Centerfield

If Roberts turns out like Scalia, you will be right to be unhappy about his nomination. But I'm betting that a couple years down the line, the ones having the most hysterics about Roberts will be the rabid reactionaries. Somehow, they seem to get more upset about moderates than they do about liberals.

If Roberts turns out like Scalia, you will be right to be unhappy about his nomination.

I've rather talked myself out on this subject in the last few days, on various other blogs, but this is a nominee who has explicitly bought into substantive due process and the living constitution. See generally comments here, here and here (on volokh) and throughout this thread (on Althouse).

Well, all along W's focus (or rather, Rove's focus) has been: Get the base with the social issues, then cut the taxes for the backers and spend, spend, spend to get just enough moderates on board for 51%. That's not going to work so well now that the base is increasingly unhappy.

I'd not seen that before, thanks Jean. [sarcasm] I've mentioned before how thrilled I am at the party's decision to go with Bush rather than McCain in 2000, right? [/sarcasm]

Simon,

Can you give me a brief explanation of what "substantive due process" entails? On the surface it sounds like a good thing, but I'm not sure that the words mean what they sound as though they say, given your opposition. As laymen go, I'd probably qualify as a softcore originalist, so I'm pretty curious.

And sorry to keep this off-topic line of comments going. Guano happens.

I'm nursing a headcold, so my explanation might not be wholly lucid at the moment.

Essentially, the constitution has two due process clauses, one in the 5th amemdment, one in the 14th. These clauses bascially say that the government, cannot execute you, jail you or fine you (i.e. cannot deprive you of life, liberty or property), except after the due process of law and in pursuance of a valid law (i.e. one that doesn't infringe the other two principles in section 1 of the 14th amendment, viz, that the law must offer equal protection and may not infringe the priveleges or immunities of a U.S. citizen).

So anyway, they say that you can't be deprived of life, liberty or property without due process of law. But in Dred Scott, Chief Justice Taney wanted to find some way to rule in Sanford's favor, so out of nowhere, he claimed that a law which held a slave taken onto free soil to be free deprived the slave's owner of his property without due process of law. Taney had discovered a constitutional right to own slaves, and thus, handily, to justify ruling in Sanford's favor.

So you fast forward a couple of decades to Lochner v. New York. New York created a law specifying a maximum length of work day and work week. The court held that the liberty protected by the dueprocess clause included the liberty to make any contracts a person wished, and so new york's law deprived a person of their constitutional right to contract their labor as they saw fit.

Fast forward a little bit further, and we reach the Warren Court, which starts finding all sorts of novel new rights in the constitution which aren't there - intially in "penumbras" (Griswold) and eventually in substantive due process (Roe).

Essentially, what substantive due process says is that, when the due process clause says "liberty", it doesn't mean what it would seem to obviously mean when taken in context, which is to say, that you can't just be thrown randomly into the slammer; rather, the liberty protected is broader.

And on the face of it, maybe that sounds kinda neat. It's a very seductive doctrine, because it allows a judge to redress almost any wrong, merely by declaring that the wrong involved has violated a constitutional right. Even though that right doesn't actually exist. The main problem, of course, is that once you yield the idea that the constitution has unenumerated rights, there's a question being begged, isn't there? WHICH rights are protected?

And the answer to that question is, it all depends on who gets to decide. And THAT'S the problem. Substantive due process creates unfettered judicial discretion, because there really is no way to differentiate between one non-existent right and another non-existent right. It becomes nothing more than a question of personal policy preferences. There is absolutely no difference between Roger Taney discovering a right to own slaves and Harry Blackmun discovering a right to an abortion. Neither are actually in the constitution, and any discussion about the difference between the two "rights" is necessarily SUBSTANTIVE - it involves making a moral statement about slavery vs. abortion. Which inevitably and necessarily puts the judiciary in the position of making entirely personal judgements about whether a law is a good idea or not. And if you give Judges the power to strike down laws on no basis other than because you don't like them - you'd better hope that you get Judges who think like you! Because what happens when you don't?

