Go Away Lucy, and Take Your Football With You

It is difficult to feel angry about the outcome in June Medical Services v. Russo when it was entirely expected. Most conservatives knew Chief Justice Roberts would come up with some half-baked legal justification to “preserve the integrity of the Court,” so naturally he did so with a ridiculously strict rendering of stare decisis, one which he couldn’t possibly uphold. (And as always a satire site manages to convey the ultimate stupidity of this stance.) So be it.

There was one tweet which caught my attention, and so I republish it here.

It is the usual gibberish from the pro-Moloch “Catholic” left. “Forget about all that abortion stuff, and come join the Democrats so we can enact all the stuff that is not really a part of Catholic teaching but we will insist is as absolutely central to being a good Catholic as belief in the real presence.”

I’ve learned to roll my eyes at this stuff a long time ago. The Catholics for Moloch need some way to look at themselves in the mirror, so it makes sense to create a fake Catechism (while calumniating most other Catholics in the process.) They’re no different than pro-choicers who ramble on about “clumps of cells” and other non-scientific hogwash to be able to come to grips with the fact that they are okay with the legalized murder of unborn children.

We all need to find a way to make it to the next day, I suppose.

And yet there is the slightest bit of truth in this statement. One of course has to ignore that all four of the justices who voted to uphold Louisiana’s law were Republican appointees, and four of the five justices who voted to strike down the law were Democratic appointees. It is, I suppose true that conservatives and Catholics cannot absolutely rely on “their” justices to vote as they would like, whereas Democrats never seem to have to sweat this stuff with theirs.

13 of the 17 justices appointed to the Supreme Court since January 1969 have been Republican appointees, yet Roe not only was made law of the land, it has been entrenched several times – once by a Supreme Court with 8 Republican-appointees (and the one Democrat voting to strike it down). While the judiciary has advanced on several fronts, abortion law is one area where the court remains especially disappointing.

The issue remains that the Supreme Court – and indeed the federal judiciary as a whole – has long ceased to operate effectively within the context of a republican form of government. I am no majoritarian democrat, but the fundamental problems with the Court are not going to be fixed by the “right” appointments. This is why the “what about judges?” argument never came close to persuading me to support Donald Trump. Even if Trump has nailed every single appointment (and I think Gorsuch will be fine in the end), we are no closer to a proper orientation of the judicial branch, and likely will not get there anytime in my lifetime.

On a related note, and once again going through the Twitter account of two-faced frauds, here’s the Lincoln Project’s take:

“True conservatism” indeed.

To quote a mediocre coach, they are who we thought they were.

George Will’s Natural Rights Judicial Philosophy

George Will has established a reputation for being an idiosyncratic thinker, and in his masterful new tome, The Conservative Sensibility, Will demonstrates this idiosyncrasy in his chapter on judicial philosophy. Will rejects originalism, preferring instead what could be described as libertarian or natural rights activism. Will chides originalists for bowing to legislative majorities – state or federal – unless they have clearly circumvented the constitutional text. Will argues that the judiciary should be active guardians against encroachments of the natural rights of citizens.

Will’s approach is reflected in his discussion of Brown vs. Board of Education. He dismisses the Warren court’s rationale for overturning the separate but equal doctrine established in Plessy vs. Ferguson. The Warren court’s decision was seeped in social psychology, twisting itself to find a justification for its decision.  Brown has been a source of dissension among some conservatives. For instance, Michael McConnell agrees with the outcome but not the rationale, while others think that – lamentably – there really was no originalist justification for the outcome (a point many progressives make in attempting to debunk originalism in toto).

Will casts aside all of these approaches and instead postulates:

The threshold question when evaluating any particular mode of construing the Constitution is whether the mode would dictate declaring public school segregation unconstitutional. No acceptable theory for construing the Constitution can invalidate the Court’s conclusion in Brown; the conclusion invalidates any theory that rejects it. If a theory of constitutional interpretation cannot find in the document’s text, when the text is construed to serve the document’s purpose of framing a government that secures natural rights, grounds for striking down racial segregation in schools, a practice facially inimical to equal enjoyment of the blessings of liberty, then this theory must be discarded.

Will follows up with an important framing of his basic constitutional philosophy: “The phrase the ‘blessings of liberty’ is of course from the Constitution’s Preamble. But the Preamble is not a mere decorative filigree on the Constitution. It is a statement of the objectives of all that follow.”

To Will, the Constitution “is John Locke’s political philosophy translated into institutional architecture.” He thus views the Constitution as the written document making concrete the principles established in the Declaration of Independence. He echoes Abraham Lincoln in calling the Declaration the “apple of gold,” surrounded by the “frame of silver” which is the Constitution.

