Strengthening Constitutional Self-Government

No Left Turns

Sarah’s More Right Than Joe on Judicial Activism

...says ME. That’s because one party nominated lawyers, and the other aimed higher.

Discussions - 14 Comments

Lawler - you write:

One wants to turn more and more moral and political controversies into litigation based on expanded and quite questionable views of individual liberty untethered from specific constitutional texts. The other common-sensically views the Constitution as the legal foundation for our democratic political freedom.

I'm sure that you are aware that the arguments of Biden/loose constitutionalists is not untethered from an ongoing intellectual dialogue about such liberty. It seems to me that the Constitution (and perhaps the Declaration, Jaffaites?) is much more for you/Palin/strict constitutionalists in that it is not simply a foundation, but an all-encompassing, absolute, atemporal blueprint for self-government.

I suppose my question is this: in a world (specifically a Western, largely European world - but other places as well) that has largely come to acknowledge the right of a woman to control her own reproductive system as a human right (and have some fairly convincing arguments, as I'm sure - as a good academician - you know), who are "the people" to deny that right?

Sometimes I worry that the acolytes of the Founders so prevalent on this blog are so entrenched in the ideology of that founding that had those men in 1776 slipped up and left out one right we consider fundamental today, none of you would acknowledge it. Or maybe (more optimistically) less of you would be conservatives of "original intent" leanings.

Your article glorifies the peoples' ability to make electoral decisions about other peoples' bodies because the constitution allows them to. Put in practice, however, this becomes problematic (and I won't list all of the arguments against such action, pragmatic, theoretical, or otherwise). Your abstract loftiness - of the empowerment of the people to steal empowerment from the wombs of its female populace - is touching (just like the boost in young pro-lifers, who, from my experience, have been an unfortunate side effect of the evangelical movement, the "youth group" mentality, and a more well-funded evangelical religious right political movement than in the past), but do you even find it necessary to defend the banishment of abortion practice (through the peoples' sovereignty) against non-Constitutional dissenters? Or are they just jaded by their lack of American-Enlightenment exceptionalism? I understand that your article was sort of purporting a constitutional argument - but if that is an argument found moot by, say, Biden or loose constructionalists (who are much more apt to utilize non-constitutional ideas in order to establish their concept of a more "perfect" union), why ignore that? It's not people who find a deep-rooted, nearly-perfect (less than 30 changes in over 200 years!) authority in the Constitution that you need to worry about. Your really difficult adversaries, though - those who current contribute to the intellectual dialogue on contemporary feminism and reproductive rights - will be much harder to address and your appeals to a Constitution will matter very little. If you're ever planning on addressing the difficult questions (and questioners), I hope you're reading up. :)

Wow. That was a lot longer than I meant to make it. Sorry about that.

Matt, the issue is simply this: What are judges empowered to do under the Constitution? Is it really the job of the Court to move fast and loose in pursuing a more perfect Union? Do you really believe that phrase from the preamble empowers judges? Aren't you turning the judges into some kind of trendy philosophical elite?

Lawler - No, I certainly don't want to turn judges into a philosophical elite (trendy? Not in America . . . heh). Your article, however, seems to suggest that Biden would have a tough time justifying his views under the Constitution (when you dream of Sarah trapping him in that kind of rhetorical trick). Why should he have to justify it, as a politician, solely with the Constitution? Why should anyone (other than those whose jobs force them to only consider legal precedent) - especially when you are promoting an idyllic American populace with the sovereignty to make any decisions not explicitly spelled out for them in the Constitution?

On the other hand, perhaps the role of the judicial system should be changed so as to encourage critical legal thinking regarding Constitutional restraints - especially when considering the Constitution's fundamental inability to perhaps protect contemporary perceived human rights in the face of an oppositional, unwilling electorate. It's a complicated issue. It begs us to reconsider the fundamentals of our governmental structure, and that is never an easy task (but one I think we rarely ever take).

But why suggest Biden has no ideological standing for supporting Roe without an endorsement from a literal Constitution? Or anyone else, for that matter?

Matt, I don't have the social science data, but I suggest that the increase inpro life sentiment about the young has more to do with evangelical "youth group" mentality (is that supposed to be spooky?) than with technology. Its just alot harder for someone who hasn't already committed their self esteem on the abortion issue to look at a high resolution sonogram of a late term fetus and argue that one is not looking at a living human being.

And Matt, your simultaneous contempt for the rules of the Constitution AND the American electorate when they both conflict with your policy preferences really should become better known. As a recruiting tool for conservatives, it would be better than a McCain speech. I know, faint praise.

Your second par. seems to say that judges can ignore const. restraints to stick it to an oppositional, unwilling electorate. Their standard should be their perception of human rights. Why is this not a philosophical elite? It's fine and noble to rethink the fundamentals of govt structure and come up with a new Const. or whatever. But that too is not the job of judges and even less the job of the utterly conventional Biden. On ROE, there couldn't be any other standard for declaring laws unconstitutional but the "literal Const.," that is, the one we actually have vs. the one you want to come up with after your rethinking.
Othewise, the justices could do whatever they wanted. They can think and say what they please, but they're empowered to do a very specific job.
If you read even a fairly large number of Court opinions, you can readily see that ordinarily it's way above their pay grade to ascend to level of philosophy or even ordinary coherent thought. On the big cases in the key moments, the record of history is that the Court's been wrong more often than not.

it should be "less to do with evangelical..." sorry

Heh. Pete -

I'm glad you mention technology. That's a good point (a creepy, but good point). Who can deny the humanity of a fetus when we can see it's baby-like features on a digital screen (no wonder a generation raised on Facebook has fallen so deeply in love with it). All hail the tele-visual. Forget anything else (note the sarcasm). In all seriousness, though - that's a really good point.

