Judicial activity

Courtesy of Seth Rosenthal at Slate here is a point that needs to be made seven times seventy times:

>The truth, then, is that despite all their fulminating about judicial activism, conservatives today firmly believe that courts must step in to oversee, correct, or invalidate the actions of government officials. They simply disagree with liberals on when to do it.

No this is not one of those silly “referee pieces” one sees so much of in the liberal media. (You know the ones: “Fox is biased, but so is the New York Times. Everyone is biased. Not me, though, I can detect bias, so I don’t believe anyone.” And so on).

Rather, Rosenthal reminds us–against the always question begging George Will–that the phrase “judicial activism” can hardly substitute for a substantial legal argument.


If ever rules should prove to difficult to manage, they should be done away with entirely:

>Thomas recognized that the likelihood of the rule of law, of principled government action, is related inversely to the number of criteria the court concocts for determining what political contribution limits are just right. What qualifies judges for this judgment, or how the First Amendment permits it, is unclear. So Thomas sensibly advocated overturning Buckley, allowing people to give, and candidates to spend, what they like, and allowing voters to sort things out. What a concept.

Justice Thomas ought to consult the previous post on interpreting the Constitution. Sometimes the 10 simple rules are not so simple. But the dumb thing about this is the suggestion that the complexity of the situation warrants (in virtue of its complexity) the simple solution of dumping the whole idea of regulating campaign finance altogether. Perhaps–and maybe I’m a communist radical–it warrants a more sensible set of rules, the kind of rules (or guidelines for rules) one would hope an independent body such as the Supreme Court of the United States might be able to concoct, as if it were their job.

10 Simple Rules

General rules–such as Congress shall make no law abridging freedom of speech–are pesky things. As soon as they are posted in the village square people start confusing them. Luckily, when you have dipped your pen in the minds of the founders, you know that by “freedom of speech” Congress clearly meant, “no rule limiting how much *money* you can spend on a political candidate.” After all (1) you use your money to have a candidate “speak” for you, (2) your vast sums correlate with how much you have to say (and you have a lot to say if you have a lot of money–more freedom, as it were), (3) you cannot “speak” in any other way than putting your money where you mouth is (so limiting how much freedom you have would violate your right to speak), (4) The Constitution clearly says that no law can separate you from your money, and (5) finally, no law can limit what you spend your money on, because that too is “speech.”

Indefinite dyad

The other week we discussed the views on gay marriage of that most unprotected of unprotected classes, the academic right wing. We’re as bored and as frustrated as the next person with the rhetorically effective but in equal measure logically clueless slippery slope arguments against gay marriage. To see the latest iteration, watch this clip from The Colbert Report. But we’d like to return briefly to the discussion of the “Princeton Principles” of the conservative Witherspoon Institute.

In an otherwise shamefully incoherent document (here’s one example: in the name of limiting government’s control over people’s lives, government should vastly enlarge its control over people’s affective choices), we find the following almost unforgivable claim:

>Yet there remain even deeper concerns about the institutional consequences of same-sex marriage for marriage itself. Same-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage. It would undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget. Finally, same-sex marriage would likely corrode marital norms of sexual fidelity, since gay marriage advocates and gay couples tend to downplay the importance of sexual fidelity in their definition of marriage. Surveys of men entering same-sex civil unions in Vermont indicate that 50 percent of them do not value sexual fidelity, and rates of sexual promiscuity are high among gay men. For instance, Judith Stacey, professor of sociology at New York University and a leading advocate of gay marriage, hopes that same-sex marriage will promote a “pluralist expansion of the meaning, practice, and politics of family life in the United States” where “perhaps some might dare to question the dyadic limitations of Western marriage and seek some of the benefits of extended family life through small group marriages…” [emphasis added]

In the reflective language of the disinterested sociologist, the authors suggest that the extreme views on marriage of one one advocate of gay marriage suffice to show the apocalyptic character of a gay-friendly future. There are probably thousands (if not millions) of advocates of straight marriage whose views would cause the fellows of the Witherspoon Institute to recoil, but just because they share a goal does not mean they share a view. Insofar as all slippery slope arguments suggest extreme (but unlikely) consequences, they threaten; they play on the fears of their listener.

The respected scholars of the Witherspoon Institute ought to know better than to resort to inflammatory fear mongering.

More global warming nonsense

In an op-ed on the theme that Al Gore is and always has been a calculating phony (which we leave to The Daily Howler for comment), George Will continues to suggest that there is real controversy where there isn’t any:

>Minutes after Gore said that “the debate in the science community is over,” he said “there is a debate between the American ice science community and ice scientists elsewhere” about whether the less-than-extremely-remote danger is a rise in sea level of a few inches or 20 feet . And he said scientists “don’t know what is happening” in west Antarctica or Greenland. So when Gore says the scientific debate is “over,” he must mean merely that there is consensus that we are in a period of warming.

