Christopher Hitchens unmasks phony peaceniks in an eloquent piece at Slate: “Anti-War, My Foot.” A widow of the war gets to to the heart of the matter:
“I would like to say to Cindy Sheehan and her supporters: Don’t be a group of unthinking lemmings,” said Mitzy Kenny of Ridgeley, W.Va., whose husband died in Iraq last year. She said the anti-war demonstrations “can affect the war in a really negative way. It gives the enemy hope.”
The road to peace, regrettably, is sometimes through war.
Hey Mikey,
I understand that you’ve written an open letter to all who voted for George W. Bush in 2004. Something about how Katrina is all Bush’s fault — from start to finish. Well, I guess you’d know about such things, if anyone does. After all, your resume is quite impressive. Among other things,
So, it’s obvious that you know a lot about how the world works. In fact, you know so much that I’ve begun to wonder about your involvement in Katrina. Given your wealth, the combined wealth of your Lefty pals in Hollywood, and the immense wealth of Lefty sympathizers like George Soros, I think I know what happened.
You and your buddies didn’t cause Hurricane Katrina. I don’t think you’re up to that task, yet. But you knew it was developing and knew precisely where it was headed, long before the National Weather Service did. So, you got to Mayor Noggin and Governor Blank-o and made it worth their while to screw up the evacuation of New Orleans and surrounding areas. (Governor Barbour of Mississippi couldn’t be bought off, for obvious reasons, so you saved some bucks there.)
After the hurricane struck, and before everyone realized the full extent of the death and destruction it had caused, you got to CNN, NBC, ABC, CBS, and MSNBC and fed them the lie that Bush was responsible for the destruction of New Orleans because he piddled the money away in Iraq. (FoxNews couldn’t be bought off, either, but five out of six ain’t bad.) You also concocted the fable that poor blacks were disproportionately affected by Katrina because Bush doesn’t care about blacks. That’s all it took. Those stories had legs, man; now they’re gospel in most quarters. And your pet pollsters are having a field day spinning the results.
So, Mikey, I have to hand it to you. Your deeply felt empathy for the “common man” has served him well. I mean, what’s a few thousand deaths if that’s what it takes to help open Americans’ eyes to the evil that is Bush.
Of course, I’m sure you’ll be well served, too. I can envision the title of your next hit movie: Farhrenheit 212: Bush in Hot (Flood) Water.
Yours in paranoia forever,
LC
P.S. Are you still at the fat farm? It’s a shame you got so grossly overweight. But I know it wasn’t your fault, because you’re not one of the stupid white guys. I remember when a younger George Bush forced those Big Macs down your throat. You were hooked for life, and it’s all Bush’s fault.
P.P.S. I see that CNN has a story in which every level of government is taking heat for what happened in New Orleans. You know what that means, of course. The big government that you love so much — not the one that fights to defend your right to make a rather nice living, but the other one that thinks more money is always the answer, regardless of the question — that big government is going to get bigger.
That’s the American way, isn’t it Mikey? Put all responsibility on government, praise it when it’s in Democrat hands, blame it when it’s in Republican hands, and keep on spending, no matter how much it screws up. It sure beats giving individuals back their tax money, along with the responsibility for choosing safe places to live or protecting themselves when they decide to live in unsafe places. (Oh, I almost forgot about the poor, untaxed people who are poor mostly because they’ve never been weaned from the government tit or who can’t find jobs because taxation and regulation destroy jobs.)
Anyway, if you make people responsible for themselves they might do something stupid like getting grossly fat, as you did. But it wouldn’t be their fault, of course. So, as long as we’re going to have a federal czar for disaster-prevention-against-all-odds, instant-response-at-all-costs, and rebuilding-bigger-and-better-in-dangerous-places, we might as well have a federal czar for forcing-fat-boys-to-run-two-miles-a-day. How’s that strike you?
