Thursday, September 01, 2005

Today's Briefing

My heart goes out to the people of New Orleans and surrounding areas suffering from the devastation wrought by hurricane Katrina. A list of links for aid donations can be found on Glenn Reynold's blog here. Also, blogger Gus Van Horn is asking his readers to donate to the Armed Forces Retirement Home, "whose facility in Gulfport, Mississippi took severe damage from the storm." I recommend donating through your employer if they have a matching funds program. That's what I intend to do.
Like Don Watkins of Anger Management I'm in agreement with Peggy Noonan's views on looting:

There seems to be some confusion in terms of terminology on TV. People with no food and water who are walking into supermarkets and taking food and water off the shelves are not criminal, they are sane. They are not looters, they are people who are attempting to survive; they are taking the basics of survival off shelves in stores where there isn't even anyone at the cash register.

Looters are not looking to survive; they're looking to take advantage of the weakness of others. They are predators. They're taking not what they need but what they want. They are breaking into stores in New Orleans and elsewhere and stealing flat screen TVs and jewelry, guns and CD players. They are breaking into homes and taking what those who have fled trustingly left behind. In Biloxi, Miss., looters went from shop to shop. "People are just casually walking in and filling up garbage bags and walking off like they're Santa Claus," the owner of a Super 8 Motel told the London Times. On CNN, producer Kim Siegel reported in the middle of the afternoon from Canal Street in New Orleans that looters were taking "everything they can."

George Will in his column today joins the view that Tara Smith has expressed previously that judicial activism is not such a bad thing. Mr. Will however is fairly mixed in quality. He begins by trying to convince Conservatives that "dogmatic majoritarianism" is not a good thing and sites historical examples from the Republican party's history to support this argument:
The conservatives' party, the Republican Party, was born in reaction against repeal of the Missouri Compromise -- against, that is, the right, established by Congress in 1854, of Kansans to own slaves if a Kansas majority approved of that. The first Republican president was propelled to greatness by his recoil against allowing popular sovereignty to decide whether slavery should expand into particular territories.
And he continues with this excellent paragraph:
Lincoln's greatness was inseparable from his belief that there are some things that majorities should not be permitted to do -- things that violate natural rights, the protection of which is the Constitution's principal purpose. As Chief Justice John Marshall said in Marbury v. Madison , the theoretical foundation of judicial review, "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written."
However, he following this he deteriorates by relying on Daniel Farber's and Suzanna Sherry's book Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations, and claiming that "judicial review amounts to blocking a contemporary majority in the name of a past majority" but the founder amount to "an especially dignified majority" which is "owed special deference." True to his Conservatism, Will here shows a reverence for tradition. But the truth is that the Founders ought not to be revered because the reflected a majority at that time or because it was a special time but because, by and large, they were right. To the extent that they were wrong, their errors need to be corrected. Will concludes:
Even when the Supreme Court was most athwart public opinion -- striking down New Deal legislation -- voters sharply rebuked President Franklin Roosevelt for his plan to "pack" the court by enlarging it. So this is another powerful argument for the compatibility of judicial review with America's democratic values: the demos -- the public -- supports it.
Apropos FDR & the Supreme Court. I remember a long time ago listening to an abridged version of Judge Robert Bork's The Tempting of America. In the book Bork completely justifies Franklin D. Roosevelt's machinations against the Supreme Court. At the time Roosevelt was trying to invent new powers of government that the Constitution never allowed and the Justices were ruling one law after another unconstitutional. If memory serves me right, Bork compared the Conservative "activism" of the judges in the 1930s to the Liberal "activism" of judges in the 1960s and 1970s and thought both were wrong. I couldn't disagree more. (my memory on this is faulty -- see the Update and Correction below)

Judicial activism in the protection of rights is precisely what a Supreme Court justice ought to do as the quote above from Will about Lincoln also supports. Tara Smith in her article outlines the necessary qualifications a Supreme Court judge ought to have:
The salient question in assessing any nominee, then, is not whether a judge takes action, but the factors that guide his actions. To be qualified to sit on the Supreme Court, a person must, at minimum, understand three basic facts: First, that individual rights are broad principles defining the individual's freedom of action. The familiar rights of life, liberty, property and the pursuit of happiness subsume a vast array of particular exercises of this freedom, some explicitly named in the constitution (e.g., the freedom of speech) and some not (the right to travel). Second, he must understand that the government's sole function is to protect individuals' freedom of action. As Jefferson explained, it is "to secure these rights, [that] governments are instituted among men." Third, he must recognize that our government properly acts exclusively by permission. Articles I, II and III specify the powers of the three branches of government and the 10th Amendment expressly decrees that powers not delegated to the federal government are reserved by the states or by the people. The government, in other words, may do only what it is legally authorized to do.

Update and Correction 9/2/2005
It has been pointed out to me that Judge Robert Bork did not in fact consider the New Deal court an example of judicial activism in his book The Tempting of America. I stand corrected on that. I was nevertheless correct that Judge Bork objects to what he terms "Conservative Constitutional Revisionism" as much as to "Liberal Constitutional Revisionism" and he has criticised conservative/libertarian thinkers such as Richard Epstein and Bernard Siegan for arguing that the Constitution do more than it should (according to Judge Bork) for economic liberties. He sympathizes with their ends but does not think the Court ought to be the means.


Jack Davis said...

I read Bork's Tempting of America and seem to remember him supporting the New Deal Court as a defender of the Tenth Amendment against Roosevelt's usurpations. I do not recall him condemning "conservative activism", whatever that means.

My problem with Will's article is twofold. 1. I think he misunderstands Lincoln's actual position on judicial review. Lincoln very harshly criticized the Court after the Dred Scott decision and denied that nine men in robes could make decisions for millions of Americans. I believe his quote was "The people will have ceased to be their own rulers."
2. Will implicitly assumes that judicial review automatically protects the original understanding of the Constitution from contemporary majorities in Congress and in the public at large. The history of the Supreme Court shows, in fact, that it is the main obstruction to restoring the Constitution to its original meaning; e.g. Roe v. Wade, Kelo, the refusal to invalidate McCain-Feingold, etc...

It is also important to understand that judicial review is not explicitly mentioned in the Constitution. Nowhere
is there any mention of the right of the Supreme Court to invalidate federal laws. The John Marshall comment Will quotes is purely self-serving.

Gideon said...

Well, reviewing Bork's Tempting of America via Amazon's "search inside this book" feature shows that both our memories are faulty.

You're right that Bork seems supportive of the New Deal Court, I will update my blog entry to reflect that. But your memory is mistaken if you think he does not condemn "conservative activism." He terms it "Conservative Revisionism" but it comes to the same thing. Chapter 10 of his book is entitled "The Theories of Conservative Constitutional Revisionism" and he attacks several conservative/libertarian theorists writing "though I am more in sympathy with their ends than I am with the objectives of the ultraliberals, I do not think they establish satisfactorily that those ends may be reached through the Court." (p. 223)

He then proceeds to criticise Bernard Siegan, Richard Epstein and others for finding economic liberties in the Constitution that he claims are just not there.

As for the rest of your comments. I have not studied the issue in detail so it may well be that Will is distorting Lincoln and the Constitution. If so, it wouldn't be the only flaw in the Constitution which should in fact limit government and protect all proper individual rights.

Gus Van Horn said...


Thanks for mentioning the AFRH.


Jack Davis said...

Thank you for the mental refreshment. I have not read the book in three years and the local crappy library doesn't carry it. I did a search at for "conservative activism," and found nothing but you are right, it is under "revisionism."