Strengthening Constitutional Self-Government

No Left Turns


I love this idea!

Evolution on the Court

Jeffrey Rosen’s assessment of John Roberts’s Chief Justiceship is mostly a channeling of Stephen Breyer’s opinions. It’s also a farrago of condescension and wishful thinking. An example:

I asked Breyer why Roberts had failed in his efforts to achieve consensus and whether he might ever come closer to achieving these goals. "Will he do better in the future? He can join my dissents!" Breyer replied with a chuckle. But then Breyer said he was always hopeful that new justices will change. "This is a job that people who are appointed have for a long time. ... It takes a while before you have enough experience with the cases in front of you, before you have a view of what this document is, and a view of the institution." That’s why, he said, "[I]t’s very hard to predict how a person will decide things five or ten years in the future."

Translation: there’s still time for Roberts to evolve.

And then there’s this:

[S]ince he has embraced [creating consensus] as the standard by which his tenure should be judged, Roberts presumably understands that he can’t preside over a decade of five-four decisions. Far from going down in history as a unifier in the tradition of John Marshall, he would be perceived as the leader of a partisan conservative Court, one that may be increasingly at odds with a more liberal president and Congress.

Of course, liberals shouldn’t have to move. They’re, after all, not the activists now, but are rather deferring to the will of the legislatures. The novelty of this definition of judicial activism is either lost on Rosen (I doubt it) or embraced because it can be used to batter those who take the language of the Constitution seriously.

Finally, there’s this:

Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena. The fact that conservatives now rely on the Court to win their battles for them--striking down democratically adopted campaign finance laws and integration programs--is a sign of their weakness.

Breyer and his liberal colleagues were not unwavering in their restraint this term: They dissented from the partial-birth abortion decision, despite the fact that bans on the procedure are supported by bipartisan majorities in Congress and in most states. When I asked Breyer how he reconciled this dissent with his commitment to judicial deference, he demurred. "The only question for me was, am I suddenly going to overrule a whole lot of precedent? No. That’s a strong basis.".... But no one is consistent in every case; and the activism of liberals here was an exception, not the rule.

So long as the precedent or the legislature supports the liberal agenda, liberal justices can pose as advocates of judicial restraint, either in the face of past judgments or in the face of legislative majorities. Note that there’s no talk of the Constitution here.

The "don’t save Africa" bandwagon

Climb aboard.

The silk purse

Bill Kristol offers an upbeat assessment, concluding:

If Petraeus succeeds in Iraq, and a Republican wins in 2008, Bush will be viewed as a successful president.

I like the odds.

Hitchens vs. Gerson

Without uttering a word about Immanuel Kant, Plato, or Aristotle, Christopher Hitchens purports to answer Michael Gerson’s challenge. If it ain’t will to power, Mr. Hitchens, what is it? Natural law? An orderly cosmos in which human beings find a place? The compelling example of well-raised gentlemen? Practical reason? Or is the Rortian shrug sufficient?

Democracy in suburbia

Actually, Catholicism in and on suburbia, but I couldn’t resist the title. Patrick Deneen’s long post is worth reading. My comments and Jon Schaff’s are posted at the site. We await interventions from others.

Year of the He/She?

Michael Sherer at Salon argues that there is a reversal of gender roles between Hillary and Obama this political season. Hillary is downplaying her gender--and rightly so, as I noted last week. Obama is still after the soft underbelly of the female vote--or the Oprah vote--that Hillary will probably lose in the primary, even if she tries to appear softened up. James Taranto discusses what all of it may mean.

For my part, I do think it is somewhat telling that Democrats seem to be so obsessed with gender and gender distinctions. Of course, if conservatives ever attempt to point out such obvious differences and draw conclusions from them they are considered to be somewhat Neanderthal or, at least, a 1950s retrograde. We are mocked for pointing out such things but Democrats can freely exploit these differences with impunity. Of course, implicit in their actions are a couple of paternalistic and patronizing assumptions. First, they assume that people must think, vote, and move in the most ordinary and stereotypical grooves. Thus they pander to groups rather than appeal to the reason of a vast electorate. Second, they assume that we’re all too stupid to notice what they are doing--they think we’re going to buy the suggestion that Barack Obama really digs the Indigo Girls.

Don’t get me wrong . . . Republicans are perfectly capable of indulging in this sort of tripe. They’ve been guilty of it in the past--particularly when they are driven by ordinary operatives and handlers who think politics is all about balancing the competing interests and groups that pop up on an electoral map. And it is some of that. But when that’s all it is, then there’s no sense of the common good or a common interest. This is what politics really ought to be about at its best. This is what keeps government limited and citizens free.

Say it ain’t so....

The decline of the West continues.

American Muslims as part of the electoral kaleidoscope

In virtually every respect, this Pew analysis finds, American Muslims closely resemble African-Americans in their attitudes about religion and politics. They’re serious about religion, "liberal," and moralistic--for the most part, a solid contributor to a Democratic coalition, at least inasmuch as the liberalism trumps the religion (as it does for African-Americans).

