Strengthening Constitutional Self-Government

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Public Opinion and the Courts

I'm grateful for Ken's post below, with the link to Matt Franck's good advice. I really agree that Republican senators should raise the choice not to filibuster to higher principle. I also agree that they should ask tough questions about controversial decisions. I never thought nominees had the right not to give their opinion on whether ROE was rightly decided (and why etc.) or whether same-sex marriage is a constitutional right, for example. I have to add that I believe that JUDICIAL RESTRAINT is a real issue: Nominees should be asked whether the agree with the mystery clause in PLANNED PARENTHOOD or the claim in LAWRENCE v. TEXAS that the word "liberty" in the Fourteenth Amendment is nothing more than a weapon to be used to expand the realm of freedom for every generation of Americans--led by the Court. I agree that the Constitution is too important to be left to lawyers, but I have to add that justices are nothing more than really good lawyers--and not philosophers, and they are interpreting a written Constitution as a law, even if a fundamental law. As the example of the C+ existentialism in PLANNED PARENTHOOD reminds us, the justices are led most astray when they think of themselves as a lot more than lawyers. JUDICIAL RESTRAINT properly understood means recognizing that a lot of the troubles of our time come from the fact that the Court has gotten too involved in "regime change." The absence of JUDICIAL RESTRAINT has become, in certain ways, a real threat to SELF-GOVERNMENT. The Constitution is not only too important to be left to lawyers. It's too important to be left to the Court (as Mr. Lincoln said with singular eloquence).
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Discussions - 12 Comments

Jefferson's warnings about an "elected despotism" should echo more keenly in the instance of unelected despotism, whether in the courts or bureaucracy. Unfortunately, we are all too comfortable with the soft despotism of the modern bureaucratic state and of society. Consider the success of the environmental movement, with children berating parents for their unenlightened practices.

Peter's post reflects the depth of the challenge that the immediate issue of the Souter successor uncovers: rather than "confirm thy soul in self-control, thy liberty in law," the last man today finds that "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Comments here are often in shorthand but Ken Thomas' seems especially compact and misleading. He seems to want to refer to environmental regulations (though he says the environmental "movement") as examples of an unelected despotism (also "soft" a la Tocqueville). It is true that much -- often too much -- is delegated to the EPA and other agencies by the Congress, and it is true that the federal courts are often involved in challenges to what the agencies decree. This is a despotism, or at least excessive delegation, in which Congress is fully implicated, and which Congress can and ought to reduce. Even so, I don't see what the term despotism -- unelected or soft -- adds to the discussion.

Children berating parents is certainly bothersome, perhaps especially when they deserve it, but I don't see this as a consequence of Congress' environmental lawmaking.

Yes. Damn those for whom liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. We conservatives already know what all of those things are. We are in sole possession of them, and so by God's grace are ordered to command them to others.We need not worry about the unelected despotism of the capitalist, because we are the 'elect'.

Ren...shut up. Sniping & sarcasm do not constitute reasoned discussion. Why don't you go join the other pseudo-intellectuals at the Democratic Underground...oh wait...they don't want you either. Sorry 'bout that.

My two cents on what conservatives can do in the forthcoming Supreme Court fight.

1. I think that the exposing the anti-constitutionalist and anti-democratic core of judicial liberalism is better served by highlighting cases like GONZALES VS CARHART (partial birth aboortion), ZELMAN VS. SIMMONS-HARRIS (school vouchers, church/state) and KENNEDY VS LOUISIANA (death penalty and child rape). All of these are cases in which the liberals on the court sought to override democratic majorities in order to impose their own policy preference on at best dubious constitutional grounds. While I think that the logic in LAWRENCE is faulty, I'm not sure that focusing on LAWRENCE itself is the best way to undermine judicial liberalism. The public is with the court on the underlying policy issue (me too actually)and it will be tough to get the public interested in the principle at stake absent some judicial imposition of something the public does not like. The fight against the more tyrannical aspects of judicial liberalism (in which liberal judges impose policies against the public will and without constitutional warrant) is best served when they focus on cases in which constitutionalist principle and democratic sentiment are pulling in the same direction.

2. We can't win the fight over the Supreme court seat. Even if one liberal goes down (itself unlikely), another one will be brought up and passed by the Senate. The real goal ought to be educating the public and political coalition building. The best that can be hoped for is to advance the public's understanding of what is wrong with judicial liberalism and to offer an alternative that is both more democratic and more rule-of-law oriented. The Supreme Court fight will give some conservatives a meagaphone for a short time. But the public's patience with these same conservatives will be limited. They should use it to advance their own ideas rather than to take shots at whatever embarrassing detail can be found about Obama's eventual nominee.

3. Don't walk into Obama's rhetorical traps. Obama said he wanted his nominee to have empathy. Conservatives took this (probably correctly) to indicate that he wants a nominee who will rule in the direction of liberal policy preferences (not like those mean conservatives). This is a really bad thing, but conservatives should not fall into the trap of fighting over whether Obama's nominee has too much politicized empathy. That is a losing fight. Conservatives should seek to define the terms of the debate.

Each of Pete's points is on the money.

I do understand that Pete does not mean that only unpopular decisions are objectionable. His is a tactical point. Obviously "constitutionalist" principle and democratic sentiment will sometimes pull in opposite directions. A constitutional conservative will therefore not want to sing the tactical point too loudly.

Steve, yes you are right, but conservatives are in such a weak position (both in the elected branches of the federal government and in our ability to make our case to the nonideological portion of the public) that we need to pick our fights. In the longer run, conservatives will also have to try to shape democratic sentiment in a constitutionalist direction. I think that a policy of what Peter Lawler calls judicial restraint, in which the courts give leeway to the elected branches unless some clear violation of the Constitution (under and originalist rather than "evolving" standard) has taken place is both intellectually respectable and eventually politically possible.

A question for my conservative friends. If we are to take an originalist understanding of the Fifteenth Amendment (and the power it gives Congress) and we are to apply judicial restraint so that judicial review only applies in clear violations of the constitution, how should the Supreme Court Rule of the Voting Rights Act case that they heard last week?

The Court should leave the Voting Rights Act alone, which is no endorsement.

The problem of judical activism has become a kind of template for understanding the problem of technocratic democracy--a small cadre of elite experts substitute their judgment for public deliberation on matters that are not entirely technical--the sum result of Lawrence v. Texas is that a political ideology is snuck into the law under the guise of constitutional interpretation. One could argue that even the hyper-technical parsing of constitutional language shouldn't be left to lawyers, even the best and brightest of them, but certainly the interpretation of concepts like liberty and individualism are beyond their pay grade.

some nice comments. A consistent ethic of judicial restraint would include Steve's judicious judgment in Comment (.

i meant comment 9

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