Wednesday, November 30, 2005

Original Intent: The Worst Way Except All the Other Ways?

Thank you for the birthday wishes. I had planned to take it easy this year--so much for my "original intent". Ha ha. Wow that sucked, even for a lawyer joke. Anyway, I agree with you about a lot of this, but draw different conclusions. I don't think outcome based judging is a healthy way to go about things either. But there are serious problems with Originalist thinking.

One, the Constitution is like the Bible--it means whatever you want it to mean (interesting that Antonin Scalia always knows exactly what God and the Founding Fathers were thinking). Two, a lot of people with a lot of differing ideas of what the Constitution "meant" converged in Philadelphia; consensus was an imaginary ideal from the onset. Three, how do you square a conservative judicial viewpoint with the civil rights movement? It appears self-evident that Alito & Co. would have voted with the majority in Plessy and dissented in Brown.

On one hand, what's the alternative to original intent? If the Constitution's not anchored in something, then it's meaningless. On the other, as soon as you admit that there's no one known correct interpretation, aren't you also admitting that conservatives could very well be wrong? Especially since the notion that liberal justices are somehow more likely to overturn legislatures is well documented rubbish. And it is, my friend, nothing short of dishonest to equate Scalia's quaint take on morality with that of the meaty middle of the bell curve of American populism.

Now, what of minority rights? Minority rights are the difference between pluralistic society and mob rule (and Republican leaders often sing their praises when lecturing other countries). There's a fine line between the democratic process and the tyranny of the majority.

Plus I don't think the 19th Amendment is a particularly illuminating example; as important as it was, it doesn't lend itself well to parallels. Woman's sufferage was an idea whose time had come. New Zealand led the charge and was soon followed by other successful western countries. America was simply keeping up with the times. Now, I'm not belittling the importance of Constitutional Amendments here, but the fates of other Amendments that the American public wasn't really ready to accept were markedly different. The 18th did wonders to help establish an Italian middle class, but was widely ridiculed (and ignored). And with the exception of turning corporations into human beings before the law, Amendments 13-15 didn't bear fruit until nearly a century after their inception.

Besides, do you really want a sodomy amendment, just so we can be clear that consenting adults can do as they please, whether or not they live among prudish fundamentalists? You're a conservative, would you be opposed to a privacy amendment? Would this be because it would infuriate social conservatives or because you genuinely don't think it is a good idea?

The religious right likes to do a little judicial ju-jitsu here, claiming that their rights are oppressed by a secular elite. One has to willfully ignore the distinction between public and private behavior to draw that conclusion. Although I do sense some compromise potential here--we'll allow religious symbols in public, but you have to allow sex in public.


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PS- Concerned Alumni for Princeton? Troubling.

Thursday, November 17, 2005

Happy Birthday!

On a note unrelated to anything political, a very Happy Birthday to Gabe!

Wednesday, November 16, 2005

What Original Intent means... to me, at least.

Though it appears at this point we have farmed out the Executive Traits line, I can't resist responding to the point about "if Hillary didn't care, why should we" to ask if that is intended to bait me (success) or a real statement of total moral relativism. If the former, I'll congratulate you on your ability to get me to once again restate that I think it is wrong to cheat on one's spouse.
However, if the latter, I'm not sure how to proceed. If we agree it is wrong to cheat on one's spouse, do we really not care when it is done? How is that different from a husband who beats his wife, but then says he only does it because he loves her, which his wife often supports? Surely the fact that one involves a bruise (or worse) and the other doesn't can't support a notion that they are inherently different things.
The only other conclusion I can come to is that you are positing a notion that (1) it's not wrong to cheat on your wife or less extremely (2) it's only wrong to her. While I recognize this as the same line of logic that argues that prostitution shouldn't be illegal because if the prostitute enters the trade willingly, it is a victimless crime, I can't accept it. Moral relativism may be desireable in some places, but surely we can agree that a difference of "opinion" is unacceptable on certain topics.
For instance, I don't believe killing is always wrong. After all, I believe war is sometimes necessary and I support capital punishment. I'm prepared to accept that some, or even many, do not agree with me that this justifies killing. But surely we can all get on board that killing another for no reason, or for money, is wrong. Period. My view of betrayal is the same.