I have three questions. First, to what degree is the self-identified liberalism a product of a reaction against the Republican identification with intervention in the Middle East (and support for Israel)? To the degree that it is, I wonder how serious they are about it, since it seems to me that the American presence "over there" is the closest thing we have to a means of "liberalizing" the Middle East.

That leads me to my second question. While there is some evidence that in Europe, life in the West doesn’t transform (or pluralize, if you will) Muslim attitudes, some people have in the past made the case (somewhat plausibly, to my mind) that the Muslim diaspora was likeliest to be a source for the reform of Middle Eastern societies and polities. If and when any of these folks go home, will they bring "American values" back with them, or shed them. In other words, once again: is their "liberalism" simply a product of their opposition to American intervention?

Finally, I know that the sample in the Pew surveys is likely to be too small for finely-grained distinctions, but I’d love to know whether there’s any ethnic heterogeneity in the Muslim responses. Are Kurds different from Palestinians, who are different from Moroccans, who are different from Pakistanis, who are different from Indonesians, who are different from Iranians, who are different from Turks, who are different from Kurds?

Powerful Words at Powerline

Scott Johnson, at Powerline blog, in connection with an interview given by Andrew Ferguson, makes note of some great quotes of Mark Twain’s regarding Abraham Lincoln. I especially loved the second quote where Twain reflects that Lincoln’s birthplace ought to be honored not simply because it happened to be where Lincoln was born, but because it was essential to the making of that man. It was, in an odd way, necessary that he come up out of the in-between place--not quite the North and not quite the South. In other words, Lincoln was of a place where he could observe and reflect on the things that were both good and evil on both sides. He was at the hinge of the struggle and had a vantage point that was more far-reaching and fair than we had any right to expect in a statesman at the time. Twain says it better, of course. It seems the observation is one that almost requires the special genius of a novelist or poet and--perhaps--a Southerner.

Women Feel More Free Despite the Message of Leading Dems

So reports Arthur Brooks in this AEI article. According to Brooks, it is Democratic strategy after the 2004 loss (where the votes of women were crucial in sealing Kerry’s defeat) to go after women’s votes in a big way in ’08. This may come as a shock to some of you, but it appears that the way they mean to do this is to . . . scare us women. Their message is that we are less free than ever. In the meantime, however, Brooks points out that American women aren’t getting that message. Data culled from the studies he cites shows that women tend to feel even more free than most men. Read the whole article to see all the particulars--it adjusts for income, education, etc. I won’t speculate as to why women report a sense of greater freedom but I do think that it indicates good news for Republicans (if they know how to use it).

Gore’s Show Bleeds

The folks over at The Corner offer some insightful explanations for the failure of the so-called "Live Earth" concert to take off this weekend. The ratings were terrible, it cost too much to produce and, ironically, used too much energy . . . etc. Jonah Goldberg linked to this witty explanation: the folks at "Live" Earth were barely alive. It was all music from really old guys and gals. And it was put together by a former Vice President. How many ways are there to bore your kids to death? Imagine, he notes, if Woodstock had been organized by Hubert Humphrey!

I knew the thing was going to be a big stinker for many reasons but this is what cinched it for me: I was visiting my 78 year old grandmother when it aired and she really wanted to watch it. When she turned it on, my kids (politely, of course) asked if they could be excused from the room. They felt like I used to feel when visiting her as a kid and she would turn on the Lawrence Welk Show.

Compare and Contrast

John Stossel dissects a recent conversation he’s had with Michael Moore. It is nothing groundbreaking or earth-shattering, of course. But it is, as he says, very revealing and (I think) very clearly put. A good one to pass on to an intransigent friend or relative.

Herbert Meyer’s Crystal Ball

Back in November 1983, Herbert Meyer, the deputy director of the CIA, wrote an extraordinary memo to CIA director William Casey on the subject “Why Is the World So Dangerous?” Meyer’s answer was breathtaking: “Present U.S. policies have fundamentally changed the course of history in a direction favorable to the interests and security of ourselves and our allies. . . [I]f present trends continue, we’re going to win the Cold War." Meyer thought this prospect made the world a more dangerous place in the short run, as surely some perceptive Soviet leaders, “more likely at the third or fourth echelons,” recognized that their future was bleak, and as such, some actions, including possibly launching a war, “may no longer be too risky to contemplate.” “From now on the Cold War will become more and more of a bare-knuckles street fight.” The next few years would be “the most dangerous years we have ever faced.”

His most audacious speculation was astounding for its prescience:

It has long been fashionable to view the Cold War as a permanent feature of global politics, one that will endure through the next several generations at least. But it seems to me more likely that President Reagan was absolutely correct when he observed in his Notre Dame speech that the Soviet Union—“one of history’s saddest and most bizarre chapters”—is entering its final pages. We really should take up the President’s suggestion to begin planning for a post-Soviet world.

