Jacques Derrida passed away this Friday in Paris. Derrida was an important influence in my intellectual life. I began my academic career exploring the connections between deconstruction and legal theory, and although I have since moved on to other topics, his work remains a powerful source of insight.Tom Maguire -- a man sadly trapped by the false binary oppositions of Western logocentrism. More here on Balkin and his perverse uses of the word "conservative".
See also Steven Greenhut's article in The OC Register (registration required). Quotable: "[As the] Michigan court ruling makes clear, property rights are not primarily about protecting the "rich and rich wannabes." They are, first and foremost, about protecting those without political power from those with power."
More " Defining marriage: Who decides?".
UPDATE: Here's an alternative opinion of Ken Starr worthy of your consideration.
".. The National Rifle Association has created a satellite radio program that reaches some 400,000 listeners. If the advocacy group runs old-fashioned political ads about candidates within 60 days of an election, it will violate McCain-Feingold. But as long as it is producing news or commentary, the NRA can speak to its heart's content, much as the New York Times .. does every day.
".. Meanwhile, the Federal Election Commission has landed the duty of deciding who else can speak, or not. Last week it delayed a decision on whether Michael Moore, creator of "Fahrenheit 9/11," must stop airing ads about his anti-Bush film, since those ads contain unflattering references to the President seeking re-election ..
".. if a right-wing pornographer made a pro-Bush film featuring erotic scenes and put it on the Internet within 60 days of an election, would the Supreme Court call it protected speech? .. "
Essentially, Bainbridge would have judges engage in a process of construction that would transform the American system of checks and balances, enumerated federal power, and constitutional protection of individual rights (freedom of speech, equal protection, due process, privileges and immunities, and retained rights) into something like the English system of parliamentary supremacy, that is unlimited legislative power without constitutional protection for individual liberty. I am quite sure that Bainbridge does not offer this radical suggestion lightly. He is responding to a real problem in American constitutional theory and practice. The politicization of the judiciary plus the general and abstract language of the individual rights, separation of powers, and federalism provisions of the United States Constitution slowly but surely created a judiciary that sometimes views constitutional interpretation as the appropriate vehicle for enacting personal beliefs about what the law should be into binding constitutional law. This is a real worry, and it is not surprising that it would produce radical proposals, like Bainbridge�s proposal for judicial rewriting of the Constitution.
A key piece of evidence is a June 13, 1995 memo to Attorney General Janet Reno from Mary Jo White, then U.S. Attorney and lead World Trade Center bombing prosecutor, and a recipient of the March memo Mr. Ashcroft referenced: "You have also asked whether I am generally comfortable with the instructions. It is hard to be totally comfortable with instructions to the FBI prohibiting contact with the United States Attorney's Offices when such prohibitions are not legally required."
Ms. White added: "Our experience has been that the FBI labels of an investigation as intelligence or law enforcement can be quite arbitrary depending upon the personnel involved and that the most effective way to combat terrorism is with as few labels and walls as possible so that wherever permissible, the right and left hands are communicating" (emphases added).
Then Ms. White asked for a number of changes to the proposed guidelines, most of which Gorelick subordinate Michael Vatis recommends rejecting in a June 19 memo to Ms. Reno. That memo is accompanied by a handwritten note from Ms. Gorelick saying that she concurs.
Or to sum up the exchange: The principal U.S. terrorism prosecutor was trying to tell her boss that she foresaw a real problem with the new and "not legally required" wall policy, but Ms. Reno--again delegating that policy to Ms. Gorelick--largely rebuffed her concerns.
Commission Chairman Tom Kean has thus far been a staunch defender of Ms. Gorelick's refusal to testify. Perhaps he can explain how all of the above squares with Ms. Gorelick's recent remarks on CNN that "The wall was a creature of statute. It's existed since the mid-1980s. And while it's too lengthy to go into, basically the policy that was put out in the mid-'90s, which I didn't sign, wasn't my policy by the way, it was the Attorney General's policy . . ."
We've never expected much from this Commission, but the stonewalling is getting ridiculous. Everyone knows the wall contributed to serious pre-9/11 lapses, such as the FBI's failure to search "20th Hijacker" Zacarias Moussaoui's hard drive following his arrest on immigration violations in August 2001. Yet the Commissioners are treating reasonable requests that they explore the wall fully as some sort of affront.
U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald summed up the core issue last October in testimony to Congress: "I was on a prosecution team in New York that began a criminal investigation of Osama bin Laden in early 1996. . . . We could talk to local police officers. We could talk to other U.S. government agencies. We could talk to foreign police officers. Even foreign intelligence personnel. . . . But there was one group of people we were not permitted to talk to. Who? The FBI agents across the street from us in lower Manhattan assigned to a parallel intelligence investigation of Osama bin Laden and al Qaeda. We could not learn what information they had gathered. That was 'the wall.' "
That's also what the 9/11 Commissioners now seem determined to ignore. How long will they continue protecting their colleague at the cost of their own credibility? More WSJ OPIONON.
Rule of Law. Jonah Goldberg gets it: " I keep hearing that it's terrible to "change" or "tinker" with the Constitution .. In fact, the folks fretting over changing the Constitution are largely -- though not entirely -- the same people who celebrate the pernicious doctrine of a "living Constitution." .. What I don't understand is why it's a great thing for unaccountable judges to change the meaning of the Constitution without a public debate while it is some form of tyranny for the House, Senate and fifty states to debate the issue over the course of months or years under the glaring spotlight of the media.
Before you answer that an amendment is more permanent, let me pre-emptively say: Not so fast .. tell me exactly what could be done under our regime to reverse the Supreme Court's banning of sodomy laws under Lawrence .. In effect, the Supreme Court amended the constitution just last year and the pro-gay marriage folks cheered .. more JONAH GOLDBERG.
Intellectual Property. "An increasingly common justification for longer and more powerful IP rights is ex post - that IP will be "managed" most efficiently if control is consolidated in a single owner. This argument is made, for example, in the prospect and rent dissipation literature in patent law, in justifications for expansive rights of publicity, and in defense of the Bono Copyright Term Extension Act. Taken to an extreme, this argument justifies perpetual protection with no real exceptions. Those who rely on this theory take the idea of IP as "property" too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn�t just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market. We would never say today that the market for paper clips would be "efficiently managed" if put into the hands of a single firm. We rely on competition to do that for us. But that is exactly what the ex post theory would do .. ". more MARK LEMLEY (hat tip Legal Theory Blog)
Gay Marriage. Lefty professor Cass Sunstein spins like a pro with a duplicitous attack on Bush's gay marriage proposal. Sunstein key premise -- that American's value constitutional stability -- is belied by the fact that American's on the left have in fact shown no regard for constitutional stability. Instead, every lefty merely pretends to do so when anyone stands up to defend the constitution from hyper-drive amending of the constitution by the lawless judges. The reality behind the duplicity is that leftists like Sunstein have been hell bent on radical constitutional change willy-nilly for going on generations now, in complete disregard of the deep damage this lawlessness has had for the credibility of our constitutional institutions.
