Strengthening Constitutional Self-Government

No Left Turns

I expect we’ll be hearing a lot more from Michael Gerson

If this interview is any indication. A taste:

Until recently, the Republican Party and Christian conservatives have complained that government is the problem. Is that a view they will likely return to?

I think it’s a temptation, but I don’t think it’s going to happen. One reason is because of what’s changed in evangelical political involvement.

I think there are lots and lots of young people, in their 20s to 40s, who are very impatient with older models of social engagement like those used by the Religious Right. They understand the importance of the life issues and the family issues, but they know the concern for justice has to be broader and global. At least a good portion of the evangelical movement is looking for leaders who have a broader conception of social justice. President Bush has provided that in many ways. He ran his initial campaign on education and on faith-based answers to poverty and addiction. And then he’s led the international efforts we’ve undertaken, both on the development and disease side, but also on the spread of human liberty.

You’re starting to sound like Jim Wallis!
No, because I also don’t think the answers can be found in the Religious Left. I don’t think we can minimize some of the traditional issues. I don’t believe it’s possible to be concerned about social justice without being concerned about the weakest members of the human family. I also think that America can play an active and positive role in the world and that we’re not at fault for everything.

Read the whole thing.

Update: Here are excerpts from another Gerson interview. Two interesting bits:

The president was not and is not a cultural warrior. He didn’t come from the background of, say, a Richard Nixon with the Hiss case or Ronald Reagan as a leader of the conservative movement. He came as a fairly moderate governor with an inclusive government style.


"On the religion side, I think we have been very careful to have a principled pluralism, not to have a sectarian rhetoric. The goal is to be welcoming to the role of all faiths and not to single out any faith or preference. That kind of sectarianism is deeply destructive, it is destructive to faith as well as government, when any religious group becomes a tool of those in power.... [On gay rights] I would only say on the side of the homosexual rights question, I see it from the inside. This is a case where this was an issue that was pushed upon us by aggressive courts."

I think that GWB is a sort of a cultural warrior, though not with a hard rhetorical edge. There’s a good bit of evidence that he was and is troubled by the legacy of the 60s and that both his compassionate conservatism and his emphasis on the "ownership society" were intended to win back some of the ground in civil society that was won by the nihilistic Left in the 1960s. He is nothing if not a proponent of individual responsibility, albeit in a Christian rather than libertarian sense.

Here are a couple of passages from David Aikman’s
A Man of Faith that bear this out.

George W. first met [Marvin] Olasky in 1993, and Olasky’s views reinforced in the governor’s mind those of leftist-turned-conservative writer and commentator David Horowitz, who views the 1960s as the source of social policy based on guilt and on calls for massive governmental welfare spending. This approach, according to Olasky, ensured the continuing existence of a permanently dependent underclass. [Karl] Rove had discovered Horowitz and another influential debunker of the 1960s, Myron Magnet, and urged George W. to read their works. Rove was very taken with Magnet, whose book The Dream and the Nightmare reinforced Rove’s notion, shared by George W., that one of the disastrous cultural errors in the United States during the 1960s was the view of society as one great morass of "victims." [pp. 100-101]


My dream is to usher in what I call the "responsibility era"--an era in which each and every Texan understands that we’re responsible for the decisions we make in life; that each of us is responsible for making sure our families come first; that we’re responsible for loving our neighbors as we’d like to be loved ourselves; and that we’re responsible for the communities in which we live.

Government can help. Government can help usher in the responsibility era. After all, we can pass laws...that say, as we did in the Juvenile Justice Code, "If you break the law, there will be a consequence." The Juvenile Justice Code clearly says, "You’ll be held responsible for the decisions you’ve made." That’s a conservative approach. By the way, it’s a compassionate approach to say to our young that discipline and love go hand in hand.


Cultures act of compassion at a time. That’s how cultures change. And each of us must participate. We must promote good values in our homes and in our public institutions. We must not be afraid to tach our children right from wrong....

We must teach our children bedrock values--not the values of one religious denomination over another, but Judeo-Christian values that have stood the test of time. The importance of family. There are obligations to love your nighbor, give an honest day’s work for an honest day’s wages. Don’t lie, do not cheat, do not steal. Respect others. Respect their opinions, and remember, it’s you who are responsible for the decisions you make in life. [pp. 210-211]

The last few paragraphs are taken from a sermon GWB preached in 1999. They make it tolerably clear that he wanted to roll back the legacy of the 1960s.