This is preface for establishing why we should pay attention to Meyer’s analysis of where we are today in the terror war. Synopsis: The doves are gaining the upper hand right now, but should another attack occur, "you won’t want to walk down the street wearing an ’I gave to the ACLU’ pin in your lapel. . . And if we’ve closed GITMO by this time - we’ll reopen it and even double its size because we’re going to pack it. All of this will take longer to organize, and cost more, than if we’d done it right in the aftermath of 9-11. That’s unfortunate, but that’s the way we Americans tend to do things. And when we do finally start fighting for real -- we’ll win."

Dr. Pat vs. Veggie Tales

Deneen worries that children are being infected with the propaganda that guzzling gas and eating junk food are the heart of an authentically Christian way of life. But one of the commenters offer the plausible theory that the veggie tune is ironic about the limitations of the ordinary evangelical’s worldview. I’m pretty much pro-choice when it comes to Fritos and Dunkin’ Donuts, while acknowledging that southern superiority doesn’t include food. Gas guzzlers and trans-fat scarfers are surely not excluded from heaven, although some of them might get there a little more quickly than they might have. And, of course, I would never go to an evangelical church for the music or the poetry. Still, the best of the evangelicals have it on almost all of us when it comes to family life.

Cafeteria libertarians

Jonah Goldberg responds to what he calls "The Brink Lindsey Project," also discussed here and here. He notes that the most that can be said for liberals is that they’re cafeteria libertarians (my infelicitous expression, not his). And I wouldn’t want conservatives to be any more than that either.

Their master’s voice

Ruth Marcus takes the occasion of Barack Obama’s very mild, but badly received, challenge to the National Education Association to note, first, that he was more interesting before he was a candidate and, second, that "Obama may be what passes for brave among a fainthearted bunch." Here’s her conclusion:

[S]o far, anyway, the Democrats who would be president are happy to propose more spending on education but are reluctant to impose any demands in return -- in other words, they are happy to sound like the same old Democratic Party, permissive and beholden.

Yes, teachers are an important Democratic constituency, but aren’t parents Democratic voters, too -- parents who might welcome a message about accountability and expectations? If, that is, one of the candidates were willing to deliver it.

With respect to education, two Democratic themes are on a collision course: "jobs" and "it’s about the children." The NEA really cares about the first. I’ll leave you to draw your own conclusions about the second.

Stop helping Africa

Good intentions make bad policy, Africans tell Bono.

After his impassioned defense of aid, an African man in the audience asked Bono, "Where do you place the African person as a thinker, a creator of wealth?"

Celebrities make easy targets. Many at TED attacked Bono (ironically the catalyst for holding a conference in Africa in the first place) less for what he has done and more for what he represents. He has done more for raising Africa’s profile and our awareness about debt relief, unequal trade, malaria and HIV/AIDS than perhaps any human being in history. He represents a game we have all played for nearly fifty years whose only winners have been corrupt governments and the international development industry.

Visibly wounded by the question, confused how anyone could misinterpret his good intentions, Bono, like the proverbial white man with black friends, set out to prove how down he is with the black man.

Africans are the "most regal people on earth" and music is their DNA, he told the room of mostly doctors, engineers, and businessmen. He then began singing a traditional Irish dirge to show us how Celtic music has Coptic roots, and so is fundamentally African. I wasn’t the only one giggling in the back row.

Read the whole thing.

Hat tip: Acton’s Kevin Schmiesing.

Victor Davis Hanson Fires Devastating Shot at American "Education"

And, for the most part, he is dead-on. Higher education, in particular, is so steeped in this kind of "therapeutic" nonsense Hanson describes that it becomes almost impossible for the so-called "educated" classes to make the kind of common-sensical decisions they could have made before coming to college. Not so, however, in a handful of wonderful oasises like the Ashbrook Scholar Program and The Master’s Program in American History and Government at Ashland University. I’ve been visiting the Center for the past few days as high school teachers from around the country have gathered to take classes on interesting, important and permanent things. In speaking with them I am struck--first of all by my jealousy at their getting to spend 3 or 4 weeks of the summer reading great books and engaged in serious conversation--and second, by how well they understand that such opportunities are beyond precious. One woman remarked to me that coming here every summer (to take classes!) was the first among her luxury priorities! She is, of course, exactly right.

In addition to my conversations with these high school teachers, I have talked with a few of the student interns and Ashbrook Scholars. They are smart, engaged and intensly interested in the serious questions of life. Of course, this was true back in the dark ages when I was studying at AU too--but now . . . well, things have only improved. I regret that I cannot stay longer and meet more of these fine students. But as I read (and agree with) pieces like Victor Davis Hanson’s, I am comforted and confident that common sense in the joy of real learning has a path to reassert itself--at least in Ashland.

