Strengthening Constitutional Self-Government

No Left Turns

Why we need legal/constitutional theory

Some defenders of Harriet Miers--above all, the indefatigable Hugh Hewitt--argue that, in effect, constitutional lawyering is not all that difficult, so that her apparent or alleged shortcomings in this regard are not sufficient to disqualify her. On this matter, I’m with Richard Brookhiser: in a different age, one not so shot through with highfalutin theory, sound and extensive legal learning, an inexhaustible capacity for hard work, humility, and common sense (along, perhaps, with a good or equitable heart)--all of which Harriet Miers arguably has--might be sufficient qualifications for being a Supreme Court Justice. But a return to the primacy of these qualities, however desirable it is, cannot depend simply upon the assertion of their primacy. Bad, or over-clever, theory requires a theoretical antidote; otherwise, the possessors of sober prudence and common sense might always be susceptible to the clever sophists in robes and suits.

This has been true since Aristotle wrote the Ethics and Politics and remains true to this day.

Here’s an example. Consider Ronald Dworkin who here cleverly justifies creative theorizing about the spirit and intention of the Constitution and here offers an example of how that theorizing would operate in the "constitutional" relationship between religion and politics:

He said there are two models America can follow: religious tolerant and secular tolerant. A religious tolerant community is committed to the principle of religion but respects people who choose not to practice a religion. A secular tolerant community considers itself neutral about religion but tolerant of people’s freedom to practice any religion they choose.

A religious tolerant community treats religion as something special, and sees no reason to extend the freedom of religion to other freedoms, for example gay marriage; in fact, [it] encourages prohibitions on other freedoms based on religious concerns. The secular tolerant community does not treat religion as something special; it treats the freedom of religion as a general freedom, as a general right to other freedoms.

While the Constitution may contain some "abstract" principles that require more elaboration than the words themselves offer--hence the move from "textualism" to some version of "originalism," which provides some understanding of what those who approved the Constitution thought they were signing onto--Dworkin’s understanding of this fact licenses all manner of interpetive creativity. Indeed, the demand for "theory" is the only thing that purportedly limits the bare assertion of political will. In the instance cited above, the problem with Dworkin’s theory is that neither alternative is self-evidently rooted in the text and history of the Constitution. And his preferred theory (secular toleration) poses an obvious textual problem, inasmuch as religious freedom is singled out int he First Amendment.

Now, I suppose that a dogged mistrust of all manner of cleverness might for a time be proof against impressive theoretical and rhetorical edifaces. But in order to avoid being understood merely as an act of political will, rather than an exercise of modest and humble judgment, it needs to be able to defend itself in the court of public and legal opinion. It needs theory.

I’m confident that Roberts, Scalia, and Thomas have the theoretical chops to defend humble and modest judicial common sense. And there are any number of other potential nominees (McConnell and Brown come most readily to mind) who also have those chops. Does Miers?

Discussions - 11 Comments

Joseph: But why was religion singled out? Or, more directly, is the answer to that question really one of "humble and modest judicial common sense"?

It is easy to claim ordinary good sense for one’s own side. As long as you’re the playwright, you can stage the confrontation bewteen the lizard and Socrates however you want, if you know what I mean. But we both know that things are much more complicated than that. That’s why you need theory - not (just) to justify antecedently determined positions, but to work them out in the absence of clear guidance from ordinary sources.

This woman is not a serious conservative. "Pro-life" and conservative are not the same thing. The president’s attempt to use evangelicalism as a proxy for a candidate’s judicial philosophy, then as a surrogate for judicial philosophy in defending that candidate with the base, is laughable.

If Miers is allowed onto the Court, she will drift along with the liberal tide, just as she has previously.

Stop her!

If you have to be able to out-argue Ronald Dworkin to be justice of the Supreme Court of the United States, who would be eligible? Duncan Kennedy or Roberto Unger, perhaps. Maybe Tom Pangle, but he’s not a lawyer (Harvey Mansfield, another non-lawyer, has the depth but not the style to trounch Dworkin). Cass Sunstein? Cass is not as brilliant a debater as Dworkin, even if he is a sounder thinker. The only legally-trained figure anywhere close to conservativism who would give Dworkin a run for his money is Peter Berkowitz. Definitely, the Administration ought to have chosen Peter over Miers, for many reasons. But,aside from that, why does a justice need to bother about a glittering intellectual like Dworkin? In fact, I would have thought that moving from academia to the bench would be attractive for just the reason of not having to pay attention any more to the vanity fair of constitutional theory. I myself have dabbled in constitutional theory. The court’s jurisprudence is fair game for theorizing, for the reflection of theorists. But that doesn’t mean that the justices themselves need to be Hercules--or philosopher kings or queens.

The point isn’t to out-argue a Dworkin or some other liberal theorist, but **not to be taken in** by such people. And that requires one of two things -- either a complete indifference to the views and approval of the Establishment, or a strong intellect. The evidence suggests that Miers has neither.

The fact that Hugh Hewitt is defending Meiers must be taken with a grain of salt. After all, he thought (or wanted his listeners to think) that W won the first presidential debate against John Kerry. He is more a flack or cheerleader than analyst.

liberals are "holding their fire" right now -- their ill-advised and silly attack on Roberts taught them a little lesson on timing. But still...

The remarkable thing about this right-wing uprising is how it truly demonstrates what little the left has to offer in the present-day debate on important issues. As gleeful as you liberals appear to be, it’s quite apparent you all have nothing whatsoever to bring to the table save a litany of complants and incessant whining.

In essence, you are, liberals, persona non grata.

Actually, this nomination makes me wonder if conservatives have anything better to offer people. Here we have a GOP-dominated government, and Harriet Miers is the best we can scrape up for the most important court post in a generation.

Now don’t give up hope Dain. I think that Bush might just listen to us folks who put him in office and see who else he can come up with. Maybe even one of the excellent candedates that the No Left Turns bloggers (Bachedler) have been discussing and creating great interest in. One thing that we do know about The President is that he really does care about the people who voted for him. And he also cares about all true Americans. So I think he might back off on pushing his friend through. She would probably be a great justice but its hard for those of us outside of The Belt-way to know much about her, except that she seems like a good woman with a good head on her shoulders.

Now darn it all, everytime I read these complaints from so called conservatives about Judge Miers I just get so mad. As some of you may know from reading my other posts before that this is a sore spot with me. I have said before and will say again that lets trust President George Bush the man we voted in for President.

Now Dain maybe your just saying that in a jestful mannerism but I think you would truly be sorry if we did indeed have liberals in control. Because yes there is a difference and I do mean a BIG one. OK I would have been very happy to see Judge Bactchelder in there as well but here is the thing my friends, and, listen well. Bush said he trusts this woman and thats enough for this American. Good day.

FM, I’m not criticizing conservativism, only the GOP’s current translation of it into policy. If conservatives can’t push through their agenda in this environment, then I doubt they will ever be able to do so. I’m saddened by that.

As for Bush, I learned with Ronald Reagan that blind faith in any leader is a mistake. There was absolutely no need for Bush to force any of us to "accept his word" on a SC nominee. It shows disrespect for us, IMHO.

So Fat Mike, what would Bush/congress have to do before you it was NOT "enough for this american"? You seem to be part of a personality cult, not a conservative...

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