Returning to the depressing theme of whether conservatism is played out, there is a good article by Richard Gamble on the ambiguous legacy of Ronald Reagan. There's a sense* in which conservatism needs to get in touch with its inner Jimmy Carter. It needs to emphasize limits, imperfectibility and original sin.
*Only sense. Carter was indeed a sanctimonious liberal technocrat.
Showing posts with label conservatism. Show all posts
Showing posts with label conservatism. Show all posts
Saturday, May 23, 2009
Monday, May 11, 2009
Is the Right Intellectually Bankrupt?
We had a bit of a debate a few months back about which of the right or left is in greater need of intellectual revitalization. My two cents: inside the US, the right has become sectarian and doctrinaire -- elsewhere, it may still be the case that the left knows less about how its enemies think and is therefore dumber.
A rather more authoritative voice than mine has spoken. According to Richard Posner:
A rather more authoritative voice than mine has spoken. According to Richard Posner:
The major blows to conservatism, culminating in the election and programs of Obama, have been fourfold: the failure of military force to achieve U.S. foreign policy objectives; the inanity of trying to substitute will for intellect, as in the denial of global warming, the use of religious criteria in the selection of public officials, the neglect of management and expertise in government; a continued preoccupation with abortion; and fiscal incontinence in the form of massive budget deficits, the Medicare drug plan, excessive foreign borrowing, and asset-price inflation.
By the fall of 2008, the face of the Republican Party had become Sarah Palin and Joe the Plumber. Conservative intellectuals had no party.
Sunday, March 15, 2009
The Conservative Dilemma: Charles Murray's Two Conceptions of Human Nature
I want to talk about Stephen Harper's venture into the "Whither Conservatism?" sub-genre. But first I want to talk about Charles Murray's excellent contribution earlier this month.
It's hardly an original thought, but much of the American right in the age of Obama resembles the liberal-left in the era of Reagan. Back in those days, the conservative intellectual elite understood leftist arguments, while the left basically just assumed that conservatives must be stupid and evil. They could not really comprehend that their might be an argument on the other side, or that it could be adopted by someone who understood their own perspective and was not wholly malevolent. Right-wing intellectuals like Milton Friedman were the ones who were trying to shake their opponents into seeing things differently. They knew they'd win the argument if they could get a hearing. But even when they took power, they still couldn't be taken seriously. The Reagan/Thatcher revolution must just be a terrible burst of atavistic primitivism, rather than a rival set of ideas.
Obviously, there are still people like that on the left today, and there were unthinking partisans on the right back in 1980. But my sense is that today it is the right that talks to itself, and is blinded by its own certainty that it is always right. There are exceptions, but they tend to be moderates -- the kind who are easily praised by the New York Times.
Murray, as co-author of The Bell Curve and a bona fide movement neoconservative/libertarian, can hardly be accused of the same. In his March speech, he gave an uncompromising defence of fusionism and left no doubt that he expects advances in genetics to falsify left-wing assumptions about human equality. But he did so while making serious arguments and without pretending that mild social democracy and Stalinism are exactly the same. He does not pretend that Obama is Mugabe, but makes a fairly appealing argument against what Obama wants to do.
Murray's speech has two parts, and the division between them is, as Ross Douthat has noted, rather stark.
*In the first part, Murray makes a deep argument against European/Canadian-style social democracy and in favour of the Red State American model. Murray adopts Aristotle's idea that happiness (the good life) consists not in pleasure and the avoidance of pain, but in a life of "deep satisfactions" -- hard but important things:
The most important objection to the European social democratic model is that it denies these four to huge swathes of people. The model citizen of Canada or the EU cohabits, but does not marry, and does not have children. S/he avoids atavistic attachments to tribal identity. S/he is probably a spiritual seeker or at least believes in UFOs and ghosts, but does not belong to a church. And if s/he does not have the skills to be a knowledge worker, s/he doesn't work at all.
Murray does not seem optimistic that the hard things will survive if there are easy ways to avoid them.
In this part of the speech, "human nature" has a teleological meaning. It consists in proper ends for a human life, ends that can be lost sight of by whole cultures.
But in the next part of the speech, "human nature" gets a scientific, measurable, even positivistic meaning. He expects (undoubtedly correctly) major advances in the biological understanding of human psychology, and he expects it to refute core social-democratic premises. Women and men think differently about sex and babies. Intelligence and personality are largely determined by genes, and those genes are differently distributed in different partially reproductively-isolated human populations. Etc.