InstaPundit & Gay Marriage. InstaPundit links to this article by Glenn Reynolds. Let me say straight up that I don't believe Glenn/InstaPundit when he says he's against Bush's stand on marriage & the constitution because, "I don't believe in amending the Constitution easily, and I don't think that this is an issue that ought to be constitutionalized." Well, if truth be told, Glenn has had little objection to a constant amending of the constitution -- when judges are doing this to advance a libertarian rights agenda which secures gay intercourse rights and other libertarian freedoms. Likewise, Glenn has been in favor of constitutionalizing gay marriage to the extent that this means altering state constitutions to advance this institution. Indeed, based on his stated jurisprudence on related issues, I don't anticipate that Glenn would have any objection to having gay marriage "constitutionalized" by the Supreme Court on 14th amendment equal protection or other such "high theory" grounds -- such a position would be the one consistent with his other stated positions on constitutional interpretation concerning closely related matters.
Rule of Law. " .. there is the flagrant disregard shown by judges and local officials for the rights of citizens to have a say in setting the conditions under which we live, work and raise our children .. Whether one is for, against or undecided about same-sex marriage, a decision this important ought to be made in the ordinary democratic way .. ". MORE Harvard Law Professor MARY ANN GLENDON.
The Rule of Law. The President throws down the gay marriage gauntlet -- it's the people vs the judges on who controls the law of the land.
I don't see how this isn't a good thing -- if the people want to keep marriage as it is, they certainly have every right to let the judges and the academics know who is sovereign and who serves whom. It all comes down to who and what rules in this country -- the people and the liberal constitutional tradition, or the judges and their anti-liberal constitutional radicalism. Whether or not I favor gay marriage, I certainly stand with the people and the ancient liberal constitutional tradition of this country and against the judges and their intellectually brankrupt constitutional radicalism.
UPDATE: Track blogosphere reactions here.
True News. First it was Microsoft getting the patent for ones and zeros. Now the U.S. patent office has given Chef America the patent for grandma's flaky pie crust. I kid you not. But wait a minute, a lawyer's blunder may have blown the whole deal ..
9th Amendment. Law Prof. Lawrence Solum takes on the problem of the significance of the 9th Amendment -- with lots of blogosphere & web linkage. Warning -- some complex verbal gymnastics involved. Don't try this at home.
Gay Marriage. "Watching the lines form around the block at San Francisco City Hall, seeing couples streaming into town from all over California and beyond, many of them having been together for years or even decades, it is hard not to support their cause: marriage for all. It is also difficult to understand what frightens some people about gay marriage, why opponents think that it would somehow undermine the institution to allow same-sex couples to celebrate it, and to have their unions recognized by government. But gay marriage isn't the only issue at stake in San Francisco this week, nor the most important. What is at issue is the rule of law, and whether one public official, even if his cause is just, has the right to take the law he has been sworn to uphold into his own hands .. ". MORE Daniel Weintraub.
Be Afraid. Law Professor David Bernstein:
A classmate of mine, now a law professor, told me recently that half of my first-year class wouldn't speak to me first semester of law school, for political reasons. I thought half sounded like a lot, though I knew I was "boycotted" by some at the time. I had always been mildly curious as to why .. so I asked this classmate, who was himself quite left-wing, but always friendly. He responded, "Well, it's what you said in Contracts." "That's strange," I replied, "I don't remember Contracts class being that controversial; we didn't discuss any of the truly hot button issues for the left--such as race, abortion, gay rights--in Contracts--and, in any event, my (libertarian) views on such issues wouldn't have been so objectionable to them, anyway. So what did I say in Contracts class that led to my ostracism?" He said, and I swear he seemed at least 80% serious, "well, you kept saying that contracts should be enforced!"
This is the character and outlook of the people the universities are churning out by the thousands. And these are the folks who are filling the tenure track jobs at the law schools -- and the local, state and (recently) federal bench. These are not people who believe in sticking with principle or the rule of law -- such things are the enemy of their vision of the world (see Hayek's Law, Legislation and Liberty). They believe rather in whatever expediency gets them to their prefered end -- almost inevitably half-baked. Is it any wonder the rule of law has broken down in San Francisco, Chicago, and Massachusetts? No, it's not.
UPDATE: Here's an alternative view on what is happening in San Francisco.
UPDATE II: Xlrq has some specifics on the laws being broken in San Francisco.
Gay Marriage. Schwarzenegger has released a statement proclaming his support for the rule of law in California, and suggests that San Francisco government officials should obey it. Quotable:
"Californians spoke on the issue of same-sex marriage when they overwhelmingly approved California's law that defines marriage as being between a man and a woman. I support that law and encourage San Francisco officials to obey that law."
When it comes to social evolution and judge made law the slippery slope is not a fallacy but something on the order of a law of physics. Friedrich Blowhard explains Unintended Consequences As The Foundation of Constitutional Rights.
If you haven't taken a peak lately, Larry Solum's Legal Theory Blog is chock full of interesting stuff -- on copyright, constitutional liberty, judicial salaries, cost-benefit analysis and much more. Recommended.
Howard Bashman has 20 questions for Ninth Circuit Judge Stephen Reinhardt. This one is definitely worth a read, if you're at all interested in the law.
Professor Bainbridge on gay marriage and the law:
The move Bush makes here is to begin shifting the terms of the debate from outcome to process. Yes, he's still focusing too much on whether the law should recognize gay marriage, but at least he has begun to shift attention to the real question, which is "who decides"? The people's elected representatives or the imperial judiciary? .. Whatever happens with the legal institution of marriage .. ought to happen as a result of democratic processes rather than by judicial fiat. The founders of our republic set up a carefully nuanced set of checks and balances, but the last couple of generations of Americans have allowed nine unelected old men and women to seize control of a vast array of deeply contentionous social and cultural issues of national import knowing that they are immune from being held accountable for their decisions. Our judges now use the law to impose elite opinion about how society should be ordered regardless of the democratic will. We have become courtroom spectators rather than participants in the democratic process. It is as the famed First Things symposium put it, The End of Democracy.
It's always bizarre to find folks like those at the Washington Post paying attention to something like this:
It is a matter of grade-school civics that in American democracy laws are made by the legislative branch. Article I of the Constitution, after all, begins with the arresting statement that "All legislative powers . . . shall be vested in a Congress of the United States." Yet ever since it passed the USA Patriot Act after the events of Sept. 11, 2001, Congress has stood by in an alarming silence while a fabric of new law governing the balance between liberty and security has been woven by the other two branches of government.
Well, folks, this is simply the modern post-Constitutonal executive branch dominated regulatory state which the Post has FAVORED for several generations now. For the editors of the Post to change their minds at this point is rich stuff. These people have been deeply hostile to a "grade school" understanding of the Constitution for going on 30 or 40 years, so why get exited and attempt to throw the train in reverse now?
A must read on the Supreme Court and the 1st Amendment. Quotable:
The court's decision is a constitutional crime that invites comparison with Plessy v. Ferguson (1896), the ruling that upheld racial segregation on the theory that "separate" could be "equal." Like Plessy -- which was ultimately reversed -- this decision contradicts the express language of the Constitution and will someday collapse of its own absurdities. Until then, its supporters will flatter themselves that they are improving democracy when they are actually degrading it.
