RedState

The People as Limiting Principle

The Volokh Conspiracy notes Justice Breyer’s aspirational nod to the last, best limiting principle in constitutional law:

And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.

As much as I’m willing to grasp at anything that might help the government sustain the mandate, I hope it’s obvious to everyone that while the democratic process is itself a limit on federal power, it’s not one that can be relied upon to restrain government action. The Constitution precommits us to certain values, with the knowledge and expectation that we might, one day, try to transgress beyond them. In such cases, the Constitution is there to limit the people’s transgressions against themselves, and snap them back into line.

The very essence of the Court’s countermajoritarian role is that elections alone are inadequate safeguards on popular liberty. If this is something we as liberals accept in social causes — when we try to invalidate validly-enacted, but nonetheless noxious bans on gay marriage — we can’t ignore it when it hurts us. That’s the conservative approach, so plainly on display on Erick Erickson’s site (judicial activism is fine when they do it, you see!). But we should be above that.

The Populist Case for Tradition

At RedState, that wretched hive of scum and villainy, one poster manages to, between an incomprehensibly wrong argument against the Ninth Circuit’s recent decision on Proposition 8, say something interesting. I recommend you skip over everything but the last two paragraphs, reproduced below:

As I’ve written before, democracy, free markets, tradition and the rule of written law are all valuable for the same reason – they include the largest number of people in the making of decisions. Tradition protects us from the tyranny of small sample sizes, by delivering to us the lessons drawn from experience of prior generations. Tradition is not stasis; it is the gradual accrual of the lessons of trial and error of countless individuals. It changes when new things are proven to work, and old things are found to have become unuseful. In fact, you cannot believe in moral progress of any kind if you do not believe in tradition, only a sort of moral Brownian motion in which nothing learned today has any guarantee against being unlearned tomorrow.

But the myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers. Voters gave us the Bill of Rights; judges gave us Dred Scott. Indeed, if voters’ views of same-sex marriage change, as they have in some states, the law will change with them. But if we continue down the path of decisions like Perry, the voters of tomorrow may find little left they are permitted to decide. And that, far more even than the specific policy question at issue, is something worth getting upset about.

The point on the presumptive validity of tradition is well-taken; indeed, as we’ve noted before, tradition serves as evidence that a certain practice probably used to work. But we’ve also noted, to answer the author’s narrow conception of when tradition should change, that proof of a new, superior value system is probably too high of a standard for the rejection of tradition. Moreover, it’s not one that we’ve followed. Popular rule was, at the time of its institutionalization in the American Constitution, an unproven system; we had no reason to expect that republican democracy would work for a country as large as the United States, but were impelled to the experiment by a conviction that Europe’s tradition of monarchy simply no longer served. Tradition deserves its due, but its presumption of validity does not deserve to endure until something better comes along.

Separately, we’re handed a populist argument for tradition — that:

The myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers.

No, for several reasons. First, the author’s example fails on its face: the Bill of Rights was enacted wholly by an educated, upper-class elite, acting uniformly against the tradition of the previous millennia of human history. Mankind had at that point no history of institutionalized religious freedom, and yet we have the First Amendment; and to the extent that the Bill of Rights was meant to secure the rights of Englishmen, to which the colonists felt themselves entitled, it secured those rights through the novel concept of a government ordained by law and by men, rather than by God. “An insular number of lawyers” crafted the American system, with the ratification of the colonists, after a prolonged, top-down publicity campaign. Our government is the product of hard-won knowledge, thought, and rigorous debate — not simple homespun wisdom.

Further, it’s true that judges gave us Dred Scott. But that blight on American history was emphatically a defense of the status quo – of Southern tradition, but tradition nonetheless And later judges gave us, in anti-populist top-down fashion, Brown v. Board of Education. Any defense of tradition against its sudden modification by “elite” lawyers must contend with this example, among others, or risk entirely dodging the part of the debate that makes it interesting in the first place.

Finally, query whether “traditional values” can actually claim a populist provenance at all. Many modern religious traditions were the creations of elites, ignored by them but imposed on the people, like (for example) the much-eroded “tradition” against divorce. Others were roundly proclaimed, but rarely followed. Abortion is controversial today only because it’s never been talked about openly until the modern era; the practice dates at least to Roman times, where (extremely dangerous) chemical abortions were regularly practiced among the nobility. Maybe that’s not an argument against the moral value of tradition, but it’s proof that viewing tradition as the result of generations of trial and error doesn’t quite hold up.

