Megan McArdle writes:
I don’t know why Matt should find this remarkable:
Still, the main psychological point remains that there’s a remarkable tendency to equate advocating that others engage in risky acts of physical violence with the idea of possessing courage and strength as personal characteristics.
After all, we’ve already internalized the notion that advocating taxing other people in order to give their money to someone else is somehow morally akin to charity.
I find the “taxing other people” argument — which conservatives and libertarians use frequently — bewildering. “I think people, but not me, should go to Iraq and risk death,” just ain’t analogous to “I think all taxpayers, me included, should pay for a generous safety net.”
In a followup post, Megan implies that liberals only favor using wealthy people’s money to pay for social programs. Poppycock.1 I’m hardly high-income, but I pay taxes. So do most liberals and leftists. And although liberals and leftists2 favor raising taxes on the wealthy, not all rich people are republican.3
Note also that SCHIPP, which is paid for from cigarette taxes, has received enthusiastic support from lefties — even though smokers are not an especially wealthy group.
Yet the idiotic “liberals want to spend other people’s money” idea is commonplace among conservatives .
- The word “poppycock” “is actually American in origin, first turning up there about 1865. The OED is silent on its origin, but most modern dictionaries know well where it comes from: the Dutch word pappekak for soft faeces.” [↩]
- “L&L” — the newest sequel to Dungeons & Dragons! [↩]
- Incidentally, the overall tax structure in the US is flattish — the vast majority of Americans pay about 16% of their income in taxes, give or take a couple of percent. [↩]
RonF, are you trying to provoke flames? Plainly the court applied a definition that existed in song and popular culture long beforehand, a definition that influenced legislative changes in the law (at least, I think legislatures did most of the work equalizing the relationship so that changing one word would legalize same-sex marriage, without having to say which partner would lack full legal/economic rights.) And obviously the Massachusetts legislature chose to let it stand without trying to change their constitution. Even the voters of that state have apparently come around (see also the last few paragraphs here), and they never objected strongly enough to punish legislators.
Thank you, hf. You’ve said everything that I wanted to (but didn’t dare) much more kindly and concisely than I would’ve been capable of.
Ron, I’m still puzzled as to what your definition of “judicial activism” is. What is the general principle you’re arguing for, that would enable us to identify instances of “judicial activism”?
In Goodridge, the court reviewed a law, and found the law to be in conflict with the Massachusetts state constitution. So they overturned that part of the law — the exclusion of same-sex couples from marriage — that was unconstitutional. “We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”
No, they didn’t. The Court ruled that, to be consistent with the state Constitution, legal marriage could no longer exclude same-sex couples, and gave the legislature 180 days to respond. The legislature responded by attempting to amend the Massachusetts Constitution, not by passing a law instituting same-sex marriage.
It appears that you think it’s an “activist” decision if a court decides that a law is in conflict with the constitution and so orders the law changed. If that’s what you think, then I have to ask: What remedy do you think the courts should have when they find that a law is in conflict with the Constitution? If the court can’t compel any changes when a law is unconstitutional, then what happens to checks and balances?
I’m not Ron; he may have a different definition of “activist” than I.
I would define an activist decision to be one that interpretes the Constitution to mean something that it was NOT understood to mean when it was adopted. (Allowing for changing technology; I don’t think “freedom of the press” only applies to printing presses, and not to Xerox machines—but not for changing mores.)
What remedy do you think the courts should have when they find that a law is in conflict with the Constitution?
I imagine that Ron thinks they should have considerable power/access to remedies. He just thinks that this law wasn’t actually in conflict with the state Constitution (Ron, if I’ve misinterpreted you, hit me.)
To me, judicial activism is finding Constitutional principles in places where no principle is elucidated, or ignoring the black-letter text of law in favor of a philosophy or legal theory that, however cool or brilliant, has no textual support in the founding document. Judicial activism can be employed in the service of any ideology, left or right. It’s not about the outcome of the case being one that the person crying “activism” doesn’t like; the core element of judicial activism is the elevation of the personal principle over the objective text.
There is a story about the old Supreme Court that illustrates this principle very well. Justice Oliver Holmes was leaving after a visit with Justice Learned Hand. As Holmes’ carriage began to pull away, Hand (to get a rise out of Holmes) called out “go and do justice!”
Holmes had the carriage come back around so that he could reply to Hand, “that, sir, is no part of my duties. My duty is to apply the law.”
Sam: So it seems to me that you’re using the phrases “not originalist” and “activist decision” interchangeably, right?
As Ilya Somin pointed out, that means the word “activist” isn’t adding any value to the debate, since it’s substituting for a more precise and better-understood term. Why not just say “not originalist,” and then we’ll understand what you mean?
By the way, I can think of several very well-publicized Supreme Court decisions in which the conservative majority of the Court clearly went against original intent. See, for instance, Scalia’s use of the 14th amendment to oppose affirmative action, even though the congress that framed the 14th amendment also supported affirmative-action-like policies and did not understand the 14th to have overturned those policies. Mysteriously, no Conservatives criticized those decisions as being activist. I wonder why?
Robert wrote:
So in your opinion, Ron is using “activist” as a term meaning “a decision Ron thinks was wrongly decided.” That is, of course, how most people use the term (except that they think of themselves, not Ron, of course); but usually no one’s willing to admit that.
By the way, Ron’s argument didn’t contain a single reference to the Massachusetts Constitution, but did contain complaints about the remedy used. So I’m not sure where you’re getting your interpretation of Ron’s words from, but it’s definitely not based on a straightforward interpretation of the text. So apparently, you’re not an originalist. :-P
So are you saying that it’s not “judicial activism” so long as the decision makes a connection to the text of the Constitution (federal or state)? Or are you saying that it can still be “judicial activism” even when the decision includes a argument basing the decision on a Constitutional principle, so long as in your opinion that argument is wrong?
