It's worth returning to this blog for a few posts. This isn't a high-maintenance everyday blog, but when issues emerge that demand attention, they ought to be written about.
We return to the marketplace of ideas, then, by exploring a key component of the Left-Right divide: the law.
The Elena Kagan hearings - like any hearings for a prospective Supreme Court justice in the United States - raises the familiar cry of "judicial activism!" This is otherwise known as the central source of Left-Right division, with all its attendant hypocrisies: "When you do it, it's an abuse of power; when I do it, it's inspired leadership." The same is true in the courts and the Judiciary Committee of the United States Senate: "When your side interprets laws, it's judicial activism. When we interpret law, we're faithful to the Constitution and the intent of the Founding Fathers."
Sadly but surely, every hearing for a Supreme Court nominee seems to turn into a Kabuki theater festival, even if - as is the case with Kagan - confirmation is almost guaranteed. These show hearings rarely if ever generate more light than heat, thereby dividing our Republic even more on this, the weekend celebrating its 234th birthday. Just how can we deal with matters of law in a more constructive manner? It's a topic worthy of extensive deliberation, but let's at least try to establish a few basic principles in a brief space.
A very good discussion starter comes from my conservative libertarian pal John Cary, who shared on Twitter a TownHall.com article from author Frank Turek on Ms. Kagan. The piece is an effective critique of Kagan from a conservative perspective and owns a lot of heft on a purely logical level removed from purely political considerations. Turek's best point emerges in his criticism that Kagan is way off base when she says that "Don't Ask, Don't Tell" is "a moral injustice of the first order." That is indeed a laughably inadequate assessment of what justice means, and Turek pounces in a manner befitting an appreciably sharp mind should.
Mr. Turek seizes the moment and uses Kagan's comments to illustrate the need to follow established guidelines and mechanisms for interpreting and enforcing laws. The law can't just be deemed good or bad; there needs to be a basis in the legal canon and its accepted tenets. Personal opinion and a deep-set worry that a given law (or ruling, or both) will lead to negative consequences doesn't satisfy legal standards.
All of this is an accurate enough commentary, a critique that conservatives generally lodge against liberals. The Right in America is of the firmly-held belief that the Left ignores structure and statute and - based on personal opinion and preference - foists its values and recommendations on the American public at large. The American Right thinks that the American Left injects opinion into law and bends interpretations of law to suit its own desires. Conservatives and Right-leaning libertarians feel that the Left is constantly trying to (extra-judicially and otherwise) re-engineer American society in accordance with its aims.
Now, that's a lot to digest. Is it true? Well, this blog really isn't about answering questions like that. The purpose of this blog is to get at the matter of HOW WE DEAL WITH DIVISIVE QUESTIONS SUCH AS THIS.
I'm of the personal opinion that Kagan's very much a centrist. John Cary is of the opinion she's hard Left. On the issue Mr. Turek talks about - DADT - Kagan is guilty, at least on a basic level, of operating in a manner consistent with the conservative critique of liberals. However, Mr. Turek - and this is where I have a difficult time with his still-valuable and thought-provoking column - advanced the view that "the military rightfully discriminates against numerous behaviors and conditions" in order to promote the highest possible level of performance.
My beef is not, of course, that the military discriminates against certain behaviors and conditions. It must indeed discriminate on certain levels. That's not where Turek goes astray. Where Turek errs is in his implicit assumption that homosexuality is one of the conditions which the military is right to discriminate against. To put a finer point on Turek's reasoning, as soon as he left the realm of structure and process in which conservatives are more naturally comfortable, he wandered into a more open-ended place in which - according to his own critique - liberals actually DO have just cause to recommend a better formulation or arrangement of policy. Turek provides an important public service to the country, and to the ranks of American lefties, by demanding of them an intellectual and structural rigor which is consistent with set-down components of recognized law. However, by that very same set of standards, once the realm of structure is left behind and the realm of interpretation is entered, liberals or progressives are no longer foisting their beliefs on everybody else.
In other words, Elena Kagan does need to recognize the military's role in shaping its own policy; by extension, liberals need to be cognizant of the proper domains and jurisdictions applicable to tenets of our constitution and its laws. That's the benefit of Turek's thoughtful piece. However, when one then gets to the debate surrounding what the military should in fact do, and how it should go about doing it, the terrain shifts to the content of policy itself, not the constitutionality of procedure.
What we have before us, then, is a dynamic where liberals need to give more weight to the proper place and position of process in the establishment of laws. The ruling on Citizens United - which established that corporations are people - is just such an instance. Like other American lefties, I do find the idea odious and noxious; however, as a matter of constitutional fidelity, I don't see how one can honesty rule otherwise under current conditions. Money - while not something people equally share - is indeed a form of free speech. If we're serious about protecting speech, well, we have to allow money to be spent by corporations, which are run by individual people. The result sucks and is detrimental to the fabric of our democracy, but that's what the constitution says, so for now, it has to be followed.
The thing the Left needs to do, though - and this is where I'd like to see the Right join in, too - is organize a movement to promote the public financing of campaigns and render the problem moot. If one is confronted by an unpleasant reality connected to the faithful application of the supreme law of the land, one should not persist in arguing that a court decision failed to apply the law. No, one should work around the law, or - to present another alternative - amend the law.
There is an amendment process to the constitution. Why won't (shouldn't?) leaders among the ranks of the American Left propose a 28th Amendment? That's where lefties have to possess more agility, acuity and passion. Unfortunately, they get wrapped up in fighting over the same piece of turf, usually to their detriment.
Now, on the other hand, when procedure and jurisdiction are not in question, I'd like to see conservative friends acknowledge the notion that liberals really aren't "re-engineering American society to suit their own whims." Liberals are guilty of this in some respects, I hasten to say ( Citizens United being one such prominent case ), but with respect to - for instance - the death penalty, the constitution sets forth a metric of "cruel and unusual punishment."
It would certainly seem to this lefty that if death doesn't represent cruel and unusual punishment, nothing does. Moreover, as a Christian who is all too aware that Jesus died at the hands of capital punishment, I remain even more baffled that any Christian - as is also the case with war - could be unbothered at best and sanguine at worst in the face of other people being killed by an extension of the state. If the Left is wrong to foist beliefs in an extra-judicial or extra-constitutional manner upon the populace, as it sometimes does, the Right needs to bear in mind that the Left's beliefs not only aren't always foisted, but that in many cases, they don't hold sway at all in the public arena. There are instances in which progressive, left-leaning values have something to add to the whole of society. Sure, they're subject to abuse and misapplication (just like the views of the Right or the views of any other political persuasion), but they deserve a place at the table and have a role to play in the evolution of our society.
Bottom line: If liberals don't like a law, they need to deal with it in creative ways or move to amend the constitution (conservatives can do the same on issues that cut against them). However, if procedural and jurisdictional issues are not in question, the liberal position - while perhaps meriting disagreement - doesn't need to be seen as an undue imposition on the people. The gaps between theory and reality, between definitional exactitude and the messiness of public practice, aren't easily resolved in real life. Liberals will tend to want to create the right result, while conservatives will insist on a process faithful to tenets of law.
I suggest that both sides be ready and willing to address the portions of the problem that they have historically and instinctively neglected.