I wrote recently and critically (in “Allan Bloom’s Mind“) about Jim Sleeper’s reconsideration of Allan Bloom’s work. For an authoritative trashing of Sleeper’s NYT article — and of Sleeper’s sleazy brand of Leftism — read this post by Roger Kimball at Armavirumque, the weblog of The New Criterion.
A portion of the bio of a contributor to the Blogger News Network, in which she notes that “something snapped inside”:
My mother was a Civil Rights activist and a teacher. She passed away in 1998.My father was an Army intel op in the Second World War. He passed away in 1985. I have been writing since I was very young. I have been involved in politics, the civil rights movement, and the anti-war movement since I was a child. My mother founded the first integrated pre-school for black and white children in Roxbury, Massachusetts in 1941. That was 13 years before the official beginning of the Civil Rights movement in America. Every weekend for our coming up years, my mother brought us into Boston for rallies and teach-ins. My early life was filled with the speeches of Martin Luther King. I heard them live, and I read them over and over. His writing had a profound effect on me. Later in life I read about Mahatma Ghandi. I think he might be my vote of the greatest political and religious leader who ever lived. My mother would have told us stories about Mahatma Ghandi and the Salt Marches. When war was declared against Iraq in 2003 I had been living out of the United States for 10 years or more. I lived an idyllic life in Ireland, in a beautiful cottage, with a lovely boyfriend who was one of the greatest musicians in all of Ireland. I played fiddle badly, but I had a supremely happy life. When I heard George W. Bush’s State of the Union Address in 2003, when I heard him outline the “Axis of Evil,” and when I heard him boast that the had sanctioned the summary execution of 3,000 Afghani prisoners, something snapped inside. When war was declared on Iraq I reached a turning point. For years I had been contributing 20% of everything I earned through my painting and writing to Medicins Sans Frontieres. For years I had enjoyed a life that few people could imagine. But it ended when war was declared on Iraq. I had many Iraqi friends, and because of the art and literature and antiquities in Iraq, I just could not countenance any war of agression against that country.
Obviously something “snapped inside” her, but it had snapped long before she heard George Bush inveigh against the “axis of evil.” Listen lady, if you can’t distinguish between enemy states and their people (most of whom are not our enemies), you are too stupid to be taken seriously about anything. If you’re defending the “axis” states of North Korea, Iran, and pre-invasion Iraq, you have forfeited your right to judge anyone else’s morality. And if you simply think that war is inherently “bad” because “it just is” or because civilians sometimes get caught in the crossfire, then you dishonor your father’s memory.
With company like that (and several dozen other nutcases and “liberal” statists), it’s no wonder I recently resigned from BNN. Something snapped.
Remember academic Allan Bloom, who rode to sudden fame in 1987 on the back of his book, The Closing of the American Mind? It’s been years since I read the book, so I must rely on Jim Sleeper’s essay at NYTimes.com for a refresher:
Who on an American campus could ignore Bloom’s accounts of Cornell faculty groveling before black-power student poseurs, or his sketches of politically correct administrator-mandarins and ditzy pomo professors? What dedicated teacher could dismiss his self-described ”meditation on the state of our souls, particularly those of the young, and their education”? Some thoughtful liberals found themselves reading ”The Closing” under their bedcovers with flashlights, unable either to endorse or repudiate it but sensing that some reckoning was due. Conservatives championed Bloom then, of course, and they invoke him still.
But, on closer inspection, it seems that
[f]ar from being a conservative ideologue, Bloom, a University of Chicago professor of political philosophy who died in 1992, was an eccentric interpreter of Enlightenment thought who led an Epicurean, quietly gay life. He had to be prodded to write his best-selling book by his friend Saul Bellow, whose novel ”Ravelstein” is a wry tribute to Bloom. Far more than liberal speech codes and diversity regimens, the bêtes noires of the intellectual right, darkened Bloom’s horizons: He also mistrusted modernity, capitalism and even democracy so deeply that he believed the university’s culture must be adversarial (or at least subtly subversive) before America’s market society, with its vulgar blandishments, religious enthusiasms and populist incursions.