>This is not where debate ends but where it begins, given that at any moment in its 4.5 billion years, the planet has been cooling or warming. The serious debate is about two other matters: the contribution of human activity to the current episode of warming and the degree to which this or that remedial measure (e.g., the Kyoto Protocol) would make a difference commensurate with its costs.

Gore clearly means that the *serious scientific* debate about the human contribution to global warming is over. This or that Exxon Mobile scientist doubts the human contribution; and the selectively skeptical pundit and pseudo-libertarian think-tanker doomsays about the financial costs of dealing with it. Neither of these is a serious position. For the scientific question, see here ; the the economic question, see here and here (thanks to Think Progress for the links). So Will is guilty–again on this topic–of suggesting serious controversy where there isn’t any. For a discussion of that, see here, here, here, here, here, and finally, here.

Moreover, he’s also probably guilty of exaggerating the economic consequences–of, as it were, doomsaying a la Gore–of fixing global warming. In addition to that, he strawmans and dichotomizes the Kyoto issue. For the Kyoto protocol is harldy the best thing that can be done, and it’s hardly the only thing. And it’s failure doesn’t mean any such thing is bound to fail.

Academic rights

A number of comments have suggested that the debate over gay marriage is a smokescreen or a red herring. Maybe. But the arguments are real. And it turns out they’re not only offered by nincompoops. I found the following analysis while wandering in the blogosphere:

>Yes, Senator James Inhofe (“I’m very proud that in the entire recorded history of our family, there has never been…any kind of homosexual relationship”) is a sick and moronic bigot. Bill Bennett is a crude embarassment, mostly to himself.

>But all their repulsive, and obsessive, arguments against gay marriage, such as this from Inhofe — “Now, stop and think. What’s going to be the results of this? The results are going to be that it’s going to be a very expensive thing, all these kids, many of them are going to be ending up on welfare” — are to be found, dressed up in fancy-pants pseudo-Alisdair MacIntyre rhetoric, in this document, the Princeton Principles on Marriage, released recently.

>The signatories to this document include such previously respectable conservatives as Jean Bethke Elshtain (Chicago), Robert George (of Princeton, not the young New York Post editorialist), Mary Ann Glendon (Harvard Law), Leon Kass (Chicago), Jeremy Rabkin (Cornell) and the legendary Mr. James Q. Wilson.

>On reading this, my first reaction was that if the academic left can be a little wacky and irresponsible, the academic right is wacky and despicable.

>The most specific of their arguments against gay marriage — which is only one of the “Principles,” but obviously they chose to release it to coincide with the debate — is that marriage equals monogamy and gay marriage “would likely corrode marital norms of sexual fidelity, since gay marriage advocates and gay couples tend to downplay the importance of sexual fidelity in their definition of marriage.” In other words, when gay people make a lifetime vow, they probably don’t really mean it because, well, you know how those gays are.

Read the rest at TPMcafe. I haven’t yet found the document he is referring to. If anyone can, I’d appreciate it.

Boy Scouts

We were pleased to find the following in our hometime rag, the Chicago Tribune:

>But Douglas Kmiec, a constitutional law professor at Pepperdine University in California, isn’t so sure the threat to religious liberty isn’t real.

>Kmiec pointed out that courts have allowed local governments to “retaliate” against the Boy Scouts, such as by denying them access to public parks and boat slips, after the organization refused to include homosexuals as scoutmasters.

>”If enough city councils and other public bodies penalize the Scouts for their decision,” Kmiec said, “the next step should be to revoke their tax exemptions because tax exemptions are dependent on being perceived as serving the public good.

>”The argument is that the Boy Scouts are no longer accomplishing the public good, since they discriminate on the basis of sexual orientation. It would not be inconceivable to hear arguments that have been successful against the Scouts transferred against the churches.”

>But one of Kmiec’s colleagues was having none of that argument.

>Asked whether the hypothetical religious college at the top of this article could lose its tax-exempt status for refusing to recognize John and James as married students, constitutional law scholar Cass Sunstein said: “Sure–and if pigs had wings they could fly.”

>”The answer is no,” said Sunstein, a professor of law and political science at the University of Chicago. “That’s an argument that would be generated by advocacy groups trying to scare people. The likelihood religious organizations would lose their tax exemption is as close to zero as anything in law is.”

No matter how ridiculous such arguments are, they still get repeated. We heard other versions on NPR on Monday (nothing for now until we find the link). But take a look at this video featuring a slippery and sloping Bill Bennett, and an incredulous Jon Stewart. It’s worth watching.