The difficulty is bringing these two conceptions of human nature into one frame. If the deep satisfactions are triggered by our biology as given through eons of natural selection, then it is hard to see how Barack Obama can seriously threaten them. On the other hand, it may be that wealthy twenty-somethings caring more for fast cars and loose sex partners than for the virtues is also coded in the genes, and was as familiar to Aristotle and Plato as it is to visiting professors in Zurich. To the extent social change is making this attitude more common, it is just the spread of wealth and education. Wealth makes it easier to avoid hard satisfactions, and the educated sensibility cannot just return to the naive faith without becoming an angry fundamentalism. In other words, if anything is at fault, it is capitalism (for generating the wealth) and the Enlightenment. In other words, it is a product of the same forces that will drive those advances in genetic science.
It's hardly an original thought, but much of the American right in the age of Obama resembles the liberal-left in the era of Reagan. Back in those days, the conservative intellectual elite understood leftist arguments, while the left basically just assumed that conservatives must be stupid and evil. They could not really comprehend that their might be an argument on the other side, or that it could be adopted by someone who understood their own perspective and was not wholly malevolent. Right-wing intellectuals like Milton Friedman were the ones who were trying to shake their opponents into seeing things differently. They knew they'd win the argument if they could get a hearing. But even when they took power, they still couldn't be taken seriously. The Reagan/Thatcher revolution must just be a terrible burst of atavistic primitivism, rather than a rival set of ideas.
Obviously, there are still people like that on the left today, and there were unthinking partisans on the right back in 1980. But my sense is that today it is the right that talks to itself, and is blinded by its own certainty that it is always right. There are exceptions, but they tend to be moderates -- the kind who are easily praised by the New York Times.
Murray, as co-author of The Bell Curve and a bona fide movement neoconservative/libertarian, can hardly be accused of the same. In his March speech, he gave an uncompromising defence of fusionism and left no doubt that he expects advances in genetics to falsify left-wing assumptions about human equality. But he did so while making serious arguments and without pretending that mild social democracy and Stalinism are exactly the same. He does not pretend that Obama is Mugabe, but makes a fairly appealing argument against what Obama wants to do.
Murray's speech has two parts, and the division between them is, as Ross Douthat has noted, rather stark.
*In the first part, Murray makes a deep argument against European/Canadian-style social democracy and in favour of the Red State American model. Murray adopts Aristotle's idea that happiness (the good life) consists not in pleasure and the avoidance of pain, but in a life of "deep satisfactions" -- hard but important things:
I'm talking about the kinds of things that we look back upon when we reach old age and let us decide that we can be proud of who we have been and what we have done. Or not.
To become a source of deep satisfaction, a human activity has to meet some stringent requirements. It has to have been important (we don't get deep satisfaction from trivial things). You have to have put a lot of effort into it (hence the cliché "nothing worth having comes easily"). And you have to have been responsible for the consequences.
There aren't many activities in life that can satisfy those three requirements. Having been a good parent. That qualifies. A good marriage. That qualifies. Having been a good neighbor and good friend to those whose lives intersected with yours. That qualifies. And having been really good at something--good at something that drew the most from your abilities. That qualifies. Let me put it formally: If we ask what are the institutions through which human beings achieve deep satisfactions in life, the answer is that there are just four: family, community, vocation, and faith.
The most important objection to the European social democratic model is that it denies these four to huge swathes of people. The model citizen of Canada or the EU cohabits, but does not marry, and does not have children. S/he avoids atavistic attachments to tribal identity. S/he is probably a spiritual seeker or at least believes in UFOs and ghosts, but does not belong to a church. And if s/he does not have the skills to be a knowledge worker, s/he doesn't work at all.
Murray does not seem optimistic that the hard things will survive if there are easy ways to avoid them.
Last April I had occasion to speak in Zurich, where I made some of these same points. After the speech, a few of the twenty-something members of the audience approached and said plainly that the phrase "a life well-lived" did not have meaning for them. They were having a great time with their current sex partner and new BMW and the vacation home in Majorca, and saw no voids in their lives that needed filling.
In this part of the speech, "human nature" has a teleological meaning. It consists in proper ends for a human life, ends that can be lost sight of by whole cultures.
