Strengthening Constitutional Self-Government

No Left Turns

Cuomo on Roberts

I missed this op-ed a couple of days ago. Mario Cuomo has clearly learned nothing from his exchange with Douglas Kmiec, since he repeats most of what he said then, arguing that if conservative Catholics give Roberts a pass for upholding the Constitution (over against his "deeply held personal beliefs"), then they should also give Catholic politicians like Kennedy and Kerry the same leeway.

There are at least two things wrong with this argument. First, Cuomo doesn’t distinguish between judges and politicians (which isn’t a surprise). Judges aren’t supposed to vote their consciences; their "office" is to interpret the law. A political leader can act on his or her conscience, working to change the Constitution, if need be. If a judge worked to "change the Constitution," by (say) reading into it provisions that aren’t there (however otherwise desirable they might be), he or she would be violating his or her oath (or affirmation).

Second, what troubles conservative Catholics about Kennedy and Kerry (here I’m speculating, since I’m merely a conservative ex-Catholic) is not that they refuse to act conscientiously to uphold church teaching against the Constitution, but that it’s not clear that they actually "privately" support church teaching.

The good news, such as there is, from this article is that Cuomo is looking for ways to leverage Roberts’s inevitable appointment to the Court to get his friends of the hook onto which they have wriggled. He argues that Roberts should be taken at his word when he promises to uphold the Constitution, and that the Kerry/Kennedy version of the Constitution should provide them with all the cover they need to go on their merry ways.

Update: Rick Garnett and Thomas Berg, two smart law professors, have more.

A New Blog and Some Old Canards

The Yale Law School chapter of the Federalist Society has a new blog, which should be a great resource for readers looking for discussions relating to legal issues and judicial nominations. The chapter’s website also includes a brief response to some of the media’s recent coverage of the organization and its supposed "secret influence." So what are the Society’s core principles that "raise questions" about alleged member John Roberts’ judicial temperament? The beliefs "that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

Are these principles supposed to be "controversial" or "outside the mainstream"? Those of you who share a belief in liberty and a dedication to the Constitution need not fret about the effect that John Roberts’ alleged membership will have on his chances of being confirmed. Apparently, "[j]ust because someone belongs to the Federalist Society does not inherently disqualify them." I should certainly hope not.    

Dreams and nightmares in Iraq

Andrew Busch has a new editorial over on the main Ashbrook site. He argues that the Left’s fond dream of an American failure in Iraq would if realized, be destructive, not only of their domestic political aims, but ultimately of U.S. principled self-restraint in the face of inevitable terrorist provocation (likely directed not against the conservative hinterlands, but rather against those prominent symbols of America--New York, Washington, D.C., Los Angeles, to name a few--where many on the Left hang their hats.

Read the whole thing. 

Which novelist would you vote for?

Daniel Akst notes that William Weld is both a politician and a novelist.

The candidate’s dark literary past immediately casts a shadow on his motivations. Everyone knows that novelists will do almost anything to sell a few books; I’m thinking of running for president to move a few of my own. Is it really so far-fetched to imagine that Mr. Weld would launch a gubernatorial campaign to gain better placement at Barnes & Noble? What novelist wouldn’t? If the gambit succeeds, I wouldn’t be surprised to see writers emerging like termites from the literary woodwork, driven to run for offices all over the country just to escape midlist hell.

Which living novelist could you support if he or she ran for office? My vote goes to Mark Helprin, though I’m also somewhat tempted by Leon de Winter. Those more widely read than I am are more than welcome to enlighten me.

Hacks vs. wonks in the Democratic Party

This post at MyDD is quite interesting. The author, who proudly calls himself a hack, thinks that the Democratic Party’s problems are not intellectual or ideological, but amenable to nuts-and-bolts movement construction (hackery, in other words). What this means is simply the politics of ideological opposition at the national level and the construction and pursuit of local and state agendas:

We are going to need an alternative agenda that has not only a practical appeal, but an ideological one. We are going to have to start implementing this agenda at the local and statewide level, because right now we simply can’t implement one in Washington.