In fact, a mistrust of modernity, capitalism, and democracy isn’t an unusual paleoconservative trait. Be that as it may, Bloom was right about the dangers of political correctness, and so Closing became — and still is — a rallying point for those conservatives, libertarians, and (true) liberals who oppose it.
Whatever else Allan Bloom might have opposed is of little moment. He was right about at least one thing, and his rightness about that thing has served us well.
Dahlia Lithwick of Slate inveighs against opponents of the “Living Constitution” without explaining it. Here’s Dahlia:
To hear Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of “Originalism” or “strict construction” is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want. Here’s Jonah Goldberg on the allure of a dead Constitution: “A ‘living Constitution’ denies us our voice in this regard because it basically holds that whatever decisions we make—including the 13th, 14th, and 15th Amendments—can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn’t take their oath to uphold and defend the Constitution in good faith because they couldn’t know what they were swearing to.”
Goldberg goes on to quote Justice Antonin Scalia’s dissent in the recent Ten Commandments cases: “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority, is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that—thumbs up or thumbs down—as their personal preferences dictate.”
And here is Todd Gaziano from the Heritage Foundation: “If judges can essentially do whatever they want in the guise of updating the [C]onstitution … making it real for today or choosing whatever silly phrase you want, then we might as well have a completely unwritten Constitution.” . . .
A Nexis search for the words “living Constitution” turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it’s hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.
Is it because the words “living Constitution,” like the words “feminist” or “liberal,” have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?
Scalia is right. But let’s hear it directly from the Justice:
Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law. . . .
. . . There is no text in the Constitution that you could reinterpret to create a right to abortion. . . . So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. . . .
What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. . . . [I]n fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.
Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.
Then . . . that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.
What are the arguments usually made in favor of the Living Constitution? . . . The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.
This is . . . an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.
My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. . . .
Some people are in favor of the Living Constitution because they think it always leads to greater freedom — there’s just nothing to lose, the evolving Constitution will always provide greater and greater freedom, more and more rights. Why would you think that? It’s a two-way street. And indeed, under the aegis of the Living Constitution, some freedoms have been taken away.
Recently, last term, we reversed a 15-year-old decision of the Court, which had held that the Confrontation Clause — which couldn’t be clearer, it says, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witness against him.” But a Living Constitution Court held that all that was necessary to comply with the Confrontation Clause was that the hearsay evidence which is introduced — hearsay evidence means you can’t cross-examine the person who said it because he’s not in the court — the hearsay evidence has to bear indicia of reliability. I’m happy to say that we reversed it last term with the votes of the two originalists on the Court. And the opinion said that the only indicium of reliability that the Confrontation Clause acknowledges is confrontation. You bring the witness in to testify and to be cross-examined. That’s just one example, there are others, of eliminating liberties.
So, I think another example is the right to jury trial. In a series of cases, the Court had seemingly acknowledged that you didn’t have to have trial by jury of the facts that increase your sentence. You can make the increased sentence a “sentencing factor” — you get 30 years for burglary, but if the burglary is committed with a gun, as a sentencing factor the judge can give you another 10 years. And the judge will decide whether you used a gun. And he will decide it, not beyond a reasonable doubt, but whether it’s more likely than not. Well, we held recently, I’m happy to say, that this violates the right to a trial by jury. The Living Constitution would not have produced that result. The Living Constitution, like the legislatures that enacted these laws would have allowed sentencing factors to be determined by the judge because all the Living Constitution assures you is that what will happen is what the majority wants to happen. And that’s not the purpose of constitutional guarantees.
Well, I’ve talked about some of the false virtues of the Living Constitution, let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work. . . .
. . . If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.
Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.
. . . What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.
[W]here we have arrived — [is] at the point of selecting [judges] to write a constitution, rather than [judges] to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.
Give ’em hell, Nino.
