Saturday, July 3, 2010

Respecting the Process, Serving the People: Key Components of the Left-Right Divide

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 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.


  1. Matt, a couple points: First, obviously you disagree with Turek's conclusion (i.e., gays in the military). I think you did his column a bit of disservice, though, by not acknowledging that the final paragraph or two of his column makes the point that this is simply a matter of Congressional prerogative. His argument is that there is a proper forum to resolve policy questions, and that's the Congress, not the Courts. And this fits the overall theme of what you're discussing. Without commenting on whether the Don't Ask, Don't Tell policy is good policy or bad policy, it's the law of the land (signed by a Democrat President after being passed by a Democrat Congress, FWIW). If the Courts were to invalidate that policy, THAT would be judicial activism. There is a proper forum for policy decisions, and that is the Legislative branch, not the Judicial branch.

    Second point: the death penalty. I am personally opposed to the Death Penalty. Many conservatives are not, but this is where my Libertarian streak comes in. I don't like the Government having the power over a person's life. As a Christian, I don't believe we should take a life unnecessarily, though I acknowledge the argument that the Old Testament authorized the death penalty. I'm not unsympathetic to my friends who think that capital punishment is a good idea, but I'd prefer as a matter of policy for individual states to move away from it through legislative action, as some states have done recently (Illinois, New Mexico, and New Jersey, I believe, without looking it up.)

    But I would suggest that you are DEAD WRONG that the Courts should invalidate the death penalty under the 8th Amendment. Again, this is a policy decision. The framers were clear that the death penalty was Constitutional, and the 8th Amendment did nothing to change that, which is obvious because the death penalty was used immediately after the raticiation of the Bill of Rights all the way up to when the activist Warren Court (I believe) declared it unconstitional. Furthermore, the 5th Amendment, passed at the same time as the 8th, implicitly authorizes the death penalty by stating that no one may be deprived of LIFE, liberty, or property without due process. Clearly, life could be deprived WITH due process. It's an egregious misreading of the Constitution and history to suggest that the 8th Amendment prohibits the death penalty. This is exactly the sort of judicial activism that drives conservatives and libertarians crazy. It doesn't respect the process that was so clearly and brilliantly laid out in the Constitution. Policy decisions are to be made by the Legislative branch. More specifically, with the exception of federal crimes (where the death penalty is spefically allowed for treason, I believe), the death penalty is a matter for each of the Several States to decide. Not the courts, and not the federal government.

    I hope we soon reach a day when there are no executions in the US. I hope that day does not come by judicial fiat, though.

    Thanks for your thoughtful post.

  2. John,

    Agreed on the point about Turek saying that Congress, not the courts, holds sway on DADT.

    As for the death penalty, I can only go back to "cruel and unusual punishment." How can death (whether it be by lethal injection, the chair, the gas chamber, or firing squad) not be cruel and unusual punishment? By extension, then, how can the punishment of death not be seen as failing an eighth amendment test? Wouldn't that carry over and against the fifth amendment standard you invoke?

    It's a competition between the leverage/heft of two different amendments. It's not an open-and-shut case even if one were to take a different view.

    I fail to see how this is part of a pattern of leftist manipulation of existing constitutional provisions. The case that death is cruel and unusual punishment would seem to always exist as a counter to a fifth amendment position and other court rulings.

    Anyway, good debate as always.

  3. Well, first, from an originalist perspective, it clearly wasn't "cruel and unusual" in 1787. But, that's not compelling to you since you don't believe in originalism.

    So from a textualist perspective, look at the words: "cruel AND unusual." It's not cruel OR unusual. So even if you believe that it's cruel, it's certainly not unusual. Look at the number of yearly executions if you think otherwise.

    Also, just to address your point of the 5th and 8th Amendments acting as a "counter" to one another, I don't think so. One of the most accepted canons of statutory interpretation is that the laws are to be read to compliment one another, if possible, not to be contradictory. And since the 5th and 8th Amendments were ratified at the same time as part of the Bill of Rights, it's impossible to make the argument that the later one "overturned" the earlier one. They must be read as being complimentary. So from an historial and a textual perspective, it's impossible to see how your interpretation of the 8th Amendment is correct, barring the activist position the Court took in the 70s, changing hundreds of years of accepted precedence to install the Court's preferred policy result.

    I'll take this opportunity to offer one more critique, this time as to public financing of elections. I'm dead set against it as both a matter of policy and as a matter of Constitutional law. Constitutionally, I don't think it is proper to force me to finance Barack Obama's speech. Or for you to finance Tom Tancrado's. I also fail to see the value of piling on our enormous national debt in order to fund elections. This would only serve to limit speech and add to our national debt...neither are acceptable results.

  4. John -

    It is, as you say, cruel AND unusual, which means a punishment must satisfy both standards, not just one of the two. I'll go along with it not being unusual, but I'll stand my ground by saying it's cruel. Just my 2 cents.

    As for campaign financing, I don't think either one of us should finance a politician's stump speeches. That's stuff the party machinery can take care of.

    We *should* finance public debates in which the (Establishment-based) Commission on Presidential Debates is de-clawed, and where the Ron Pauls and Ralph Naders wouldn't be locked outside the proceedings. If an authentically representative/democratic process cannot be made part of a debate and thereby lend legitimacy to a nonpartisan national political event, we don't fund it.

    How do we root money out of politics? We have to do it in some form or fashion. Jack Whelan pointed out that the 2008 Democratic Convention was formally sponsored by AT&T, to the point that gift bags at the convention were plastered with the AT&T logo. Naturally, this has implications for telecom immunity and wireless wiretapping policies that restrict our freedom. There has to be a wall between government and private industry instead of keeping them in an environment that's conductive to collusion and hence the destruction of both pure market capitalism and (on the other side of the fence) government's role as a detached but aware watchdog.

    We need election campaigns in which everyone's voice (including the Libertarian Party's) can be heard, and we need corporations and unions to be far less involved in the electioneering process, with candidates getting free air time to run infomercials on our airwaves. Debates would be the *only* thing the public would have to finance.

    Does that approach a workable framework? We have to figure out something other than what we have now, that's for sure. The boatload of money coursing through our politics helps nobody except entrenched Establishment interests, especially the DNC and RNC, which are both enemies of the grass roots on each side of the political divide.

  5. Whoops!

    I got mixed up there - the cruel AND unusual standard means the punishment has to be out of bounds in both ways.

    So I suppose you have a point. :-)

    It could well be argued, though, that any method of death other than firing squad (a torrent of bullets) is unusual.

    If I'm shifting the goalposts, well, I couldn't blame you for thinking so. :-)