So not only does it, in effect, create the potential for judicial oligarchy, with judges overruling laws because they don't think they're a good idea, but it has another obvious effect. Because what will happen is that once the politicians realize what's going on, they will start to demand judges that will find rights THEY like, and under the rhetoric of condemning activist judges who are making the law rather than just interpreting it, they will find judges to find the rights THEY want in there, to be activist for THEIR causes.

See more expanded discussion, including examples, at Althouse, starting here - I hope this is all semi-lucid, because I'm having real problems focussing at the moment. *reaches for nyquil*

vodka, I need lots of vodka.

I think Barry Goldwater is rotating at 1000000 rpm

WHQ, remember to take Simon's explanations with huge grains of salt. When he doesn't like something, he doesn't go out of his way to see any merits in it.

For better or worse, one thing you're going to see with Roberts, if his testimony is any clue, is a lot of respect for previously made decisions. I think the hearings have shown that he's very knowledgeable and very well-qualified. He speaks of the law with ease and familiarity. His insistence that he's NOT an ideologue is very much a slap at those like Simon _and_ those on the left, to whom he seems to have announced that he's not especially inclined to find reasons to support anyone, big guy or little guy, unless the existing law supports them.

So I think he's been suggesting to careful listeners that he's not prepared to start rolling back previous decisions, which is a disappointment to originalists. But I think he's also been pretty clear that he's also not going to be just making things up because he feels like it, which is the perennial boogeyman Simon always trots out to make us afraid of anyone with the temerity to suggest the Constitution has even a millimeter of stretch.

In other words, he feels like a centrist to me.

Speaking of Goldwater, whatever happened to the Goldwater Republicans? The Everett Dirksens?

I don't mean the Goldwater of old but the Goldwater as he was before he passed away. To me that was a true Republican - accountability, personal freedom, no discrimination, fiscal responsibility-no gimmicks, etc.

I know one such Republican in CO and she's pretty active in the party but she's not very happy with the party and thinks that it has left her too. Last year she voted for Kerry. I don't think this is a permanent shift in party loyalties for her but nevertheless I wonder if the GOP is finding itself where the Democratic party was in the 70's?

In other words, he feels like a centrist to me.

I agreed with what you were saying up until that sentence. Roberts has never made a secret of his conservative ideology. His temerity, to use your phraseology, is that he dares to adjudicate as a lawyer and not as an ideologue.

On the whole... I approve of Roberts. The one area that concerns me is the separation of powers. He seems overly inclined to let the executive branch do what it wants with respect to terrorism, and that strikes me as a sell-out of the very purpose behind the division of powers as well as Jefferson's eloquent description of our very raison d'etre as a nation and our legal code's premise (inalienable rights...).

As for the point of this thread... I wholeheartedly agree with Simon about McCain. It wasn't just that the GOP chose Bush over McCain that bothered me. It was the manner in which it was done that was disturbing. The Rovian propaganda was malicious to say the least. But, more to the point, at least with respect to my reaction to it, the entire sordid affair revealed the vacuity revealed the naked thirst for power that was the driving force behind that election.

The one area where I think Simon gives the Democrats short shrift is that at least they are willing to pay for their spending with taxes. That is an infinitely more fiscally responsible approach than what we've gotten from the Bush republicans. I'm not saying that I agree with their spending priorities per se. Just that they are more responsible than Bush has been.

Simon,

Thanks for fighting the fog and giving me the poop on SDP. (Don't you hate spontaneous acronyms?)

bk,

No need to worry about someone making my mind up for me. I just wanted to get the aforementioned poop.

PS I'm drinkin the Spaten Oktoberfest and watching the Spartens.

Sorry, Kevin, as Sully says -- the Dems are WORSE. For you to claim that taxes are worse than borrowing, you have to explain why borrowing is "bad".

It's generally bad because it means the interest rate goes up, and gov't borrowing crowds out private, productive, job creating borrowing. The badness is measured in the interest rate -- rates higher than about 3% (perhaps a "natural rate of interest"?). The US is now in that range, so borrowing prolly should start going down -- but I don't hear many Dems echoing Gary Hart on raising taxes on gas!

I support raising taxes on gas ... but those who do so seldom get elected, or stay elected.