Will sides with Randy Barnett in professing what Ilan Wurman (A Debt Against the Living: An Introduction to Originalism) describes as “libertarian originialism.” The case which distinguishes Barnett and Will from most originalists is Lochner vs. New York, the 1905 Supreme Court case involving a New York state law limiting worker hours. In a decision Will applauds, the Court overturned New York’s law, invoking the idea of the “liberty of contract.” This is a right that is not enumerated specifically in the Constitution, but which is implied via the Ninth Amendment.

In supporting the Lochner court’s decision, Will accepts a concept anathema to many conservative originalists: substantive due process. Will writes, “The Due Process Clause, properly construed, prohibits arbitrary government actions, particularly actions that unjustifiably restrict individuals’ liberties. The Due Process Clause is not purely about process.”

This reading of the due process clause would animate many Supreme Court decisions over the next three decades. These cases generally centered on economic questions. It was not until FDR appointed an entirely new court over his tenure in office that substantive due process would die a sudden death, only to be revived by the Warren court, only this time generally to protect socially libertarian ideas.

Will also does not completely dismiss the idea of a constitution as a living, breathing document. Will himself uses the term “living originalism,” a term coined by Jack Balkin. He quotes Balkin’s description: “In every generation, We the People of the United States make the Constitution our own by culling upon its text and its principle and arguing about what they mean in our own time.” The prohibition against cruel and unusual punishment is used as an example. What was considered “cruel and unusual” in 1789 America is not the same as what would be considered cruel and unusual in 2019. Each generation can read the constitutional intent in light of new revelations and modes of thinking. This differs from progressive judicial activism because the constitution would still be interpreted to support a Madisonian respect for natural rights, just with a more modern flavor.

Will lambasts the conservative originalist approach because it is far too deferential to majorities. He specifically calls out Antonin Scalia’s dissent in Lawrence v. Texas, where the majority struck down Texas’s anti-sodomy laws. Will accuses Scalia of being a majoritarian, and decries the originalist impulse to defer to legislative majorities.

There are thus two principles which underlay Will’s judicial philosophy: a defense of natural rights, and a suspicion of majoritarianism. While there is some division within conservative circles, both of these ideas are within the mainstream of traditional conservative thought, particularly the anti-majoritarian impulse. Will is on solid ground in citing Madison and the Framers and their distrust of majorities and the damage that unrestrained majorities could wreck on our republic. Neither of the principal authors of the Federalist Papers – Hamilton or Madison – were exactly Jeffersonian democrats. (Madison may have forged a political partnership with Jefferson, but he never shared similar philosophical ground with Jefferson when it came to ideas such as democracy and the permanency of the constitution.)

Will might encounter more resistance to his passionate advocacy of natural rights. Again, though, he is on generally solid ground in interpreting the Framers as being natural rights advocates. Thomas West, in The Political Theory of the American Founding, does a convincing job of demonstrating the Framers’ commitment to natural rights, sorting through varied and various writings to demonstrate this propensity.

Yet there are three fundamental issues with this judicial philosophy. Neither one is perhaps lethal to Will’s argument, though in combination they suggest that it is not an approach conservatives should take.

The first issue with manifests itself is that of states’ rights, a concept Will himself defends in the book. Leaving aside the judiciary’s rulings on federal matters, absent a clear contradiction of the constitutional text and meaning, a philosophy of judicial restraint with regards to state laws would be not only sensible, but in fact would be the correct way to honor the Framers’ intent as Will calls us to do.

Will defends this seeming tension with respect for state sovereignty by noting that states cannot abrogate the constitution. That is certainly true. Obviously no state can take it upon itself to legalize slavery, which is clearly prohibited by the 13th Amendment. Will wants to go a step further to recognize that the Ninth Amendment is not just an empty set of words, and establishes a principle for supporting rights not clearly laid out in the Bill of Rights and the Constitution in general.

The problem for Will is that the Constitution is a document meant to lay out the rules for the federal government, and not the states. As originally drafted and ratified, there was very little in the constitution that directly impacted and/or curtailed state actions. The republican guarantee and commerce clauses, for instance, constrained state actions. Otherwise, the Constitution was meant to enumerate (and limit) the powers of the federal government.

The reluctance to superimpose a federal viewpoint over the states is best demonstrated by the convention’s rejection of Madison’s proposal for Congress to have a veto over state laws, a veto Madison thought to be essential for the Constitution to have any teeth. Initially it was generally supported, but as the convention wore on, more delegates – particularly from the small states – argued against this provision, and it ultimately went down to defeat. Madison greatly lamented this, and he thought the lack of such a provision was one of the severest flaws in the Cconstitution.