You can’t always have all the rights you want; there’s nothing “natural” about rights. Sometimes you must fight for the rights you want, which, in this post-Revolutionary era, means — or should mean — fighting to have the Constitution amended or fighting to have legislatures adopt constitutional laws. As Justice Scalia says so eloquently, the “Living Constitution” isn’t about rights, it’s about the ability of the majority to impose its will on the minority, without going to the trouble of amending the Constitution or effecting constitutional legislation.
It’s hard for me to distinguish between hard-core evolutionists and evangelists. Go to a pro-evolution site like The Panda’s Thumb, for example, and browse the posts and comments. There you will find a rather large dose of strident atheism. Hard-core evolutionists seem afraid that challenges to the theory of evolution will somehow lead to proof of the existence of God — a frightening prospect for them. They are, as Alex Tabarrok would put it, activists rather than scholars.
The late David Stove, a noted Australian philosopher, put it this way in “A New Religion“:
Dolphins and some other animals have lately turned out to be more intelligent than was formerly thought, and present-day computers are capable of some amazing things. Still, if the question is asked, what are the most intelligent and all-round-capable things on earth, the answer is obvious: human beings. Everyone knows this, except certain religious people. A person is certainly a believer in some religion if be thinks, for example, that there are on earth millions of invisible and immortal nonhuman beings which are far more intelligent and capable than we are.
But that is exactly what sociobiologists do think, about genes. Sociobiology, then, is a religion: one which has genes as its gods.
Yet this conclusion seems incredible. Was not religion banished from biological science a long time ago? Why, yes. And is not sociobiology a part of biological science (even if a very new part, and a controversial one)? No. Sociobiologists really are committed to genes being gods, as I will show in a moment….
According to the Christian religion, human beings and all other created things exist for the greater glory of God; according to sociobiology, human beings and all other living things exist for the benefit of their genes. The expression ‘their genes’ is probably not perfectly orthodox, from the strict sociobiological point of view; being rather too apt to suggest that genes are part of our equipment, whereas (according to sociobiology) we are part of theirs. All the same, the religious implication is unmistakable: that there exist, in us and around us, beings to whom we stand in the same humble relation as calculators, cars, and screwdrivers stand in to us….
Most people would like some religion to be true. This may seem strange, when you consider that every religion is and must be more or less terrifying. But then, there are various things which can outweigh terror. One of them is depression, and if religion is terrifying, atheism is depressing. It is an intensely depressing thought that the brightest and best things the universe has to show are certain members of our species….
Yet if the sociobiologists are right, science has actually now brought us what the human heart has always yearned for but never before achieved: knowledge of beings which, in virtue of their immense superiority to ourselves, are proper objects of our reverence and worship.
A bit later, in “So You Think You Area Darwinian?,” Stove wrote:
Most educated people nowadays, I believe, think of themselves as Darwinians. If they do, however, it can only be from ignorance: from not knowing enough about what Darwinism says. For Darwinism says many things, especially about our species, which are too obviously false to be believed by any educated person; or at least by an educated person who retains any capacity at all for critical thought on the subject of Darwinism.
Of course most educated people now are Darwinians, in the sense that they believe our species to have originated, not in a creative act of the Divine Will, but by evolution from other animals. But believing that proposition is not enough to make someone a Darwinian. It had been believed, as may be learnt from any history of biology, by very many people long before Darwinism, or Darwin, was born.
What is needed to make someone an adherent of a certain school of thought is belief in all or most of the propositions which are peculiar to that school, and are believed either by all of its adherents, or at least by the more thoroughgoing ones. In any large school of thought, there is always a minority who adhere more exclusively than most to the characteristic beliefs of the school: they are the ‘purists’ or ‘ultras’ of that school. What is needed and sufficient, then, to make a person a Darwinian, is belief in all or most of the propositions which are peculiar to Darwinians, and believed either by all of them, or at least by ultra-Darwinians.
I give below ten propositions which are all Darwinian beliefs in the sense just specified. Each of them is obviously false: either a direct falsity about our species or, where the proposition is a general one, obviously false in the case of our species, at least. Some of the ten propositions are quotations; all the others are paraphrases….
