I hate to add yet another hijack, but I’m curious, Poly, if your unreserved agreement includes agreeing with the sentiment expressed by Dean that a program explicitly designed for the sole purpose of adding some number of black faces to campus enrollment cannot fairly be described as a “quota.”
I have stated my opinions on diversity in one of the threads over in Great Debates. I refuse to get into semantic arguments over what term is appropriate to use in what circumstances. What this thread has proven to me is that you despise the use of the court system to guarantee the rights of American citizens. My opinion of you is significantly lower as a result of that revelation.
If you choose to argue semantic quibbles, feel free – but I will not furnish you with a foil for your rejoinders.
That is palpably absurd, Poly, and having taken part in discussions with me over constitutional issues in the past you should be fully aware of my position on the courts. Shame on you.
I have no problem whatsoever with the courts enforcing the rights guaranteed by the Constitution to all American citizens; indeed, I encourage it. I think the courts have a vital and vigorous role to play in our system of governance. I fully support the use of the judiciary to insure those rights are respected by the government.
Where I part company with you is when the courts seek to create rights not contained in the text of the constitution. The notion that that position translates into “despis[ing] the use of the courts to guarantee the rights” of Americans is frankly quite bizarre. I believe the courts are, and ought to be, guarantors of rights. What they ought not be are creators of rights. **
Dean said Bush’s use of the term “quota” was “intended to incite people’s fears of losing their jobs, or their positions in America’s leading universities, to minorities” and was “designed to appease the extreme right-wing of the Republican Party and to appeal to Americans’ worst instincts.” Apparently Dean thinks it’s a wee bit more than a “semantic quibble.”
Since you lent your unreserved support to Dean’s comments, I thought it perfectly reasonable to ask if you included that portion of his words in your statement of support.
I regret taking that attitude, but I consider that the right to marry, the right to travel, and several other concepts guaranteed not by the explicit language of the Constitution but by the understanding of Americans as to what freedoms they enjoy as citizens of this country (and therefore covered, one assumes, by the language of the Fourteenth and Ninth Amendments, which you apparently would reduce to, respectively: (1) a guarantee that the proper formalities will be observed in the courts in cases in which such “rights” are abolished, and (2) a nonentity that says that if the almighty legislatures deigns to grant privileges to their subjects, the U.S. Constitution will not stand in their ways. Either that is what you’re saying, or I’m vastly misinterpreting your explicit language.
And IMHO no court ever “creates” a right – they acknowledge its existence and applicability in an appropriate case.
With regard to the other matter, we seem to have suffered a role reversal. IMHO, the laws require that the government treat individuals as equals regardless of race. However, a legislature or a government body (including the governing board of a public university) pursuant to statute, again IMHO, may recognize the systematic historical shortchanging of and discrimination against American blacks and the fact (IMHO) that the aftereffects of such shortchanging and discrimination will in many cases leave them in a position of effective underprivilege and so act to rectify that situation, including by an assurance that they shall have some manner of ensuring that the best and brightest from among them shall be able to be admitted to a graduate school even though by a totally colorblind evaluation those persons may not have the particular skills and qualifications accumulated by a person not suffering from said aftereffects (and the lingering prejudice that remains) and given the ideal education in an elite school and appropriate tutoring. A realistic assessment that there are rich people and poor people in America, that there are black people and white people and that the former are bootstrapping themselves up from a history of discrimination, that there are people who have advantages that others do not, and that those who do not have said advantages may require to be evaluated by another scheme than an absolute single standard – these are not necessarily either reverse discrimination nor the setting of quotas.
If I see a rule that says 80% of our student body will be white, including 10% Jews, and 18% black, and 2% Asian, Native American, and other, that’s a quota. If I see a rule that says that we expect to enroll whites, blacks, Jews, Asians, and Native Americans, and that our standards may be adjusted in particular cases so as to ensure that we do indeed have students reflecting the range of ethnicities in America today, that’s not a quota. It may not necessarily be the right thing to do, though I think it is. But it’s an assurance of a representative breadth, a cross-section of the population, in the student body. I confess that I didn’t study the UM furore in any detail. But I do not feel that it was appropriately used as a staging ground for partisan sniping, either.
And yes, I will stand by Dr. Dean’s words. I may not concur with every idea he ever comes up with, but I believe him to be looking for a country in which my idea of what freedom and opportunity really is, is promoted, not the interest-group pandering that has characterized most of American politics for the majority of my adult life.
If you want to believe in the metaphysical existence of rights, that’s fine. But it doesn’t change the fact that courts are determining constitutionality, and when they state a right not found within the text of that document is nevertheless contained therein, they are in fact creating a constitutional right – they are in essence amending the constitution. **
So it’s only the use of hard numbers that makes a quota? So long as Michigan lowers its standards for black applicants to the point of attaining 5% black enrollment, that is not a “quota” so long as Michigan never makes the 5% target explicit? I disagree. A rose by any other name…
Comments like those Dean made about the use of the term “quota” drive me absolutely batty because, if adopted, they make honest debate impossible. A good deal of opposition to Michigan’s program stems from the view that Michigan is operating a de facto quota system. But according to Dean, the use of the word “quota” is verboten in part because it is “divisive.” Dean would sacrifice plain language in favor of feelgoodism.
