As a young reader of National Review, Commentary, and the Wall Street Journal editorial page, I had been a true believer in the judicial doctrines of strict interpretation and originalism. The Supreme Court shouldn't run hog-wild in interpreting the Constitution and other law, I believed, but should instead sharply restrict itself to what was originally intended.
Yet when I read a full statement of this case -- Robert Bork's The Tempting of America -- I turned against it.
Why? Because I had noticed a logical flaw in the argument?
Nah ... Because I read Bork's book in paperback in the spring of 1991.
And, sure, his originalist doctrine would be a good idea when those rotten Democrats were in ascendance. But in May 1991, only a few months after George H.W. Bush's triumph in the Gulf War, it was utterly obvious to me that the Republican President would be re-elected in 1992.
And with the GOP having 5.5 more years in the White House, they would nominate staunch Republican replacements for Thurgood Marshall, Harry Blackmun, and Whizzer White. (Marshall, a Democrat, came to the same conclusion as me at this time and retired, allowing Bush to nominate Clarence Thomas to the black seat.)
So, why endorse Bork's judicial doctrine since it would impede My Guys from running hog wild when they'd soon have a huge majority on the Supreme Court and could do whatever they felt like?
My logic struck me as impeccable.
Is this the only time I've changed my mind expediently based on who was winning? Almost surely not -- it's just clearer in my head because my 1991 electoral forecast went so badly awry in 1992.
And am I the only person whose intellectual perspective seems to change depending upon whether My Team happens to be on the top or on the bottom at present? Perhaps. But perhaps not.
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52 comments:
Constitution worship is a blight on america.
Our Founding Plutocrats robbed us of democracy. Read the federalist papers and madison's notes on the constitutional convention. Read dr fresia's online book 'toward an american revolution' and read dr holton's book 'toward an american revolution.'
The plutocrats back then were just as evil as the plutocrats today. You seem cogent enough to realize that plutocrats like zuckerberg are evil today when they push for more immigration. Well, they were evil 200+ years ago as well when they disposed of the articles of confederation in order to thwart burgeoning democracy in the several states. they even admitted what they do were doing, although their language was elliptical, in keeping with the fashion of the day.
If you do not like what washington does to this nation, why respect the constitution--it created washington!
As for GOP-appointed SCOTUS judges, the majority of current judges were appointed by the GOP. Have they done anything about affirmative action, disparate impact, or anchor babies?
Nope.
Wake up and smell the coffee-- 'your guys' are not on your side. Never were, never will be. A principle may be discerned--those at the top have differing interests from those at the bottom. That principle should inform all you think and write. Why is it that this principle is not foremost in your mind?
India, nation of billion people, has since 1896 has only 26 Olympic medals, very few gold. Croatia nation of 4 million has 23 medals since 1992, many gold. 23 is also the number of medals Nigeria (many times larger than Croatia) has since independence in the 1960's. Also check roster at Australian open quarterfinals for Eastern Europe participation.
How this make you feel, Steve? That Eastern Europe much superior to all others in physical power and athletics.
How this make you feel, Steve? That Eastern Europe much superior to all others in physical power and athletics.
I'm not sure about that, but I am sure that Eastern Europe leads the world in wearing Adidas track pants to inappropriate venues.
No, Steve, that's everybody.
A lot of people don't even realize they're doing it. You said it yourself: Who? Whom?
And am I the only person whose intellectual perspective seems to change depending upon whether My Team happens to be on the top or on the bottom at present?
Not by a long shot. But it's rare to find someone with the honesty and/or self awareness to admit it.
Our host asked: And am I the only person whose intellectual perspective seems to change depending upon whether My Team happens to be on the top or on the bottom at present?
Hunsdon said: No, sir---but you are one of the very few who will admit it. See, e.g., changing standards on free speech, or "settled constitutional law" in, say, Plessy compared with Roe.
Sticking up for the team against principle introduces a certain amount of drag (damping) into a system. Damping is good to have in any system.
It is very true that perspectives change with who is on top. I just hope that Republican bosses are aware of this, because it will increasingly become harder for them to ever have a president and majorities in congress (in fact I don't think there will ever be Republican president again).