Modernity requires us to square practices designed for insular, homogeneous communities with an increasingly interconnected and diverse world. Conservatives like RedState would see us abdicate this duty, close our eyes, and pretend to live in an idyllic past that never actually existed. But, it’s good to see that the author is at least consistent: reflexive opposition to a liberating society is the conservatives’ proudest tradition, even if it’s not one that’s served them well.

Erick Erickson’s Childish Rememberance of Pearl Harbor

The RedState founder urges you to “never forget” by boycotting Japanese restaurants, one day only. Thanks, but I’ll make point of going to my favorite sushi place tonight, because I support American small businesses regardless of the owner’s ethnicity, and our international allies regardless of their past mistakes. This Pearl Harbor Day, remember by not forgetting that the values we fought for in World War II include, as critical elements, respect and pluralism. And CNN — when are you going to fire this guy? [Update: Fox joins in the idiocy.]

Ultimate Partisan Effect: the Barrier to Good Government Reforms

How do we talk about reforms that make government more effective, and that better represent the people overall, without being swayed by likely partisan effect? For Moe Lane (of HotAir and RedState), the answer is… we don’t.

This poor stewardship is sadly common among not just the far right, but the far left, too, and it’s something we should all struggle to escape. Both sides will often find themselves the beneficiaries of peculiar legal artifacts — especially in election law — that just no longer make sense. These will often distort the effects of elections in a particular party’s favor: but when we encounter them, it’s the former quality, not the latter, that should grab our attention.

Instant runoff voting (IRV, here called “alternative voting”) is an ideal example. In IRV, voters select their candidates in order of preference: first X, but if X loses Y, but if Y loses Z, and so on. Functionally, this eliminates the “wasted vote” — it also entirely eliminates the “split the vote” strategy of winning an election. Under IRV, but not first-past-the-post systems, a clear majority can win even if the ideological bloc finds itself too fractured to solidify behind a single candidate, because voters can select first one faction, then the other, and so on.

In England, this could amount to perpetual domination by the left (assuming Labour + LibDem > 51%). That’s a tough blow to the Tories, but it’s not clear to me why they entitled to anything more. Regardless of the merit of any of Britain’s parties, we should all agree that parties shouldn’t be allowed to win (and maintain) by gamesmanship what they could not in the absence of rules that distort electoral outcomes away from the majority’s policy preference.

New York has similar issues. It’s an open secret that the state Senate — more so than most other state houses — is not a representative body, thanks to forty-plus years of pro-Republican gerrymandering. In the absence of distortion — to wit, smaller districts upstate, larger districts downstate, prisoners counted where imprisoned in the north rather than at home in the south — the state would have around two fewer “conservative” districts, and two more “liberal” districts. And soon it will, since we finally have a governor with the stones to stand up to the Senate and force judicially-brokered reapportionment.

We’ll win this round. But I would like to think we would support a more representative system, even if it meant Republican control. It’s something to remember.

Misunderestimating President Obama

It’s fun to see conservatives try to rationalize how one of ours had the wit, and the, uh, balls, to go after Osama bin Laden in Pakistan, without Pakistan’s say-so. Here’s Erick Erickson from RedState:

Say what you will about President Obama, but it is hard to imagine two years ago he would have taken unilateral military action in Pakistan without telling the Pakistani government. He has grown in office.

That’s demonstrably false, and an obvious lie, since Politico‘s done us the favor of dredging up Obama’s campaign position on Pakistan, for which he caught all manner of flak from his primary opponents. From CNN, August 7, 2007:

Last Wednesday, the Illinois senator said that if it were necessary to root out terrorists, he would send U.S. forces into Pakistan without the country’s approval.

Obama hasn’t become anything. He simply never was the liberal caricature that the Republican Party imagines him to be.

The GOP’s Small Tent

RedState sees The Gays, and libertarians, as entertaining sideshows who might contribute meaningfully, maybe, but are “irritating” and “grating” otherwise. The Big Tent’s now basically a bivy sack.

Republican Radicalization, Part 1 of ?: Nuclear Arms

RedState denounces partial Republican accession to a new START treaty, as “send[ing] an unmistakable signal of weakness to the rest of the world.” In recent years, this same sentiment hasn’t been confined to internet tabloids, but has been echoed Giuliani, and Sarah Palin.

