Or Maybe Conservative Just Prefer Conservative Policy Outcomes
In the course of a somewhat wrongheaded post on Honduras, David Fontana writing for TNR wanders into some hugely wrongheaded thinking about the American right’s constitutional vision:
There is an irony here. In the recent past, American political conservatives have (with some exceptions, such as in the area of gun rights) defended the prerogatives of democratic majorities in the face of supposed constitutional limitations (think of their opposition to Roe at the federal level or decisions legalizing gay marriage at the state level). By contrast, it has been political liberals (again, with some exceptions) who have defended the importance of anti-majoritarian devices like judicial review. In other words, in the inherent tension between liberalism and democracy that characterizes any free society, Republicans have erred more on the side of pure democracy, while Democrats have erred more on the side of liberalism and rights.
I think you have to be incredibly naive to take that point of view seriously. It’s true that conservatives have taken a dim view of liberal justices’ efforts to use judicial review to advance the rights of gays, pregnant women, atheists, and criminal defendants. But the legal right has been eager to use judicial review to countermand democratic legislation that they deem insufficiently solicitous of the interests of white people, gun owners, and businesses. The main critique of Sonia Sotomayor is that she declined to step in with some “activist” judging on behalf of Frank Ricci.
There’s an interesting theoretical debate about the role judicial review should play in a constitutional system. But the practical debate in the United States is just about on behalf of whom should it be used.
30 Responses to “Or Maybe Conservative Just Prefer Conservative Policy Outcomes”
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July 12th, 2009 at 6:05 pm
This also applies to conservative views about state’s rights. If a state wants to impose a mandatory religion, that’s fine (as long as it’s Christianity). If a state wants to enslave people, that’s fine. But if a state wants to legalize marijuana, then the federal government has to crack down on them. If they want to let gays marry, then federal legislation is required to prevent that. Now liberals aren’t really any different. It’s just that they don’t claim to support some philosophical concept of states rights. Conservatives seem to have these glorious immutable concepts that can be violated at their whim.
July 12th, 2009 at 6:27 pm
The critique is that she declined to read the 14th amendment. The last time I looked, civil rights extended to everyone, not just the few favored by one activist group or another.
But hey, your side is running things now: I welcome the chance to live on “Animal Farm”. Al Gore can have his private jet; I’ll have to pay extra to fly Southwest. I’m sure this will all be fair, somehow.
July 12th, 2009 at 6:33 pm
The temptation to write like that is obvious, but it’s largely accepting the Republican view of the divide, sans a few hot words.
In reality, Republicans want the 1st amendment to serve as a foundation for giving creationism equal time in schools and allowing churches to retain tax exempt status no matter how they act toward gays, they want the 2nd amendment for military weapons, they want to say the commerce clause frequently limits the will of the people and they want the 14th and 5th amendents to protect fetuses (I last saw that in the 2004 party platform) and plenty of litigants who’d sue under VII (but not all). They wanted — badly — Constitutional limits imposed on the ability of the Congress to bail out the banks, despite the evident democratic will in favor of TARP. (Not pleasure — but will.) Many of them are frankly Lochnerites, who feel that the Constitution enshrines the right of free contract even if the democratic will wants to create exceptions to that right. And they believed, lately, in an Executive Power which gives the president waaay more authority than is palatable at most moments in a Democracy. (Warrantless wiretapping was justified not because the 4th amendment wasn’t sufficiently broad, but under the reasoning that the Executive Power was broader still. In fact, FISA itself is held in contempt as a partisan and unconstitutional reaction to to the nixon years.)
IOW, robust religious protections regardlesss of popular will? Check. Absolute and unfettered RKBA? Check. Strict and narrow limits on the popular will to regulate commercial activity? Check. The ability to have judges declare fetuses protected under the 14th, even though this lacks democratic support? Check. The argument that there was something illegal and unconstitutional about TARP? Check. (Darrell Issa to Ben Bernake.) The frequent assumption that free contract is a liberty enshrined by the 14th amendment? Check. (This is also implicit in the grumbling that minimum wage laws are unconstitutional and that fantastical bonus contracts not only can’t be abrogated, ever, but are in fact holy writs). Oh, and the unitary executive, which includes the power to engage in coerceive interrogation without outside review, check, regardless of how the polity might feel. (I concede that perhaps that idea enjoys the occassional majority — but the conservatives don’t think it’s legitimacy depends on that approval.)
July 12th, 2009 at 6:40 pm
Ouch. I’m catching Matt’s proofreading habits.
July 12th, 2009 at 6:44 pm
“The critique is that she declined to read the 14th amendment.”