When passing laws like the patriot act and giving the NSA vast powers think about how the Democrats will use this power. The fact that there are so many progressives now that support the growing surveillance state is telling, they know they have the grip on levers of power, will the stupid party ever catch on ?
I think it is common. My liberal friends turn on a dime after each election. Conservatives seem to do less of it, but that owes to the ideological differences between Left and Right. It is also why the Left has won all of the battles for the past century. They are not hung up on their own hypocrisy.
Those of us on the dissident right are probably too calloused to care much about election results. But, hope touches the heart of even the most cynical so who knows? If the GOP were to get a hammer lock on the government I would probably root for them to do all sorts of things I now think are bad ideas.
Democrats want a world where Democratic presidents can do anything they want, while Republican presidents are held in check by a Lilliputian web of rules, precedent, court orders, customs, public outrage, etc.
You shouldn't have been so triumphalist in 1991. Even if Bush had won, I'm not so sure the Court's course would have been markedly different. Bush nominated Souter, the so-called stealth justice, in 1990. In 1992 came Planned Parenthood v. Casey, in which Souter, Anthony Kennedy, and Sandra Day O'Connor teamed up with Blackmun and Stevens to basically save Roe v. Wade. Later it was said that Warren Rudman and John Sununu had tricked Bush into picking Souter. My own preferred conspiracy theory (for which I have zero evidence) was that Bush, or at least his administration, had a pretty good inkling of how "moderate" Souter would turn out to be and nominated him because they were afraid overturning Roe would cost Bush the White House. Of course Bush lost anyway, but if Casey had come out the other way, I think 1992 would have been a much bigger defeat for the Republicans.
http://en.wikipedia.org/wiki/David_Souter
The problem with a Red Team v Blue Team perspective on politics is exactly this: you abandon sensible ideas because they don't fit on your "side."
Of course it's pretty clear by now that Red and Blue teams both largely agree on the important issues (endless fiat money, endless war, endless immigration) and bicker at the fringes over gay marriage, vaginas and such -- all to keep the rubes rooting for their team. And it works like magic.
As for the Supremes, any originalist decisions would be de facto running "hog wild" as we have moved so far away from the Constitution that it looks like a tiny piece of old paper way back in the rear view mirror.
Interestingly, America used to get new Amendments at a fairly regular clip -- that was the idea, after all -- but the last one was in 1971 (stupidly lowering the voting age). Funny that we stopped using the Amendment process at precisely the time when the real power group in America flipped from the WASPs to those other people.
Part of this is just "live and learn." When I was an earnest Republican back in the 1980s, I would ponder what wonderful things might be accomplished if only my party controlled the house as well as the senate and presidency. Then, for ten years between 1997 and 2009 (minus years 2003-2005) we got to see how Republicans ruled when they had all the power and it was not edifying.
Since then I've resigned myself to being disgusted with nearly everyone in office, as have most of my conservative friends, and increasingly even commentators such as Rush Limbaugh. Meanwhile, the liberals I know are still convinced that the Ideal State will arrive as soon as they attain absolute power. Their combination of childlike innocence and Gestapo-like intolerance truly amazes me.
Uh oh, Google committing the sin of outing the transgendered.
I think about a guy like Glenn Greenwald and the way people have responded to him and the things he writes about (civil liberties, executive power, national security). The way that's changed since we left the Bush years serves as a pretty good test case if you're looking to judge any one person's integrity in this regard.
Greenwald dropped law and started writing sometime around 2004 I think, so his first few years in the media picture were spent almost exclusively criticizing Bush and other Republicans. At this point his views were loved and shared by just about all liberals and progressives and condemned and mocked by most conservatives. (Just search The Corner for any pre-2009 mention of his name.)
Then of course Obama happened, and when Glenn's criticism shifted there and didn't stay on the GOP like it was supposed to liberals and progressives suddenly hated him because their views on executive power and civil liberties had been magically softened, if not reversed completely. After all, America now had a Good president, one who could be trusted with all these secret powers.
Conservatives conversely softened on Greenwald, and hardened on their views of executive power. There were books coming out every week with titles like "Liberty and Tyranny".