But in the next part of the speech, "human nature" gets a scientific, measurable, even positivistic meaning. He expects (undoubtedly correctly) major advances in the biological understanding of human psychology, and he expects it to refute core social-democratic premises. Women and men think differently about sex and babies. Intelligence and personality are largely determined by genes, and those genes are differently distributed in different partially reproductively-isolated human populations. Etc.
The difficulty is bringing these two conceptions of human nature into one frame. If the deep satisfactions are triggered by our biology as given through eons of natural selection, then it is hard to see how Barack Obama can seriously threaten them. On the other hand, it may be that wealthy twenty-somethings caring more for fast cars and loose sex partners than for the virtues is also coded in the genes, and was as familiar to Aristotle and Plato as it is to visiting professors in Zurich. To the extent social change is making this attitude more common, it is just the spread of wealth and education. Wealth makes it easier to avoid hard satisfactions, and the educated sensibility cannot just return to the naive faith without becoming an angry fundamentalism. In other words, if anything is at fault, it is capitalism (for generating the wealth) and the Enlightenment. In other words, it is a product of the same forces that will drive those advances in genetic science.
Sunday, January 20, 2008
George Grant on Sixties Southern Resistance: "Last Ditch Stand of a Local Culture"
It's worth noting that Canada's own favourite paleoconservative, George Grant, occasionally expressed sympathy for the South's resistance to racial integration. From Lament for a Nation:
The classes that opposed Roosevelt were spent forces by 1965. The leaders of the new capitalism supported Johnson. Goldwater's cry for limited government seemed as antediluvian to the leaders of the corporations as Diefenbaker's nationalism seemed to the same elements in Canada. Johnson was supported not only by such obvious groups as Negroes and labour but also by the new managerial bourgeoisie of the suburbs. The farmers, who were supposed to be the last bastion of individualism, were not slow in voting for the continuation of subsidies. Four of Goldwater's five states were in the South. This was the last ditch stand of a local culture. But it is doomed to disappear as much as an indigenous French Canada.
Monday, September 03, 2007
Common Sense Revolution: Introduction
The Chief Economist at Midland Walwyn, one of Canada's most respected securities firms, concludes...
The people of Ontario have a message for their politicians -- government isn't working anymore. The system is broken.
You sent that message when you handed the provincial government its dramatic defeat in 1990. You sent it in the referendum campaign in 1992. You sent it in the federal election. And yet, no one seems to be listening.
Over the last few years, I have been out talking with the people of Ontario. In Town Hall meetings, in living rooms and around kitchen tables.
I have heard your message. You are looking for a Common Sense Revolution in the way our province is run. Well, I'm prepared to actually do something about it.
It's time for government to make the same types of changes all of us have had to make in our own families and in our jobs. If we are to fix the problems in this province then government has to be prepared to make some tough decisions.
I'm not talking about tinkering, about incremental changes, or about short term solutions. After all, the changes we have all experienced in our personal lives have been much more fundamental
than that.
It's time for us to take a fresh look at government. To re-invent the way it works, to make it work for people. While many goals remain important to us -- creating jobs, providing safe communities, protecting health care -- we are governed by a system that was designed to meet the needs of the 1950's, not the challenges of the 1990's or beyond.
It's time to ask ourselves how government spending can double in the last ten years, while we seem to be getting less and less value for our tax money....
To ask ourselves why we spend more money on education than ever before, but our children aren't able to get the kind of education they need to secure a good and prosperous future....
Time to ask ourselves how we can spend more and more money fighting crime,
while our streets end up becoming more dangerous.
I have been troubled by these realities for some time. I fear Janet and I cannot hope for a better future for our children.
I want to do something about it. So, today I'm putting forth a plan to help build a better future.
There are more than half a million people unemployed in this province. The bottom line is that Ontario needs jobs. This plan will create more than 725,000 new jobs over the
next five years.
Ontario is among the highest-taxed jurisdictions in North America. There have been 65 tax increases in the past decade, including 11 hikes to your income tax.
This plan will cut your provincial income tax rate by 30%. Government spending has more than doubled in the past ten years, pushing both the tax burden and the provincial deficit higher.
This plan will reduce non-priority government spending by 20%.
Too many services essential to the public are now being cut, or are under such financial pressure that the quality of service is in danger.
This plan guarantees full funding for health care, law enforcement, and education spending in the classroom.
