18 May 2010

Dionne wants to get the fight right?

"The effects of false and pernicious propaganda cannot be neutralized except by a thorough training in the art of analyzing its techniques and seeing through its sophistries." ~ Aldous Huxley, "Brave New World Revisited"

The nomination of Elena Kagan reminds me of a recent column by E. J. Dionne, on what it is marxists -- I mean, liberals -- need to do in the fight over the Supreme Court.

He begins his Monday, 26 April 2010 column by writing:
The genius of American conservatives over the past 30 years has been their understanding that the most effective way to change the country is to change the terms of our political debate. On issue after issue, they have done just that.

Sensible regulation was cast as a dangerous quest for government control. Modest measures to alleviate poverty became schemes to lock the poor into "dependency." Advocates of social insurance were condemned as socialists. Government was said to be under the sway of a distant "them," even though in a democracy, government is the realm of "us." And attempts to achieve a bit more economic equality were pronounced as assaults on liberty.

Notice that regulations, which Dionne calls "sensible", are simply cast as a quest for government control, as if that regulation is sensible which Dionne and his ilk call sensible. Disagreement is not principled; it is simply framing.

There is no objective standard for what constitutes sensible regulation. If they like it, it's sensible. Conservatives and libertarians who oppose it are, therefore, not being sensible. Never mind, also, that regulation, sensible or not, does constitute government control -- dangerous or not. By definition, the quest for regulation is a quest for government control, which by its nature is indeed dangerous because more government control equals less personal freedom. One would think that a no-brainer. Moreover, most of the regulations are those of which Dionne, having never run a business, has never suffered the burden. Pharisee. Consequently, he probably has never seen a bit of regulation he hasn't found sensible, except maybe for those relating to abortion and marriage. Oh, and, of course, less regulation; I'm sure he hasn't ever found that to be sensible.

In fact most objections to regulation have to do with the real world, economic consequences of it, rather than simple antipathy to government control. Not, for the record, that there is ever anything wrong with objecting to government control just because. As an example of non-sensible regulation I offer minimum wage laws which, despite the ad campaign in their favor, put people out of work. Minimum wage law doesn't just put a limitation on employers, telling them what they must pay; it also puts a limitation on employees, telling them they must go jobless because they are prohibited from selling their labor for less than the government-stipulated rate.

Inasmuch as he cannot refer simply to regulation, but must call it sensible, he cannot refer simply to "measures to alleviate poverty". No. They are modest measures, again, because he says so. Many of those who pay for those modest measures disagree. But what is that to him? (It's nice -- isn't it? -- when those who steal tell you that their thefts are modest.) He knows better. More importantly, in the same way he ignores volumes cataloging the costs of "sensible" regulation, he overlooks the factual question of whether these "modest measures" do lock the poor into dependency. He also overlooks the ethical question of whether another's duties to the poor, assuming we have such duties (remember: we are not to impose our morality upon others), are properly discharged by stealing one person's money and giving it to another.

Briefly, the reason advocates of social insurance have been condemned as socialists is because, by some strange co-incidence, this social insurance involves a re-distribution of wealth, from those who have it (by virtue of their ability, no doubt) to those who do not have it (and therefore need it). (Taking from those with ability; giving to those in need -- seems like I've heard of something like that somewhere. But I digress.) No, to be technical, it doesn't involve government ownership of the means of production. But when you can seize and the distribute the fruits of production, you don't need to own the means of production. The reason for owning the means is precisely for purposes of distributing the fruit. Besides, after Newsweek has declared that we are all socialists now, there is little point in denying that those policies of which the present are merely extensions were, in fact, socialist. As Ludwig von Mises said, in Economic Policy, "The idea of government interference as a 'solution' to economic problems leads, in every country, to conditions which, at the least, are very unsatisfactory and often quite chaotic. If the government does not stop in time, it will bring on socialism" (3rd Lecture, "Interventionism", available online, here). Critics of "social insurance" simply understood socialism better than its supporters. Obviously, this is still the case.

Why might anyone believe there are assaults on personal liberty going on? Perhaps it's because they involve assaults on personal property. What one has is one's own only so long as people like E. J. Dionne don't think it is needed for other purposes. If the day should come when your labor is needed you will find yourself what used to be called a slave, but if you dare call yourself that, no doubt E. J. Dionne will accuse you of changing the terms of the debate. Conscription, he will no doubt claim, is not slavery. Neither is it slavery when physicians and nurses are required by law to perform services for which no payment is made. But, in fact, these are not instances of cynically altering the terms of the debate. They are simple assertions of what some believe to be the case.

