Celebrate Diversity

Most people don't realize how diverse the political parties are.  I'm a Republican, and to the political neophyte that says it all.  But it's more complicated than that.  Among Republicans I fall into the Conservative branch (which distinguishes me from, say, Carolyn Allen) among Conservative Republicans, I fall into the social conservative branch (which distinguishes me from, say, Tom Patterson or Carol Springer) among Social Conservative Republicans, I fall into the Establishment branch (which distinguishes me from, say, Rob Haney or Don Goldwater.) Democrats have a similar stratification. 

I'm learning that attorneys have a similar stratification as well.  Even among Conservative attorney's--a rare breed indeed--there are radically different philosophies

Conservative Attorneys often complain that "activist judges" overrule legislatures in favor of the judge's own wisdom.  The most powerful tool to accomplish this goal is "substantive due process."  I was listening to a lecture by Kermit Hall from the University of Utah and he described Substantive Due Process as (paraphrasing) "A mechanism created by the Supreme Court that allows judges to override laws that they believe interfere with what they perceive to be fundamental rights."  Hall is no Conservative, and I think his definition is a fair one. 

The Originalist branch--led by Antonin Scalia--would argue that it is illegitimate for the Supreme Court to devise a mechanism that allows it to overrule the people acting through their elected representatives.  I would fall under this branch.  In fact, I thought this was the only "Conservative" branch. 

However, here's an article in which the Cato institute argues that Substantive Due Process should be expanded to include the right of terminally ill patients to have access to experimental treatments.  The attorneys from Cato don't object to Substantive Due Process; they just want to use it to protect their preferred set of "rights" from those pesky legislative bodies. 

This view should make liberals very nervous.  The Cato argument concurs with the liberal view that the courts are a super legislative body that allows five judges to trump every elected body in the country.  What if the Cato branch of Conservatives gets control of the Courts?  Who protects the liberals then?

Even liberal professors are somewhat embarrassed by the reasoning that under girds, say, Brown or Roe.  They recognize that the Court simply decided to amend the Constitution.  Hall describes this as an "ongoing Constitutional Convention."

Sure, it's fun to have a mechanism that allows the wisdom of judges to displace that of legislators...until someone appoints the wrong judges. 

As for me.  I will defer to Judge Learned Hand.  "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

So I guess I will have to revise the description of my political ideology.  I'm an Originalist Social Conservative Establishment Republican....and proud of my heritage. 

Comments

[netrootsdemocrat]

Please give me an example of a "liberal professor" who is "embarrassed" by the reasoning of 'Brown'?

The 14th Am incorporated the Bill of Rights protections to the states. In addition, the 14th Am provided for Equal Protection and Due Process. The Warren Court used the EP clause of the 14th Am to hold that "separate is inherently unequal" vis-a-vis the Jim Crow laws in segregation.

How is this reasoning embarrassing? How does it not use the 14th Am to decide the case?

[Timothy]

Welcome.

[Tim W.]

"The Originalist branch--led by Antonin Scalia--would argue that it is illegitimate for the Supreme Court to devise a mechanism that allows it to overrule the people acting through their elected representatives."

Then Scalia seems to have a slight misunderstanding of some fundamental tenets of our government. Let's say the state of Ohio passes a law severely restricting free speech and it was supported by a large majority of people in Ohio. If we follow Scalia's line of reasoning, it is illegitimate for a court to strike down that law because it was enacted by their elected representatives. The point of the Supreme Court and other courts is to make sure an elected legislature or even a popularly-elected referendum cannot run roughshod over the rights of the people, and especially the rights of minorities.

The courts were meant to protect the rights of the people, even if some aspects of liberty are not so popular.

As a liberal, I reject the idea that the courts are a superlegislative body. I'm not a law student or a lawyer, nor a constitutional scholar, but I seriously don't understand how certain gaps in logic exist in the thinking of some legal scholars on the conservative side.

[Thomas Soto]

Greg -

There are actually a number of "conservative" methods to your constitution, don't be so quick to throw them all out because you have been told to not like so-called "activist judges." There is:

1) Scalia's Originalism/enumerated rights/legislative deference
2) Thomas' Originalism (fairly different from Scalia's)
3) Alito's and Robert's Textualism and minimalism
4) Originalism without an enumerated rights qualifier (for example, Randy Barnett at Geogetown I believe or Kmieck at Pepperdine)
5) Originalism and Textualism with a strong emphasis on the 9th Amendment, and the "priviledges and immunities" portion of the 14th amendment (this seems to be to be Clint Bolick's position - read "The Case for an Activist Judiciary")
6) "Pure" textualism

The Cato Institute shares a similar interpretation as the Institute for Justice (Clint Bolick again). You make sort of an odd claim in saying that you belong to a conservative branch that finds it illegitimate for the Court to overrule elected officials. First off, this is not originalism (so I don't know why you label it that), and second off, OF COURSE the Court can do that. To go to the extreme, what if elected officials made it legal for anyone to kill anyone? You don't think the Court could strike down that law as unconstitutional? Yes - you do, because the Constitution provides fundamental freedoms that cannot be abridged, no matter what the legislature wants to do (Marbury). The question simply becomes are those only the enumerated rights espoused by Scalia, or the bigger rights that are contained in the 9th amendment, that Scalia seems to have never read. So don't worry Tim W., Greg has not summed up Scalia's position (which is a little more complex than what can be written on a blog...).

I am also going to have to agree with netrootsdemocrat. A "true" originalist would actually support Brown (probably not roe v. wade) because the 14th amendement was originally enacted for the purpose of protecting freed African Americans. If you are going to be true to your originalism, you don't get to choose when you look to the history of the text...

[thesnakeguy]

Timothy,

The supreme court didn't devise the mechanism of free speech found in the first amendment. They did devise the mechanism of substantive due process to acheive whatever preconcieved end results they desire. Scalia is not being criticism, but at least understand his position before you attack him.

[thesnakeguy]

beyond not being. sorry

[Mark]

Thomas - you are making a straw-man argument. Greg is not arguing that he belongs 'to a conservative branch that finds it illegitimate for the Court to overrule elected officials'. He is arguing that he believes it illegitimate for the Court to overrule elected officials using extraconstitutional justifications.

Beware the sophists!

[George the AZ Buckeye]

Thomas -- thanks for the elucidation. When I first read Greg's post, I thought perhaps he'd made the wrong link to Cato. Then I realized -- nope, he just was confused on what Scalia was saying.

Mark -- Greg criticized Cato for sharing the view that "courts are a super legislative body that allows five judges to trump every elected body in the country." That's what he opposes. He did not include what you added: "extraconstitutional justifications." "Beware the sophists," indeed!

[Mark]

Well George that's the definition of Originalist, which is what Greg claims to be. Are you really admitting that you were ignorant of that fact? Or are you just another sophist playing your straw-man games?