To be sure, Dean feels the use of the word “quota” is inaccurate – but surely he can see that that point is debatable. He ought not ascribe such nefarious motives to the use of a term that is at least arguably a correct description of the program at Michigan.
N.B.: I did not ask, nor do I care for present purposes, whether Michigan’s program is good policy or even if it is constitutionally appropriate. That wasn’t the question I asked. I only wanted to know if you thought the use of the word “quota” was an accurate description of programs like those at Michigan. Certainly, you could think it a quota but nonetheless good policy, just as you could think it not a quota but nonetheless bad policy.
I’d just like to chime in to defend Dewey here. I don’t see him saying anywhere that metaphysical rights (whatever they may be) don’t exist. As far as I can tell, Dewey is saying that the court is exceeding its mandate and authority by making rulings where it shouldn’t be. It’s not that he disfavors fundamental rights or substantive due process; he’s saying that there’s a system to go through in order to bring these rights about (through legislation or amendments) to properly enact them. Otherwise, the courts are in rebellion.
(Personal anecdote: I often remind my pro-life friends that if I were a federal district judge, and a lawyer argued that I should overturn Roe v. Wade, I wouldn’t do it. It’s not that I’m in favor of abortion; it’s that I don’t have any authority to overrule a higher court. For me to say that I could rightly rebel beyond my authority would be precedent for, say, a racist judge to overturn Brown v. Board of Education on the basis that the Supremes had gotten it wrong. I think Dewey is saying something similar: while we might appreciate the intent SCOTUS’ rulings, it’s beyond the authority given them by our legal structure.)
Res: There’s an important distinction between overturning setlled law (Roe v. Wade) and answering a question of first impression (the Equal Protection portion of the current sodomy case). It’s not like there’s 150-year-old law saying that it does not violate EP to have gender-based prohibitions on certain types of sexual conduct. AFAIK, this is the first time that question has been raised, and it’s entirely plausible to me that EP in fact prevents that kind of gender-based classification.
By the way, that’s also the crucial legal distinction between homosexual sex and the slippery-slope parade of horribles raised by Sen. Santorum and Dewey (e.g., incest, pedohilia, bigamy, etc.). Prohibitions on such conduct are not based on the gender of the participants or any other suspect category that implicates Equal Protection. Thus, there’s no freakin’ way that the impending Supreme Court decision on Equal Protection for gay sex could possibly lead to constitutional protection for the rest of the items on Santorum’s list.
minty, you know full well that the “parade of horribles” refers to the SDP argument that the right to privacy includes a right to all consensual sexual conduct and not to the gender-based EP argument. Hell, that distinction was noted in my earlier exchange with Diogenes in this very thread. You know those are separate and distinct arguments. You should know better than to conflate the two.
I conflated nothing. In fact, I expressly distinguished the Equal Protection claim in the current case from the slippery slope argument of Senator Santorum, as defended by you in your diatribe against substantive Due Process.
Well, ok–I’ll give credit to Minty’s comments, while still saying that I agree with Dewey’s general statements on the role of the courts.
I will say this: a court is (or should be) smart enough to know where to slam the brakes on the slippery slope. I wrote a paper last year wherein I advocated that biological parents should have a presumptive right of parenthood for children born of artificial reproduction. The common response to my argument is that the rule would give rights to rapists. My response was simply that a court wouldn’t be so stupid as to extend the rule that far.
On the other hand, putting the brakes on the slippery slope can’t be arbitrary. I agree, for example, that even under Roe, a father should still be liable for child support of a child he doesn’t want. However, I’m a pro-lifer, so my thinking is that all parents should be responsible for their kids. I haven’t been satisfied by the distinction made by the other side, even though I agree with their conclusion.
I suspect the same could be said for Dewey’s and Santorum’s arguments: under the strict logic of the Texas argument, constitutional protection should extend to those other things. Practically speaking, the court wouldn’t grant the extension. Under a legal analysis, however, it wouldn’t be consistent.*
*–But please don’t ask me to explain why; I haven’t been following the Texas case that closely.
minty, you know full well that the Texas law is being challenged on both SDP and EP grounds (briefs, etc. here).
If the argument is, as Santorum put it, that you have “the right to consensual sex within your home,” that is clearly a reference to the SDP argument. The gender-based EP argument looks nothing like this. So you are conflating the two: you are suggesting that Santorum said that any argument against the Texas law leads to the parade of horribles when what he actually said is that the SDP argument leads to the parade of horribles. Santorum didn’t say a goddamn thing about the EP argument or any other argument outside of SDP, and other than a brief exchange with Diogenes, neither have I.
Is the air unusually thin up there on that soapbox? The post you’re whining about states, quite clearly, “there’s no freakin’ way that the impending Supreme Court decision on Equal Protection for gay sex could possibly lead to constitutional protection for the rest of the items on Santorum’s list.”