What are examples of cases in which conservatives approved of the outcome politically, but which conservatives nonetheless argued were “judicial activism” and thus wrongly decided?
Sam:
By the way, Sam, can you show me where the Constitution says that judicial decisions must be based on original understandings, as you describe above?
99% of people saying “activist!” are simply saying “I don’t like this outcome”. Nothing wrong with that, but of course it doesn’t convey much information.
So are you saying that it’s not “judicial activism” so long as the decision makes a connection to the text of the Constitution (federal or state)? Or are you saying that it can still be “judicial activism” even when the decision includes a argument basing the decision on a Constitutional principle, so long as in your opinion that argument is wrong?
It’s not activist if there’s a genuine textual connection. It’s not whether I agree with the argument, it’s whether the derivation of the argument from the constitutional text is bona fide or smoke and mirrors. One easy way to test whether the derivation is bona fide is to attempt to apply the “new” principle in other places. If the response to that attempt is “well, gee, I guess that’s true, we DO think that such-and-such principle is true, let’s look at this more closely…”, that’s a good sign of a bona fide constitutional principle. When the reaction is “oh, but we didn’t intend for it to apply THERE…”, then it was likely special pleading aimed at obfuscating the issue. Try and tell the IRS it’s none of their business how much money you earned last year, and cite Roe’s privacy penumbra; good luck!
So if you want to find out if (say) the Goodridge ruling is activist, try to apply its logic in a Massachusetts case on an analogizable issue, and see what the Court says then.
What are examples of cases in which conservatives approved of the outcome politically, but which conservatives nonetheless argued were “judicial activism” and thus wrongly decided?
Well, just let me pull out my encyclopedic knowledge of conservative reactions to court cases over the past fifty years…oops, I left that DVD at home.
I can think one up pretty easy, though. Say the Court ruled that there was not only a natural-law right to self-defense, but that the social contract required affirmative self-defense – and used that logic to uphold a state law that requires citizens to carry weapons and be trained in their use. I would LOVE that decision, emotionally, personally, and politically – but it would be gross activism. The Court would be inventing a principle (affirmative self-defense) that is cool and interesting, but which has no support in the text.
By the way, Sam, can you show me where the Constitution says that judicial decisions must be based on original understandings, as you describe above?
Snicker. You just recapitulated the Catholic rebuttal of the Protestant “sola scriptura” concept.
I’ve always thought of you as a secret Catholic apologist, Amp.
Ampersand
How about McCain – Feingold, where the first words of the amendment in question is “Congress shall make no law” (not a lot of wiggle room there) becomes Congress can only make a law if we find a compelling interest? Though I don’t agree with them, lots of conservatives think getting the money out of politics is a good thing but they don’t like the way this was done.
How about Kelo, where “public use” magically changed to “public benefit” at the wave of a pen? I am not sure that this example strictly addresses your question, but I think that plenty of conservative fat cats will approve of their new beach front condo, but they might feel a little uneasy about having to kick grandma out of her house that she has been living in the last 40 years and demolishing it.
The simultaneous pleas to both “original intent” and “what’s in the text” are strangely contradictory: the two are not synonymous. Original intent went beyond what was in the text. The classic example of this is the “right to privacy”, which appears nowhere in the Bill of Rights. But it is my understanding that courts have always ruled that there was, so that an act by the government that clearly does not respect in spirit its citizens’ privacy but nonetheless (facially) observes the wording of the Fourth Amendment would still be unconstitutional. This is because the Founders’ INTENT was obviously that there be such a thing as right to privacy – otherwise they never would have written the Third and Fourth Amendments, for one thing – which goes beyond what’s in the text.
“How about McCain – Feingold, where the first words of the amendment in question is “Congress shall make no law” (not a lot of wiggle room there) becomes Congress can only make a law if we find a compelling interest? Though I don’t agree with them, lots of conservatives think getting the money out of politics is a good thing but they don’t like the way this was done.
How about Kelo, where “public use” magically changed to “public benefit” at the wave of a pen? I am not sure that this example strictly addresses your question, but I think that plenty of conservative fat cats will approve of their new beach front condo, but they might feel a little uneasy about having to kick grandma out of her house that she has been living in the last 40 years and demolishing it.”
Larry, those are very unconvincing examples. Sure, “lots” of conservatives support campaign finance reform and eminent domain, but not as many as liberals. Even if you contest this last claim, it’d still be impossible to label either as “conservative issues” rather than at the very least bipartisan ones, and it’s easy to point to wide swathes of the Right wing that are opposed to both. “Conservative fat cats” and reflexive pro-wealth and pro-corporatists against both CFR and takings, with libertarians added on to the opposition of the latter.
It’d be a lot more convincing if the examples came from the heart of the conservative movement, such as issues involving racial or sexual politics.
Economics, personal liberty, and private property rights issues are as much of the heart of the conservative movement as anything else. Unless you restrict it to just religious or social conservatives.
Liberals support campaign finance reform than conservatives do. Liberals support takings more than conservatives do. You’re going to have to use examples that are unambiguously conservative issues.
“Economics, personal liberty, and private property rights issues are as much of the heart of the conservative movement as anything else.”
No, they are as much as part of philosophical conservatism as anything else. That does not equate, however, with movement conservatism. Nixon didn’t convert the South with disaffected rich people. Karl Rove didn’t direct the 2004 GOTV efforts at natural law libertarians.