10. If variations which are useful to their possessors in the struggle for life ‘do occur, can we doubt (remembering that many more individuals are born than can possibly survive), that individuals having any advantage, however slight, over others, would have the best chance of surviving and of procreating their kind? On the other hand, we may feel sure that any variation in the least degree injurious would be rigidly destroyed.’
This is from The Origin of Species, pp. 80-81. Exactly the same words occur in all the editions.
Since this passage expresses the essential idea of natural selection, no further evidence is needed to show that proposition 10 is a Darwinian one. But is it true? In particular, may we really feel sure that every attribute in the least degree injurious to its possessors would be rigidly destroyed by natural selection?
On the contrary, the proposition is (saving Darwin’s reverence) ridiculous. Any educated person can easily think of a hundred characteristics, commonly occurring in our species, which are not only ‘in the least degree’ injurious to their possessors, but seriously or even extremely injurious to them, which have not been ‘rigidly destroyed’, and concerning which there is not the smallest evidence that they are in the process of being destroyed. Here are ten such characteristics, without even going past the first letter of the alphabet. Abortion; adoption; fondness for alcohol; altruism; anal intercourse; respect for ancestors; susceptibility to aneurism; the love of animals; the importance attached to art; asceticism, whether sexual, dietary, or whatever.
Each of these characteristics tends, more or less strongly, to shorten our lives, or to lessen the number of children we have, or both. All of them are of extreme antiquity. Some of them are probably older than our species itself. Adoption, for example is practised by some species of chimpanzees: another adult female taking over the care of a baby whose mother has died. Why has not this ancient and gross ‘biological error’ been rigidly destroyed?…
The cream of the jest, concerning proposition 10, is that Darwinians themselves do not really believe it. Ask a Darwinian whether he actually believes that the fondness for alcoholic drinks is being destroyed now, or that abortion is, or adoption – and watch his face. Well, of course he does not believe it! Why would he? There is not a particle of evidence in its favour, and there is a great mountain of evidence against it. Absolutely the only thing it has in its favour is that Darwinism says it must be so. But (as Descartes said in another connection) ‘this reasoning cannot be presented to infidels, who might consider that it proceeded in a circle’.
What becomes, then, of the terrifying giant named Natural Selection, which can never sleep, can never fail to detect an attribute which is, even in the least degree, injurious to its possessors in the struggle for life, and can never fail to punish such an attribute with rigid destruction? Why, just that, like so much else in Darwinism, it is an obvious fairytale, at least as far as our species is concerned.
(Simon Blackburn’s attempted refutation of this article was followed quickly by James Franklin’s successful defense of it.)
Stove wasn’t writing as a person of religion, for he evidently had no use for religion of any kind. Now, I don’t know about the religious views of Frederick Turner (a professor at the University of Texas-Dallas), but he is an evolutionist. Here’s what he has to say:
The evolutionists’ sin…is three sins rolled into one….
The third sin is…dishonesty. In many cases it is clear that the beautiful and hard-won theory of evolution, now proved beyond reasonable doubt, is being cynically used by some — who do not much care about it as such — to support an ulterior purpose: a program of atheist indoctrination, and an assault on the moral and spiritual goals of religion. A truth used for unworthy purposes is quite as bad as a lie used for ends believed to be worthy. If religion can be undermined in the hearts and minds of the people, then the only authority left will be the state, and, not coincidentally, the state’s well-paid academic, legal, therapeutic and caring professions. If creationists cannot be trusted to give a fair hearing to evidence and logic because of their prior commitment to religious doctrine, some evolutionary partisans cannot be trusted because they would use a general social acceptance of the truth of evolution as a way to set in place a system of helpless moral license in the population and an intellectual elite to take care of them.
And that is my issue with strident evolutionists of the ilk that frequent The Panda’s Thumb. They’re not only pushing evolution, they’re also pushing atheism — as if the two must be bound. The irony of their position is that atheism is unscientific: It is a belief in an untestable hypothesis, namely, that there is no God.