Randy Barnett wins a victory for Federalism and limited government in the medical pot case before the 9th circuit court.
Thomas Sowell takes off the gloves and beats the crap out of the Supreme Court of the United States. Quotable:
At least the people who engaged in wild west shootouts or lynch mob violence spared us the pretence that they were upholding the Constitution. Whatever horrors these lawless and murderous people might inflict at particular times and places, they never had the power to undermine the very basis of the government of the United States.
The 300-page Supreme Court decision legislative package which now regulates political speech -- some reactions:
John Eastman, Chapman law school -- there is now "more protection for pornography on the Internet than we give to core political speech 60 days before an election."Roger Pilon, Cato Institute -- "What's the point of having a court if it won't protect the Constitution? This is a majority that thinks like a legislature."
UPDATE: The Spoons Experience reports that the Supreme Court has drafted, signed and enacted new legislation remaking the 10th Amendment, which now reads as follows.
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to thestates respectively, or to the peopleCourts.
And the 9th Amendment has been eliminated altogether in this newest action by the court.
UPDATE 2: Spoons has more. Quotable:
most people don't fully appreciate the magnitude of what just happened ... With today's decision, our Nine Robed Rulers have given their approval to Congress's efforts to make it a felony to criticize them under certain circumstances. Think about that for just a second. We now live in a country in which someday soon, a man could be sent to federal prison for years for saying, at the wrong time and place, that Hillary Clinton is a bad Senator, or that George Bush shouldn't be reelected ...
UPDATE #3: Hey, gang, let's all get together and commit a crime -- violating the Supreme Court's new anti-free speech law. Matthew Hoy has the details on a blogosphere conspiracy to commit political speech during an election. (Is this posting and Hoy's suggestion a RICO crime? We report, the arbitrary police powers that rule our land decide).
SoCalLawBlog has a roundup of blogosphere reactions to The Supremes summary execution of our right to free speech in the very arena it was invented to protect -- political speech. We in America are ruled by nine unelected philosopher kings -- the rule of law pretty much has nothing to do with these sort of policy questions the court believes overrule the Constitution. What else needs be said.
In the past few years, federal courts have proclaimed a right to sodomy (not in the Constitution), a right to partial-birth abortion (not in the Constitution), a right not to have a Democratic governor recalled (not in the Constitution), a right not to gaze upon the Ten Commandments in an Alabama courthouse (not in the Constitution), a ban on the words "under God" in the Pledge of Allegiance (not in the Constitution), and a ban on voluntary student prayers at high-school football games (not in the Constitution).These bizarre rulings illustrate the notion of the Constitution as a "living document," one which rejects timeless moral principles so as to better reflect the storylines in this week's episode of "Ally McBeal." You may like or dislike the end result of these rulings, but � as subtly alluded to above � none of these rulings come from anything written in the Constitution.
In response to the court's sodomy ruling last term, conservatives are talking about passing a constitutional amendment defining marriage as between a man and a woman. It's really touching how conservatives keep trying to figure out what constitutional mechanisms are available to force the courts to acknowledge the existence of the Constitution. But what is the point of a constitutional amendment when judges won't read the Constitution we already have? What will the amendment say? "OK, no fooling around � we really mean it this time!"
While conservatives keep pretending we live in a democracy, liberals are operating on the rule of the jungle. The idea of the rule of law is that if your daughter is raped and murdered, you won't go out and kill the guy who did it. In return for your forbearance, you get to vote for the rulers who will see that justice is done. But liberals cheat. They won't let us vote on an increasingly large number of issues by defining the entire universe � abortion, gay marriage, high-school convocations � as a "constitutional" issue.
In what weird parallel universe would Americans vote for abortion on demand, affirmative action, forced busing, licensing of gun owners and a ban on the death penalty? Whatever dangers lurk in a self-governing democracy, the American people have never, ever passed a law that led to the murder of 30 million unborn children.
Judges are not our dictators. The only reason the nation defers to rulings of the Supreme Court is because of the very Constitution the justices choose to ignore. At what point has the court made itself so ridiculous that we ignore it? What if the Supreme Court finds a constitutional right to cannibalism? How about fascism? Does the nation respond by passing a constitutional amendment clearly articulating that there is no right to cannibalism or fascism in the Constitution?
Is there nothing five justices on the Supreme Court could proclaim that would finally lead a president to say: I refuse to pretend this is a legitimate ruling. Either the answer is no, and we are already living under a judicial dictatorship, or the answer is yes, and � as Churchill said � we're just bickering over the price.
It would be nice to return to our federalist system of government with three equal branches of government and 50 states, but one branch refuses to live within that system ...
-- Ann Coulter
Some admire the gay-marriage ruling in Massachusetts. Some don�t. But surely the heart of the story is the stupefying arrogance of the state�s Supreme Judicial Court. If you are going to stretch a state�s constitution beyond all previous understanding, and impose what many people believe is a fundamental redefinition of marriage, you don�t do it in a 4-to-3 vote ...Why do judges behave this way? One reason is �landmarkism.� The loudest applause from the legal academy tends to come after a far-reaching allegedly progressive decision unsupported by public opinion, and with no real basis in the U.S. Constitution or case law. No judge gets to be admired by the legal and media elites by simply following law and precedents. No glamour there. You have to make something up ...
Have the courts gone to far? The latest outrage from the Federal circuit courts. Quotable:
A federal judge today rejected an appeal on behalf of the American people to restore 'sovereignty' to the citizens of the United States. In a 12-page ruling the unnamed judge said, "the United States is governed by laws, not by men, and must therefore be ruled by those appointed to interpret the laws, not by the elected representatives of the people."The plaintiffs, emboldened by the Bush administration's decision to more rapidly return power to the citizens of Iraq, had cited the Declaration of Independence and Article I, Section 1 of the U.S. Constitution to justify their contention that government derives its power from the "consent of the governed" through their elected representatives. They also argued that Article III, Section 2, calls on the courts to decide cases under the laws created by Congress, rather than to create law using cases brought by activists.
However, the judge found neither of those assertions compelling, and ruled that "the United States will continue to live under the sovereignty of the judiciary .. "
.. where does a downward spiral of politicization [of the law] end? What happens when we complete the conceptual reorientation and see judging as a mere extension of ordinary politics? Nothing good. The bottom of a downward spiral of politicization is a thoroughly politicized judiciary. We know what that looks like. It exists in odd corners of the United States, where lawyers know that winning--even in a run-of-the-mill tort case--is almost entirely a function of how much you have contributed to the local political machine. A thouroughly politicized judiciary is the norm in much of the third world, and the result is that the transparency required for well-functioning markets cannot be achieved--at enormous costs in human welfare. In a thoroughly politicized judiciary, every case is a patronage opportunity or a chance to score political points.
-- the money quote from an important post by Legal Theory blogger Larry Solum. Solum has a host of links to the large discussion this topic has generated in the blogosphere.
Instapundit has great blogosphere coverage of the Ninth District's Commerce Clause decision ruling that the Feds can't prohibit homemade machine guns including links to Legal Theory Blog and the Volohk Conspiracy. Note well -- the decision comes from a three court panel headed by Judge Kozinski.