Byrd and Clinton

This op-ed, calling for a de-authorization of the U.S. effort in Iraq is rather too simple, and indeed, unworthy of an aspiring President. Here’s one line of which I approve, however:

If the Bush administration believes that the current war, as it is being executed, is critical to America’s future, then it should make the case and let the people decide.

HRC goes on to say that the Senate didn’t authorize our involvement in a civil war, to which NRO’s Andrew McCarthy has this response:

Not a civil war, Senator Clinton. A chaos strategy to win a war al Qaeda is fighting against the United States.

If President Bush and his supporters would forthrightly join the debate, and if certain Republicans wouldn’t simply be quaking in their boots about the domestic political ramifications, well....

My Last, Very Quick Judicial Activism Comment

I know my behavioral view of judicial activism is "strange," but it isn’t dangerous, if only because nobody listens to me. Here’s an example of judicial restraint: Scalia saying the Const. doesn’t say enough for him to anything but abortion policy is left to the legislatures.
Here’s an example of judicial activism: Declaring all laws allowing abortion unconstitutional on the premise that they involve the taking of a human life. Behavioralist that I am, I’m not saying the latter decision is an incorrect interpretation of the facts we have concerning unborn babies and the 14th Amendment. Nonetheless, it’s hard to deny that there’s an activist element in a deicision that prefers the Const. itself to a huge amount of precedent in the midst of a national controversy. WILL vs. JUDGMENT is too simple--to repeat, MARBURY v. MADISON was probably rightly decided but still included some tricky willfulness.

Just What Does Judicial Activism Mean, Part II

In his second post, Lawler cites to another definition of judicial activism, this one used by Stuart Taylor. This time around, judicial activism seems to be defined in terms of failing to adhere to precedents (it should be noted that this is clearly seen as a negative, contrary to Lawler’s previous amoral description). Obviously, a judge may be activist if they are ignoring precedents simply to apply their own policy preferences (the case of Ninth Circuit Judge Pregerson, who refused to enforce California’s three-strikes law even after it was upheld by his superiors at the United States Supreme Court because it offends his notions of justice, comes to mind). But every act of failing to adhere to precedent, particularly non-binding precedent, is not activism. Even the most stringent adherents of stare decisis recognize that the Supreme Court has a decreased interest in adhering to erroneous precedent where that precedent involves constitutional interpretation. While courts apply a more rigid form of stare decisis in the statutory context, that is because Congress can remedy any error in interpretation with comparative ease by passing a new statute. By contrast, amending the Constitution to correct a Supreme Court err is exceedingly difficult. (NB: Obviously, Congress or the Executive could challenge an erroneous constitutional interpretation through coordinate branch construction, but given that these branches have functionally acquiesced to the Supreme Court’s assertion that they are the final arbiter on constitutional meaning, I limited my commentary to those options which are most practicable.) While Lawler focuses on the stability of the rule, stability and expectation interests must eventually yield even under stare decisis review if the rule is sufficiently incorrect.

Applying this to the Seattle and Louisville cases, I don’t think it is clear that Supreme Court precedents support non-remedial uses of race in the elementary school context. As Justice Thomas argues persuasively in his concurrence in the Louisville/Seattle case, the Supreme Court has historically permitted race-based decision-making by school officials for extremely limited purposes, the most prominent being remedying the present effects of past de jure discrimination. And so, given that these programs were implemented for racial balancing and not to address past discrimination, the precedent does not support the use of race-based decision-making here. But even if the precedent did suggest that race can be used for balancing alone, it would not be activism for the court to correct this error. Restraint does not require courts to perpetuate sins against the Constitution, particularly where, as here, localities are forming their policy judgments based upon their somewhat erroneous understanding of how courts have ruled in the past.

Evolutionary Theorists Disagree on Religion

Dawkins, one of his colleagues claims, dogmatically ignores the place of group selection in evolutionary adaptation. So he misuses scientific evidence in his THE GOD DELUSION to support his angry atheism. Richard’s view that religion infects our species like a disease is not really scientific. Let me both agree and add a natural perspective that transcends the distinction between simple selfishness and altruism: According to manliness theorists, religion is less about bonding with the group and more about establishing the individual’s personal significance in natural world seemingly indifferent to his or her particular existence. Evolutionary theory is clearly in its infancy when it comes to understanding religion. (Thanks to Ivan the K.)

Just What Does Judicial Activism Mean, Part I

Peter Lawler responded to my post on judicial activism with two new posts. In the first, he suggests that there is an “amoral or merely behavioral definition of activism” which is satisfied any time that a court substitutes its will in the place of the legislature, whether correct or incorrect. As an initial matter, while judicial activism is not a term of art and has been used in many different ways, Lawler’s definition is not the common understanding of the term. As I suggested previously, the “striking down laws” definition of judicial activism is one that left-wing professors like Cass Sunstein are trying to perpetuate, because if the term “judicial activism” is neutral, then it loses its power as a pejorative. Judicial activism has generally been used in popular parlance to describe “judges behaving badly”--a negative description of judges who are functionally legislating their own policy preferences from the bench. This is why someone like Adam Cohen screeches that the Roberts court is “activist.” He doesn’t do so because the term is neutral, amoral, or a behavioral definition, but rather to malign the court.