Scientists should be concerned with knowing the knowable. When they claim to know the unknowable they are simply worshiping a different god than the God of Creation.
Related posts:
Scientists in a Snit (08/04/04)
Atheism, Religion, and Science (01/03/05)
The Limits of Science (01/05/05)
Three Perspectives on Life: A Parable (01/15/05)
Beware of Irrational Atheism (01/22/05)
The Creation Model (02/23/05)
The Thing about Science (03/24/05)
Science in Politics, Politics in Science (05/11/05)
Technorati tag: Evolution
I balance my dismissal of UT lawprof Brian Leiter by endorsing his senior colleague, Lino Graglia. In an interview with Columbia Law School Report on the occasion of the 50th anniversary of the Supreme Court’s decision in Brown v. Board of Education, Graglia had much to say, including this:
The overwhelming negative effect of Brown is that it changed the view of many people – certainly of most professors of constitutional law and, most important, of the justices themselves – as to the proper role of the Supreme Court in our system of government. If the court (as was believed) could do so great and good a thing as end racial segregation, what other great and good things could it not do? Did not Brown demonstrate that decision-making by judges on issues of basic social policy is superior to decision-making by elected representatives? The result has been a perversion of the system of government created by the Contitution, the basic principles of which are self-government through elected representatives, decentralized power (federalism), and separation of powers. At least in part as a result of Brown, we have arrived at the antithesis of this system: government by majority vote of a committee of nine unelected, life-tenured lawyers making the most basic policy decisions for the nation as a whole from Washington, D.C. The acclaim the court received as a result of Brown emboldened it to go on to such further decisions as Roe v. Wade, purporting to find that the Constitution, incredibly enough, guarantees rights of abortion, thereby converting an issue that was being peacefully settled on a state-by-state basis into an intractable national controversy.
On the race issue itself, the eventual success of Brown as a result of the 1964 Civil Rights Act emboldened the court to move from Brown’s prohibition of segregation – prohibiting the assignment of students to separate schools by race – to a vastly more ambitious and questionable requirement of integration – requiring the assignment of students to schools by race, now to increase racial mixing. Compulsory school racial integration, given residential racial concentrations, could only be attempted by ordering cross-district busing, but the justices now felt powerful enough to think that they could order even that. The result has been not to lessen but to increase school racial separation – as middle-class parents, black as well as white, fled school systems subject to busing orders – and the expenditure of billions of dollars and devastation of public school systems across the nation with no educational or other benefit….
Segregation should have been ended by Congress, as it in fact eventually was, and it is most unfortunate, as shown above, that the issue was purportedly decided instead by the court. The court’s supposed reliance on the totally discredited so-called sociological evidence in Brown illustrates only that constitutional law need have no relation to truth or reality….
It is misleading to state that “public schools in America remain segregated,” even after adding “though not officially by law,” seeming to suggest some inconsistency with Brown when in fact it is compulsory integration that violates Brown’s prohibition of all official race discrimination. For social, economic, and perhaps other reasons, areas of residential racial concentration are the norm, and neighborhood schools (which have many advantages) necessarily reflect residential patterns. This does not make the schools “segregated” any more than the neighborhoods are “segregated.” The pursuit of school “racial balance” is not only largely futile or counterproductive, but essentially pointless. The problem to be faced in regard to black education is the astounding fact that the average black 12th grader performs at about the level of the average white or Asian eighth grader in reading and math, and blacks from high income homes score below whites and Asians from low income homes. Some schools with the highest per pupil expenditures, as in Washington, D.C., and New York City, have the lowest levels of pupil performance. The pursuit of school “racial balance” – the dispersal of black students among whites and Asians (but not among Hispanics who have similar, though lesser educational difficulties) – will do nothing to change these facts. It will serve only to divert attention from possibly effective efforts and keep racial activists in business.
Graglia for Chief Justice. (If only he weren’t “too old” and “politically incorrect.”)