But even Madison’s advocacy of a veto over state laws stemmed largely from his fear of state interference with federal laws. He didn’t begrudge the states from passing their own laws per se, but rather worried that certain state laws would contradict federal action. Thus even this proposal is less about protecting natural rights and more about protecting the federal government from state encroachment.

Will would rightly counter that the 14th Amendment changed the relationship of the Constitution to the states, at least in practice. He laments the Court’s Slaughterhouse decision, which practically nullified the privileges or immunities clause. But the due process clause has been used to bring the states to heel on a number of issues, and has essentially federalized the Bill of Rights. The question conservatives have to tackle is: how much power do the states retain?

This leads to the second problem with Will’s approach. Progressives mock originalism by contending that it turns judges into historians. A conservative could contend that Will’s natural rights approach turns judges into philosophers, arguing over the meaning of natural rights.

Many (though not all) on the right would agree with Will about the natural rights inclinations of the Framers. Natural rights advocates also believe that we’re constantly discovering what our natural rights entail. And that’s the rub. While a natural rights reading of the Lochner decision could stand upon the idea of the liberty of contract, it is not implausible to picture a progressive natural rights reading of the New York law as supporting the legislation. FDR’s “four freedoms” should provide insight into how a much different concept of natural rights would lead to outcomes Will – and conservatives – would very much disapprove of. Though I agree with Will’s natural rights reading of the Lochner decision and the liberty of contract, it’s not at all far-fetched to see a much different philosophy of natural rights reaching the opposite conclusions.

It’s commendable that Will recognizes that the Ninth Amendment and the privileges or immunities clause of the 14th Amendment are still parts of the Constitution, but how much power to interpret the meaning of those clauses in light of natural law should we give the courts? That leads us to the final objection. While Will again should be commended for not taking the easy conservative path of bashing the courts and questioning the judicial branch’s legitimacy, and is correct in highlighting the anti-majoritarian impulse of the Framers, this approach tilts the balance far too much towards the judiciary.

Conservatives have an uneasy relationship with democracy. I am certainly guilty of being reflexively anti-majoritarian. But we run the risk of going too far in our – let’s call it suspicion of democracy, or at least the democratic aspects of republicanism.

But it is, nonetheless, a republican form of government the Framers created and we’re trying to keep. And what is a republican government? According to Madison, in Federalist 39:

If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.

This broad definition doesn’t necessarily lead us to a satisfactory conclusion as to the rightful powers of the judiciary, but it indicates Madison’s frame of mind. Suspicious as he was of democratic majorities and of state power in general, he recognized there had to be an element of popular choice. Ultimately the people of the United States are sovereign. That sovereignty may be expressed in incompletely democratic forms, and the judiciary is itself a tangential product of popular sovereignty, as they are appointed by (indirectly) elected presidents and confirmed by (indirectly, at the time) elected Senators, and served during good behavior (thus subject, theoretically, to impeachment).

Though we created a republican government with limited democratic forms, there is a general sense that the genius (to borrow from Madison) of the people requires some aspect of popular choice and control. An unelected judiciary consistently overturning legislative majorities based on philosophy rather than the constitutional text will only embitter the citizenry, especially if it feels it has no ability whatsoever to undo the judiciary’s actions. This notion of almost complete judicial supremacy over the legislature, one which extends beyond the original concept of what the judicial branch was intended to be, goes well beyond simple anti-majoritarianism and is seemingly at odds with the very core of our national identity.

That’s not to say there isn’t a good deal of merit in Will’s advocacy of greater judicial activism. First of all, the term judicial activism, like so many political terms, has been abused to the point it merely means “Courts rendering decisions I don’t agree with.” And Will is right to urge courts to adjudicate based on the constitution. In other words, judicial restraint can itself be a form of political activism. For example, John Roberts deciding to find a curious rationale for upholding Obamacare was almost certainly motivated by his desire to restrain the Court from becoming involved in a political debate. Yet this decision itself was political, and lacked any defensible constitutional merit. Judges should judge, and then they may let the political chips fall where they may.

In general, Will isn’t far afield of the Famers. Though Will takes his cues from Madison, it is perhaps unsurprisingly Alexander Hamilton who comes closer to providing support for Will’s judicial philosophy. As Hamilton writes in Federalist 78, “[the judicial branch] is a no less excellent barrier to the encroachments and oppressions of the representative body.” Hamilton adds:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This supports Will’s counter majoritarian argument. Hamilton here expresses the idea that judges must rule against democratically elected legislators when the latter act against the Constitution. But only the most ardent majoritarian would dispute that. The question remains: how do we know precisely when legislators have acted in defiance of the Constitution? And which aspects of the Constitution apply to state legislators? Hamilton provides something of an answer in Federalist 80:

It seems scarcely to admit of controversy, that the judicial authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.