Time was when party hacks weren’t ideological at all, but largely interested in the perquisites of power. This redefinition of hackery amounts to an affirmation, not of party loyalty, but of blind ideological zeal, buttressed by such organizational sophistication as zealots are capable of. This strikes me as the domestic political equivalent of the "insurgency" in Iraq: capable of making a lot of noise and wounding those who are trying to govern, but not capable of (or interested in?) governing itself.

Hat tip: Beltway Blogroll.

Higher ed diversity

I know, I know. I’m a broken record on this subject, but I can’t resist calling your attention to this fine piece, which nicely summarizes and lampoons some of the typical responses. The author also highlights Brown University’s genuine contribution to intellectual diversity.

War stories

Here, via Hugh Hewitt, is some exceptional combat journalism from Mosul.

More Thomas More

This book looks like it’s worth purchasing and even reading.

Lee Harris on Darwinism and I.D.

Tom Cerber calls our attention to this very long Lee Harris article, in which he contends that even scientists have to believe in "intelligent design." Here are a few of the relevant paragraphs:

The notion that there was an intelligent designer who created absolutely everything from scratch and in accordance with a rational plan is the psychological precondition of the willingness to look for patterns that are hidden to the ordinary gaze. Unless we believe that there is a code to be deciphered, we are psychologically reluctant to devote hours of our life, let alone our life itself, to the pursuit of deciphering it. We think, "Oh well, it may be all meaningless garbage," and decline the challenge of explicating the possibly inexplicable.

In short, the belief, or illusion, if you will, that the world is the result of intelligent design has been the necessary condition for the construction of Western science, and it explains the otherwise mysterious fact that science, in any genuine sense of this world, arose only in countries that were part of Christendom.

Intelligent design, in other words, was a constructive illusion. Who cares if an idea be true, if it has proven so fruitful in generating insights into the nature of things-a point that Immanuel Kant makes in his last great work, The Critique of Judgment, where he argues that in order to do science at all, scientists must begin by assuming that the universe has a far greater orderliness and intelligibility than these same scientists can ever hope to prove. Rather, they must begin by having a faith that the universe has been intelligently designed, in order to inspire them with the determination to discover this design, no matter how long it takes or however serious the obstacles to such a discovery prove to be. If, on the other hand, scientists began by assuming that the universe was simply a random, capricious, lawless hodge-podge of unconnected events, then who would ever be stirred to seek hidden patterns of regularity and veiled orders of significance?

If you can’t find the time to read all of Harris’ article, at least read Cerber’s excellent summary.

Should Conservatives Look to TR?

It is not difficult to convince conservatives today that many Progressives -- Wilson, Croly, Goodnow, etc. -- were enemies of the American founding and its principles of limited, constitutional government. But Theodore Roosevelt remains, in some ways at least, an attractive figure for some conservatives.

A few weeks ago, the very capable Andy Busch posted an editorial which pointed to certain virtues in TR’s progressivism (while being careful to criticize other elements of it). I have offered a friendly critique of his argument in an essay recently posted here.

Another Dem Smackdown

Don’t Miss George Will’s thorough smackdown of the Democratic Party in today’s WaPo: Tone-Deafness Among Democrats.

He also includes a hard swipe at Republicans along the way: "[The Republican Party] is showing signs of becoming an exhausted volcano. Regarding Iraq, it is mistaking truculent asperity and tiresome repetition for Churchillian wartime eloquence. Regarding domestic policy, intellectual anemia has given rise to behavioral patterns not easily distinguished from corruption, as with the energy and transportation bills."

Campus life

In the course of commenting on two recent books on campus life, Naomi Schaefer Riley offers a radical suggestion:

What if it became hard to get good grades in college without devoting, say, at least 40 hours a week to attending classes and actually studying for them? One suspects that the alcohol problem--and many problems derived from idleness--would sort themselves out.

What think you, my professorial, parental, and student readers?

Hat tip: Brad Smith.

Does anyone believe in a "living Constitution" anymore?