Compare this with President Reagan, the putative mythological founder of conservatism, who executed the Intermediate Nuclear Force (INF) treaty, laid the groundwork for START I & II (later signed by George H. W. Bush, although the latter never entered into force), and dreamed of a world without nuclear weapons, which he regarded as “totally irrational, totally inhumane, good for nothing but killing, possibly destructive of life on earth and civilization.” His words:

[F]or the eight years I was president, I never let my dream of a nuclear-free world fade from my mind.

Query whether the myth of Reagan has so completely replaced the reality that we can forget these things, or whether the GOP has simply descended into belligerent jingoism with such alacrity that abstract civilizational goals are no longer within contemplation.

The Problem with Conservatism

The highest aspiration isn’t elected office. It’s talk radio.

We’ll Raise Up Our Glasses Against Evil Forces, Singin’ —

There’s an old Toby Keith song that numbers among my guiltiest pleasures. It begins:

Granpappy told my pappy, “Back in my day, suh-uhn,
A man had to answer for the wicked that he done.
They call a rope in Texas, find a tall old tree,
Round up all of them bad boys, hang ‘em high in the street.”

For all the people to see.

That Justice is the one thing you should always find,
You gotta saddle up your boys, you gotta draw a hard line…

Has a sort of late Roman Republic ring to it, doesn’t it? Crucify ‘em all, and line the Via Appia with their remains?

Catchy song, though — and it stands as an anthem to the conservative notion that Justice should be swift, brutal, and unburdened by a surfeit of procedural protections, pre- or post-conviction. Let’s see how that stacks up against the modern GOP’s anti-populist, neo-Lochner respect for corporate “liberty” above all:

Let’s be honest. The White House meeting with British Petroleum was a shakedown.

The White House threatened criminal prosecution of BP, the President gave a miserably received speech, then he hauled BP into the White House and put the Attorney General in the room with the CEO to stare at him, then the President demanded $20 billion.

It was a shakedown.

Poorly. RedState’s Erick Erickson continues:

Had British Petroleum affiliated with Al Qaeda and tried to blow up an airplane, it would have gotten due process rights, a court appointed lawyer, and miranda warning while avoiding Henry Waxman.

Obviously, this is an unfair characterization. The criminal presumption of innocence is a much stronger shield than the civil fact of, “I saw your company flout safety regulations, flood our shores with oil, and not do a damn thing about it.” And there’s nothing improper about threatening a company with prosecution for crimes and civil wrongs it did in fact commit. In fact, it’s the very definition of fairness: compensate our citizens and our country for what you did to us, or we will gut your company to the fullest extent of the law. The last caveat is key, but Erickson never even attempts to argue that BP hasn’t committed a wrong that would justify prosecution, to the tune of $20 billion or more (including legal fees).

Has the GOP so far abandoned populism, and a decent respect for the dignity of this nation and its people, that we’ll shed tears over the plight of a megacorporation, and not the citizens of the Gulf, whose lives will never be the same? Well, when John Boehner has to remind his ranks — unsuccessfully — not to appear “sympathetic” to the oil industry, yes. So much for “draw[ing] a hard line.”

How is this, too, not a homeland security issue?

For your, ah, enjoyment, Toby Keith & Willie Nelson’s music video, below the line: Continue reading »

Erick Erickson Gets Blow[back]; Issues Epic Disclaimer

SHOCKING.

Elena Kagan wrote her college thesis on the history of the New York socialist party. It’s kind of interesting (pdf), but never makes a value judgment about the movement.

Scholars will know that studying a topic doesn’t mean you’re a fan of it. My Criminal Law professor was a rape scholar who did not in fact rape people, and my favorite college professor, one of the world’s foremost authorities on the Byzantine emperor Justinian I, once told me and several friends that, like Procopius, he thought Justinian was “kind of a dick.” True story.

Acknowledging this, Erickson conditions his statement that “the woman [!!!!! -Ed.] declares that socialists must stick together instead of fracture in order to advance a socialist agenda, which Kagan advocates,” adding:

I’m getting blowback on this statement. When you couple Kagan’s thesis with her op-eds in the 80’s and her later work, I think it is a complete and fair statement. Look at the forest, not the trees.

In other words, ignore the individual facts on the ground and, instead, roll together thirty years of Kagan’s life, make generalizations, trust your gut, and run with it, all the way to CNN.

The key paragraph, most amenable to distortion, is below the line: Continue reading »