An extra little test came with the Snowden leaks. That made things pretty real, so some liberals jumped back a bit from unquestioning support of Obama (think Andrew Sullivan, whose position you can watch being triangulated in real time) and some conservatives stepped back into their natural role of favoring a strong executive branch and security apparatus. But for the most part, anyone's views on those issues and on Greenwald himself are still dictated by the fact that Obama is president.
I try to be very careful to support viewpoints that are for the greater good of the country, rather than simply good for my side. I usually always try to take a long-term view to policies and positions. I can't think of a time I supported something because it was good or my side, but I suppose that may have happened, but probably inadvertently, rather than deliberately.
Steve, I love your writing and opinions!!! I'm not trying to one off as a jerk with my response.
It's really all just 'who, whom'. All the rest is window dressing and camouflage.
Anon: "How this make you feel, Steve? That Eastern Europe much superior to all others in physical power and athletics."
Now playing left field...
George Orwell: Second Thoughts on James Burnham. http://orwell.ru/library/reviews/burnham/english/e_burnh
How this make you feel, Steve? That Eastern Europe much superior to all others in physical power and athletics.
Hi, BAP.
Mark Kleiman on the "nuclear option" in 2005:
http://www.samefacts.com/2005/05/archive/health-and-medicine/medicare-health-and-medicine/cheating-ii/
2013:
http://www.samefacts.com/2013/07/archive/constitutional-politics/why-the-nuclear-option-is-justified-and-why-the-democrats-should-go-the-whole-hog/
OT: Another large (70%) black school district with widespread teacher testing misconduct.
NYT, 01/22/14 - Philadelphia Principals Fired in Cheating Scandal
"Three Philadelphia Public Schools principals were fired last week after an investigation into test cheating that has implicated about 140 teachers and administrators, a spokesman for the district said Wednesday. The action follows years of investigating the results of state standardized math and reading tests taken from 2009 to 2011..."
http://www.nytimes.com/2014/01/23/us/philadelphia-principals-fired-over-cheating.html?ref=todayspaper
And, sure, his originalist doctrine would be a good idea when those rotten Democrats were in ascendance.
...
So, why endorse Bork's judicial doctrine since it would impede My Guys from running hog wild when they'd soon have a huge majority on the Supreme Court and could do whatever they felt like?
This doesn't make a lot of sense. What did you think conservative-but-not-originalist justices were going to do that an originalist wouldn't? What conservative-originated law would they uphold that an originalist wouldn't? What liberal-originated law would they strike down that an originalist wouldn't?
The leftist nightmare is that the conservatives will start being as "pragmatic" as they are.
Sadly, our side is hobbled by a lot of Little Lord Fountelroys who just want a 'Jolly good fight' with Rose water and dart guns while the other side shoots at us with real bullets.
Off topic but looks like a Baltimore Sun editor got yglesias'd.
http://www.pressboxonline.com/2014/01/22/the-suns-jon-fogg-recovering-from-attack-robbery
You have to make a distinction between strict construction/originalism and stare decisis (the idea that existing judicial precedents should be respected, even if incorrectly decided).
It certainly was good to pull for conservative justices to overturn all the bad constitutional law created by the Warren/Burger Courts.
Some liberals have tried to label this "judicial activism," confusing the debate and setting up a system where constitutional law only moves leftward.
Overturning incorrect (in the 1990's meaning liberal) judicial decisions is not activism and is consistent with Bork's originalism/strict construction.
Is this what you were for, or were you for true conservatism activism, reading the constitution to include new conservative rights, like a right to property that limits zoning or eminent domain law, or a right to life that would make abortion constitutionally prohibited?
I think this is an interesting observation, even if also kind of obvious. Of course we are happy to be sticklers for the rules when it protects us from our opponents, but we resent the same restrictions on ourselves.
I'm really not sure how Croatian athletics fits into what Steve blogged about, but it gives me an excuse to point out that Bill Bilichek, Nick Saban, Gregg Poppovich and Rudy Tomjanovich are all Croatian-Americans (though Poppovich is half-Serb-American). That's a lot of championships for a tiny ethnic group in America.
