean. Giuliani is commenting on the lawsuit he filed that got the line item veto overturned.

Look, the line item veto was unconstitutional. I fought Bill Clinton, I beat Bill Clinton. It was unconstitutional. What the heck can you do about that if you're a strict constructionists."

Those remarks are nonsensical. The implication is that "strict constructionists" are people who believe that something is constitutional, or unconstitutional, if the Supreme Court says it is.

That is NOT what it means to be a strict constructionist. Emphatically not. And since we are depending on RG's assurances that he will appoint "strict constructionists" to the bench, his confusion on this point is very disturbing.

Incidentally, he did not fight and beat Bill Clinton, but the GOP Congress, which passed the line item veto as part of the Contract with America.

Here is a link for you. Darn those pesky facts!


Giuliani Judges Lean Left.

"I would want judges who are strict constructionists because I am," he told South Carolina Republicans last month. "Those are the kinds of justices I would appoint -- Scalia, Alito and Roberts."

But most of Giuliani's judicial appointments during his eight years as mayor of New York were hardly in the model of Chief Justice John Roberts or Samuel Alito -- much less aggressive conservatives in the mold of Antonin Scalia.

A Politico review of the 75 judges Giuliani appointed to three of New York state's lower courts found that Democrats outnumbered Republicans by more than 8 to 1. One of his appointments was an officer of the International Association of Lesbian and Gay Judges. Another ruled that the state law banning liquor sales on Sundays was unconstitutional because it was insufficiently secular.

A third, an abortion-rights supporter, later made it to the federal bench in part because New York Sen. Charles E. Schumer, a liberal Democrat, said he liked her ideology.

My problem with what you are saying John, is not that you are suspicious of Rudy and that you are seeking to find avenues for attacking him. I am all for it where the evidence supports it. You have provided evidence (not new to me) that Rudy's judicial appointments in New York were not up to snuff. That is more than a fair point and one that I agree may be an indication of coming bad faith when put up against his claims that he will seek to appoint judges in the mold of Scalia, Roberts, Alito and Thomas (as if they come from any particular mold).

But you also want to say that: "the various legal remarks Giuliani has made give the impression, not that he is a liberal ideologue, but that he has never given much thought to legal/constitutional matters at all." I think that overstates the case a bit (I mean, you can't really say that he's never given much thought to legal matters), but the essence of your point is probably right (though somewhat different from what you said before). Rudy's constitutionalism is probably rather conventional (i.e., not firmly planted in either the "strict construction" camp nor in the "living constitution" camp). But, rather than refute my point, I think it supports it. That is exactly why I said I think he may have been throwing around the term "constitutional" in the very loose way I described. He is nothing if not a man of action. And though he operates on some basic conservative inclinations--he has operated in an atmosphere quite hostile to those inclinations. It makes sense to me to consider those remarks in that context and also to consider that the man's primary goal has never been intellectual consistency. You seemed to suggest that his use of the term "constitutional" suggested that he really held on to some deep belief that the constitution means whatever the court says it means. I think you can only prove that he means it in the ordinary (and true) way. For all practical purposes, the constitution does mean whatever the court says it means (unless and until the court reverses itself).

But you also have insisted that: "Giuliani is not just some average schmuck throwing around the phrase "constitutional". He clerked for a district court judge. He worked in the Ford Justice Dept. He was in the number three spot in the Reagan Justice Dept for a year or two. He was a prosecutor for a number of years." So which is it? He's either actively working against the notion of "strict construction" or he's saying "constitutional" in the way that an "average schmuck" (as you so delicately put it) would say it. I think it is eminently possible for a man of much practical legal experience to still speak like an "average schmuck"--especially when he is engaged in an active political life and working toward specific political ends.

Again, I think it is possible (even probable) that Rudy is not fully committed to "strict construction" of the constitution--in either the Roberts, the Alito, the Scalia or the Thomas mold. But the fact that Ted Olsen is working on Giuliani's team as his primary adviser on these matters is also worthy of more than a casual note. It indicates to me that Rudy is a political man with some very good instincts and--if he has not thought as deeply about these things as we might like--he at least has the sense to surround himself with people who have. You should keep in mind that appointing judges to federal courts and justices to the Supreme Court is likely to be a very different kind of task (politically) than appointing judges in New York City was. There's a whole big country out there and it's not populated only by those who have a judicial philosophy that makes Chuck Schumer smile. In short, my problem with your analysis is that it is too abstract and removed from the political context. I don't think it is correct to look at anything Rudy Giuliani does apart from its political context. If that is what bothers you about him, then you may have a fair point. You want a man of firmer constitutional principles. I won't try to argue you out of that position. Indeed, I respect it. My only fear is that too rigorous a dedication to that noble desire is going to get us someone who has very firm constitutional principles of a different sort.

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