So asks Dahlia Litwick, in what seems to be a frank admission of the bankruptcy or dotage of liberal jurisprudence. Here are my favorite paragraphs:

A Nexis search for the words "living Constitution" turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it’s hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.

Is it because the words "living Constitution," like the words "feminist" or "liberal," have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.

I’d write more, but it’s late, and I’ve been working on a talk I have to give to the incoming freshmen (title: "Reading Lolita in Atlanta").

Hat tip:
Southern Appeal.

Reviewing Judicial Review For Senator Specter

I have been involved in an extended conversation regarding judicial review over at NRO’s Bench Memos Blog. Because I thought it would be of interest to NLT readers, I reprint it below. Some of the references are to previous posts and the writers who posted them, but all-in-all it should make sense from context.

I have resisted rejoining the discussion of judicial activism (which morphed into a discussion of judicial review) because I thought that we had wandered from practical topics to academic ones less relevant to Roberts’s nomination. However, Specter’s recent misguided letter to Judge Roberts emphasized that some elements of judicial review will be relevant to the nomination process, and so I offer a few thoughts about the recent discussion between Matt, Gerry, Robby, and Mark.

Gerry and Robby ably point out the difference between judicial review and judicial supremacy. The prior does not require the latter. Or, to put it in wonky terms, Marbury does not require Cooper v. Aaron’s delusions of grandeur about every page of the U.S. Reports constituting the supreme law of the land. There is ample room for coordinate branch construction. Each branch has a duty to interpret the Constitution. At a elementary level, this is accomplished by Congress passing laws which it believes to be constitutional, the Executive by signing and enforcing laws it believes to be constitutional laws, and the judiciary interpreting the laws. The branches need not agree. Thus, Jefferson instructed his U.S. Attorneys not to enforce the Alien and Sedition Acts because he believed the law to be unconstitutional, even though some courts, and implicitly Congress in passing the law, had expressed opinions differing from his. To provide another example, in 1862, Lincoln’s Attorney General was asked by Treasury Secretary Chase whether a Black men are "citizens of the United States, and therefore competent to command American vessels?" Finding that the binding precedent of Dred Scott was limited to the facts, law, and ultimately parties of the case, the Attorney General found that Black men born in the U.S. were citizens, and therefore could command U.S. vessels.

However, the fact that the other branches could exercise their powers of constitutional interpretation regarding these issues (as they could on any constitutional issue) does not remove these issues from the proper jurisdiction of the Court. Coordinate branch construction does not equal the political question doctrine: just because another branch is capable of interpreting a question doesn’t mean that the issue is withheld from the other branches (or, more specifically, from the jurisdiction of the Court), unless the Constitution clearly reserves determination to a particular branch. In the cases of the Commerce Clause, for example, there is no such plain reservation of the issue, and so I must respectfully disagree with Matt concerning the appropriateness of courts exercising judicial review by striking down laws which have nothing to do with interstate commerce.

Matt argues that the Courts have no business deciding a Commerce Clause case "unless as an ancillary matter the legislation or duly-authorized executive action happens to violate a constitutional right quite apart from the commerce-power or implied-power issue." He argues that "[t]he business of courts is to vindicate the rights of individuals. But it has never been demonstrated that any individual has a constitutional right, which can be vindicated in a court of law, to be free from the strictures of any and all unconstitutional actions of legislatures or other government agencies." First, I would submit that his view of the business of the courts does not comport with the text of the Constitution or the view of the Founders. Unless one sips particularly deeply from the Caroline Products footnote 4 Kool-Aid, Art. III’s grant of the judicial power of the United States to the Supreme Court and inferior tribunals is not simply limited to cases of individual rights, but on its plain terms extends to all cases or controversies arising under the Constitution. Marshall rightly understood this general grant of "judicial power" to include the power of judicial review (which is not inherently limited to individual rights cases), and the founders generally saw the courts as exercising a check on the other branches. Second, Matt’s repeated questioning of the basis for Gerry and Robby’s assertion that an individual is entitled to only have constitutionally valid rules applied can be answered by the text of the Constitution: specifically the Due Process Clause. Even a narrow understanding of Due Process would encompass the right not to be prosecuted under laws improperly passed—laws which are not law at all—in this case, because the legislature exceeded its authority.