The non-religious case against gay marriage

Over at Mere Comments, Anthony Esolen has initiated a series of posts making the non-religious case against gay marriage. His first two points are:

The legalization of homosexual “marriages” would enshrine the sexual revolution in law.


It would, in particular, enshrine in law the principle that sexual intercourse is a matter of personal fulfillment, with which the society has nothing to do.

The whole series ought to be worth reading.

One of the commenters links to this article, describing this initiative, fully articulated here. Basically, it’s a vision of an extensive welfare state supporting the fullest possible array of possible relationships, animated by the following understanding:

So many people in our society and throughout the world long for a sense of caring community and connectedness, and for the ability to have a decent standard of living and pursue meaningful lives free from the threat of violence and intimidation. We seek to create a movement that addresses this longing.

So many of us long for communities in which there is systemic affirmation, valuing, and nurturing of difference, and in which conformity to a narrow and restricting vision is never demanded as the price of admission to caring civil society. Our vision is the creation of communities in which we are encouraged to explore the widest range of non-exploitive, non-abusive possibilities in love, gender, desire and sex – and in the creation of new forms of constructed families without fear that this searching will potentially forfeit for us our right to be honored and valued within our communities and in the wider world. Many of us, too, across all identities, yearn for an end to repressive attempts to control our personal lives. For LGBT and queer communities, this longing has special significance.

E pluribus unum has been hard enough to achieve, to the extent that it even has, but e pluribissimus unum? Pardon me if I don’t sign on to an experiment that self-consciously in so many ways tests the limits of human nature in the "construction" of community.

Wedge issues

The general conclusions of this Pew paper confirm my back of the envelope calculations, undertaken immediately after the election.

A Victory for Homeowners

As Steve Hayward’s post below suggests, the Ohio Supreme Court issued its ruling today in Norwood v. Horney, one of the first cases to address the scope of eminent domain following the U.S. Supreme Court’s ruling in Kelo v. City of New London. Among other things, the Court held that economic development does not, standing alone, satisfy the “public use” requirement of the Ohio Constitution. The Court also found that “Ohio has always considered the right of property to be a fundamental right” and stated that property rights “are strongly protected in the Ohio Constitution.”

Norwood is an important victory for property owners everywhere. According to the Cincinnati Enquirer, this was “the first major eminent domain case to reach a state Supreme Court since Kelo.” It will serve as a bellwether for other states looking to protect property rights.

The full text of the Ohio Supreme Court’s opinion is here. A summary (for those who do not want to read the full 56-page opinion) is here. The Ashbrook Center’s brief, which supported the homeowners and argued that the Norwood takings were unconstitutional, can be found here  

More unsound legal reasoning

It would seem that President Bush’s exercise of the veto power has driven a portion of the legal academy bonkers (a technical term here meaning "feeling licensed to make outrageous and not fully considered arguments"). Rick Garnett points to the latest one. Here’s the core of the argument:

The Constitution, as interpreted by the U.S. Supreme Court for the last thirty-three years, does not recognize pre-viable embryos as “human life.” Although there has been fierce continuing debate about when constitutionally cognizable life begins, the law has remained essentially unchanged since the 1973 decision in Roe v. Wade, when the Court declared that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” The Court further concluded that the government’s interest in protecting a “potential” life is not sufficiently compelling to justify infringing the fundamental liberty to choose parenthood until the point of viability, “because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” At the point of viability, in other words, there are two lives deserving of governmental consideration and protection; prior to that time, the liberty of the already born is paramount.


What does all of this mean for stem cell research and President Bush’s veto? First, it means that those who donate sperm and eggs to create IVF embryos have a constitutional liberty, subject to contractual modification, to decide whether those embryos should be born – thus making them parents. They can choose to implant the embryos and attempt pregnancy, freeze them indefinitely, discard them, donate them to others for adoption, or even donate them for medical research (including stem cell research). Under the Constitution as interpreted by the Supreme Court, giving these choices to potential parents is necessary in order to honor the “liberty” protected by the Due Process Clauses. This word “liberty” is the source of our freedom to use contraceptives, avoid involuntary sterilization, and even employ IVF or other reproductive technologies in the first place. We have, in short, a constitutional right to decide whether we want to bear or beget children. And there is no such thing, constitutionally speaking, as a pre-viable “child.”