The super rich simply don't understand how the little people live in California -- just ask Dianne Feinstein:
One of the reasons given by California's liberal Senator Dianne Feinstein for opposing the confirmation of state Supreme Court Justice Janice Rogers Brown to the federal judiciary is that Justice Brown has refused to put property rights on a lower plane than other constitutional rights and has criticized the destruction of property rights in San Francisco.
Senator Feinstein has said that it is "simply untrue" that property rights have been sacrificed in San Francisco. According to Senator Feinstein, private property "is alive and well" in San Francisco, "with property values making it one of the highest cost-of-living cities in the United States."It might be humorous, if it were not so sad, that a senior United States Senator has so completely missed the point of discussions about the destruction of property rights that have been going on for decades in legal and intellectual circles.
One of the main reasons for the outrageous housing prices in San Francisco and the surrounding Bay area is precisely the over-riding of property rights. Endless restrictions, obstructions, and bureaucratic delays facing anyone who is building anything on their own property in this area have forced housing costs to astronomical levels.
The issue is not the prosperity of property owners, many of whom benefit enormously from the restrictions on building that cause the value of their own existing property to skyrocket. San Francisco property owners like Senator Feinstein have made out like bandits from these restrictions on property rights.
Justice Janice Rogers Brown noted pointedly during her nomination hearings that she cannot afford to live in San Francisco, but has to commute from far away for court hearings held there. That is part of the cost of politicians ignoring property rights and courts letting them get away with it.
The costs are even higher when rent control laws over-ride property rights and create housing shortages in the process. Homelessness is particularly acute in cities with severe rent control laws, such as San Francisco and New York ..
The main victims of the politicians and courts over-riding property rights are people who own no property. The main proponents of these violations of property rights are often people who do ..
It was front-page news recently that an 18-story condominium building is to be constructed in South San Francisco. It took two decades for the builders to fight their way through all the politicians, courts, bureaucracies and environmental activists.
All of this costs money and all that money is going to come out of the hides of the people who move into that building. Meanwhile, the value of Senator Feinstein's home in San Francisco will keep on rising, which she regards as proof that property rights are being protected.
Far down the income scale from Senator Feinstein is a nurse who, according to a local newspaper, "has finally bought her dream house" near the long-delayed condominium. This is a 2,400 square foot house selling for $850,000. High housing costs in California are not due to people living in mansions but to bungalows costing what mansions cost elsewhere.
How many members of her family will have to sacrifice how much of their paychecks to carry this crushing mortgage burden is a question that doesn't bother most liberals. Senator Feinstein doesn't seem to understand why such things bother Justice Brown.
-- it's Thomas Sowell.
Larry Solum on Dworkin on John Rawls and the law. Live from the Rawls and the Law conference at Fordham.
Justice Brown defended. Quotable:
Brown writes with a flair that can delight laymen and law students while disgruntling stodgier observers. In her San Remo dissent, she turned the full rhetorical force on the power-tripping bureaucrats in the City by the Bay:"Private property, already an endangered species in California, is now entirely extinct in San Francisco," she observed. The City had become a "neo-feudal regime." She reprimanded fellow jurists who automatically give a pass to confiscatory land-use restrictions. "Once again a majority of this court has proved that 'if enough people get together and act in concert, they can take something and not pay for it.' But theft is theft. Theft is theft even when the government approves of the thievery."
In one of the few uses of the word, ever, in the history of American case law, Brown called San Francisco a "kleptocracy." She excoriated the city's refusal to acknowledge that "the free use of private property is just as important as ... speech, the press, or the free exercise of religion."
Brown's judicial philosophy amounts to what is sometimes called the "Madisonian" view, because it reflects the allegiance to higher law and transcendent rights embraced by the "Father of the Constitution." Not everything is open to majority rule, and courts must ensure that the majority does not run roughshod over groups that are unpopular or lack political power. As Brown put it in another dissenting opinion, "Courts must be especially vigilant, must vigorously resist encroachments that heighten the potential for arbitrary government action."
Is the citation of Friedrich Hayek and his The Road to Serfdom a disqualifying condition for sitting on the Federal Bench? Professor Bainbridge wants to know -- in a proper fisking of Prof. Michael Froomkin, who has read Justice Brown right out of America on the basis of a speech which cites Dr. Hayek. Professor Bainbridge goes on to note:
if some of Justice Brown's opponents knew more conservatives, they might realize that her views are not that far from the middle of American political culture as a whole
Read the whole thing, as they say. (via Calblog)
UPDATE: Professor Bainbridge fisks again -- same Brown speech, new Bainbridge victim.
Nat Hentoff gives the nuts and bolts showing how the NY Times, the Dems in the Senate, and the NAACP are not people of "good faith". They are nasty, dishonest, knife-in-the-gut folks without an ounce of honesty or simple decency. Sad to say, but the plain as day truth.
William Kristol et al on the imperial Supreme Court. Quotable:
Today�s judiciary really is �imperial� and, to a remarkable degree, extra-constitutional. The courts have done serious damage to the American political and social order. They therefore pose a major political problem. But this is a problem that defenders of the constitutional and political order�call us conservatives�have so far failed to deal with successfully.The failure goes back at least three decades. By the mid-1970�s, the �imperial judiciary� was already understood to be a problem, not just on the far reaches of the political Right, or among the constitutionally fastidious, but in (more or less) mainstream circles like this journal. The federal courts were in the process of imposing a disastrous educational and social policy of forced busing all around the country, based on a claim of an amazingly broad power to make up for alleged past wrongs. Meanwhile, the Supreme Court had in 1972 outlawed the death penalty as it was then administered, and in 1973 had struck down the abortion laws of all 50 states�both startlingly extra-constitutional actions.
But this moment of opportunity to curb the courts was lost ...
Arlen Specter sounded like an idiot at the Justice Brown hearings because he was an idiot. Some things never change.
Justice Janice Brown: "Out of the Mainstream"... by Ann Coulter:
The newspaper that almost missed the war in Iraq because its reporters were in Georgia covering the membership policies of the Augusta National Golf Club has declared another one of President George Bush's judicial nominees as "out of the mainstream." The New York Times has proclaimed so many Bush nominees "out of the mainstream" that the editorial calling California Supreme Court Justice Janice Rogers Brown "out of the mainstream" was literally titled: "Out of the Mainstream, Again." Among Bush's "many unworthy judicial nominees," the Times said, Brown is "among the very worst" � more "out of the mainstream" than all the rest! Even Teddy Kennedy, who might be well advised to withhold comment on a woman's position relative to a moving body of water, has described Brown as "out of the mainstream," adding, "Let's just hope this one can swim."Liberals are hysterical about Justice Brown principally because she is black. Nothing enrages them so much as a minority who does not spend her days saying hosannas to liberals.
On the basis of its editorial positions, the Times seems to have called a bunch of racist Southern election supervisors out of retirement to cover judicial nominations for the paper. The only difference is, instead of phony "literacy" tests, now we have phony "mainstream" tests. Amazingly, no matter how many conservative minorities Bush sends up, the Times has not been able to find a single one who is "qualified." The Times thinks Justice Brown should be the maid and Miguel Estrada the pool boy.