There have also been various rumblings about the anti-Democratic nature of striking down a popularly enacted law. This line of argument seems to neglect that the Constitution itself was Democratically enacted, and is superior to simple legislative enactments. (Yes, the process wasn’t perfectly Democratic, but neither is our system of passing laws, which includes the non-proportional Senate as well as the anti-Democratic check of Presidential veto.) Consider the following hypo: Angered by the Supreme Court’s recent decision in Kelo, the legislatures of two-thirds of the states convene a convention, during which they recommend an amendment clarifying that taking private property for the purpose of transferring said property to private entities in order to enhance tax revenue does not constitute public use. Three fourths of the states ratify the amendment. Congress, in clear violation of the amendment, subsequently proceeds to take Matt’s house to build an outlet mall. Would the Court be acting anti-Democratically by striking down the taking as violative of the constitutional amendment? Does it act anti-Democratically when it enforces other provisions enacted by Constitutional conventions in the several states, such as the Commerce Clause? And even if it were, in some sense, anti-Democratic, does that mean that it is not part of our constitutional system, like the veto, which likewise is intended to serve as a check to unconstitutional legislation (but again does NOT serve as a basis for precluding judicial review)?

The writers on this page have done well to illustrate that the legislative and executive branches have a duty to interpret the Constitution. Unfortunately, if one reads the floor statements on McCain-Feingold, or the signing statement of President Bush for the same bill (in which both branches declared their respective belief that sections of the bill were unconstitutional, but suggested that it was not their job to make such a determination), it becomes clear that these branches have bought into the theory that it is exclusively the Court’s job to make constitutional determinations. This is wrong. However, we should not make the opposite error and presume that the courts have no proper authority to review the constitutionality of these enactments.

What, then does all of this have to do with Specter’s letters to Judge Roberts, which complain about the Supreme Court’s decisions striking down congressional enactments in Lopez, Morrison, and Garrett? Specter suggests these decisions are activist, and argues for greater deference for legislative fact finding. While there is a general presumption in favor of the constitutionality of congressionally-passed legislation, that presumption is predicated upon the understanding that Congress fulfills its collateral duty of passing only legislation within its constitutional competence. As the McCain-Feingold example illustrates, however, many in Congress now view those determinations to be outside their scope, so that they can pass legislation they believe to be unconstitutional, while leaving it to the courts to figure out the details. Admittedly, this is in large measure a result of the Cooper-judicial-supremacy understanding of judicial review, but there is more to it than that. For years, the Supreme Court had a co-dependent relationship with Congress—each facilitating the other’s aggrandizement of power. Thus, Congress yielded to the Courts as the sole arbiter of all things constitutional, and the Supreme Court signed off on Congress’s increasingly bloated theory of its own power. Regrettably, it has gotten to the point that even reliable Congressmen no longer understand the first branch to be one of limited powers—at least, they give no hint of this based on the legislation they offer and support. Findings are larded into the record without serious consideration, and these same findings are in turn used to support boilerplate language concerning Congress’s authority to pass particular legislation under provisions of the Constitution intended to be limited, but now relied upon to be plenary grants of power. So in response to Specter, the enforcement of these constitutional limitations by the Court is not judicial activism, even where Congress disagrees. It is not the assertion of will over judgment. Rather, it is simply the Court carrying out its constitutional duty to use judicial review as a check against the flagrant abuses of the legislative branch.

PFAW on Roberts

Here’s the report, which I’ll try to read tonight. You would, of course, not be shocked by the bottom line: the PFAW doesn’t think he should be confirmed.

American Muslims

This is a heartening portrait of the American Muslim community. It highlights the differences between the circumstances of most American Muslims and a substantial portion of their European counterparts. With a few exceptions, Muslims seem to be integrating into American society economically and socially. Of course, the exceptions are worrisome, for obvious reasons. It may take a village to raise a child, but it only takes a cell to level a building.