A decade of tax-and-spend economics has pushed our annual deficit over the $10 billion mark, mortgaging our children's future.
This plan will fully balance the budget in four years.
This is not a wish list or a bunch of empty political promises. This is a solid plan based on four years of study, analysis, consultation with workers, employers, party members and ordinary
Ontarians through extensive public hearings.
To be sure of our conclusions, we subjected this plan to an independent analysis by one of Canada's leading economic experts.
In short, our plan will work, and bring hope, opportunity and jobs back to Ontario.
There is nothing wrong with Ontario that a new vision, a new direction and turn-around management can't fix.
We can build a safe and prosperous province, but first we need a major change in the way government works.
It will not be easy, but it CAN be done, and it WILL be worth it.
In order to create the jobs we so badly need, and to renew our economy, we will have to set priorities and stick to them.
Tinkering with the system will not be enough. It is time for fundamental change, and change is never easy.
The political system itself stands in the way of making many of the changes we need right now.
Our political system has become a captive to big special interests. It is full of people who are afraid to face the difficult issues, or even talk about them. It is full of people doing all too well as a result of the status quo.
We need a revolution in this province....a Common Sense Revolution.
It will be a revolution of practical ideas for making government work better for the people it serves, and a revolution against the last ten years of government thinking when it comes to job
creation.
Ontario needs jobs today, and jobs tomorrow.
This plan will show you how this can be done....how Ontario can once again become an economic powerhouse, full of hope, opportunity and real jobs.
If you believe, as I do, that we need lower taxes, less government and 725,000 new jobs in Ontario, I am asking you to join me in my fight for a Common Sense Revolution.
"This plan will work. The Mike Harris plan to cut provincial income tax rates by 30% and non-priority services spending by 20% will give Ontario a balanced budget within four years, and create more than 725,000 new jobs."
- Mark Mullins, Ph. D. (Economics)
The people of Ontario have a message for their politicians -- government isn't working anymore. The system is broken.
You sent that message when you handed the provincial government its dramatic defeat in 1990. You sent it in the referendum campaign in 1992. You sent it in the federal election. And yet, no one seems to be listening.
Over the last few years, I have been out talking with the people of Ontario. In Town Hall meetings, in living rooms and around kitchen tables.
I have heard your message. You are looking for a Common Sense Revolution in the way our province is run. Well, I'm prepared to actually do something about it.
It's time for government to make the same types of changes all of us have had to make in our own families and in our jobs. If we are to fix the problems in this province then government has to be prepared to make some tough decisions.
I'm not talking about tinkering, about incremental changes, or about short term solutions. After all, the changes we have all experienced in our personal lives have been much more fundamental
than that.
It's time for us to take a fresh look at government. To re-invent the way it works, to make it work for people. While many goals remain important to us -- creating jobs, providing safe communities, protecting health care -- we are governed by a system that was designed to meet the needs of the 1950's, not the challenges of the 1990's or beyond.
It's time to ask ourselves how government spending can double in the last ten years, while we seem to be getting less and less value for our tax money....
To ask ourselves why we spend more money on education than ever before, but our children aren't able to get the kind of education they need to secure a good and prosperous future....
Time to ask ourselves how we can spend more and more money fighting crime,
while our streets end up becoming more dangerous.
I have been troubled by these realities for some time. I fear Janet and I cannot hope for a better future for our children.
I want to do something about it. So, today I'm putting forth a plan to help build a better future.
There are more than half a million people unemployed in this province. The bottom line is that Ontario needs jobs. This plan will create more than 725,000 new jobs over the
next five years.
Ontario is among the highest-taxed jurisdictions in North America. There have been 65 tax increases in the past decade, including 11 hikes to your income tax.
This plan will cut your provincial income tax rate by 30%. Government spending has more than doubled in the past ten years, pushing both the tax burden and the provincial deficit higher.
This plan will reduce non-priority government spending by 20%.
Too many services essential to the public are now being cut, or are under such financial pressure that the quality of service is in danger.
This plan guarantees full funding for health care, law enforcement, and education spending in the classroom.
A decade of tax-and-spend economics has pushed our annual deficit over the $10 billion mark, mortgaging our children's future.
This plan will fully balance the budget in four years.
This is not a wish list or a bunch of empty political promises. This is a solid plan based on four years of study, analysis, consultation with workers, employers, party members and ordinary
Ontarians through extensive public hearings.