I'm pretty sure Dennis Kunicich and John Malkovich could both be great coaches if they wanted to be.
And am I the only person whose intellectual perspective seems to change depending upon whether My Team happens to be on the top or on the bottom at present? Perhaps. But perhaps not.
No you are not. See Code Pink and the rest of the so-called anti-war movement of the Left.
maybe i'm wrong, but isn't ross perot the reason bill clinton became president?
i never hear any discussion about this but it seems overwhelmingly the case.
interesting that we churn over and over the questions of the 2012 election, the shoulda coulda wouldas. 1 million votes here, 1 million votes there, did too many republicans stay home, did democrats commit fraud, if only a few more people had got up off the couch and voted for romney...
compare this with the 1992 election.
clinton 44.9 million votes
bush 39.1 million votes
oh well that looks like a clear...WAIT A MINUTE
perot 19.7 million votes?
yeah. it's pretty obvious that bush would have been re-elected in a landslide if perot hadn't been in the race, and none of us ever would have heard of bill clinton.
unless we're about to make the PREPOSTEROUS case that perot siphoned off the majority of those votes from democrats. democrats NEVER do that. they vote lockstep for the democrat - it's one of their political strengths. vote as a bloc. do not fracture, do not deviate. one unified bloc defeats divided opponents. rule proven yet again.
I have a personal example from college football. A friend and I grew up together but were fans of two different powerhouse schools in the same state. Since then, his team has faded far from powerhouse status. My team, while not winning a national championship for a while, is still among the 10-15 schools who probably have the money, facilities, and so forth to produce one. He tends to see college football as irrevocably corrupt and in need of radical change. Sure, I see corruption, but am happier than him in letting things slide along. I don't want the boat rocked as much as he does.
I have generally found that the solution to the Team bias problem is to rid yourself of Teams.
This is less hard to do than one might imagine - in fact it seems to be the natural course of a life led with a modicum of integrity. Sooner or later, there arises some issue, and possibly a number of them, on which you have a fairly strong view, and you see your Team taking an opposite view. Even worse, your Team may have supported in the past the exact same view you currently endorse, but, for no other reason than political expediency, it goes in the contrary direction.
At that point, if you haven't given up your eyes, you see The Team, and generally Teams, cannot be trusted.
And then, you mostly just think for yourself -- which is as it should be, but rarely is.
The problem for most people is that they are very, very bad at thinking for themselves. When they have to decide on an issue based on its true merits, and in the recognition of its genuine complexity, they are hopeless. There are very few slam dunks, and they lack the mentality to work through the rest.
"And am I the only person whose intellectual perspective seems to change depending upon whether My Team happens to be on the top or on the bottom at present?"
Of course not. This usually becomes painfully obvious whenever the minority party in Congress engages in a filibuster or some other parliamentary strategy to hold up legislation.
A major difference between you and most other opinion writers (especially on the left) is your degree of honesty. It is refreshing. The only other example I can really think of who comes close in that regard is Peter Hitchens. Why he still chooses to put down Enoch Powell is beyond me given what he has said about his own early views.
I was an active member of Common Cause around the time that Jerry Brown was first elected governor. We young noble seekers after good government took a group trip to Sacramento where we met with high ranking members of his new administration. One of our members asked one of the major Brown appointees why he now held a position exactly contrary to that which he had formerly held.
He explained - "Where you stand depends on where you sit".
Albertosaurus
The comment upthread on Greenwald and his treatment at the hands of so-called liberals is very much on point here.
After Obama was elected, the supposedly devastating criticism of him by liberal was that he was a fanatical "purist", who couldn't accept the pragmatic steps required of an effective leader in the real world.
But what, in fact, was his "purism"?
That, both before and after Obama's election, he espoused the same principles, and applied them evenhandedly, as the simple logic of the principles required.
It's hard to be genuinely smart and follow the partisan running dogs when they turn like this. Stupidity or dishonesty must come to the rescue of tribal loyalty.
I think one reason the West was the West was that Enlightenment Liberals were able to get away from Who? Whom? thinking to a large extent, prioritising abstract notions of fairness.
