1. Found a cool new blog today: Pundit and Pundette. Classy. Christian-friendly. Links to lots of good music.
2. One of the things I’m reading right now is the new Brookhiser bio of James Madison. It seems to have been overlooked a bit, but it’s quite good. Tasty morsels on what an operator, legislatively speaking, Madison was at times, and a forthright summary (unflattering) of Madison regarding slavery. Brookhiser has the very necessary virtues of being both a) dedicated to brevity, and b) a card-carrying Hamilton-defender.
3. At some point we need to discuss Santorum and the right to privacy. A fellow at Ricochet recently linked to an old 2003 interview where he seems to defend anti-sodomy laws, not on the mere (Thomas/Scalia) “they’re constitutional” grounds, but as good laws in and of themselves. That’s a problem, and I hope Santorum has re-thought his position on that. Leaving laws on the books that are optionally enforceable invites police abuse.
In general, based on the 2003 interview, it doesn’t look like Santorum knows how to talk or think about this issue very well; he doesn’t, for example, appear to know how to distinguish the three levels of the right to privacy debate: a) the natural rights level, b) the Constitutional level, and c) the plain-old law level, state and federal. What has to be hammered over and over is the absolute usurpation by liberal “judge-rulers” of all sane constitutional interpretation principles w/ regard to b). Sane people can disagree about whether there ought to be a right to privacy, i.e., about whether it is logically a natural right and if so perhaps ought to be put into the Constitution via amendment, or about whether we (usually at state-level) should pass particular laws, such as ones that legalize gay-marriage, that factually expand what might be called privacy, but no sane U.S. Citizen, gay, straight, liberal, or conservative, should be left ignorant about the Constitution-wounding judicial usurpations done in the name of this right, more of which are planned to be done soon enough.
February 16th, 2012 | 6:49 pm
Thanks so much for the kind words and link. I’m enjoying your Valentine’s music right now.
February 16th, 2012 | 7:10 pm
Carl for SCOTUS!!!
February 16th, 2012 | 9:23 pm
Isn’t the Constitution based on the distinction between the public and the private? Doesn’t that distinction have something to do with the limitations of human nature which the framers recognized in the proposition about equal natural rights? And don’t judges, as much as legislators, have a duty to interpret the Constitution in light of those principles? Why the separation between a and b? Aren’t you undermining the basis of your complaint about judicial usurpation?
February 16th, 2012 | 10:23 pm
Mr. Scott,
Just a couple of days ago, James Madison and the Making of America,–written by Kevin R. C. Gutzman was released. However, Gutzman is no Hamilton fan.
February 16th, 2012 | 11:47 pm
“That’s a problem”
To be quite frank, I ask you how that is a problem?
February 17th, 2012 | 10:52 am
Jill, so glad you noticed the Valentine’s music, which seems right up your alley–I have a big music-commentary project going on here, called Carl’s Rock Songbook, which is focused on just what the title implies, but always with the fact in mind that earlier forms of American pop (swing and rock n’ roll, fr’ instance) were better, as is, in a different way, lots of classical music. So I hope you do check out some of the Songbook posts in our archives.
Brad, I’m not quite sure where you’re coming from on this, but if it a right isn’t spelled out in the Constitution as a right, it isn’t a Constitutional right, and the Supreme Court has no business overturning a law in the name of said “right.” PERIOD. I grant things can get tricky on some constitutional rights issues, but any fair reading of Griswold v. Connecticut or Lawrence v. Texas shows that there is no right to privacy (for contraceptive freedom, for abortion, for freedom to sodomize, for gay marriage, etc.) in the Constitution. When Santorum says there is no right to privacy, that’s what he (I assume) means–that there’s no such right in the Constitution, as correctly read.
Now I do not think that by consistent natural rights thinking, one finds that a right to privacy (i.e. a right to sexual and childbirth-decision liberty–note that liberty from arbitrary search is another thing) is a natural right. I do not even think that a general natural right to exclude government from one’s family matters, i.e., a right that would guarantee contraceptive freedom but not the right to abort, can be found by such reasoning. I think you disagree. And what I do say is that sane persons can disagree about this. But when we ground the social contract in a written fundamental law, which is what American constitutionalism does, we are obliged to only change that law in a way we can pretty much (see Art. V) agree upon.
