Definitely so. As I said, I don’t see a good government system (i.e., a system of self-governance) as the highest good. Given that, it becoems difficult for us to find common ground; the best we can do is to understand each other’s starting positions.
Daniel
I’ve been thinking about this since I said I was not a moral relativist. I think that there are some moral issues that are relatively cut-and-dried. There are not too many cultures or people who believe, for example, that murder is acceptable. But I say “relatively” because even the definition of murder isn’t cut-and-dried, and in our society, we consider mitigating circumstances and intent when deciding a person’s culpability for taking another’s life.
There are many other moral issues that don’t have clear answers, and I am hesitant to declare that my personal view of them are absolutely the “correct” ones. Abortion is probably the most obvious of these…it seems pretty clear to me that decent, well-intentioned, good people can come squarely down on either side of that issue. I’m certainly not prepared to write off the 50%+ people in this country who disagree with me on that issue as hopelessly morally corrupt (even if they are prepared to view me that way).
But what seems more relevant to me in this debate are not the simple questions of “is this right or wrong?” but more the issues of social engineering with the intention of having a certain outcome. For example, take Brown. If the issue is, “is it wrong to have segregated schools because it is wrong to discriminate based on race” then that’s probably pretty easy to see what’s right and what’s wrong. If the issue is, “is it wrong to have segregated schools because mixing whites and blacks in the classroom is expected to have the eventual effect of ensuring that blacks will have a greater chance at having a successful education,” then that’s a different, much more complex issue, and one that is controversial in terms of whether or not it was successful. There are many, many half-baked theories out there created by the well-intentioned that have not panned out with the desired results. I don’t believe that good intentions of having a certain eventual outcome are good enough when declaring what will be the law of the land.
If you agree with this, then my first suggestion to you would be to not consider your starting point a “duh” concept. 
What the heck is “social engineering”, anyway? Is that code for the well-intended but impractical desires of my ilk? Well, of course, its social engineering, its simply being practiced by persons other than the, ahem, “ruling class”. The entire labor movement could be characterized as two mutually antagonistic efforts at social engineering.
Child labor laws are social engineering, are they not? Lot of good things to be said for child labor. Instills discipline, and a sense of punctuality in the frivolous young. Gratitude towards one’s betters, who provide such fulsome opportunity, to make good use of time otherwise frittered away. Practical, hard-headed men were aghast that such a marvelous bit of social engineering should be sabotaged, with so little thought for the possible consequences.
Moral absolutist checking in.
Sorry Lefty, but I think you deserve to be slammed for this. Your perspective that is.
This is nothing more than a bald statement of power politics: never mind proper procedures, I want my goals granted by any mechanism, be it appropriate or not. This is the sort of thinking that authoritarian apologists use to justify military coups. Specifically, they think that the military should usurp their ordinarily circumscribed authority under certain circumstances.
It seems as though, by rough analogy LHoD wants the Supremes to step beyond their task of constitutional interpretation under all circumstances, which frankly seems nuts, even under utopian conditions.
Still, jabs aside, the bottom argument for me is practical. The forces of inequitable opportunity and outcome would be a lot weaker if Roe were decided with a lighter touch. I actually think the reasoning behind decision would have made a fine piece of legislation, though it was a mediocre argument within a legal context.
Right wing mass mailing czar Richard Viguerie credits Roe v Wade as the door for which the many of his audience passed through en route to modern conservative principles. That may be exaggeration, but I think it’s fair to say that anti-abortion grassroots activism and right-wing financing make a potent combination.
“Gay Marriage! One Hundred Per Cent Abortion Free!”
Yeah, there’s always something to squawk about. But some organizing tools are better than others.
So what would be the alternative to Roe? Oh, power politics.
Absent Roe, states that would be later known as blue would pass permissive abortion laws. In red states, the process would be slower.
After about 2/3 of all states permitted abortion to varying extents, the Supremes would discover – whadya know? – that a constitutional right to abortion in fact did exist, and that Alabama should get with the program. Those rights might be based on , say, the thinking of the most restrictive of the permissive 2/3. Thus would the right to abortion would be secured on a firmer base of popular support.
But it would all be constitutionally grounded. Honest.
I think it’s one thing to look at that process when the source of the engineering is the Legislature. When it’s the SCOTUS that is doing the social engineering, then that’s quite a different matter. Too far removed from we, the people. They get to, in effect, amend the constitution with a simple 5-4 vote. Better that they use humility in exercising that authority.
It’s my impression that social conservatives are generally not fond of the concept of emotional intelligence, embodying as it does “liberal” values like empathy, independence, and social responsibility.
Power politics is a tautology; the second part of the sentence is nonsense and nothing like what I’m calling for. I’m not saying we should torture all right-to-lifers to death in order to remove them from the pool of voters. I’m not saying the end justifies the means. I’m just saying that what you consider to be an evil means, I don’t necessarily. I think that the supposed nonpartisan setup of our courts has been a sham for over half a century, and it’s silly to pretend otherwise, and it does the cause of social justice no good.