To be sure of our conclusions, we subjected this plan to an independent analysis by one of Canada's leading economic experts.
In short, our plan will work, and bring hope, opportunity and jobs back to Ontario.
There is nothing wrong with Ontario that a new vision, a new direction and turn-around management can't fix.
We can build a safe and prosperous province, but first we need a major change in the way government works.
It will not be easy, but it CAN be done, and it WILL be worth it.
In order to create the jobs we so badly need, and to renew our economy, we will have to set priorities and stick to them.
Tinkering with the system will not be enough. It is time for fundamental change, and change is never easy.
The political system itself stands in the way of making many of the changes we need right now.
Our political system has become a captive to big special interests. It is full of people who are afraid to face the difficult issues, or even talk about them. It is full of people doing all too well as a result of the status quo.
We need a revolution in this province....a Common Sense Revolution.
It will be a revolution of practical ideas for making government work better for the people it serves, and a revolution against the last ten years of government thinking when it comes to job
creation.
Ontario needs jobs today, and jobs tomorrow.
This plan will show you how this can be done....how Ontario can once again become an economic powerhouse, full of hope, opportunity and real jobs.
If you believe, as I do, that we need lower taxes, less government and 725,000 new jobs in Ontario, I am asking you to join me in my fight for a Common Sense Revolution.
- Mike Harris
Saturday, September 01, 2007
The "Common Sense Revolution": An Internet Never Forgets
We encourage digressions in the Pith & Substance comment threads. And so there was nothing unusual about a discussion on the merits of the Common Sense Revolution (both the 1994 document and the post-1995 event). The debate caused me to look for the document on the Internet. Wikipedia provides a link, but it is now dead. It seems the Ontario PC's had it on their website until August 2005. Comparisons to the airbrushing of Trotsky and Zinoviev from Politburo get-togethers are unwarranted. I'm sure there is some innocent explanation for why this rather important historic document was deleted.
Anyhoo, thanks to those who archive the Internet, I can provide a link here: http://web.archive.org/web/20051124195225/http://www.ontariopc.com/feature/csr/csr_text.htm
Update: The hypertext link doesn't work. You have to copy the URL and put it in your browser.
As I write, even that doesn't work because the Wayback Machine is offline.
I think it is a sad thing that the Common Sense Revolution is not available somewhere on the live web. So, pending any notice from copyright lawyers, I am going to start publishing it as a series of posts. Comment away.
Anyhoo, thanks to those who archive the Internet, I can provide a link here: http://web.archive.org/web/20051124195225/http://www.ontariopc.com/feature/csr/csr_text.htm
Update: The hypertext link doesn't work. You have to copy the URL and put it in your browser.
As I write, even that doesn't work because the Wayback Machine is offline.
I think it is a sad thing that the Common Sense Revolution is not available somewhere on the live web. So, pending any notice from copyright lawyers, I am going to start publishing it as a series of posts. Comment away.
Thursday, August 16, 2007
"Allah" is just Arabic for "God"
Having praised Stephen Bainbridge on occasion, I have to react to the stupidity of one of his most recent posts. Bainbridge denounces Dutch bishops for suggesting that "Allah" be used to denote God in Catholic services. He suggests this proposal is heretical.
"Allah" is, in fact, just the Arabic word for God. It has been used by Arab Christians and Jews since before Islam existed. A couple of Bainbridge's commenters note this fact. Naturally, the rest ignore them, preferring their own identity politics.
It is also Catholic doctrine that Muslims worship the same God as Christians: see Lumen Gentium, para. 16.
Update: In the comments, Fred S. raises Benedict's Regensburg's Address, claiming that it represents a repudiation of the position in Lumen Gentium. I don't think so. The paragraph in Lumen Gentium is cited in the Catechism Ratzinger was instrumental in putting together.
Clearly, at Regensburg, Benedict disagrees with what he takes to be the Muslim conception of God. But he also links that conception with the medieval nominalist and Protestant one. He is not saying that the God that the conceptions point to are different.
David Cheifetz raises the difficult question of how it is consistent to make claims about the nature of God while acknowledging that He/She/It infinitely transcends possible human understanding. I imagine Benedict would have an answer. Any Catholics wishing to make a go of it in the comments box are invited to do so.