According to the Times, Brown has "declared war on the mainstream legal values that most Americans hold dear." What the Times means by "mainstream legal values" is: off-the-charts unpopular positions favored by NAMBLA, the ACLU and The New York Times editorial page.
Thus, for example, opposition to partial-birth abortion � opposed by 70 percent of the American people � is "out of the mainstream."
Support for the death penalty � supported by 70 percent of the American people � is "out of the mainstream."
Opposition to government-sanctioned race discrimination � which voters in the largest state in the nation put on an initiative titled Proposition 209 and enacted into law � is "out of the mainstream."
Opposition to gay marriage � opposed by 60 percent of the American people � is "out of the mainstream."
Failing to recognize that totally nude dancing is "speech" is "out of the mainstream."
Questioning whether gay Scoutmasters should be taking 14-year-old boys on overnight sleepovers in the woods is "out of the mainstream."
I guess if your "mainstream" includes Roman Polanski, Michael Moore, Howard Dean and Jacques Chirac, then Brown really is "out of the mainstream." This proverbial "stream" they're constantly referring to is evidently located somewhere in France.
Liberals are always complaining that they haven't figured out how to distill their message to slogans and bumper stickers � as they allege Republicans have. Though it can't be easy to fit the entire Communist Manifesto on a bumper sticker, I beg to differ. (Bumper sticker version of the current Democratic platform: "Ask me about how I'm going to raise your taxes.")
The problem is, if Democrats ever dared speak coherently, the American people would lynch them. Fortunately for liberals, soccer moms hear that a nominee is "extreme" and "out the mainstream" and are too frightened to ask for details. (Ironically, based on ticket sales and TV ratings, soccer is also out of the mainstream.)
In addition to the fact that she is black and "out of the mainstream," the first item in the Times' bill of particulars against Brown was this:
"She regularly stakes out extreme positions, often dissenting alone. In one case, her court ordered a rental car company to stop its supervisor from calling Hispanic employees by racial epithets. Justice Brown dissented, arguing that doing so violated the company's free-speech rights."
Despite the Times' implication that Brown was "dissenting alone" in this case, she was not. The opinion of the California Supreme Court in the case, Aguilar v. Avis, was as closely divided as it gets: 4-3. Among the dissenters was Stanley Mosk, who was once described by the Los Angeles Times as "the court's most liberal member." When Mosk died in 2001, his obituary in The New York Times described him as "the only liberal on the seven-member court." I suppose if the Times had mentioned that a prominent liberal jurist had agreed with Brown in Aguilar, it would be harder to frighten silly women with that "out of the mainstream" babble.
But the real beauty part of Brown's dissent in Aguilar is that she was vindicating a constitutional principle that is second in importance only to abortion for liberals: no prior restraints on speech.
In a major victory for Avis, the jury rejected almost all of the claims against Avis by Hispanic employees, but did find that two managers � only one of whom still worked at Avis � had called Hispanics names. So the lower-court judge got the idea to issue an injunction prohibiting one single Avis manager from ever using derogatory language about Avis' Hispanic employees.
The injunction was broad enough to prevent the manager from using such language in his home, out of earshot of his employees, in a joking or friendly manner, as part of a hypothetical example, or even if his speech were incapable of creating a "hostile environment" under the law. Questions were also raised about whether he was even allowed to chuckle at the little dog in those "Yo quiero Taco Bell" TV commercials. It was basically a bill of attainder against this one manager (who was himself married to a Hispanic).
I note that liberals laughed at the idea that a "hostile environment" could be created by a single incident of a governor dropping his pants and asking a subordinate to "kiss it." But the mere speculative threat of a manager saying "wetback" � one time � was such a threat to the stability of the nation that the Times backed a prior restraint on the manager's speech.
Usually The New York Times is citing the law's antagonism to prior restraints on speech in order to wax eloquent about the Supreme Court's "landmark decision in the Pentagon Papers case." In a ruling that celebrated the very essence of the First Amendment, the court ruled that the government couldn't stop the Treason Times from publishing classified national-security documents. As the Times put it, that case had "made it clear that only a showing of concrete, immediate risk to the nation could justify a judicial order imposing a prior restraint on any kind of publication."
But apparently, there is one interest even more vital than preventing an immediate risk to the nation: stopping a supervisor someplace in America from ever using the word "spic." Anyone who disagrees is "out of the mainstream." And any minority who is not duly grateful to liberals for supporting prior restraints against certain words is only qualified to be the maid.
Justice Scalia thinks that Justice Kennedy's constitutional jurisprudence is a joke. And he's right.
Thomas Sowell explains what Diane Feinstein and her Democrat friends in the Senate are all about:
Janice Rogers Brown is being seen, not just as a threat to the liberal agenda in the courts, but also as a threat to political orthodoxy among blacks, a key voting bloc for the Democrats. For her to go from her current position on the California Supreme Court to national prominence would threaten the monopoly of the liberal-left mindset among blacks.Black "leaders" like Jesse Jackson and Al Sharpton, and black organizations like the NAACP, must maintain a monopoly because they cannot risk everything in a free market of ideas. Therefore they must demonize Clarence Thomas and cut off at the pass anyone who might become another nationally visible black voice with alternative ideas.
The whole Democratic Party has a huge vested interest in a solid black vote today that is like the "solid South" which Democrats relied on in national elections back in the days of Jim Crow. As a Republican, Justice Brown is a threat to that monolithic solidarity, even if she never says a word about politics.
Democrats -- black and white alike -- realize that she must be stopped right here and right now, before she can gain national prominence as a federal appeals judge, who might well end up on the U.S. Supreme Court in future years. Janice Rogers Brown and Clarence Thomas both on the same Supreme Court is a liberals' nightmare.
None of this has anything to do with the merits of a judicial nominee ..
California Supreme Court Justice Janice Brown before the U.S. Senate monkey court Judiciary Committee on C-SPAN (video feed). Could Arlen Specter be any more of a baffoon? He sounds like the equivalent of a feeble minded man prentending to understand and argue about the specifics of unified field theory. And could Ted Kennedy be any more dishonest, cynical and vicious?
Speaking truth to honorary lifeguard Ted Kennedy -- Justice Brown goes before the (corrupt) U.S. Senate.
Diane Feinstein -- a continued embarrassment for California -- attacked Justice Brown with these silly and deeply cynical words "How can I depend on you to disassociate yourself from those views and follow the law?" These words for a sitting State Supreme Court justice with an outstanding legal record.
Feinstein was doing the McCarthite/Kennedy treatment on Brown for her exercise of her free speech rights in a talk for students which included the following statement, "where government moves in, community retreats, civil society disintegrates, and our ability to control our destiny atrophies. The result is: families under siege, war in the streets, unapologetic expropriation of property, the precipitous decline of the rule of law, the rapid rise of corruption, the loss of civility and the triumph of deceit."
Our experience in the last 100 years -- if facts matter -- is the all too sad truth of this statement.
Thomas Sowell comes to the defense of Justice Janice Rogers Brown of the California Supreme Court.