Having exhausted that topic, I'm eager to move onto the more firm ground of judicial appointments, and talk about how "far right intellectual activists" have dreamed up this concept of original intent. To begin, I will readily identify myself as a conservative intellectual, and hopefully one of the "brighter third". Either way, I will also out myself as one who believes in original intent. However, I think the concept deserves some discussion before it is offhandedly dismissed.
To me, and I can only speak personally, Original Intent means that judges should engage in dialogue/thinking about the principles which underlied the Founding. Contrary to popular belief, this does not necessarily mean that simply because the Framers did not include blogging in the First Amendment, that blogging should not be entitled to First Amendment protection. But it does mean understanding that the Framers meant the First Amendment to apply to more than just prior restraint, and specifically meant it to apply to avenues of inherently political (as opposed to commercial) speech. As such, as blogging challenges the MSM as a way of reporting on the way in which the country is governed, it is and should be due full 1st Amendment protection.
Secondly, Original Intent means that judges should respect that while a particular outcome may be desireable, that does not always give them the authority to determine it is. Judges must respect that the Framers actually came up with a way to amend the Constitution to allow the People as a whole to engage in dialogue about major, Constitutional issues, and have their voices be heard on the subject. As a for instance, when the women's sufferage movement began to gain steam, they didn't pursue it in the courts under some equal protection understanding. Instead, they pursued the Amendment process, and the result was the 19th Amendment. I'd argue that as a result, they were able to avoid the kind of retrenchment and outright opposition that has been the result when similar debates have been mandated by the Supreme Court.
This last point, more than any other, emphasizes why we far-right crazies so respect original intent. In a weird way, it is because we trust the democratic process to deal with big picture issues, like abortion or affirmative action, which are more readily understandable by the population at large. When courts usurp those types of decisions, they deny the American people a chance to engage in the truly great social debates which marked other major reform movements. More importantly, they engender opposition to what is correctly viewed as a decision by un-elected elites.
This obviously leaves open the question of what exactly was the Original Intent? But that is how it should be -- better a debate about the principles which underlie our identity as a nation that arguing over whether or not something is a "super-precedent".

Tuesday, November 01, 2005

The Alito Bowl

I don't think there are any specific qualities a President necessarily should have--besides of a vague sense of leaderliness about him--so much as there are qualities a President really shouldn't have. And Clinton's "weakness" was not one of the qualities we should be concerning ourselves with. Hillary didn't care, so why should we? Bill was allowed free reign so long as he didn't embarrass her too much; and that only happened because overestimated the human decency of the Republican attack machine. But hey, if there's a foul, and you've already killed the ref, was it really a foul?

I deny you the legitimacy of your claims against Clinton. I furthermore contend that the Republican Party's behavior towards the President of the United States of America during Clinton's tenure delegitimizes your demand that we respect the office of the Presidency, if not the sad sack of dimwitted buyers' remorse that currently occupies it.

Some people saw the aircraft carrier skit and were grateful Bush had the balls for war--but they were wrong. He had a hard-on for war. Two very different things.

George Bush did the Arsenio Hall fist pump while getting ready to announce the initiation of hostilities in Iraq. He took to war with precisely the enthusiasm of a 17 year old betting on his first NBA playoffs. You couldn't really come up with a worse trait for a president in my opinion.

What's with all the hosannas Alito's getting from the right? Honestly, why do moderates, libertarians, country clubbers and every other disenfranchised tribe in the Republican coalition want a far right loon on the court? Why is this considered a victory for the majority of Republicans who were secretly glad Bork didn't get confirmed?

I'll tell you why. Because far right intellectual activists have convinced the brighter third of conservatives that the concept of "original intent" actually exists--and that we will veer off our course of national greatness if we don't base judicial rulings on the outlandish notion that we can divine what a group of slaveowners--who weren't too up on letting women or the landless vote, either--would have done in the exact same situation if it had happened to occur 100 years before the fucking lightbulb was invented.