Dione wasn't finished there. His real aim in this column was to assert that the right are now engaging in judicial activism:
Nowhere has the conservative intellectual offensive been more effective than in transforming our discussion of the judiciary. That is why the coming clash over President Obama's next Supreme Court nominee is so important.

The test of success for liberals should not simply be winning the confirmation battle. This fight must be the beginning of a long-term effort to expose how radically conservatives have altered our understanding of what the Supreme Court does and how it does it.

Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation.

If anyone doubted that the Supreme Court's current conservative majority wants to impose its view no matter what Congress or state legislatures decide -- or what earlier precedents held -- its decision in the Citizens United case should end all qualms.

In granting corporations an essentially unlimited right to spend money to influence the outcome of elections, that ruling defied decades of legal precedents and congressional enactments. The non-elected branch of government decided it didn't like existing legislation, so it legislated on its own.

Dionne may be right about conservatives radically altering our understanding of the Supreme Court and its operation. But whether that is a problem depends upon the legitimacy of the understanding which has prevailed the past several decades. My understanding of Christianity was radically altered about twenty-two years ago, resulting in my becoming a Christian. That alteration of my understanding was the change from an incorrect understanding to a correct one. If the prevailing understanding of the Court's operation has been incorrect, then conservatives are taking legitimate corrective action. If one believes, as I do, that it is illegitimate for the Court to apply the laws of other nations in our constitutional jurisprudence, then one finds it easy to accept corrective jurisprudence. If one believes, as I do, that the statutes of a majority of states do not become part of the constitution, simply because the Court says so, then jurisprudence which seeks to correct this is entirely legitimate.

Dionne has it that the simple act of finding a law un-constitutional is an act of judicial activism, legislating from the bench. But that isn't it. As long as the constitution, rather than the justices' own philosophies, is the deciding factor, then the finding that a law is unconstitutional is not judicial activism; but using foreign law is. He also seems to be of the opinion that it is illegitimate for the Court to over-turn precedents. (I wonder if he's ever complained about Brown over-turning Plessy's "separate but equal" doctrine. Probably not.) In other words, judicial review is not the same as judicial activism. The former still applies the law; the latter does not. And it isn't judicial activism to undo the results of judicial activism. (For the record, I do not agree with the notion of judicial review.) Let me, as His Beatitude would put it, be clear: What Dionne really objects to is the reversal of liberal judicial activism. Cry me a river.

Dionne continues:
Justice John Paul Stevens, whose retirement will open up a seat on the court, offered one of the finest dissents of a distinguished career when he noted that to arrive at the result it did, the court majority not only violated precedent but also had to reach beyond the case at hand to do so.

Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law," Stevens wrote. Now that is judicial activism.

Stevens added: "In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules." Citizens United is an extreme case of a general tendency: Conservative judges are regularly invoking their alleged fealty to the "original" intentions of the Founders as a battering ram against attempts to limit the power of large corporations. Such entities were not even in the imaginations of those who wrote the Constitution. To claim to know what the Founders would have made of Exxon Mobil or Goldman Sachs or PepsiCo is an exercise in arrogance.

First, "originalism" is not about fealty to The Founders. It is about fealty to the idea that a living, breathing document just doesn't really say anything at all. A living, breathing document specifies no rights, no obligations, no limitations until the Court says so, and says what these rights are -- or are not. In everyday life before the law, ignorance of the law is no excuse. But when it comes to the Constitution we are all ignorant of the law, for none of us really knows what that living, breathing document says until those black-robed ephors (well, the liberal ones anyway) smoke whatever it is that gives them the magical power to hear the living, breathing document tell them what it doesn't tell us. Moreover, it is irrelevant to "originalism" that the Founders could not envision large corporations or their power. Neither does "originalism" require an attempt to divine what the Founders would have made of ExxonMobile, Goldman Sachs or PepsiCo. Dionne either does not know much about what "originalism" means, or he's being deceptive. I find it difficult to believe he doesn't know.

It is true that the Founders did not envision large corporations. It is also irrelevant. The Founders envisioned free people -- free, among other things, to organize themselves into groups, of varying levels of formality, for all lawful purposes. Some of these groups are called associations, others, corporations. The idea that the single individual has rights which he effectively loses when he forms or joins a group (association, corporation) with other free individuals, is a dangerous one when you think about it. Dionne's probably hoping we won't do so.