I don't like the excessive spending either, but I much prefer borrowing to do it -- until the interest rate goes up. The alternative of higher taxes means LESS growth, less employment ... and less tax collected, thus even higher rates.

Plus, were the budget balanced, there would then be a push to deficit spend, anyway. There is little evidence that raising taxes to reduce the deficit actually reduces the spending and the deficit; most evidence implies higher taxes then result in even higher spending. The deficit then becomes a way of "starving the beast."

The Reps are going to KEEP spending until the Dems say it's too much, and start changing their philosophy to favor small gov't, as "out of power" parties usually do.

I think as long as the Mainstream Media continue biased Dem supporting attacks on Bush, the voters are NOT gonna feel the Reps are in control of everything.

I don't mean the Goldwater of old but the Goldwater as he was before he passed away.

Tom, the size of the beast is a side issue to what I meant. The difference between paying for government with taxes or borrowing is the difference between paying with income or a credit card. Whether you're buy a little or a lot, when you pay with actual income it's a done deal. Buying on credit puts the actual payment off for the future, and that's not fiscally responsible.

Tom, the size of the beast is a side issue to what I meant. The difference between paying for government with taxes or borrowing is the difference between paying with income or a credit card. Whether you're buy a little or a lot, when you pay with actual income it's a done deal. Buying on credit puts the actual payment off for the future, and that's not fiscally responsible.

Kevin, even if we grant the point that a balanced budget via higher taxes would leave us better off than the current unbalanced deficit state, that leaves a huge question mark in your "democrats are better because" thesis.

Suppose we could poll the entire populace of Americans who is deeply concerned about spiraling deficits in the face of thecoming demographic budget crunch of SS and medicare. What percent of these deficit hawks is even 1/4 to 1/2 convinced that democrats are truly committed to budget balance? I think you's be lucky to get 1 in 10 of such people to believe it.

And the recent sorry debate over SS has to be a big part of it. My sense is that the vast majority of deficit hawks DOES think the SS trust fund fiction is a grotesque embarassment economically. I'm pretty sure you disagree with that, but I bet if you could find 100 deficit hawks, few would line up in your corner.

Here's the thing. The burgeoning deficits and the aformentioned demographic crunch has us headed for deep doo-doo (barring miracle growth). The fraction of americans who is very aware of and concerned about this is small. Among these people, virtually all know that Bush isn't doing squat about it. But these same people have pretty much ZERO expectation that democrats are serious about doing better.

Brian, I think you misunderstand the nature of my earlier statement. I wasn't saying that the Democrats POLITICAL mechinations are any better, or worse, than the Republicans. I'm simply saying that a pay-as-you-go system is inherently more fiscally responsible than going on a buying spree with a credit card.

Only a fool would look at the past 50 years or so and conclude that Democrats aren't equally prone to deficit spending as Republicans are. But, even so, it is clear that Republicans (Reagan, Bush 41 & Bush 43, specifically) have taken it to new levels over the last two and a half decades.

WHQ, remember to take Simon's explanations with huge grains of salt. When he doesn't like something, he doesn't go out of his way to see any merits in it.

The best thing that can be said about substantive due process is exactly the same thing as can be said about using foreign precedent, which follows because they are both merely tools to accomplish the same objective. The best thing that can be said is that they permit the enforcement of rights which are not in (or at least, are not enumerated in, which in my view amounts to the same thing) the Federal constitution by the Federal judiciary. In other words, they can lead to results that we - I say we, because most of us here are centrists in the fiscally conservative / socially liberal mold - like. Don't like abortion laws? Great! The Federal courts will find a right to an abortion for you. Don't like sodomy laws? Great! The Federal courts will find a right to engage in sodomy for you. But, as I mentioned above, the problem is: whether these rights are found or not depends entirely on the policy proclivities of the Judges. Don't like minimum wage laws? Great! The Federal courts will find you a Federal right to free contract. Don't like abortion being legal? Great! The Federal courts will find you a right to life. All you have to do is stack the judiciary with judges who agree with your policy preferences. This is the thing that the Judiciary Committee democrats - who are trying to measure a nominee by outcomes - simply don't grasp: it isn't just about whether you like the outcome. I'm pro life, I would love for the constitution to be malleable enough that it contained a right to life, or a power for the Federal government to prohibit abortion. But it doesn't, any more than it contains a right to an abortion. Once you concede the principle that Judges can say which rights are protected by the constitution, there's no good argument why one right is any more legitimate than another.