An Armed Society is a Polite Society

According to this AP report, the state legislature of North Carolina has recently passed a law requiring that courts give information on how to apply for a concealed-carry permit to all battered spouses when they come forward to request restraining orders.

"We’re not interested in them shooting their abusers," said Paul Valone, president of Grass Roots North Carolina. "We’re interested in delivering a message: When police can’t protect these people, they are capable of protecting themselves."

Now here’s a feminist cause worth getting behind.

Hat tip: Division of Labour

Late Night Fodder

And now, a story from just up the road from Ashland, where 65 high school girls (our of a total of 450 or so) are pregnant at Timkin High Schoolin Akron.

The punch line in the story reads: "School officials are not sure what has caused so many pregnancies. . ."

Um, maybe they need some more No Child Left Behind funds for this one.

(Hat tip: The Corner.

Transforming the Middle East?

Michael Barone gets around to summarizing some of the findings of this survey report, released last month. Here’s a taste:

support for terrorism in defense of Islam has "declined dramatically," in the Pew report’s words, in Muslim countries, except in Jordan (which has a Palestinian majority) and Turkey, where support has remained a low 14 percent. It has fallen in Indonesia (from 27 percent to 15 percent since 2002), Pakistan (from 41 percent to 25 percent since 2004) and Morocco (from 40 percent to 13 percent since 2004), and among Muslims in Lebanon (from 73 percent to 26 percent since 2002).

Support for suicide bombings against Americans in Iraq has also declined. The percentage reporting some confidence in Osama bin Laden is now under 10 percent in Lebanon and Turkey, and has fallen sharply in Indonesia.

Similarly, when asked whether democracy was a Western way of doing things or could work well in their own country, between 77 percent and 83 percent in Lebanon, Morocco, Jordan and Indonesia say it could work in their country -- in each case a significant increase from earlier surveys. In Turkey, with its sharp political divisions, and Pakistan, with its checkered history, the percentages hover around 50 percent.

It is fair to wonder whether any of this would have happened without U.S. intervention in Afghanistan and Iraq and the U.S. push for greater responsiveness and public involvement in government there.

Smog from Wine? Sat It Ain’t So!

A few weeks back we had a thread going here about "bovine emissions" in California’s central valley. Now, according to LA Times fine environmental writer Miguel Bustillo, another source has come under the magnifying glass: wineries.

Farewell to Myers

Win Myers has left the building, though the Democracy Project site will remain one of my favorites. Win has all sorts of fun stuff to divert him from blogging, so I expect that his voice will still be heard and his influence felt.

Update: Win and his blog get some well-deserved recognition here.

More Steyn may mean less Sheehan

If you missed this Mark Steyn column, you can read it now. A taste:

They’re not children in Iraq; they’re grown-ups who made their own decision to join the military. That seems to be difficult for the left to grasp. Ever since America’s all-adult, all-volunteer army went into Iraq, the anti-war crowd have made a sustained effort to characterize them as "children." If a 13-year-old wants to have an abortion, that’s her decision and her parents shouldn’t get a look-in. If a 21-year-old wants to drop to the broadloom in Bill Clinton’s Oval Office, she’s a grown woman and free to do what she wants. But, if a 22- or 25- or 37-year-old is serving his country overseas, he’s a wee "child" who isn’t really old enough to know what he’s doing.

Read the whole thing.


Higher ed stuff

Here’s news of a different college ranking. While I’m at it, here’s yet another approach to ranking liberal arts colleges.

And if I couldn’t spend the first day of class handing out a syllabus, I’d tear out what little hair I had left.

Inquiring into Intelligent Design

These two NYT articles range from skeptical to hostile, but are nevertheless useful. The Discovery Institute couldn’t afford to pay for such publicity, given its remarkably modest budget.

Churches and public schools

This is how the landlord-tenant relationship should work, not at all like this.