A lot of the problem here stems from carelessness w/ the 9th amendment. All the 9th amendment says is that just because we’ve guaranteed certain rights in the Bill of Rights and body of the Const., doesn’t mean that the people do not retain others, if these are discoverable by good natural rights reasoning. But guess what? Once we become aware of those others, the people has to PUT THEM INTO THE CONSTITUTION if they are to have any legal teeth for individuals. Hamilton spoke of the Russian serfs and French peasants as HAVING, present tense, natural rights to liberty. Having, but not yet enjoying them legally. And no stinkin’ judge-rulers will get me to endorse something as Constitutional Right that they haven’t had the decency to get a big majority to put into our Constitution as an amendment. When I gave my tacit consent to our social contract, I sure as hell didn’t hand them a license to readjust it whenever a new notion of what rights are natural entered their heads. I don’t say they are foolish to think that gay marriage might be a natural right, even if I do judge them to be wrong about that, but I do say they are tyrannical if they refuse to distinguish a) from b). And your words, Brad, are exactly the sort of fudge that our worst judge-rulers have tried to pull.
Distinctions, my man! They matter. Would that I were sure Santorum understood this, from the other side.
Anymouse, I think I’ll do a separate post on your question.
February 17th, 2012 | 3:57 pm
Well, my other comment appears lost…perhaps it has to to w/ my use of the H-word, as in “H-word no I will not allow judge rulers to redefine our social contract at will.” That was for Brad.
Super-busy now, though, so in brief…
Brad, that fudge is the dangerous fudge–our liberty really might depend on getting the distinction b/t a and b clear.
Anymouse, some other time perhaps we’ll get into it. I agree w/ Thomas and Scalia that there are real problems with those laws as laws themselves. Nor do I want to return to pre-Stonewall America, or have laws that pretend we are back there. And for Santorum…sheesh…he has enough to have to carefully explain w/o having to explain his partial or former support of those laws. He could be our nominee, and he’s got to be able to win.
Jill, so glad you enjoyed the Valentine’s songs…if you explore pomocon a bit more, you’llsee I’ve got a whole popular music theory developing here, with my Carl’s Rock Songbook posts.
February 17th, 2012 | 4:51 pm
Never mind!
February 17th, 2012 | 7:21 pm
Carl, it sounds like your saying the burden of proof is on the individual to demonstrate the existence of a constitutionally protected (natural) right? But in government of limited and enumerated powers shouldn’t the burden of proof be on the other foot? This is all, well, maybe not all, I meant by the distinction between the public and private. I understand (and share) your prudential concerns, and hatred really, of judicial usurpation (or what Wolfe calls modern judicial review), but the Court has a role to play in defending the political science of the Constitution and not just, say, a faithful defense of the liberties enumerated the Bill of Rights. You seem to be defending a kind of conservative brand of the living constitution here (i.e. so long as judges don’t do it) which i know is prob not your intention?
February 17th, 2012 | 7:24 pm
Carl, I agree that too much is made by the court regarding the 9th amendment in a way that aggrandizes their power to say what is or is not a right. But is Article V the only way in which unenumerated rights can be made secure or at least recognized by law? Or can Congress make laws demanding or prohibiting certain actions that would or could in effect entail unenumerated retained rights? And, of course, there is the whole federalism issue. What of this?
Not that I expect final and certain answers, these are just some questions that come to mind based on the insights of your “spirited” comments with which I largely agree.
February 17th, 2012 | 8:37 pm
“Nor do I want to return to pre-Stonewall America, or have laws that pretend we are back there.”
But certainly return to a Christian Anglo Saxon Society would be desirable. I am not necessarily in favor of such laws, but I would prefer to see a healthy discourse on them rather than a knee jerk objection to it.
February 17th, 2012 | 10:03 pm
Not of course a WASP society. I would be leery of a complete embrace of that social order. But we did have laws against sodomy long before the US, let alone the Progressive Era, and they were probably a lot less disgusting and harmful than modern attitudes towards sexuality. Witness not just forced sterilization, but also the anti masturbation devices once used on young men and women. Those things did not occur in the context of harsh laws against sexual perversion, but as they were gradually weakened.
February 18th, 2012 | 7:21 am
Anymouse, I guess I’m thinking very much in now terms, in terms of Santorum not losing if he becomes the nominee. That’s perhaps the “knee-jerk” you’re hearing. I think what I have in common with those who say, “it’s good to leave an anti-sodomy law on the books but not enforce it, as a way to state what the majoritarian morality is,” is that I also don’t want to imply that those who supported anti-sodomy laws in the past, such as the founders, were horrible people. I after all hold to the Christian teaching that homosexual acts are wrong, and am readier than probably most Christians to insist on the application of public rebuke via church discipline procedures, when there are church members who act as if there is no contradiction between their faith/membership and active homosexual practice. I obviously think, however, that (even if given the hypothetical of a democratic society with large Christian majorities) that anti-sodomy laws should not be on the books. I do not see much if any gain to public morality to have such symbolic laws, and I see plenty of potential abuses in them.