And here is Part II of Sowell's defense of Justice Brown.
It's gratifying when someone gets it. None the Wiser gets it.
The Nevada Supreme Court orders the Nevada legislature to violate the Nevada Constitution and Eugene Volokh is stunned and appalled. (via Instapundit). California Insider is also stunned, and wonders if this constitutional revolution might jump the border.
Quotable Volokh:
I do, though, hope that Nevadans won't stand for this judicial nullification of the people's will, and that they will promptly make clear that it is they who get to add or delete portions of the Nevada Constitution.
I wonder how long Volokh has been in California -- we're pretty resigned to this sort of thing by now. And proposition 187 is exceptional only for its infamy.
Here is the friend of the court brief Randy Barnett helped write in support of Lawrence and Garner's case against Texas.
Wanted -- dead or alive -- the U.S. Constitution. Legal Theory Blog has a roundup on blogosphere discussions.
A correspondent wonders if I haven't overlooked the natural-law, anti-constructivist theoretical base at the root of Barnett's own acount of liberty. I replied in this manner:
In his NRO piece, it looks like Barnett missed that also. What I'd like to know is how does Barnett square this circle -- his endorsement of Kennedy's legal opinion -- based as it is on Kantian and Millian arguments, and Barnett's own natural-law, anti-constructivist theoretical base.
In his NRO piece Barnett does say this:
The problem created by the unenumerated right of privacy is that it now required the Court to distinguish unenumerated liberties (deemed by the court to be "fundamental rights" that rebut the presumption of constitutionality) from mere "liberty interests" (that do not). Eventually, the Court settled on limiting fundamental rights to those that could be grounded in our "history and traditions" or "implicit in the concept of ordered liberty."The more specifically you define the liberty at issue, however, the more difficult a burden this is to meet � and the more easily the rights claim can be ridiculed. "Liberty" is obviously deeply rooted in our history and traditions. A right to use contraceptives is not. Nor is almost any particular exercise of liberty, especially if it was a practice unknown at the Founding. Whenever a particular liberty is specified, therefore, it is always subject to the easy rejoinder: "Just where in the Constitution does it say that?" even though the Ninth Amendment specifies that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
And this:
The response of judicial conservatives (not to be equated with all political conservatives) who are still rooted in the post-New Deal constitutional jurisprudence has been both entirely predictable and remarkably feeble. First, they argue that since all laws restrict some "freedom," requiring legislatures to justify to a court their restrictions on liberty would enable judges an unbridled power to strike down any laws of which they disapprove. But this is to equate "liberty" and "license," a mistake the Founders never made. Liberty is � and has always been � the properly defined exercise of freedom that does not violate the rights of others. Your right to liberty is not violated by restrictions on your freedom to rape and murder, because you have no such right in the first place.With this as the baseline, the onus then falls on the government to justify the restriction of liberty. Once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government. Though he never acknowledges it, Justice Kennedy here is employing what I have called a "presumption of liberty" that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow "fundamental."
What I'm suggesting here and below is that Barnett's argument contains an implicit leap from the tradition of ordered liberty ratified by the framers to a much more Millian account of liberty rights -- a liberty right in law which is built upon the frame of a rationally constructed morality. Perhaps there is not as much distance in this leap as I am inclined to think. But it's still a leap.
Randy Barnett has an important analysis of Justice Kennedy's opinion in Lawrence v. Texas. One problem. The framers gave us a liberty right out of the tradition of British constitutionalism. Barnett and Kennedy are inserting a rationalistic post-Millian and post-Kantian liberty right -- one that imagines that "morality is the product of our reason" -- which it isn't, and a view which the framers had no part in making a part of American jurisprudence. The fantasy of constructed morality -- and constructed rights -- is a modern conceit, which the framers cannot be said to have given us as the law of the land.
Trial lawyers are road-testing a new form of corporate shakedown, says Robert Samuelson, and this time it threatens free speech. (via The Agitator).
Is liberty under the rule of law in America a constitutional thing -- or is it "a global thing"?:
[Kennedy's] opinion referred to a ''friend of the court'' brief that described liberty as a global concept and detailed how other countries protect the privacy of gay men and lesbians. It was submitted by Mary Robinson, former United Nations high commissioner for human rights ..
(via Drudge)
Welcome to Plato's Republic of the United States.
We are now living in Plato's Republic -- a republic of philosopher kings -- rather than Madison's Republic -- a republic of traditionally inherited rights democratically mediated and reformed by the people themselves. Instead, we are now ruled by a committee of five according the post-founding inventions of morality constructed by Kant and Mill (read a bit of Justice Kennedy in Lawrence vs. Texas to see what I mean), and not by the democratically sanctioned yet inherited laws and traditions of British liberalism. It's been a century long revolution, but the revolution is complete. Legal Theory Blog has a useful account of how the notion of "legitimate state interest" was morphed and constructed into a tool for completing this deep change in how we rule ourselves in America. The upshot:
We are now in a position to take a very broad view of the notion of legitimacy that the Supreme Court has employed for about 100 years. We now can see a familiar pattern. Language that was initially used for one purpose (sphere of authority) is adapted to a quite different purpose (minimally sufficient weight) and then morphs into something else entirely. It is no longer clear that the Supreme Court has any coherent view of what constitutes a "legitimate state interest." And it is far from clear that the emerging new concept of a "legitimate state interest" will have any relationship to the concept of legitimacy. In all likelihood, this conceptual incoherence will not bother the Supreme Court. After all, the Supreme Court, like Humpty Dumpty, can say "When we use 'legitimate state interest,' it means just what we choose it to mean--neither more nor less."
But read it all -- lots of interesting details on the history of how all this happened, and when.
There is a new law blog, of special interest to West Coast folks titled: The Limit of its Logic: Ninth Circuit Blog.
Worth reading -- Charles Krauthammer. Snippet:
I once worked in government. On my first day, I raised my right hand and swore to uphold the Constitution. I thought I knew what that meant. Recently we have gone to war in Afghanistan, Iraq and a few other places, at least in part to advance democracy and promote our kind of constitutionalism. A foreigner might then ask: What exactly is your Constitution? Now we know the answer. The Constitution is whatever Sandra Day O'Connor says it is. On any given Monday. That modifier is crucial, because she does change her mind, and when she does, so does the Constitution. Seventeen years ago, she ruled anti-sodomy laws constitutional. Now she thinks otherwise ...
But in his opinion for the Court, Justice Anthony Kennedy preferred a far more grandiose approach. He said the case "involves the liberty of the person both in its spatial and more transcendent dimensions." He then made clear how transcendent he considered these dimensions by quoting his own paean to liberty from the case that reaffirmed Roe in 1992, a dictum that Justice Scalia called the "sweet-mystery-of-life passage": "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This passage has been properly ridiculed by lower court judges for the past decade because of its melodramatic implications. If carried to its logical conclusion, it seems to read the libertarian harm principle of John Stuart Mill into the Constitution, preventing the state from forbidding individuals from engaging in behavior that the majority considers immoral but that poses no harm to others. But in Lawrence, Kennedy, joined by four of his colleagues, made clear that a majority of the Rehnquist Court does in fact mean to read the "sweet mystery" passage for all that it's worth. He said that states and courts should not attempt to "define the meaning of the [intimate sexual] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects." As Scalia correctly observes, "This effectively decrees the end of all morals legislation."