I have three immediate thoughts. First, the most sinister implication of this line of argument is that there’s a constitutional right to clone, not only for therapeutic, but also for reproductive, reasons. If I own my body and all its products (short of viability, however that may be determined by the Courts), then I can do with them what I please. If I can donate them for research, why can’t I sell them? If I can donate them for research, why don’t I have a right to use them in any form I wish for the sake of reproduction? Does Professor Foley really mean this? Is there any way of drawing a line on the basis of this argument before we reach this horrific result?

Second, the argument stretches the notion of parenthood, and the constitutional rights allegedly flowing from it, beyond all recognition (something of course already implicit and perhaps even explicit in the Court’s abortion jurisprudence).

Third, that fetuses are not "persons" in the terms of the Constitution can’t mean that legislatures aren’t permitted to define personhood and offer it some protection under law. Even if one concedes for the sake of argument that an explicit conflict between a woman’s wishes and the "interests" of her unborn child has to be resolved in favor of the woman (at least under certain circumstances), I don’t see how it follows that where the woman’s alleged rights aren’t directly implicated, a legislature can’t offer certain protections to the unborn child. Of course, with his veto, the President is part of the legislature for the purposes of his argument.

Perhaps we can dub this "Stem Cell Derangement Syndrome."

Kelo Blowback

Way to go, Ohio Supreme Court!

Hack Fixed

The Skeptic’s Eye hack linked below has been fixed. It was some whacko Islamist hacker--weird stuff.

Washington state same-sex marriage case

I haven’t read the opinions yet, but the Washington State Supreme Court has upheld that state’s Defense of Marriage Act against a challenge based on the state’s Equal Rights Amendment. Here’s the quickie AP story.


Check out what some hacker did to Skeptic’s Eye.

(Bad?) Faith and Accountability

In this week’s TAE Online column, I take a close look at this GAO report on the faith-based initiative, from which Democrats George Miller and Pete Stark have tried to make some political hay. Despite their best efforts, there’s nothing there that ought to trouble friends of the First Amendment.

Unimpressive legal reasoning

Over at Mirror of Justice, Rick Garnett calls our attention to and comments on these two posts. Geoffrey Stone’s accusation that President Bush’s veto displayed "a reckless disregard for the fundamental American aspiration to keep church and state separate" is particularly egregious, since there was nothing particularly religious about his veto message, nor is there anything necessarily religious about the position he took. I’ll let the law profs have at one another over the rest of it, but will focus as well on this particular statement, offered in response to a House-approved measure depriving the Courts of jurisdiction over Pledge of Allegiance cases:

Note that he [Missouri Republican Todd Akin] believes the state should teach children that it is God, rather than “We the People,” who gives Americans their rights.

Stone apparently believes that "we the people" are the source of our rights. I suppose he’s entitled to be a legal positivist (although I think that that’s a terribly unsophisticated position for a professor at the University of Chicago Law school to be taking), but how, then, could he object to anything of which a legally constituted majority happens to approve (including school prayer, a total ban on abortion, or, perhaps, slavery, as was advocated by a famous denizen of his state some 150 years ago). Indeed, the more I think of it, he’s not even really a simple legal positivist, but rather a mere majoritarian, since he objects to constitutionally sound vetoes that allegedly defy the will of the majority du jour. This, as Aristotle points out in The Politics, is about as far from the rule of law as you can get. And he’s teaching where?

Update: Joseph Bottum has more.

Stem cell politics yet again

TNR’s Noam Scheiber agrees with me. Well, sort of. A taste:

[U]nderlying the stem-cell issue is a deeper debate about the way science is changing our lives. On one side of this debate are those who believe biotechnology is mostly a force for good, and that reining it in is basically reactionary. On the other side are those more troubled by the moral and ethical questions raised by advances in biotechnology. The problem for Democrats is that the American public splits a lot more evenly on these questions than it does on the narrower question of whether to extract stem cells from discarded embryos.

While he doesn’t delve too deeply into this confusion, he does call attention to this very interesting survey.

O.K., Lawler, what do you think?

This Is Hilarious

Growing up in southern California exposed me to the idiotic TV rantings of Bill Press, who had a commentary slot on the local top-rated news show. Now he’s reduced to a satellite radio show, and a blog, where last week he passed along a five-year old internet hoax about George W. Bush supposedly having the lowest IQ of any president. Now, when you’re going to call someone stupid, you shouldn’t let yourself get taken in by an old hoax. Press tried to delete the page and shove it down a memory hole, but Google cache has a screenshot of it here. As the kids say, "Who’s the dumb guy now?"