So I have a question. Do you believe that the Appeals Court is the proper place for rendering Constitutional judgments? Are they really superior to the Supreme Court? And if so, isn’t putting Sotomayor on the Supreme Court actually a demotion?
July 12th, 2009 at 7:50 pm
#5 – The entire Supreme Court slapped down her Ricci analysis. Not exactly a sweeping endorsement of her legal skills.
July 12th, 2009 at 8:03 pm
#6. It was 5 to 4 douche bag
July 12th, 2009 at 8:04 pm
#5 – The entire Supreme Court slapped down her Ricci analysis.
Bullshit. The supposed proof of this is one sentence in a footnote of Justice Ginsburg’s dissent, which is actually a dig at Roberts and the majority. Complete bullshit.
July 12th, 2009 at 8:05 pm
Republicans have erred more on the side of pure democracy
except when it comes to letting people vote. Then there seems to be a skin tone requirement
July 12th, 2009 at 8:17 pm
The Radical Right opposes judicial review and “judicial activists” not for majoritarian purposes, but for oligarchic ones. Conservatives believe in rule by elites, not democracy with its empowerment of the masses. So conservatives also oppose a judiciary that relies for its authority on Rule of Law. Conservatives, and especially populist radicals like Tom DeLay want a judiciary that does as it is told and does not interfere with strong executives who think of themselves as “The Decider.”
July 12th, 2009 at 8:21 pm
God, you are ignorant!
Whether you agree with it or not, the entire foundation of affirmative action and anti-discrimination law is based on the equal protection clause of the 14th amendment.
Conservatives write “Yoo kan’t reed da constitooshun” when they can’t argue their side of a constitutional dispute.
July 12th, 2009 at 8:30 pm
The fact conservatives believe there are occasions advantages are given to minorities that shouldn’t be is fine.
The fact conservatives believe those advantages are orders of magnitude more problematic than unfair disadvantages minorities face in this country is embarrassingly pathetic.
July 12th, 2009 at 9:00 pm
Whether you agree with it or not, the entire foundation of affirmative action and anti-discrimination law is based on the equal protection clause of the 14th amendment.
I was under the impression that antidiscrimintion laws for private businesses were actually based on the “interstate commerce” clause, because judicial decisions in the late 19th centuries prohibited federal antidiscrimination laws from being passed on those grounds, and Congress through it easier to use an expansive reading of the commerce clause (due to the precedents set by FDR) than to try to a reversal of previous decisions based on the 14th amendment.
Antidiscrimination laws or rulings involving state-affiliated organizations, however (e.g. Brown v. Board of Education) on the other hand, were explicitly 14th amendment decisions.
July 12th, 2009 at 9:21 pm
Fontana’s take is doubly insidious because he gets the Honduras situation utterly wrong. His analysis left the most crucial aspect of the Honduran crisis off the page.
One problem is that Prof. Fontana was applying American and European constitutional tradition (and badly read, at that) to the exclusion of regional constitutional history and its problems. The region suffers from institutional inconstancy which is something the US has never experienced so reading the US’s right/left position vis a vis constitutional change onto Honduras is completely wrong. If a country has suffered from constant constitutional commitment phobia–like a lot of the countries in the region have– the last thing one would recommend is to hold yet another referendum on the whim of a president. Second and perhaps most important: the referendum was not about deep changes that would promote democracy in Honduras but about Zelaya trying to stay in power. This is a regional epidemic that knows no political color, this desire to stay in power beyond constitutionally ordained term limits. The idea that indulging this is somehow about states rights or federal ideas about constitutionalism is rather ludicrous.
The only thing that is right in this analysis and is not addressed enough is that *both* sides in this crisis have zero respect for the constitution and the rule of law.
July 12th, 2009 at 9:26 pm
Glaivester,
Fair enough. Those anti-discrimination laws dealing with private businesses drew on both the commerce and equal protection clauses. I guess I used an overly-broad term to describe what I meant, which was the adoption of such laws and policies by governments, as was at issue in the case of the litigious Mr. Ricci.
July 12th, 2009 at 9:26 pm
Regardless of what the breakdown was, James Robertson still doesn’t answer whether he believes whether it should be the Supreme Court or the Appeals courts that should rule on Constitutional law. Sotomayor got a slap on the wrist on a minor procedural issue. But the Supremes changed the interpretation of the law. Sotomayor rightly chose to let them do it. But Mr. Robertson is arguing that it is appropriate for the Appeals courts to make those Constitutional decisions. I have no idea what he thinks the Supreme Court is supposed to do when the Appeals courts are the highest courts in the land. Is it just for show?