I'd suggest as a slight correction -- Justice Kennedy is actually making Kant's moral philosophy (not his legal philosophy) the law of the United States -- e.g. he appeals in crucial ways to the concepts of individual "autonomy" and "dignity" in ways familiar from Kant. Andrew Sullivan's blogging expresses more of the thinking of a Mill man than does Justice Kennedy's opinion, althought there is surely doses of Mill in the new law. Students of the philosophy of law will well understand that it is a sophomore's mistake to conflate law and morality. What is law is not always of a moral character, and what is moral is not always of a legal character, to put things simply enough to explain the point to sophomores. Has Kennedy forgotten this? These folks on the court are so old it does raise important questions about how far each of them are along in the process of cognitive decline -- which science tells us is a universal fact measurable in every one of us as we get past 40.
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Ward Connerly will announce an initiative outlawing racial descrimination in Michigan on Tuesday. Let's Roll.
My thought? There's nothing like a little democracy to the cure the arbitrary abuse of power.
O'Connor's incoherent mush means a giant victory for the race industry:
Because Gratz v. Bollinger bars the formulaic use of race in admissions decision, schools that get lots of applications will have to expand their admission staff in order to conduct the "holistic, individualized" review Grutter demands of schools that take account of race.
Jobs and power is where it's at, baby. And the lawyers and law schools have got to love this sort of word-splitting mess -- a sort of full-employment act for folks who produce nothing but bogus rationalizations and other endless streams of words, all aiming to make white folks feel morally good about themselves. There's some irony there ...
Phillip Howard reviews Walter Olson's The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law. Howard highlights how the press and the academic establishment in the law schools are co-conspirators in the ongoing corruption of the American legal system:
Where are the whistle-blowers? The media in this area are like putty, or worse, all too willing to turn any story of personal tragedy into one of corporate abuse, without stopping to ask who the real victims are when, say, companies are bankrupted by lawsuits. Self-interest has infected all sides in these cases. Large corporate firms (including the one where I work) make millions defending these cases.How about academics in the ivory tower? A full-length portrait of O'Quinn hangs in the John M. O'Quinn Law Library at the University of Houston. The then-law school dean at Texas Tech, W. Frank Newton, solicited a contribution of $12.5 million from one of the tobacco lawyers before agreeing to serve on an arbitration panel that awarded the lawyer and the other four firms on the case $3.3 billion in fees. When asked about the propriety of his conduct, the dean suggested that his conflict was well-known: "There's no question about who I am or what my role was."
Stanley Fish defends Justice Thomas -- but sides with O'Connor, because he favors unprincipled illiberalism over the principled liberalism of Thomas. Gentle plea to readers -- think about it.
CalPundit on a recent Supreme Court case:
this is a case where the result is so clearly worthy that I don't even care that much exactly what the legal reasoning was.
My guess is that Calpundit speaks for lots of folks -- including some who wear black robes.
Am I being a bit too clear eyed if say that many would just as well put it this way?:
"this is a case where the result is so clearly worthy that I don't even care that much exactly what the Constitution says".
Or perhaps I read that somewhere in one of O'Connor's opinions.
Who needs Instapundit when there's ScrappleFace:
Supreme Court: Texans Too Stupid To Rule State(2003-06-26) -- In a little noticed addendum to today's Lawrence and Garner v. Texas decision, the Supreme Court ruled that the citizens of Texas are not intelligent enough to rule their own state.
Writing for the majority, Justice Anthony M. Kennedy noted, "Representative government is a good notion as far as it goes. But the citizens of Texas clearly lack the mental ability to elect representatives and make laws properly. We'll be keeping eye on them to protect them from themselves."
Justice Kennedy also wrote that "citizens of many other states probably lack the intellectual capacity to rule themselves as well, which is why the Supreme Court exists, and why none of us can afford to retire. Imagine what would become of this nation without our sovereign rule."
Peter Wood on what the Court has done:
Diversity is a compelling state interest. In these mild words the Supreme Court has effectively amended the U.S. Constitution. We now live in a nation where the highest court has endorsed the principle of group rights. The "diversity" in question is the idea that Americans are properly seen in relation to each other as members of racial and ethnic groups, and not as individuals who have equal rights before the law ...I can't help but think that the transformation of America into a regime of group rights has only just begun. The danger of hereditary groups pursuing their interests as organized factions � the danger that so worried Madison and that deeply informs our Constitution � has been waved away by the Court. Don't worry, the Court says, we can have the benefits of racial categorization to correct our inequities, and then we will retire those categorizations in 25 years or so when they are no longer needed. But factions are interest groups, which are not known for fading away when you supply them with government incentives. No, the social divisions of diversity are here to stay, along with their inherent nastiness.
This Court has fertilized and watered the seeds of discord. We are going to see at least a generation more of people mis-defining themselves as members of groups rather than as individuals, and the groups themselves competing ever more viciously for the spoils. And that's where we are. The Court has not upheld affirmative action. Rather, it has legitimated the politics of racial and identity-group faction.
Peter Wood is the author of Diversity: The Invention of a Concept.
Wouldn't you know it -- politicians exempt themselves from the new law restricting speech over the phone.
UPDATE: And pollsters are protected also.
Andrew Sullivan posts this email from a reader on Lawrence v. Texas:
The majority failed to ground its decision in any established rule of constitutional law, but its outcome implies one of two things: 1) morality is never a "legitimate state interest" and thus all morality-based laws fail a rational-basis test OR 2) any activity valued by an individual and done in private is a "fundamental liberty" protected by the constitution as much as enumerated rights such as freedom of speech or the right to a fair trial. Either way, the Lawrence v. Texas decision has fundamentally altered constitutional interpretation and could be the basis for striking down an extraordinary number of laws--not just about sex--throughout the United States.The stronger implication seems to be #2, because the case labors over the evidence which led the Bowers Court to declare homosexual sodomy is not a fundamental right. As a person with libertarian sympathies, I am strongly tempted to cheer a decision that could serve to invalidate all victimless crimes. But as a student of Constitutional law I must be distressed that the libertarian principle has been shoehorned into the tiny phrase "due process" and not based in representative democracy, or legitimate interpretation or amendment of the Constititution. Even worse, the Court partially based its "fundamental liberty" declaration on the decision of many states and *Europe* to get rid of such laws. So now, if the Blue States and Brussels decide that something is a fundamental right, it will suddenly be read into our Constitution?!?
My email address is there in the upper right-hand corner.
George will on Lap Dancing, Sodomy, and the Constitution. On target analysis of the evolution of the "right to privacy".