Further Update: Daniel Larison, having recently completed an intensive course in Arabic, confirms that the Dutch churches are making a purely linguistic concession. However, he further notes that this is one of those wet gestures right-thinking people of all confessions should despise. The Pithlord is partial to such an ecumenism of crankiness.
"Allah" is, in fact, just the Arabic word for God. It has been used by Arab Christians and Jews since before Islam existed. A couple of Bainbridge's commenters note this fact. Naturally, the rest ignore them, preferring their own identity politics.
It is also Catholic doctrine that Muslims worship the same God as Christians: see Lumen Gentium, para. 16.
Update: In the comments, Fred S. raises Benedict's Regensburg's Address, claiming that it represents a repudiation of the position in Lumen Gentium. I don't think so. The paragraph in Lumen Gentium is cited in the Catechism Ratzinger was instrumental in putting together.
Clearly, at Regensburg, Benedict disagrees with what he takes to be the Muslim conception of God. But he also links that conception with the medieval nominalist and Protestant one. He is not saying that the God that the conceptions point to are different.
David Cheifetz raises the difficult question of how it is consistent to make claims about the nature of God while acknowledging that He/She/It infinitely transcends possible human understanding. I imagine Benedict would have an answer. Any Catholics wishing to make a go of it in the comments box are invited to do so.
Further Update: Daniel Larison, having recently completed an intensive course in Arabic, confirms that the Dutch churches are making a purely linguistic concession. However, he further notes that this is one of those wet gestures right-thinking people of all confessions should despise. The Pithlord is partial to such an ecumenism of crankiness.
Friday, August 10, 2007
National Review embarrasses itself
Or would do if it were capable of embarrassment.
Their "legal expert" Matthew Franck has got himself into an argument with liberal legal scholar Jack Balkin and shows he does not understand extremely basic concepts in constitutional theory.
In American legal circles, "originalism" certainly started as a conservative slogan. (This is much less the case in Canada, where it began with people like Frank Scott and Bora Laskin demanding that the courts return to John A. Macdonald's highly centralized conception of federation, as opposed to the more provincialist jurisprudence of the Privy Council.) The idea was that the Warren Court had stretched constitutional rights far beyond the "intent" of the framers.
However, over time, it has become clear that private intent at least must be irrelevant to the interpretation of a public document. All that can matter is the "original public meaning" of the phrases used. Moreover, since the important phrases describe very abstract concepts ("due process", "equal protection", "the freedom of speech", "interstate commerce"), then meaning is a very small part of constitutional adjudication. What matters more is the application of these concepts to the impugned government act. This in turn is going to involve questions of social fact and institutional competence that "non-orginalists" worry about. At the limit, the distinction between originalism and the "living constitution" starts to break down. (Although not necessarily totally breaking down: first, we may give some weight to the original generation's "expected application" and, second, some disputes may actually turn on semantic issues.)
Franck barges into this complex conceptual field in the most arrogant possible fashion, declaring liberal originalists to constitute "faking it," to be a "hoot" and to demonstrate "cynicism." Balkin responds with an unreasonable degree of civility here and here.
But in his reply, Franck demonstrates a very basic confusion between judical restraint and originalism. To read him, one would think that Felix Frankfurter wrote the Federalist Papers. Remarkably, he seems to think that the post-New Deal understanding of the "interstate commerce" power as plenary was part of the original understanding, a position I can't imagine any historian agreeing with.
Some of his conclusions are reasonable ones, but assuming that the judicial power implied any power of constitutional review at all, then it must follow that some laws should be invalidated. And if Franck is claiming that the US Constitution did not imply a power of constitutional review, he needs to take the matter up with Alexander Hamilton:
Brad DeLong has observed that there is no shortage of talented right-wing economists who would like to write for National Review, making its reliance on ignorant hacks somewhat inexplicable. The same is certainly true for lawyers. It's a bit of a mystery.
Update: Matthew Festa has studied citations to the Federalist Papers (the "originalist" source par excellence) in the Rehnquist Court, and has shown that liberals and conservatives cite to them at the same rate. Someone should do the same for Blackstone and Reconstruction-related material. I suspect you'd get the same result.
Update 2: I am not saying "judicial restraint" is a bad principle. Any and every theory of constitutional law invokes it some of the time. Total legislative supremacy is perfectly respectable in my book, although I think it is an eccentric view of what the US Constitution requires.