Note how approvingly Dionne quotes Stevens: "In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules." I thought Dionne was concerned about judicial activism, you know, where the judge's view of how something should be controls his decisions. Here we have Stevens telling us that it is the application of a consensus, as opposed to judge-made rules, which should guide decisions. So, it's either some consensus, or some judge-made rules, but not (let's note carefully) the Constitution itself -- our living, breathing oracle. From men who want to lecture us on altering the terms of the debate and on judicial activism. Peachy.

What liberals forgot during the years when their side dominated the judiciary is that for much of our history, the courts have played a conservative role. But today's conservatives have not forgotten this legacy. Their goal is to overturn the past 70 years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.

In his eerily relevant new book on the struggle between Franklin D. Roosevelt and the Supreme Court, "Supreme Power," Jeff Shesol reminds us that the conservatives of that day were "imbued with a sense that they were saving civilization from Bolsheviks, collectivists and other sundry radicals." One suspects that the current conservative court majority has a similar view of its mission.

Well, duh. Leaving aside, for now, the questions of Bolshevism and collectivism, the fact is that the Court recognized, if they did not use the phrase, that Roosevelt's was a "revolution within the form". They knew their Aristotle, who wrote of what can happen within the form: "[G]overnments do not change at once; at first the dominant party are content with encroaching a little upon their opponents. The laws which existed previously continue in force, but the authors of the revolution have the power in their hands" (Politics, trans. B. Jowett, 1292b). (Can you say, Caesar Augustus?) In other words, even if Dionne thinks they were mistaken, they were neither stupid nor mis-informed. (Liberals always think that the chief mark of the stupid is disagreement with liberal policies. There's hubris for you.) If FDR and brain trust were not radicals, then we must remain at a loss how to explain his commendation of the American people in his first annual address to Congress (4 January 1934): "It is to the eternal credit of the American people that this tremendous readjustment of our national life is being accomplished peacefully." If it wasn't radical FDR should hardly have thought it necessary to commend the American people for peacefully permitting this "readjustment". This "tremendous readjustment" was a revolution within the form. Now that another "readjustment" is attempted Dionne cries "Ouch!" Needless to say, I hope Dionne is correct when he says the current majority has a view of its mission similar to the Court of the New Deal era.

So this time around, let's have a new court debate that focuses on more than just where a nominee stands on Roe v. Wade. Let's remember that the truly "elitist" judges are the ones who protect the privileges of the powerful over the right of Congress to legislate on behalf of workers, consumers and the environment. Let's ignore the claims of conservatives that they are opposed to "legislating from the bench," since it's their judges who are now doing the legislating. If liberals can't successfully challenge conservatives on first principles, they'll never win the fights that matter.

Not a word about anything the Constitution might stipulate. (Secretly, they all know that, as a living, breathing document, it stipulates nothing.) It's the Court's task, apparently simply to take a position against the privileges of the powerful, as if the Constitution offers no protection to them, only to workers, consumers and the environment.

I'll agree with Dionne on this much: let's focus on more than a nominee's position on Roe. Roe is bad law, but it is bad law with a history: It is not going away any time soon. Even so, seriously, Justice Stevens can kiss my foot. Remember the Kelo decision? I certainly do. I read the opinion of the court (What a knock-about of pure fun that always is!) In that travesty of justice, Unjustice Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for public use to seizing private property for a publicpurpose. (And Dionne wants to lecture conservatives on altering the terms of debate? But I digress.) If we ask who will define what a public purpose is we will now be told it is those who do the seizing. As Unjustice Stevens put it, the government authorities' assessment of a proper public purpose was entitled to "great respect" by the courts. In his dissent, Justice Thomas characterized the Kelo decision as "simply the latest in a string of...cases construing the Public Use Clause to be a virtual nullity." It's dark humor at best for Dionne to wax eloquent on the court's protection of the right of Congress to legislate on behalf of workers and consumers. (For one thing, corporations are consumers: they buy things from other corporations; they also purchase labour hours from workers.) I suppose we are to imagine that the properties of no workers or consumers were seized by The City of New London. Right. Protection of workers and consumers my foot.

Thomas Sowell recently offered this comment on the Kelo decision: "Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?"
The true beneficiary of justice, as Dionne apparently conceives it, is government -- but only so long as government is in the hands of leftists. It's the natural order of things.

Even so. People who, like Dionne, believe in "living, breathing documents" really don't have much business complaining about others playing games with words. It's a people-who-live-in-glass-houses kind of a thing.


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James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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