The problem there, Dewey, lies in a number of points:
First, the intent of the Founding Fathers lies in creating a government that would guarantee “les Droits de l’Homme” which were by common consent agreed to exist. The philosophical understanding of the nature of the world may have changed for most people since their day, but one can only work law by grasping the conceptualizations of its creators. Mr. Madison was originally opposed to a listing of rights for the specific reason that any list would be taken as delimiting such rights to only those listed.
Second, as you’re well aware, the writers both of the Constitution and Bill of Rights and of subsequent amendments used somewhat broad and abstract language, trusting in the judiciousness of the judges to grasp what “cruel and unusual punishment” or “the privileges and immunities of citizens of the United States” entailed. Your suggestion implies that since no statute law has ever defined what constitutes “cruel and unusual punishment” and judges are impeded from placing their own opinions into law as “unwarranted creation of rights,” a law providing that petty theft would be punished by drawing and quartering would not violate the Eighth, since a judge could not hold that D&Q was “cruel and unusual.” And if a state decided to outlaw marriage altogether, for some bizarre reason, no person would have the right to marry in that state – and if the state had fornication and sodomy laws in place, as many states still do, any sexual contact whatsoever in that state would be ipso facto felonious. To prevent depopulation, Montana could mandate that its residents have no right to leave the state without a license permitting brief travel, and any violation of the terms of that license would constitute a crime requiring California to arrest the fugitive Montanan and ship him or her back. And, the law having remained silent, these things would be considered as constitutionally valid proper use of the state’s police power.
Your first sentence in that paragraph read:
I read that as saying that Santorum and I overlooked a “crucial legal distinction” in our respective statements. Clearly that is false – both Santorum’s statement quoted in the OP and my statements on the topic have been aimed squarely at the SDP argument and that argument alone.
The key, of course, being the “common consent” that they exist. Representative bodies are in a good position to judge “common consent” when they pass statutes and constitutional amendments. Unelected judges not so much.**
Poly, we’ve discussed this topic enough that you ought to know full well that that isn’t my position. Indeed, in prior threads I’ve told you point-blank that this reading of my position is incorrect. Shame on you.
Constitutional terms need to be given full effect, and judges rightly need to interpret what those terms mean. “Cruel and unuusal punishment” does not require a statute to define it – it is a term with a history, and the courts properly draw on that history in defining its boundaries. I have no problem with that; indeed, I encourage it.
The problem with SDP is that the concept goes beyond simply interpreting the scope of the term itself, e.g., answering the question “what process is due?” for a given set of facts. SDP amounts to a judicially-created blank check, a license for the judiciary to add their own terms to the constitution rather than just interpreting the terms that are already there. **
I think the ordinary political process would certainly be a sufficient check on this kind of nutbar example. A legislator who proposed the abolition of marriage would not be a legislator for long.
You consistently do this in these debates, too: you act as though “the state” was some kind of monolithic entity separate and apart from the people comprising it, free to do all types of hysterically irrational things. That isn’t reality. The state is made up of representatives, elected by the people. Egregious conduct is self-correcting – if the lege does something the people overwhelmingly dislike, they will be tossed out of office.**
A legislature that tried such a thing would find themselves voted out of office very quickly – I doubt residents of East Berlin would have voted in favor of keeping the wall up if they had been given a say in the matter. And in the unlikely event they did not, the first amendment right to assembly would come riding to the rescue.
A-ha! Santorium is a http://www.techcentralstation.com/1051/techwrapper.jsp?PID=1051-250&CID=1051-042503B"]Democratic sleeper agent
Dang it.
For what it is worth, reading the entire thread in one sitting, I found it quite easy to understand what DCU was trying to say regarding the OP, and found it frustrating (and somewhat amusing) that so many other people, some of whom I respect highly, did not get it. Not that I completely agree with him, but I understood his argument. It boils down to this: absent any other context, the statement attributed to Santorum in the OP is not necessarily anti-gay. I don’t think it could be read as pro-gay either. It was, to DCU morally neutral. And when I say any other context I mean any, including previous comments made by the Senator, typical practices and code words of the Religious Right, and awareness of the history of gay rights in this country.
For the record, and as a gay man, there’s no way in hell I’d support Santorum, and today’s “revelation” of his campaign support letter makes him no better than sleazy televangelists. I just didn’t see how DCU’s comments indicated he supported Santorum, and in fact he frequently said he found Santorum’s further remarks, as provided by many other people on the topic, showed him to be a 'phobe.
Regardless of your stance on other things DCU has said here and elsewhere, if you read carefully, you will see he stated a position clearly and defended it calmly and rationally depsite a large amount of flamage directed at him.
(This is not meant to construe that I agree with DCU unconditionally. For instance, I would disagree with him regarding the “rights” detailed in the Constitution and whether they were meant to be completely inclusive, and I get the feeling he has considerably more faith in Congress to act impartially than I do.)
JOhn.
And in a perfect world perhaps such a condition exists. But Santorum’s comments weren’t made in a vacuum and to argue the semantics of them as if they were isolated is asinine.