Daniel
This is the part that gets me: how does the Court not create social policy in applying the Constitution to new circumstances? In many instances, the Court is making social policy no matter which way it decides. Even cert. denied would be making policy by deferring to the ruling of the Circuit Court.
Indeed, so-called social engineering is inevitable: as far as I can tell it is merely an opaque way of referring to an empirical evaluation of policy consequences.
John Mace: “Better that they use humility in exercising that authority.”
I think “Humility” and “Restraint” are a superior framework for working out the proper role for the courts.
Let’s face it: the legislature is often ambiguous and often intentionally ambiguous. There is no reason why Congress couldn’t or shouldn’t allocate the administration of policy between the executive and judicial branches. As such, that will involve explicit empirical considerations, for example in antitrust and environmental law. Checks and balances have a long tradition.
Separately, there’s no reason why constitutional law wouldn’t turn on empirical issues.
I’m not sure what to say to this. Ok, you’ve ruled out certain means, but power grabs seem acceptable within your framework (though I trust that you support civilian control of the military in practice).
But “Rule of law” is not a nonsense phrase: witness the great differences across the world’s judicial systems. Sure the courts by necessity will be asked to make empirical judgments now and then and there is no general theory of the law that permits noncontroversial rulings. But the distinction between a methodical and codified administration of police power and rule by caprice of the jurist remains. We need only look to China, the Soviet Union --or heck any number of undeveloped countries such as India-- to see results of the arbitrary and uncodified exercise of power.
When I talk about the court making social policy, I mean when the court does so intentionally instead of just trying to interpret the law. I believe that’s the debate we’re having here. I don’t think anyone believes that the court can prevent judicial decisions from having an effect on social policy. The argument is about intentions, not effects.
The two are not entirely separable, of course. And I think that’s a serious argument worth exploring. But most people agree that however much gray area there is, *Brown *is genuinely a different approach from, say, Hamdi.
Yes, this is what I meant by social policy. What I was saying in my last post was that I don’t think it’s right for the courts to make decisions based on their best guess of what a positive outcome will eventually be. I think it’s wrong to do this on principle, and from a practical standpoint, it’s risky…good intentions often do not follow through to positive effects.
I won’t argue that arbitrary exercise of power has played a role in India to one extent or another. It’s not clear to me, however, that it has ever involved “rule by caprice of the jurist.” I could be wrong, though. I’d welcome any instruction on that point.
For all I know, Scalia’s close friends and loved ones call him “Tony.” But whenever I’ve heard someone use an endearing form of his name, it has been “Nino.” Maybe that’s just a law school affectation.
He want’s not to be “that Supreme Court Justice who sexually harassed that woman”.
I want to be “that guy who recognized MicroSoft’s potential 30-odd years ago and invested heavily in their stock.” I have at least as much chance of that as Thomas has of his wish…
Here’s what I had in mind. India is rather corrupt, about as corrupt as China, though hardly the worst in the world. Anecdotally, I had heard of corrupt Indian judges.
Googling, I locate a PDF file(!) from this site which reports a survey indicating that 6.3% of households claimed to have paid bribes [to the Judiciary, if I understand this correctly] which is a little less than half of the 13.37% of households that had interacted with the judiciary.
Of those who interact with the judiciary, 80% think it’s corrupt.
Nice distinction, btw. I concede that “Rule by caprice of the jurist” may have been poorly worded. India’s legal system is certainly imperfect, though I am frankly unaware of the extent to which it is subject to meddling by the central government or by political apparachiks, as China’s most definitely is. I can make a stronger case for caprice in China: I seem to recall from The Economist magazine that multinationals learn to work political connections: relying on contracts can prove to be an expensive mistake.
Well to me he’s, “That Supreme Court Justice who got away with perjury during his confirmation hearings.” Creepy.
OK, that makes sense. But even so, I have to take the other side: the courts damned well should consider the effects of their rulings. I don’t know how heavily the effects should be weighted: not very much, on the whole - enough to be determinative in a close call, but not anywhere near enough to flush the principle of stare decisis down the toilet.
I was a young conservative back in the days when the right derided the academics and theoreticians of the left, people who lived in ivory towers who didn’t consider the real-world consequences of their principles being applied. To the extent that that reflected the reality of certain factions of the left, their derision was quite appropriate, IMHO.
More recently, the Iraq war has re-taught us the dangers of the application of high-flying principles with too little thought for their consequences in the lives of ordinary people. A low regard for people who are all about the principle, and not at all about the consequences, is meet and right.
Even if they’re on the Supreme Court. While the Justices should, IMHO, lean very very heavily towards the ‘principle’ side of the equation - towards correct and consistent interpretation of the Constitution - they should not do so in a vacuum, with no regard for the consequences of their decisions. Like I said, maybe they shouldn’t give those consequences a whole lot of weight, but to give them no weight at all is something I would find deeply troublesome.