This is why it is dangerous for someone like Professor Lawler to use the term “judicial activism” to describe correctly applied judicial review. This gives ammunition to those who think that all judging is simply applying personal preferences, and who assert that when conservatives strike down a law based on what the Constitution actually requires, it is really no different than when liberals do so based upon extra-constitutional “this is my view of what is the best policy” principles. And so, while Professor Lawler belittles as simplistic Federalist 78’s distinction between willfulness and judgment, it is this simplicity that keeps us from the conclusion that one man’s Brennan is another man’s Scalia.

Is the McCain Campaign Collapsing?

Well, John has abruptly lost his entire inner circle, and that news is trumping anything he might have to report about the situation in Iraq. Although I don’t think McCain is a plausible nominee this time around, I can’t help but hope that we have John’s "voice" in the campaign in the months ahead. He says what others don’t have the guts to say, even if he’s sometimes quite imprudent, self-indulgent, and just wrong. The vultures ask: Who will benefit if he’s forced out of the race?

No Bull

Apparently, and this is no bull, the women of Pamplona have demanded their own "cow" run. What’s good for the bull is good for the cow? You can’t make up this sort of thing . . . Hemingway would cry.

Public diplomacy

For reasons that have altogether too much to do with an elite loss of national self-confidence (and an incapacity on the part of the Bush Administration effectively to answer it), we don’t seem to be very good at public diplomacy.


Is the new September, according to this WaPo article. The good news is that wobbliness seems to be out of the question.

Update: Ralph Peters interviews Gen. Petraeus (who my father informs me is Dutch). Here are the last paragraphs:

I can think of few commanders in history who wouldn’t have wanted more troops, more time or more unity among their partners; however, if I could only have one at this point in Iraq, it would be more time. This is an exceedingly tough endeavor that faces countless challenges.

None of us, Iraqi or American, are anything but impatient and frustrated at where we are. But there are no shortcuts. Success in an endeavor like this is the result of steady, unremitting pressure over the long haul. It’s a test of wills, demanding patience, determination and stamina from all involved.

Steve Hayward hammers

Another nail in the coffin of Jimmy Carter’s reputation.

Is there a case against the case against perfection?

Harvard’s Michael Sandel has taken this article and turned it into a book, described here and reviewed, by Slate’s William Saletan, here.

Sandel appears to respect the religious case against perfection and seems to try to fashion a secular counterpart. Saletan isn’t persuaded:

Once gene therapy becomes routine, the case against genetic engineering will sound as quaint as the case against running coaches.

In other words, saying that enhancement isn’t sporting isn’t good enough. Here’s what Saletan prefers:

Given a choice between a world of fate and blamelessness and a world of freedom and responsibility, I’ll take the latter. Such a world may be, as Sandel says, too daunting for the humans of today. But not for the humans of tomorrow.


In a world without givens, a world controlled by bioengineering, we would dictate our nature as well as our practices and norms. We would gain unprecedented power to redefine the good. In so doing, we would strip perfection of its independence. Its meaning would evolve as our nature and our ideals evolved.

Saletan concedes that this apparently endless "evolution" might not be good for us. But he can’t know for sure, without either a vision of nature or of the God who created it.

Libertarian triumphalism?

Brink Lindsey denies that there’s any "libertarian triumphalism" in this essay, but you could have fooled me. Consider these snippets:

American society has become more libertarian because, more than any other country on the planet, it has successfully adapted to the novel conditions of economic abundance. And because of the way this adaptation took place, a broadly defined libertarianism now occupies the center of the American political spectrum.


Our politics today is stuck in a reactionary rut. The right remains unreconciled to irreversible cultural changes from the ‘60s and ‘70s. The left remains unreconciled to irreversible economic changes from the ‘70s and ‘80s. The idea of the libertarian center suggests that the way to break out of this rut is with a new, post-culture-wars politics that embraces both economic change and cultural diversity. I am not saying that some particular package of libertarian reforms is now the key to assembling a winning political coalition. The idea of a libertarian center is about the core of American political culture, not the margins of political change. What I’m saying is that partisans on both sides need to recraft their messages and programs to better reflect the entrepreneurial, tolerant spirit of contemporary America.


[O]n subjects that have been of central concern to the conservative movement, Americans are becoming bluer, not redder, and conservatives will have to change with them or else be marginalized.

Lindsey’s description of the drift of American public opinion toward a kind of tolerant libertarianish center is plausible, but I’m not as convinced that the attitudes that sustain our decency and prosperity will survive the acid bath of libertarian individualism. For example, Lindsey quotes Michigan political scientist Ronald Inglehart to this effect:

“In a major part of the world, the disciplined, self-denying, and achievement-oriented norms of industrial society are giving way to an increasingly broad latitude for individual choice of lifestyles and individual self-expression.”