July 12th, 2009 at 9:29 pm
Zombie lies: you just can’t kill them.
Zelaya’s proposal was to hold a referendum on whether to hold a constitutional assembly. This referendum was to be held during the same election that was choosing Zelaya’s successor.
Even if Zelaya’s referendum had passed, the question was put on the ballot, and THAT question passed, 1) there was no language about extending presidential terms and 2) the constitutional assembly that might or might not have been called would have taken place several months after Zelaya had already left office.
July 12th, 2009 at 9:43 pm
I think you have to be incredibly naive to take that point of view seriously.
Well, welcome to TNR.
MY’s point has so many top-of-head examples, it’s hard to choose. Robertson’s #6 is a perfect illustration of the pretty shocking lack of any sort of principle in the modern conservatism MO (other than the oligarchic ones mentioned above). Nothing says ‘principle’ like lying and knowing you’re lying.
July 12th, 2009 at 9:47 pm
I think you have to be incredibly naive
I think the operative phrase is “a shameless fucking liar.”
July 12th, 2009 at 10:54 pm
“The entire Supreme Court slapped down her Ricci analysis. Not exactly a sweeping endorsement of her legal skills.”
This is utterly false. The four dissenters – including Souter, whom she’ll be replacing – stated they would have upheld the trial court’s grant of summary judgment, on the same grounds that the Second Circuit affirmed it.
July 13th, 2009 at 12:04 am
There is no right-wing trope that James Robertson won’t mindlessly repeat and then expect us to take it seriously.
July 13th, 2009 at 1:47 am
MY “conservatives have taken a dim view of liberal justices’ efforts to use judicial review to advance the rights of gays, pregnant women, atheists, and criminal defendants….”
…and whales. Don’t forget whales. Our enormous mammalian friends -the Buddhists of the ocean- are trying to forgive humans for centuries of transgressions against their culture, but our hyper-activist Supreme Court won’t let them.
http://www.nytimes.com/2009/07/12/magazine/12whales-t.html?hpw
July 13th, 2009 at 5:07 am
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July 13th, 2009 at 6:58 am
“Republicans have erred more on the side of pure democracy”
except when it comes to letting people vote. Then there seems to be a skin tone requirement – An Outhouse
Let us not forget that the word “democracy” comes to us from the ancient Greeks. And let us remember that Greek “democracy” indeed was one man, one vote — er, one male citizen, one vote. Plenty of people were not “citizens” and did not get any votes.
As much as they hide behind “Jerusalem” in their religiosity, the Republicans are “Athens” and we liberals (with our prophetic haranguings about collective responsibility for the disenfranchised) are “Jerusalem”.
July 13th, 2009 at 9:23 am
I keep hearing about these mythical creatures called “principled conservatives” that I’m supposed to admire but they appear to be quite rare. The last time I thought I might have seen one, it was called “Ron Paul” and it turned out to be batshit crazy.
July 13th, 2009 at 10:08 am
It’s difficult to overstate the extent to which Fontana’s analysis is not merely wrong or naive, but is thoroughly idiotic.
It’s one thing for an American schoolchild to imagine, based on their social studies education, that politics is conducted on theoretical plane in which each side bravely fights for its philosophical ideals. But good god, man! You’re a professional journalist! Why on earth should anyone pay for a magazine that recycles lazy, easily debunked tropes promoted by people with suspect motives?
If TNR expects anyone on earth to pony up cash for their glossy color publication, they’d better start putting some pretty pictures in there.
July 13th, 2009 at 10:18 am
Conservatives have cast their positions as being supportive of democracy – whether we’re talking about judges who aren’t conservative activists or extending American hegemony into Iraq – so the New Republic can be counted on to faithfully report that characterization as fact.
July 13th, 2009 at 10:20 am
I used to subscribe to TNR. It was like a battered wife dynamic.
That’s it, New Republic! I’m tired of you slapping me around!
Oh, baby, don’t leave me! Think of the good times. Remember when we trashed the Bush v. Gore decision?
I don’t know…
I’ll change! I swear! Uh…invading Iraq might not have been a good idea.
Oh, TNR, you know I can’t stay mad at you. *kiss kiss kiss*
…and then, a couple weeks later, TNR is calling me a Jew-hater for noticing that Israel lost that war against Hezbollah.
July 13th, 2009 at 6:00 pm
Re: As much as they hide behind “Jerusalem” in their religiosity, the Republicans are “Athens” and we liberals (with our prophetic haranguings about collective responsibility for the disenfranchised) are “Jerusalem”.
DAS,
If the Yglesian liberals would abandon their fondness for abortions, atheism, and teen sex, I would agree with you.