John, it would be perfectly plausible for the people of a state, or that of the whole nation, to say, “you know, we think x is a natural right…we think it is among those spoken of by the second sentence of the Declaration and those spoken of by the 9th amendment,” and then for that people to pass a law that secures x. I’m assuming they don’t have the votes to make the protection of x an amendment to the state or national constitution. x would become the law of that land, although individuals would have less legal protection if their legislature passed another law that contradicted the protection of x, because a conflict of two regular laws invites a different sort of judicial review than a conflict of a regular law with the fundamental law.
Brad, glad that you know Christopher Wolfe’s book. If you read him faithfully, you’ll see that originalism is a much safer guide (and is the guide John Marshall would choose were he with us today) than “defending the political science of the Constitution.” Read Justice Brennan’s Georgetown address (go to Ashland’s Teaching American History online document library) to see how the latter guide can get a judge-ruler virtually anything they want. Brennan says the real message of the Constitution (as if it were a poem) is to maximize “libertarian dignity,” and in an ever evolving way.
In the meantime, what are you going to do with an individual who says, “I want to pursue happiness by way of marrying three women, and the burden is on you, U.S.A., to PROVE that there isn’t a natural (and thus, by your reasoning, automatically constitutional) right to do this?” Don’t like the polygamy example? Maybe then a natural right to implant an intelligence-quadrupling computer chip into one’s head, or as Ron Paul puts it, “anything into our bodies?”
February 18th, 2012 | 10:47 am
Carl, glad to know you’re an admirer of Marshall. But if you read him faithfully, you’ll see him warning against turning the Constitution into the kind of “legal code” which you’re constitutionalizing of natural rights a la the Antifeds would do. I don’t like Brennan’s “political science” or continuing constitutional conventions anymore than you do, but the changes wrought on the separation of powers (and judicial power) by the administrative state requires a more statesmanlike role for the Court to dig us out of this mess than the outmoded “orginalism” you’re preaching. The political science of the Constitution is not at odds with the kind of morals legislation you want. But even here, with the collapse of federalism and centralization of admin authority, how effective can we expect the states’ police powers to be? I suppose that’s why you’re not opposed to constitutional amendments a la Jefferson. I like Madison, Marshall and Hamilton here. Not sure the Tea Party can pull us out, Carl.
February 18th, 2012 | 12:32 pm
I’m not even sure the politics conservatives are rightly concerned about liberal judges “constitutionalizing” continues to exist. Which is another reason for taking seriously the moral judgmentalism that guys like Madison and Hamilton expected to be involved in the judiciary’s adjudication of the Constitution — a kind of lofty example of sorts of the moral reasoning that citizens would need to carry on in the political process. Tocqueville was on to this i think when he noticed the difficulty of separating political from legal questions. Scalia wants to keep the distinction more rigid than Lincoln (cf what the former says about cases and controversies in Lujan v. Wildlife with Lincoln’s response to Dred Scott)
February 18th, 2012 | 6:31 pm
Brad,
“The political science of the Constitution is not at odds with the kind of morals legislation you want. But even here, with the collapse of federalism and centralization of admin authority, how effective can we expect the states’ police powers to be?”
Without the intervention of the Supreme Court, the state governments would very likely have retained the power to regulate and ban abortion (though of course no law is likely to be perfectly enforced) within their borders and a reversal by the Supreme Court would devolve that power to the states. Now there is the matter of cooperative federalism, so the federal government could influence policy through grants or whatever and there is the matter of the federal Partial Birth Abortion Ban Act of 2003. Even at that, the states would retain a great deal of formal power. I suppose the Supreme Court could also strike down that law on federalism grounds.
I think it is fair to say that the Constitution gives elected legislatures at both the state and federal level a great deal (though not unlimited) leeway to make policy that you or I or the guy down the street would consider very bad, and that, absent a violation of a right that was intended to be protected by a provision of the Constitution (as far as we can tell through historical inquiry), the federal courts should not strike down laws because they feel them to be bad or unfair policy or to violate natural rights that the Framers (of either the Constitution or later Amendments) had never mentioned. If people believe that the Constitution includes insufficient protections of rights, then let make the case in the public square and try to have those rights incorporated into our Constitution through democratic deliberation. The Marshall Court was (partly for prudential political reasons) very careful about striking down federal laws. That doesn’t mean there would be no hard cases. We would still have to try to figure out what the search and seizure protections are under changing technological conditions among other things and reasonable people can disagree. But we don’t need federal judges discovering unenumerated constitutional rights against the enforcement of minimum wage laws or abortion restrictions based on natural rights arguments to judges who might already favor a particular policy outcome. The judges already get a vote on such things in the political process.