The American Dream Initiative?

This document contains what Democratic centrists hope will be a first draft of the 2008 party platform. You can read news stories about it here, here, here, and here, and sympathetic commentary here. If you want more, there’s always this.

A few quick observations. First, I noted that Mark Warner, who made a point of attending the YearlyKos meeting in Las Vegas, was not in Denver. Is he trying to run to the left, or simply so confident of his centrist credentials that all he has to do is shore himself up on the left? Second, the DLC worked with other Democratic groups (including the Center for American Progress and NDN) to produce this document, so that it doesn’t simply bear a "centrist" stamp. Given the price tag, and the vague promises about how they’re going to pay for it without rolling back the Bush tax cuts, that’s clear enough. Third, there’s this from a friendly commentator:

To my mind, the best way to frame the entire agenda – from domestic policy to foreign policy to values – is to emphasize a duality that is central to the American Dream Initiative: the linking of opportunity to responsibility. We need to join the American Dream to the social contract, requiring responsibility from parents (for enrolling their children in available health insurance and other programs), non-custodial dads (for paying child support), recipients of means-tested benefits (for becoming self-sufficient), and college students receiving federal aid (for giving back to their communities). Employers must be responsible in their relations with consumers and employees and accountable to them. And the commander-in-chief must be accountable when he or she deceives the citizenry, bungles wars or recovery efforts, and explodes the budget deficit.

Wooing values voters doesn’t require us to become anti-abortion or anti-gay. By embracing the social contract – the idea that in return for providing public aid, society rightly can make requirements of beneficiaries – Democrats can tap into responsibility, a value that is as deeply felt as opportunity in America. And appealing to responsibility can link the American Dream Initiative to our foreign policy critique of Republicans while partly inoculating us against a values-based attack.

While I actually like some of what I read (I had much the same experience during the Clinton Administration, though I never believed that WJC meant a word of it), I’m taking the silences into account. The responsibility talk is all fine and good, but it’s finessing the religious, moral, and cultural sides of responsibility. Perhaps they’ve been omitted for the sake of a left-tilting consensus, and can be added back for particular audiences, but anyone who focuses on health when speaking about responsibility to family is missing an important part of the picture. This is something to which I’ll be paying attention.

Finally, coverage of the DLC meeting noted that relatively little was said about Iraq and foreign policy, which can’t please the netroots. it amy be possible to hope that voters will think that anything will be better, and nothing could be worse, than GWB, but I do think that Evan Bayh is right when he stresses that credibility on national security comes first. Unless and until the Democrats are credible on that issue (something that the netroots will work against with all their might), they can’t win.

(Anti-) Theocracy in America

Ross Douthat offers a very nice tour of the horizon, reviewing a number of books aimed at striking fear in the hearts of secularists everywhere. A sample paragraph:

[T]he rise of the Religious Right, and the growing “religion gap” that Phillips describes but fails to understand, aren’t new things in American history but a reaction to a new thing: to an old political party newly dependent on a bloc of voters who reject the role that religion has traditionally played in American political life. The hysteria over theocracy, in turn, represents an attempt to rewrite the history of the United States to suit these voters’ prejudices, by setting a year zero somewhere around 1970 and casting everything that’s happened since as a battle between progress and atavism, reason and fundamentalism, the Enlightenment and the medieval dark.

Read the whole thing.

Hat tip:
Jon Schaff.

Stem-cell politics

Joe Knippenberg thinks that the Democrats are over-confident that their position on the stem-cell debate will win them seats in the Fall elections. Joe thinks that the GOP’s morally complicated position is to their political advantage, if they take it.  

A plug

My friend Hunter Baker is now blogging over at the AmSpec site and saying (what some would take to be) nice things about me.

How to do Defense Right

In today’s Investor’s Business Daily Brian Kennedy, president of The Claremont Institute, offers a clear accounting of our missile defense capabilities and an explanation not only of how they’re inadequate, but why. He describes a possible scenario where North Korea attacks Seattle with one of its nuclear missles and what might be the world response to such an attack. Kennedy concedes that many may find the scenario he paints "fanciful" but the fact of the matter is that most intelligent people reading it will find it quite probable. Read it and pass it on to a friend. You may also want to direct your friend to this very useful page.