What gets me especially frustrated is the implication that this MUST be what the due process clause says, because otherwise, it's meaningless. This viewpoint takes for granted the benevolence of government - the presumed absence of which was precisely the motivating spirit for the passage of the bill of rights in the first place. The right to due process before execution, imprisonment or fine is still directly meaningfull - just look at the Padilla case decided recently by the Fourth Circuit, where the government has indefinitely detained a citizen without charge, merely because the President has labelled him an enemy combatant. Deprivation of liberty without the due process of law. As in, ACTUAL deprivation of ACTUAL liberty, as in precisely what the due process clause protects against! So in the ultimate irony, we are now being told that not only does the due process clause protect MORE rights than it says it does, but in fact protects LESS rights than it says it does!

The constitution has some stretch - of course it does. No-one contends otherwise; I use the example of the 1st amendment and the 4th amendment all the time to show how the rights guaranteed there are expansive enough to apply to today's technology. Read Scalia's opinion for the court in Kyllo, for example. Words can stretch, and words can have a range of meaning, but "[w]ords do have a limited range of meaning, and no interpretation that goes beyond that range is permissible". The originalist constitution is not so restrictive as its opponents would have you believe, and it is certainly more democratic. What it doesn't do, though, is provide Judges with the tools to solve all of society's problems. If you believe that the judiciary is the appropriate tool to fix everything that is wrong with society, and you are willing to run the risk that maybe the judges you appoint to do so will in fact fix everything that THEY think is wrong with society, substantive due process and foreign precedent should be very appealing. We all want to fix the world, and so it's a very seductive doctrine. Problem is - everyone wants to fix the world, not everyone agrees with what's broken, that's exactly what politics is for. It's exactly why the constitution doesn't try to solve every problem.

Maybe I am, as Brian says, an ideologue about the constitution. But there are some things you HAVE to be an ideologue about. The constitution is the bedrock of the American polity, and those of us whose citizenship stems from naturalization rather than right of birth have a solemn and binding oath to "support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic". To me, a doctrine which will steadily erode and destroy the constitution constitutes an enemy.

To me, a doctrine which will steadily erode and destroy the constitution constitutes an enemy.

Sure, conceivably, but will this doctrine in fact steadily erode? Like I said before, Roberts seems inclined both to respect past decisions and not to find new extra-constitutional (in Simon's view) rights.

It's very possible that the court Bush helps install will bring in an era in which expansion is greatly curtailed, and the previous era will then be viewed in that light. Past stretches of the constitution do not necessarily imply continued stretching at the same and greater rates, beyond the bounds of reasonable limits.
Simon always wants to make his case by suggesting that the court is either bound or unbound by the constitution. But it's really the case that, juding by the way they rule and the way Simon complains, that each and every scotus justice views himself as bound, and acts accordingly, even though this boundedness happens to fall well short of the level of boundedness that Simon feels is appropriate. I'd say that the honest and frequent statements of justices speaking of how the constitution binds them is good evidence that some bounds exist, even if they are not the uniform straightjackets for which Simon pines. Friggin' humans, not always reading the fine print and doing things exactly as the ancient rulebook dictates. What a bother!

Simon is right that the boundedness he feels is appropriate would prevent judicial missteps. But it would also prevent some steps that we've come to like, without too much nitpicking over the exact nature of how things unfolded. How have they unfolded? They have unfolded organically, unevenly, as law has been practiced by flawed humans, without every i dotted and every t crossed. But still with things proceeding for the most part in a reasonably orderly fashion that has been generally acceptable to the democratic populace.

Who wants to go to their grave still wailing about the gap between theory and practice, and who wants to accept humans as they are, in their imperfect frailty?

c3, yep

Which is telling isn't it? You often wonder what's for public consumption and what is the true belief emanating from a politician.