Roberts on school prayer

Here are the most revealing Roberts church/state memos readily available on the web. On p. 10 of the pdf, he offers a very subtle analysis of the conflicting opinions in Wallace v. Jaffree, a 1985 school prayer/moment of silence case. Roberts speculates that Rehnquist’s long (and, I think, quite compelling) dissent--aimed pretty squarely at the much-controverted Lemon test--was drafted as a majority opinion, but failed to persuade Sandra Day O’Connor and Lewis Powell. According to Roberts:

Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority. Which is not to say the effort was misguided. In the larger scheme of things what is important is not whether this law is upheld or struck down, but what test is applied.

Roberts’s implicit criticism of the Lemon test is quite consistent with the lines of argument I (and others) have found in our examination of the briefs he authored or co-authored. The contrast between Roberts’s doctrinally driven approval of Rehnquist’s efforts and O’Connor’s disapproval could not be clearer and could not, to my mind, redound more in Roberts’s favor.

If you feel like reading more about these matters, see this WaPo article, which reports on memos not yet available on-line, and this overview, written by the Kansas City Star’s well-regarded religion writer.

The War--Always the War

A number of discussion threads on previous posts on Cindy Sheehan and other subjects have come back to the purpose and justness of the Iraq war. And as has been the case for more than two years, the matter gets wrapped up in the red herring of the WMD issue.

Why red herring? Because, as several commentators have noted, WMD was only one among several reasons given for the invasion of Iraq, and focusing in this alone is to ignore grand strategy. That WMD was overemphasized is the result of pure legalism (probably deferring to British insistence, I am told around DC), since WMD was the live legal issue that might have got UN blessing. A clear mistake, in retrospect. But does anyone think that if we had found WMD, the carnage and difficulty in Iraq today would be any less controversial? Would Cindy Sheehan not have gone to Texas if we had found a huge sarin gas plant? (Remember: She has said she opposes our actions in Afghanistan, too.)

Iraq, it is said, didn’t attack us on September 11 (though we were in a de facto state of war already, with Iraq shooting at our UN-sanctioned flights every day and having attempted to assassinate a former U.S. president, among other things). True, but neither did Germany attack us in 1941. Yet after Pearl Harbor, where did we land troops first? North Africa. Go figure.

Throughout 1942 there were numerous opportunistic Republicans criticizing FDR’s "Europe first" strategy, saying, "Japan attacked us, not Germany; why are we getting involved in Europe again. It ended badly last time, etc." (See Fred Siegel’s fine account of this in his book Troubled Journey.) Sounds rather like the other party today. Democrats lost something like 60 House seats in the 1942 election; the great collective memory of American unity in the early innings of WWII is a myth.

The grand strategy after September 11 is fairly clear: we are going to attempt to restructure the Middle East. It is put in more idealistic terms (democracy, etc), but then transforming Japan and Germany into stable democracies was not the explicit endgame of WWII grand strategy either. In this case we are more forthright about the desirable endgame. Today we have reversed the rhetoric, which, conversely, makes the policy more difficult to judge a success along the way. Perhaps we should have started with Iran instead (this is Michael Ledeen’s argument) or with Saudi Arabia or Syria (Libya seems to have got the message), but it cannot be denied that this, and not WMDs, is the central purpose afoot.

It could be put even simpler. In a conversation with a moderate liberal journalist friend in Washington who hates the war and has become a huge Bush critic, I remarked that the whole thing was rather more straightforward: When something like September 11 happens, someone is going to lose their country. Iraq is at or near the top of any short list of candidates. To which he replied: If Bush had said that, I’d could support it.

The Problem with "Hate Crime" Laws

Richard Cohen tells the story of Nicolas Morse, who is being prosecuted in New York City for a hate crime because he used racial epithets while he participated in a group attack on a black man. That it was a crime there is no doubt--but what makes it a "hate crime"? Morse himself, as Cohen points out, is half Filipino, and his sister is half black; it’s hard to believe that he’s a bigot. Yet this is inevitably the road that we find ourselves traveling once we start punishing people for their thoughts, rather than their actions.

Incidentally, it’s difficult to argue in this case that the elimination of hate crime laws serves the interest of white males. Cohen writes:

As if to show how absurd the hate crime law can be, Westchester District Attorney Jeanine Pirro last month charged a deranged and homeless black man with a hate crime for killing a white woman only on account of her race.