February 18th, 2012 | 8:06 pm
Pete, thanks for the thoughtful response. Much to think about here and I hope to say more later. But for starters, the progressive reinterpretation of morals legislation (the slow-death of the common sense understanding of politics) pre-dates Roe by about a half-century. And here, of course, it was the Court’s “restraint” that allowed such innovative democratic experimentation to take place. I’ll get back to how the centralization of this innovation has been sustained by the Court’s searching for unenumerated rights which i’m obviously not meaning to defend and contrary to your claims don’t think i’m doing. I think i said this abuse of judicial power is more an accidental legacy of the antifeds wanting a BOR to appease their fears of judicial review.
February 18th, 2012 | 8:31 pm
Brad, I’m not sure I entirely follow, but for my part I think that both a permissive and a restrictive abortion regime are constitutionally permissible at the state level (same with laws on sodomy or sale of contraception.) I agree that the progressive interpretation of the role of judges that is implicit in say Herbert Croly’s The Promise of American Life can be used to justify both “judicial restraint” (being okay with a federal insurance purchase mandate)and “judicial activism” (striking down state abortion restrictions) depending on what a critical mass of liberals want from the court at any given moment.
February 18th, 2012 | 9:29 pm
Your point about the progressive misapplication of judicial power (activism and restraint) is right on time. Obama has been effective in reminding today’s progressive of the benefits of achieving their goals FIRST through legislation and then through the Courts — a kind of perverted Lincolnian approach. That’s one of the reasons Kagan was all about “judicial modesty” in her confirmation hearings. My point is that conservatives who stress the purely procedural or lawyers view of the Constitution, which might have worked in a century ago, are giving away far too much
In principle, I’m not sure I can agree about having a half-sodomy, half-straight regime. For prudential considerations, however, which can’t of course be entirely separated from principle, you (and Ron Paul) might be right.
February 18th, 2012 | 9:54 pm
Brad, I think that most liberals would prefer to gain their policy victories through the political branches, but would, if they had to, get them through the courts so that even when the left doesn’t win an election, it doesn’t much lose power. I think that if Kagan were part of a bloc of five consistently liberal Justices (rather than having to win over Kennedy), we would see what she meant by “restraint” One of the reasons I’m so frustrated by the Republican field is the thought of a second Obama term producing a decisively liberal court.
As a constitutional rather than a policy matter, I’m not sure how federal judicial review gets around a state not having abortion restrictions on the books or a state not having a punishment for sodomy. I’m not sure that the abortion law signed by Gov. Reagan in 1960s was, whatever one might think of it as policy, unconstitutional from the perspectives of those who framed the Constitution, the 9th, 10th or 14th Amendments or that the the California abortion law somehow invalidated the stricter abortion laws of other states or vice versa (same thing with state-level sodomy laws that differed from state to state prior to Lawrence vs. Texas) or that it was a distinctive postion of future Ron Paul supporters that states had a great deal of policy discretion in these areas.
February 19th, 2012 | 11:47 am
Enjoying this, Pete, but kinda talking past each either at this point. By judicial statesmanship I’m not thinking about direct judicial resolutions from up on high of the kind of policy/privacy disputes that you’re dwelling on here. A better or more prudential course would be a reversal of the functionalist/pragmatic approach adopted by the Court in separation of powers and federalism cases — cases where, as guys like Eric Claeys and Brad Watson have shown, the political science of the original Constitution is pitted against Progressive political theory. Thinking here of cases like Chadha, Mistretta, and Raich where the Court accepts as given the centralization of admin authority and then proceeds to judge the functionality of the branches and the power of the states accordingly. If you’re worried, as you should be, about more Obama appointees keeping up the bogus pretense that traditional and complex moral controversies like homosexuality and abortion are behind us now and shouldn’t be left to the states, I think this where the challenge, one that involves the Court, needs to start. But again it requires justices who can tell us WHY the Constitution’s provisions and powers are any GOOD.
February 19th, 2012 | 4:24 pm
Brad, I think that in these cases (sodomy, abortion) it is enough (as a legal matter) for judges to tell us that the Constitution does not grant them the power as judges to determine policy outcomes. I am not opposed to judges speaking out on policy issues or philosophical issues in the public square.
February 19th, 2012 | 8:28 pm
I suppose I wish it were “enough for judges to tell us that” too, Pete. Unfortunately, the assumption, or what Scalia calls “common understanding” of judicial power on which this sensible distinction between policy and justiciable matters rests is not so common anymore. That’s reason, again, we need all this original meaning separation of powers jazz. Maybe the Senate could help out here too during confirmation hearings?
February 19th, 2012 | 9:13 pm
Brad, I agree that public statements of conservative constitutionalist judges in the Scalia mode is not enough. We could hope for better eloquence from our Senators and Presidents and from the rest of us (I assume that you are doing your part more than I am doing mine.)
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