The first point is most relevant here. As Hamilton explains, “What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government.”

It is this last point which resounds: the principles of good government. It is sufficiently vague to countenance a higher degree of judicial interference in state affairs than one would have imagined by the plain text of the Constitution. But again, this doesn’t quite provide a wholly satisfactory answer. State laws that contravene the Constitution should be declared null by the federal judiciary. But what of laws that run amok against “the principles of good government?”

Hamilton even addresses the privileges and immunities clause of Article IV, but here the reference is to states violating the rights of citizens from other states. This does not address internal laws impacting the state’s own citizens.

Will is on solid ground in defending the importance of an independent judiciary. Conservative frustration with court decisions has led many to call for reforms, some of which would strip the courts of their independence, or would limit their jurisdiction. While understandable, it is as true today as it was over two centuries ago that there must be an independent branch of government acting as a barrier against untrammeled majoritarianism.

But Will goes further than that. It would be an exaggeration to suggest Will is proposing the courts act like a council of ephors, but not much of one.

In a sense, Will is contradicting his own philosophy, and not just because this is a nationalistic judicial philosophy disruptive of state’s rights. As a libertarian-conservative, Will understands that human nature cannot be perfected, and that not all social ills can be corrected or cured. His is an anti-utopian philosophy. Will is also rightly at odds with the “post liberal” strand of conservatism which is so much in vogue, precisely because it has the faintest whiff of utopianism. Yet Will’s vision of an omnipotent judiciary acting as the guardian of natural rights is also semi-utopian. States may err in judgment and pass laws offensive to libertarian sensibilities. But just as post-liberals don’t seem to recognize the dangers of giving the government more power to discern “the good,” Will doesn’t seem to fully appreciate the dangers of giving the judiciary the unrestrained authority to declare what does and does not accord with natural rights. A court so fully invested with such a power may not act in strict accordance with libertarian principles. Just as conservatives should appreciate the importance of pluralism in acting as a safeguard for their practice of their values, a “libertarian orginalist” ought to appreciate the necessity of judicial deference. The alternative system may look a lot different than what is hoped for.

George Will has left us what an important contribution to the world of not just conservative thought, but political philosophy in general. His defense of natural rights and an independent judiciary, along with his anti-majoritarian impulse are all important countertrends to what we see in much of the conservative movement today. His judicial philosophy may place too much trust in the Solomonic wisdom of judges, but it is a worthwhile contribution and important guidepost.

The Left’s Ill-Gotten Gains

I’m short on time for the next couple of days, so I won’t be able to post anything of substance. In the meantime, here’s a Kevin Williamson post which, as almost always, cuts to the heart of a matter. The left has been far more reliant on the Court to uphold rights it views as intrinsic, and that’s what scares them so much about the future of the Court.

And that is what terrifies the Left about the current direction of the Supreme Court. Roe v. Wadere presents ill-gotten political gains. While the NRA got a big win in the courts a few years back — one entirely in keeping with the actual text of the Constitution as it exists, not as progressives wish it were — it mainly has advanced its agenda and defended its agenda and defended its gains through ordinary democratic politics. It is not, contrary to the myth, a particularly big political donor or spender (not even in the top 100 last I checked) that gets things done by throwing money around. Until its recent (and, in my view, ill-advised) metamorphosis into a full-spectrum culture-war outfit, the NRA was a very disciplined and narrowly focused single-issue outfit, which made it truly bipartisan: Harry Reid may have been a train wreck on 99.99 percent of the issues, but he was solid on guns, and the NRA credited him for that.

NARAL and Planned Parenthood, who together form what we might understand as the NRA of abortion rights, are above all things terrified that they might be reduced to ordinary democratic political activism in a post-Roe world. They want to defend those ill-gotten gains, and they understand that the American consensus on abortion is a lot closer to the thinking of, say, George W. Bush than it is to that of the butchers’ guild. There is volatility in the polling, but by and large Americans take a pretty liberal view of abortion in the first trimester and in cases involving rape, incest, or serious threats to the health of the mother; they are open to many kinds of restriction and take a much more restrictive view as the pregnancy advances. If democratic preferences prevail, it is likely that U.S. abortion regulation will end up looking something more like what prevails in much of Europe. Not as restrictive as pro-lifers would like, but more restrictive than what we have.

Read the rest at the link I provided.