Eg my wife, like most white Americans, opposes Affirmative Action in University admissions. I said: "But without Affirmative Action east-Asians and Jews do best. Non-Jewish whites would do best under a quota system." Her answer was: "I don't care. I only want us to have a fair chance". I think that's a very common attitude among white Westerners generally, at least those from North-West Europe.
Likewise with the law - for judges to stick to the actual law is more important than for them to reach a decision favouring 'our' side. I know I respect Clarence Thomas the most because he's the only Supreme Court judge I've seen stick to the correct, Constitutional, legal judgement even when it didn't favour his party's political line.
Paul Krugman changes his tune based on the occupant of the White House, more than any other prominent academic economist, based on a peer-reviewed article.
perot 19.7 million votes?
yeah. it's pretty obvious that bush would have been re-elected in a landslide… --Jody
Uh, not necessarily. In 2000, only 2/5 of Nader voters polled said they'd have gone for Gore, and as many as 1/5 would've chosen Bush, just to clear out the Clinton cronies. So the CW quintupled Nader's actual effect.
Still, the remaining fifth was enough to give the dirty Ds the painful loss they had coming good and hard. Note that the Ds' rage toward Nader was almost homicidal, compared to the (rightly) self-blaming GOP in '92 (and '96)-- despite the fact that Buchanan threw a few states to Gore as well.
In '92, most of Perot's voters were potential stay-at-homes, and more than a few "againsters" who'd choose the opposition solely to flip the bird at the incumbent. So maybe Bush would have prevailed in a two-man-- actually one-man-one-boy-- race. Maybe not. Depends on which states were thrown, and to whom.
That leads us to a criticism one rarely hears of Perot: how the hell did he manage 19m votes, and zero electors? He finished second in only two states. C'mon, George Wallace got only 13% of the vote, but it netted him 8.5% of the electors, and scared the bejezus out of everybody. The South played kingmaker for a generation thereafter-- a situation never seen before, nor will we since.
Perot could've achieved something similar, had he been shrewd rather than egotistical.
Re the OT Croatian discussion above, who cares about athletes, when you can claim Johnny Mercer and Jenna Elfman?
No surprise about Greenwald - as most here know they threw Hentoff and Hitchens out of the club, too. I happened to attend Hitch's appearance in Berkeley where he unveiled his new term "Islamofascism" in late 2002. You could have heard a pin drop.
I goofed. In recent decades there were only four years when a Republican president, George W. Bush, had a Republican House and Senate.
As far as sudden shifts in Democratic Party principles, there is the case of Harry Reid, who back in the mid-1990s explained why birthright citizenship for illegal aliens makes absolutely no sense. He made the case as well as anyone could; clearly he understands the issue. His position changed once the Democratic Party decided that flooding the US with Mexicans is in its interest.
Along the same lines, when Reid decided to stack the deck against Republicans with the change in Senate rules called the "nuclear option", Fox News presented footage of him, as well as Obama, denouncing that tactic when they were in the minority in 2004. Of further interest is a NY Times editorial from 2004 denouncing the Republican's toying with invoking the nuclear option, and in that editorial they state that they were wrong to support the nuclear option ten years earlier when the Democrats held the Senate and wanted to use it. Of course, now the Times supports it again.
Point isn't just about Croatians but about EE sports programs in general. Croatia is just one country, if you add them all up, it spells end of the black supremacy in athletics myth that Steve Sailer is pushing.
Vandelay is spot on w.r.t. Greenwald and other critics of the war on terror. A really depressing number of prominent Democrats suddenly decided they could live with massive unaccountable domestic spying, unaccountable assassination of citizens and foreigners alike, starting new wars on a whim. etc., as long as it wasn't headed up by a Republican. Around the same time, a surprising number of prominent Republicans went from "deficits don't matter" to sayingt hat Obama's deficits were a terrible problem that required Obamacare to be scrapped. And so on. For politicians and talking heads, this is kinda forgivable--they're whores, after all, so it's not a shock to see them say what the John wants to hear. But it's always surprising to me how quickly most of the rank and file team members fall in line.