Is the apotheosis of choice and self-expression going to sustain a stable social order? Is it going to sustain a productive economy? Is it going to see us through the challenges we face, now from radical Islam and perhaps later from an emerging superpower like China? What will happen when the going gets tough? Where will our mushy libertarian centrists go? If "people are much less willing to subjugate their personal interests to standards set by families, employers, churches, and governments," will we ever be able to call them to sacrifice in the face of a civilizational challenge?

Perhaps. But in so doing we’ll reveal the shallowness of libertarianism with its all-too-optimistic and all-too-individualistic view of human nature.

Hat tip: Jonah G..

Still More Judicial Activism

Stuart Taylor, who is an astute and reasonably fair constitutional analyst, accuses the Court of judicial activism in the recent Louisville/Seatte decision. The reigning precedents, he contends, were oversimplified to push the Court closer to the doctrine of a colorblind Constitution than it had ever been before, and the Court has never decided a public school integration case the way it decided this one. But the fair guy also shows how unprincipled Kennedy’s allegedly moderate alternative opinion is, and so how useless it would be as a guide for deciding future cases. And he gives plenty of evidence of just how bad--needlessly complicated and intrusive, blatantly racist, and basically ineffective by any measure--the sturck-down policies were. It’s true enough that the Court has approved and even imposed racial balancing plans in the past. But the most recent decisions have made it clear that any use of race in the law must be shown to have been "narrowly tailored" to pursue some "compelling state interest," and clearly this was not done in this case. Contrary to Stuart’s suggestion, that doctrine, although it had not yet been applied to primary and secondary public education, was clearly the relevant one--the controlling precedent--for deciding this case. It would have been "judicial activism" not to have applied it, or to have reached back to decisions made before that doctrine was developed. So the fair guy might have a point about some dicta here and there, but the actual decision by the Court was not activism in the pernicious sense he means. It’s true enough that the Court has become less permissive on racially based remedies over the last couple of decades, and that evolution has been controversial and somewhat inconsistent. So the Court has failed to avoid the appearance of activism in some cases, as well as the appearance of distorting the facts in abdication of its responsibility (GRUTTER) in others. The only exit strategy the Court might seem to have from such acrimonious 5-4 (or 4-1-4) results is to go the colorblind Constitution route. But someone might say it would be judicial activism to hamstring legislatures so completely with a doctrine that has only been affirmed in dissents up until now. A 5-4 colorblind Constitution ruling would not have a settling effect on our country. On the other hand, nobody has really suggested a doctrine that would allow the use of race in some cases--certainly Stuart doesn’t--that would have the settling effect of being a stable foundation of predictable decisions that would make sense to most of the country.

Still More Judicial Activism

Thanks to Robert Alt for his challenging comment below. The amoral or merely behavioral definition of activism is whenever the Court acts to substitute its will for that of the legislature. Now its will may be based on a correct judgment concerning the meaning of the Constitution, but the FEDERALIST 78’s radical distinction between will and judgment seems deliberately simplistic or rhetorical. Tell me that MARBURY v. MADISON, to begin at the beginning, wasn’t willful. Activism is not all bad, it goes without saying. I’ve defended BROWN more than once on this screen, and that was big-time activism. We can’t deny the fact that the Court actively altered an important aspect of local policy making in the recent decision. In general, the Court should be following the restrained strategy of getting out of the social policy-making business today. But in the area of race some activism in unavoidable, simply because the Court has failed to give clear and consistent guidance on the meaning of the Fourteenth Amendment over the years. Some remedial activism is the only way to rescue legislatures at all levels of government from, in large part, Court-created confusion concerning what they may do under the Constitution in pursuit of equality and diversity.

No wobbliness, please

I’m with Bill Kristol on this.

More on Conservative Judicial Activism

While I certainly agree with Lawler’s earlier post insofar as it makes clear that Adam Cohen’s article in today’s NYT was a train wreck of logic (i.e., Cohen complains in one breath about the activism of the Supreme Court striking down laws, then in the next about the fact that the court did not strike down the federal partial-birth abortion statute, and then in conclusion referred to striking down a federal statute as "the ultimate act of judicial activism"), I am not sure that I would agree with Lawler’s conclusion that the Supreme Court’s decision striking down Louisville and Seattle’s non-remedial use of race was "somewhat activist." I am not sure how he reaches that conclusion, but it would seem that to do so in some way accepts Cohen’s premise that when courts strike down a statute, that is activism. Now, I don’t mean to ascribe this theory to Lawler if it is not what he meant, but it should be noted that this is an increasingly common understanding of what constitutes "judicial activism"--one which does not reflect what the term “judicial activism” generally has been understood to mean.