Their "legal expert" Matthew Franck has got himself into an argument with liberal legal scholar Jack Balkin and shows he does not understand extremely basic concepts in constitutional theory.
In American legal circles, "originalism" certainly started as a conservative slogan. (This is much less the case in Canada, where it began with people like Frank Scott and Bora Laskin demanding that the courts return to John A. Macdonald's highly centralized conception of federation, as opposed to the more provincialist jurisprudence of the Privy Council.) The idea was that the Warren Court had stretched constitutional rights far beyond the "intent" of the framers.
However, over time, it has become clear that private intent at least must be irrelevant to the interpretation of a public document. All that can matter is the "original public meaning" of the phrases used. Moreover, since the important phrases describe very abstract concepts ("due process", "equal protection", "the freedom of speech", "interstate commerce"), then meaning is a very small part of constitutional adjudication. What matters more is the application of these concepts to the impugned government act. This in turn is going to involve questions of social fact and institutional competence that "non-orginalists" worry about. At the limit, the distinction between originalism and the "living constitution" starts to break down. (Although not necessarily totally breaking down: first, we may give some weight to the original generation's "expected application" and, second, some disputes may actually turn on semantic issues.)
Franck barges into this complex conceptual field in the most arrogant possible fashion, declaring liberal originalists to constitute "faking it," to be a "hoot" and to demonstrate "cynicism." Balkin responds with an unreasonable degree of civility here and here.
But in his reply, Franck demonstrates a very basic confusion between judical restraint and originalism. To read him, one would think that Felix Frankfurter wrote the Federalist Papers. Remarkably, he seems to think that the post-New Deal understanding of the "interstate commerce" power as plenary was part of the original understanding, a position I can't imagine any historian agreeing with.
Some of his conclusions are reasonable ones, but assuming that the judicial power implied any power of constitutional review at all, then it must follow that some laws should be invalidated. And if Franck is claiming that the US Constitution did not imply a power of constitutional review, he needs to take the matter up with Alexander Hamilton:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Brad DeLong has observed that there is no shortage of talented right-wing economists who would like to write for National Review, making its reliance on ignorant hacks somewhat inexplicable. The same is certainly true for lawyers. It's a bit of a mystery.
Update: Matthew Festa has studied citations to the Federalist Papers (the "originalist" source par excellence) in the Rehnquist Court, and has shown that liberals and conservatives cite to them at the same rate. Someone should do the same for Blackstone and Reconstruction-related material. I suspect you'd get the same result.
Update 2: I am not saying "judicial restraint" is a bad principle. Any and every theory of constitutional law invokes it some of the time. Total legislative supremacy is perfectly respectable in my book, although I think it is an eccentric view of what the US Constitution requires.
Thursday, June 28, 2007
The PreMo as PoMo
For all of you who have written in to say this blog needs more abstruse philosophical argumentification, I point you to Akrasia's post on Richard Rorty, which has led to a debate on the tenability of his "relativism." In the comments box, I try to play the post-modern Thrasymachus, while avoiding Akrasia's Socratic traps.
On an interesting and tangentially related note, this post by Daniel McCarthy (a comment to which "inspired" my heading above) takes note of a new book drawing connections between American conservative godfather Russell Kirk and (formerly?) fashionable European thinkers like Gadamer and Lyotard. The connection seems like a natural one for me once you dispense with the cartoon version of Continetnal thought. The "post-modernists" did not doubt that there can be meaning and reason. With Nietzsche, though, they tended to think that the reasonableness and meaningfulness couldn't go all the way down. Sooner or later, somebody has to fix the signifier and it isn't pretty to watch. Some such acts make possible productive disciplines of beauty, truth and goodness; others don't.
It seems to me that this way of looking at things is a natural fit with conservative anxiety about order and the threat "reason" unmoored from any tradition poses to it. Foucault certainly appreciated all the effort that went into breeding and training the contemporary Frenchman. Should all that effort be lost because it conflicts with a rationalised Europe only Jeremy Bentham could love? It's possible to see such destruction as just desserts for all that went before, but also as a complete waste. Had Foucault's excesses not killed him in early middle age, it is possible to imagine him sympathizing with the Front National.
Theistic conservatives have to ultimately disagree with the po-mos, but can concede they give a good account of life after the fall.
Jacques Derrida card uploaded to flickr by Smarthrob. Photo public.
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