Just read elsewhere: "Many people on both those teams [i.e., conservatives and leftists] will happily cheer for the expansion of that power – but only when their own side holds the scepter."
I have a personal example from college football. A friend and I grew up together but were fans of two different powerhouse schools in the same state. Since then, his team has faded far from powerhouse status. My team, while not winning a national championship for a while, is still among the 10-15 schools who probably have the money, facilities, and so forth to produce one.
Pitt & Penn State?
At Clinton's inauguration, Ron Silver was disgusted by the display of militarism after a flyover by military jets until he realized "those are OUR planes now." He had another change of heart and became pro-Republican after 9/11.
To continue the OT subject of Croatian-American athletes, Pat Miletich was the first UFC welterweight champion. Staying OT, I'll point out that Illyricum was a prime recruting ground for the Roman legions- their martial prowess was highly regarded. Still OT: the people of the Dinaric Alps are the tallest in Europe, with an average male height of 6'1".
Ross Perot and Bill Clinton were friends. Perot entered the race to split the vote on the Right. In exchange, Perot's EDS would get the government contracts to manage the BillaryCare healthcare system that was supposed to appear decades ago.
One word, "filibuster". When GWB was president, we heard from one side how (to paraphrase) "using the filibuster on appointments was unprecidented", and from the other "eliminating the filibuster for appointments would be like going nuclear".
Now that O is in office, we see the shoe on the other foot.
We saw similar attitudes regarding the security state with GWB vs O .
This leads to a prediction. Today we see O pulling all sorts of administrative strings of arguable legality to smooth the tracks for ACA. The precedents might just as easily be used by a future Republican to cripple ACA, but we will hear cries of "over reaching executive" and "executive discretion" from different sides of the aisle.
I don't recall Kahneman categorizing this effect, but it certainly real.
>Ross Perot and Bill Clinton were friends. Perot entered the race to split the vote on the Right. In exchange, Perot's EDS would get the government contracts to manage the BillaryCare healthcare system that was supposed to appear decades ago.<
Also involved: a grudge match. Perot hated the Bush family for their power in Texas. At least this was the rumor at the time.
"In '92, most of Perot's voters were potential stay-at-homes, and more than a few "againsters" who'd choose the opposition solely to flip the bird at the incumbent."
this is possible, but not likely. turnout was within historical norms.
1960 63
1964 61
1968 60
1972 55
1976 53
1980 52
1984 52
1988 50
1992 55
1996 49
2000 54
2004 60
2008 61
2012 58
what wasn't normal, was a third party candidate getting that much of the vote. 102 million votes were cast in 1992, so let's say perot brought out 5% more voters than would be expected (looks like the trend was 50% voter turnout during that era of US elections). so let's say he brought 5 million new voters into the game. 19 - 5 = still 14 million regular voters swung from either the republican or the democrat and over to perot. clinton's margin of victory was 4 million. it's easy to see how bush would have won if perot had not entered. i've never heard a lifetime democrat speak fondly of perot or wistfully recall the day he voted for perot instead of clinton. never. not ever. not one time. i hear this from republicans sometimes. but NEVER from democrats.
This question is fundamental to group selection vs individual integrity. In an environment where group selection dominates, supremacism is not a political stance -- it is a survival necessity. The only reason this is not more widely recognized in the US is that northern Europeans only recently -- 1000 years ago -- succumbed to the culture of groups. A mere 400 years later the age of exploration turned them loose in the wilds of the New World to attempt to reinstitute the culture of the individual -- a project that took place within the fog of "theology" (during the rise of protestantism and the Guttenberg press) then "philosophy" (during the Enlightenment). Neither of these movements were primary. Primary was an environment of evolutionary adaptation that emphasized self-reliance which, during the neolithic, became formalize as individual combat as the appeal of last resort in dispute processing. That neolithic culture lasted for millenia.
What is needed is a recognition that group selection is war, war is hell and declarations of war must include a clear definition of peace so that war, hence group selection, is not perpetual -- a definition that is founded on a culture of individual selection.
This takes the conflict between cultures out of the subconscious -- where supremacism is an assumed condition -- and makes it possible to form morale around terminating the culture of groups.
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