As I argued here, there is a movement promoted by University of Chicago professor Cass Sunstein and the left to define judicial activism simply in terms of striking down federal statute--a move which permits them to ignore the hundreds of state laws struck down by the Warren Court, and to proclaim the Rehnquist (and now, Roberts) Court as the most activist in history. Of course, this is a thin view of judicial activism--one which could oddly count as an example of judicial restraint a decision upholding a clearly unconstitutional law based solely on the policy preferences of the deciding judge. Such a view does not comport with the general understanding of "judicial activism," which traditionally has been used as a pejorative to describe when courts flip Hamilton’s description of judicial power from Federalist 78 on its head, and exercise WILL instead of JUDGMENT. The simple exercise of judicial review, in this case of a non-remedial program that counts by race for the sake of counting by race in violation of the Fourteenth Amendment, does not meet that definition.

The Catholic Left and clerical authority

Our friend Jon Schaff calls attention to this letter, written a couple of weeks ago. Led by Rep. Rosa DeLauro, fourteen Catholic Democrats in the House call upon the American Catholic hierarchy "to join with us in mobilizing support for Congress’ efforts to end the war."

Jon’s comments are worth reading:

These liberal Democrats are calling on Catholic clergy to work to change public opinion. Further, they say, simply speaking against injusitce is not enough; action must be taken. One assumes this means legislative action. The Catholic Democrats are asking the bishops to use their moral weight to fight injustice through lobbying for legislation. If the bishops were being asked by other parties to work against the injustice of abortion instead of the war in Iraq, one would expect an outcry about the bishops seeking to impose their values on the public. Predictably, we’d read blog posts and opinion columns about "theocracy" and "separation of church and state" as the Catholic bishops were denounced for trying to write their own religious values into law. "It’s all right for them to be opposed to abortion," we’d hear, "but why must they seek to impose their values on everybody?"

One sees liberal Christians increasingly discussing their policy preferences in terms of their religious faith. This is a welcome addition to the public rhetoric. Let’s have people of various political and religious perspectives express their policy preferences in both terms of secular reasoning and demands of faith. The American people can then work through the competing claims as diligent citizens ought. Then let’s drop the silly rhetoric about "imposing values" and "theocracy."

No Left Turns Mug Drawing Winners for June

Congratulations to this month’s winners of a No Left Turns mug! The winners are as follows:

Joel Charles

Nat Stevens

Thomas Reilly

Mike Scully

Jack McDonald

Thanks to all who entered. An email has been sent to the winners. If you are listed as a winner and did not receive an email, contact Ben Kunkel. If you didn’t win this month, enter July’s drawing.

Vouchers in Cleveland

Sunday’s Cleveland paper had an article on the effect of vouchers (five years after the Supreme Court’s Zelman decision) on Cleveland’s Catholic schools. Here’s a snippet:

Budget proposals from Gov. Ted Strickland, a Democrat, and the Republican-controlled Ohio House and Senate all provided money to continue the 11-year-old initiative, which gives parents a taxpayer-supported voucher to spend toward tuition at participating private schools.

Those factors have helped establish the voucher program as a solid safety net for Cleveland’s Catholic schools.


In one South Broadway neighborhood school, Holy Name Elementary, more than 90 percent of the students receive vouchers. In at least seven other Catholic elementary schools, more than 80 percent of the students use public dollars to attend.


"Vouchers have little impact except in so far as they support enrollment," [Margaret Lyons, superintendant of the Cleveland diocese’s schools] wrote. "Positive enrollments stabilize a school. However, vouchers do not cover the costs, so schools still need to find resources to supplement vouchers."

The article also notes that "[l]ast year, about 53,000 Cleveland students attended public schools, about 11,500 attended charter schools, which are also financed by the state, and about 12,000 pupils were enrolled in Catholic and other private schools." There’s nothing about student performance, but some about parental satisfaction and about the way in which church-related schools actually provide the public a bigger bang for the buck.

Hat tip: Religion Clause.

Conservative Judicial Activism?

Here’s is a bit of a rant form the NYT on what allegedly is the most activist Court in a long time. I’m not going to quarrel with the very selective and distorted presentation of facts, except to say two things: The author sort of forgot the great and unprecedented act of judicial restraint that was deferring to Congress on partial birth abortion. And although I admit that the Louisville/Seattle race-based remedy ruling was somewhat activist, it was also, as I said before, a careful application of existing precedents and contained no innovations in doctrine. The author’s pointed conclusion is standard "judicial realism"--all justices, truth to tell, are all about imposing their will, their personal preferences, on the country. That would mean that he’s not indignant with the Roberts Court for its alleged activism, but only with those who deny it. But the author is exactly wrong to say we’re entering a new LOCHNER era; the Court may, instead, be withdrawing gradually from using Lochner-esque "substantive due process" in the privacy/autonomy realm. I actually agree that conservatives should resist manfully any attempt to restore the wrongheaded "economic liberty" judicial activism exemplified by LOCHNER, and I also agree that on balance it would be a mistake for the president to appoint the brilliant and forthright Janice Rogers Brown to the Court. My Scalia-based judicially restrained view: LOCHNER was wrongly decided, and ROE was wrongly decided.