Krauthammer on racial descrimination and the Supreme Court. Quotable:
Issues of this magnitude should never be decided by nine robes. Affirmative action needs to be dealt with by the people in the legislatures and in referendums. I believe that the current dispensation is a travesty. But a very substantial portion of the population reads the Constitution -- and the nation's needs -- quite differently. Under these circumstances, the issue should not be settled by judicial fiat.We learned from the abortion issue the doleful consequences of such judicial imperialism. In 1973 changes in public opinion and action in state legislatures were altering the landscape on abortion. At which point the court stepped in and took the issue out of the political arena. As Ruth Bader Ginsburg argued before she ascended to the Supreme Court, "Roe v. Wade . . . halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue." The result has been 30 years of strife and agitation, as a disenfranchised minority continues to carry the fight against policy for which it has no political recourse.
It would be a pity to reenact the experience with affirmative action. Popular referendums have already abolished racial preferences in California and Washington state. Such acts of abolition enjoy the kind of political legitimacy that -- as conservatives, of all people, should acknowledge -- is lacking when handed down by unelected judges.
The Economist on Richard Posner's Law, Pragmatism, and Democracy -- from the review:
Mr Posner describes himself as an �everyday� pragmatist. Despite the thousands of words he devotes to the subject, it is not really clear what he means by this. He seems to mean that he is in favour of ignoring general moral and ethical principles because they are meaningless. All that counts�and what judges should consider above all else in interpreting the law�is what is sensible and produces the best result from society's point of view.But these are highly controversial questions, and the answers to them invariably involve assumptions about moral principles. Mr Posner's approach is essentially hollow, amounting to little more than a demand that people not think too deeply about issues.
The second problem with many of Mr Posner's ideas is that they seem inappropriate for a senior judge to be expounding. For example, he argues strongly in this book for the notion that democracy has little to do with rational deliberation or citizen involvement, but is instead merely a matter of competition between self-interested elites for the temporary favour of an apathetic and ignorant electorate.
As a description of how America's democracy actually works, this is certainly plausible, but Mr Posner goes beyond this description to argue that this is the best that can be expected from the system and those who use it. That is a disconcertingly scornful view for a judge to take of the American public.
More troubling still is Mr Posner's view that judges should impose their own policy choices on a case whenever ambiguity in the law gives them the discretion to do so. Many judges do this, though nearly all deny it, justifying their decisions instead by reference to laws and court precedents. Mr Posner thinks this is usually legal flim-flammery, and that frank judicial activism would be better. Few people, on the right or the left, would swallow this.
Hit & Run -- another one which sees Lawrence vs. Texas as a victory for liberty:
Liberation DayThe ruling in Lawrence v. Texas presents a rare case of stand-up-and-cheer language in a Supreme Court majority opinion. From Justice Kennedy's ratio:
Liberty protects the person from unwarranted government intrusions into a a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. [...] It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another peson, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Full coverage of Lawrence v. Texas with lots of links.
Dean's World is rather elequent on today's Court ruling:
Unfortunate Decision With Good ResultsThe Supreme Court struck down a Texas sodomy law today. I'm glad to see the law gone, but I'm sorry about the decision anyway. Democratic freedoms are still being regularly eroded by the Supreme Court, and this is just another example of it.
In the 1980s, the Supreme Court declared that states have a right to have such laws. That decision was correct, in my view. The Supreme Court is not supposed to be in the business of deciding whether it "likes" or "agrees with" a law. The Justices are not supposed to decide that their commute is too long and rule speed limits unConstitutional. There are all kinds of laws I don't like, but I'd be horrified if the Supreme Court simply started throwing them out on my behalf.
As James Taranto's "Best of the Web" notes, in 1986, when the Supreme Court ruled that such laws were not unConstitutional, 24 states had them. Today, only 13 do. In other words, we were already on track on dealing with this issue via democratic means. When it comes to contentious social issues, it strikes me as particularly sad that we increasingly expect the courts to "do what's right for us," rather than go about the messy work of the legislative process.
Ah well. A bad law's gone, as are several like it. I just want to add my voice to those who note that it's sad when we celebrate democracy being trampled once again by the courts.
I come from the West. Most of the problems the Supreme Court has been trying to fix come out of the East and the South, e.g. the contraception laws, the abortion laws, the sodomy laws, etc. The people out here solve our problems the democratic way -- we vote on them. You don't find most of these laws in Oregon, Washington and California. To get the results they want for folks in the East and the South, the Supreme Court has been trashing the constitution for all of us. And its a damn shame.
California Insider sees the Supreme Court's Texas decision as a victory for liberty, rather than an attack on liberal constitutionalism and the rule of law. Worth quoting at length:
The Supreme Court has just overturned the Texas law banning sodomy, and certain folks already are contending that this is somehow an example of legislating from the bench. �Regulating homosexual conduct�is the right of the people, to be exercised through the legislative, rather than the judicial, branches of government,� says Mathew Staver, President and General Counsel of Liberty Counsel. Perhaps this strangely named group needs to look up the definition of liberty. Regulating homosexual conduct is the right of the people, alright, to be exercised by the people in the privacy of their own homes � not by any branch of the government, legislative, judicial or executive. The court here isn�t regulating conduct. It�s preserving the right of free people to act as they please as long as their behavior is consensual and does not harm others. The court is not creating a right to sodomy; it�s denying the right of government to interfere in the private lives of free citizens. Big difference.The more I see of this decision, the more it becomes apparent that it's a huge victory for liberty and should be celebrated by all opponents of an intrusive government, no matter their beliefs about homosexuality. The point is that three people, making a majority, ought not legislate what two others can do in the privacy of their own home. Would that this doctrine not stop at gay sex but be extended to all human conduct.
Key quote from Kennedy opinion:
"This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."
And Scalia, though dissenting, drives home the point:
"This effectively decrees the end of all morals legislation."
We can only hope that he is correct.
Well, I'm all for getting rid of the prostitution laws, but I don't want to get rid of the laws against child molestation -- and I don't want nine old people deciding the issue, especially when they haven't been elected dog catcher by the people.
David Bernstein on the recent Supreme Court legislation:
SODOMY DECISION: We spent a lot of time in my Con Law II class last semester talking about how the Supreme Court is affected by the attitudes of the times the Justices live in. By the time we got to the Bowers (the earlier sodomy case), my students had decided that this was a persuasive way of analysing the Courts' decisions, and were unanimously convinced, or so it seemed to me, that Bowers would be overruled this term. They were right.
Clayton Cramer has an insightful discussion of what our Supreme Legislature is up to -- and it has very little to do with the system of Liberal Constitutionalism within which the founders of our country were working.
Eugene Volokh on the logic of the new sexual freedom legislation passed by the nine appointees on the U.S.'s law-making panel.
Read the most recent legislation enacted by our Supreme, er, Court. Nine unelected old people decide what they want the laws to be, and you obey. A crazy system in a Liberal democracy -- and more than a bit out of control.
William Bennett comes out of hiding long enough to comment on the Michigan rulings. And he comes up with a great quote from Justice Harlan's dissent in Plessy v. Ferguson:
"The law regards man as man, and takes no account of his surroundings or of his color...."
Harlan was flagging the significance of equal -- as in equal before the law -- in "equal protection". A person's equal humanity was not to be squished like a bug for any "compelling state interest".
Sowell on the Supreme Court's Michigan ruling -- including quotes from Scalia's blistering attack on O'Connor's "logic".