What "rules" of the Constitution are you referring to? My contempt is for how people worship the thing and how it was designed to be a massive, totalizingly legal super-structure . . . destroying all context and the Otherness of differing worldviews / legal outlooks. As for the electorate - I doubt you'll find much faith in them on this blog (especially if they live in urban areas! Those elitists!). I am pessimistic about the electorate, but I'm not convinced of your attempt to point out my "contempt" towards them. I also have no policy preferences . . . I try to question established institutions rather than build my own (unless that is building one's own? or helping others to more clearly build theirs?). Who knows.

Thank you for the praise. I try, I really do. Unfortunately, I'm not sure I tow the mainstream liberal line in this instance. I mean, Obama did start out his career in my living room, but other than that I have no affiliation with either party . . . He'd probably hate me these days too now that he's just joined the lefter wing of the One Right Party.


Lawler - I suppose you're right and that no real lasting political structure could exist in a world where people (all people, regardless of occupation - even those which you somehow seem to interpret as becoming a philosophical elite) would be encouraged to think critically instead of regurgitate and manipulate the established rule of a bygone era. It seems that law school really is the place where brilliant minds go to die. Damn political pragmatism.

I am still curious why Biden must defend his opinion of Roe as compatible with the Constitution. Your article suggested such, regardless of whether or not he does/should have the power to change it.

I'm going to go sit in the corner with Kierkegaard now. He understands me. *sigh*

Matt, I'm specifically referring to the division between legislative and judicial authority. Its part of the rules of the game. One doesn't need to to believe that the Constitution is perfect in order to respect the rules as they are. If you don't like some part of the Constitution or wish to add to it, the document has several ways to do so. But to ignore both the Cosntitutional division of authority and to misuse judicial authority in order to block democratic majorities in pursuance of one's own vision of justice is both lawless and undemocratic. Citing a "Western, largely European world" and "convincing arguments" that seem to not convince your fellow Americans do not remedy the law and democracy gap.

As for the contempt for the electorate shown by some commenters on the blog. You are right! Its sad and politically self destructive. So why join them by thinking you should be able to impose without constitutional warrant or democratic elections, your own policy preferences?

Dr. Lawler you and I both know what an horrific effect having the congress, president, and potentially Supreme Court all go Democrat, and your argument against that is of course very persuasive. However, you and I also both know that despite John Mccain's competence, that Sarah Palin is a joke. She is an insult to political philosophy and the perpetuation of the dumbing down of politics we received as you note in your article from President lame duck. I might be willing as a libertarian to vote for Mccain for the sheer fact that I fear greatly the effect of a democratic stranglehold on federal government during a time of crisis. But to ask me to vote for someone who has the philosophic foundation of a 3rd grader is absurdly pathetic. I dont consider a vote, an endorsement of her as taking the higher road, I consider that an endorsement of the dumbing down of politics. Hell, even David Brooks agrees!

Does one need to be a "political philosopher" to govern effectively?

Isn't that what Lefty politicians flatter themselves to be, political philsophers

Are we electing the "political philosopher" in chief? Or are we tasked to make a much more narrow selection, id est between the dreadful and disastrous Obama, versus the slightly problematic McCain.

Every branch has their trump per the Constituion.

However, today, we allow the Judiciary to be the one branch to not have any type of restraint.

That not only runs counter to our Constitution, but runs counter from actual governance until recently.

I suppose, though, that when a beaten step-child finally discovers that he can not only fight back, but be the dominate one, it should be no surprise that such dominance is held supreme (pun intended).

Matt, Biden has to defend Roe v Wade on the basis of the constitution because that is the purported basis of the decision. Why can majorities in the states not be permitted to enact bans on abortion? Because, said the court in Roe v. Wade (with much obfuscation and now obsolete rigamarole re trimesters added), it is unconstitutional, it violates the constitution. What in the constitution does it violate? The right to privacy. Where in the constitution is this right to privacy? Not in the text itself, but implied from it, said the court, as we explained in the case Griswold v. Connecticut.

The above con-law ABC is WHAT ROE V. WADE IS. To defend Roe v. Wade, as opposed to defending an abstract we-could-vote-on-it proposition that "women should be allowed to abort," requires one to defend all of this, and the theory of interpretation behind it. (No honest reader of Griswold v. Connecticut will fail to see that that theory is questionable at best.) Or, it requires one to say "constitution, schmonstitution, the Supreme Court should act like a super-Senate with amendment power, because that's what's up-to-date and thus somehow democratic." Those are the only options. Ideologically, you can remain aloof, and question our Constitution's comparative rigidity(esp. when judges actually obey it) and the irrational reverence this naturally generates over time. Fair enough. But politically, it is the constitution we have, and these are our options regarding the court, and you have to choose. Or, choose to retreat to your corner.

And since I'm becoming a bit prickly, I might as well go whole hog, even though I'm uncertain about where you're coming from or what the gist of your obviously intelligent challenges to Lawler is primarily aimed against. So here it is: this is ABC about our political institutions that even a reader of wise (by no means an ironic comment) Kierkegaard ought to know before stepping out of his corner into the polling place.

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