Religious freedom in the world

Paul Marshall gives us a preview of his Center’s report, Religious Freedom in the World 2007, to be issued today. He notes that religious freedom is threatened on three fronts, by (communist) totalitarianism, (Islamist) religious extremism, and aggressive secularism. He also notes that religious freedom tends to be highly correlated with other political and economic freedoms, as well as with prosperity. Finally, he observes that countries with good records on religious freedom "are likely to be good U.S. allies."

Update: No time to read them yet, but
here are Hudson’s materials.

Bill and Hillary Switch Positions... Is America Nostalgic for the Clintons’ Era?

Well, John Fund is not so sure. Some remember an era of peace and prosperity when our forces were used only for good and without any casualties to speak of. Others remember a roller coaster of scandals and surprises. Although it probably won’t be reflected in the ensuing thread, my studies show that many people do, in fact, have fond and fuzzy memories of the President Clinton, and he would probably be our next president if the Constitution didn’t keep him from seeking the highest office again. It remains to be seen to what extent Senator Clinton will benefit from this nostalgia. When some ET writes the history of our species on our planet, there might be a chapter trying to explain why the greatest nation in on earth repeatedly elected Bushes and Clintons. If you think about it, John reminds us, these are two very unlikely dynastic families.

Sarkozy jogging

I just came out of a Marine Commissioning ceremony (Tim Swartz) so reading this on Sarkozy jogging (sent by a friend) was perhaps unnaturally amusing.

The friend writes: "Sarkozy jogs. End of western civilization. Remember Socrates as described by Alcibiades in the Symposium."

Europeans explain

Why Europe and not the U.S. experiences more terrorism. Two points worth noting:

Karl-Heinz Kamp, security policy coordinator at Germany’s Konrad Adenauer research center, said it is easy to understand why.

"The U.S. has a historical advantage; America is still the land of opportunity to the whole world. The people moving there believe the American dream of social mobility," he said. "In Europe, we’ve historically treated our immigrants as hired help, and waited for them to finish the work they arrived for and go home."

Bob Ayers, a security and terrorism expert with London’s Chatham House, a foreign policy research center, said that because immigrants to the U.S. can become Americans, the nation has a huge advantage in avoiding homegrown al-Qaida terrorists. Europeans encourage immigrants to retain their native cultures, causing them to be ostracized more readily.


Magnus Ranstorp, chief scientist at the Swedish National Defense College, said U.S. efforts to track down everything involved in terrorism, particularly funding, have made it very difficult to operate in America.

"The United States is so difficult to crack, they have to have established operatives living inside the country to be effective," he said. "To date, they haven’t shown themselves. The truth is, while it’s not the al-Qaida Great Satan, Europe is a much easier place to move around."

It’s not a long article; read the whole thing.

Updating the Constitution?

I learn from this column in my dad’s Sunday paper that political prognosticator extraordinaire Larry Sabato has a new book forthcoming this fall. In it, he offers 23 proposals for changing the Constitution.

Every fiber of my being protests in general against such a project, but I’ll try to keep an open mind as I consider his argument for amendments like the following:

• Because each state, regardless of population, elects two of the 100 senators, just 17 percent of the nation’s population elects a majority of the Senate. Sabato would expand the Senate by giving the 10 most populous states two additional senators, the next 15 most populous states one new senator and the District of Columbia its first senator.

• Expand the U.S. House to about 1,000 members (from the present 435) so representatives could be closer to the voters.

• Establish term limits for members of Congress to restore the principle of frequent rotation in office.

• Add a Balanced Budget Amendment to avoid burdening future taxpayers with an enormous debt.

• Establish a single, six-year term for presidents, but give them the option of requesting an additional two years. Voters would grant or deny it in an unopposed, yes-or-no election.

• Give the president a line-item veto.

• Eliminate lifetime tenure for federal judges and replace it with nonrenewable 15-year terms.

• Create a constitutional mandate that all able-bodied young Americans must devote at least two years to national service of some sort.

Sabato wants to start a national conversation. Let’s join him.

Just a Random Thought . . .

If Hillary is elected President in November of 2008, will she be not only the first female president but also the first president to be recognized and commonly called by her first name? Is that sexist? It will be confusing to speak of her as "President Clinton." Of course, that’s the reason the current president was probably the first to be recognized and called by a single initial! (Though the use of FDR probably had something to do with TR--those who know more about this, feel free to correct me if I’m wrong!) So I don’t think the tendency to call her Hillary is, necessarily, a nod to the patriarchal tyranny of our society. Besides, she has been called "Hillary" for so long that it is almost impossible to imagine people will stop using it--though some may insert "President" in front of it. I can think of some other things I’d like to insert in front of it . . . but this is a family blog.