I’ve posted thrice about Brian Leiter (a.k.a. B. Leiter or the blighter): here, here, and here. Also weighing in are Steve Burton at Right Reason and Armed Liberal at Windsofchange.net. Burton’s take on Leiter is especially devastating.
I’ve come to the view that the blighter is merely a stupid, shrill version of Cass Sunstein. Given that, Leiter’s no longer worth my time. I’ll spend my ammo on bigger game. Bye-bye, Brian.
UPDATED BELOW
B. Leiter (blighter) commends a post by one P.Z. Myers, in which Myers says:
But if I…agree that there is a statistical difference in the distribution of the sexes in various occupations which is in some way driven by gender, I would say that it is 100% the product of society and culture, and that it is 100% the product of biological evolution.
[Todd Zywicki of The Volokh Conspiracy is] making the old, tired nature/nurture distinction, and it drives me nuts. It’s a false dichotomy that is perpetuated by an antiquated misconception about how development and biology works. Genes don’t work alone, they always interact with their environment, and the outcome of developmental processes is always contingent upon both genetic and non-genetic factors.
So much for the intellectual superiority of blighter and his ilk. Genes don’t work alone, but nature must precede nurture in any explanation of aptitude. Consider this, for example. I learned to love the game of baseball at an early age (nurture). My love of the game fostered in me a desire to become a major league baseball player (a leaning born of nurture). I could never become a major league baseball player because of my eyesight, which even when corrected is about 20-40 (nature).
In sum: Nature trumps nuture when it comes to having the requisite ability to excel in any occupation that requires a modicum of skill, whether it be playing major league baseball or doing physics.
Glibness and intellectual superiority are not the same thing, as blighter proves whenever he opines or approvingly cites a like-minded Leftist.
UPDATE: Todd Zywicki defends himself rather nicely in the third update to his original post; for example:
In response to PZ Myer’s assertion that evolutionary psychology is “poorly done hokum” and that there is “vigorous disagreement” about the entire field of evolutionary psychology I requested (quite reasonably, I thought) that Myers supply some specific examples of scientific disagreement over many of the core principles of evolutionary psychology, such as Hamilton’s theory of kin selection. He has responded to this request for specifics that would support his claim that the entire field “poorly done hokum”:
That semi-random list of principles is not the same as EP. It’s like saying that because Michael Behe understands and agrees that natural selection has occurred, Intelligent Design is therefore the same as accepted neo-Darwinian theory. Picking a few points of concordance while ignoring the points of divergence between two ideas to imply a unity of support that is not there is, well, dishonest.
Nah, I’m plainspoken. He’s lying. There is substantial disagreement in the biological community on evolutionary psychology, and to imply that this question has been settled in his favor is either gross ignorance on his part or simple fraud. Of course there is currently an ongoing battle over EP; check out the last link in my article.
I’m actually being kind by conceding that there is a legitimate debate on the subject. I know very few scientists who don’t think Pinker is full of shit.
Ah, so now I understand–no need to respond to my request for analysis, because, well, “Pinker is full of shit.” Why attack Pinker out of the blue when I never even mentioned him, rather than addressing the specifics I raised? Is it that Pinker is the only evolutionary psychologist with whom Myers is familiar? Then, falling back (again) on the good old reliable argument from authority, he also links to an interview with philosopher David J. Buller, a critic of evolutionary psychology, who raises doubts about some aspects of the evolutionary psychology research program. Apparently citing an interview with this particular philosopher where he critiques some aspects of the evolutionary psychology research program sufficies to demonstrate that the entire field is “hokum” and that the entire field is open to question (it is not clear whether Buller is one of the scientists, actually he’s a philosopher so he may not be included, who think that “Pinker is full of shit”–if so, that must be in his book because I couldn’t find that particular quote in the interview he links).
If anything, it seems like the argument Myers is making is much closer to the ID argument that he critiques, than the argument I was making. As I understand the ID argument, it picks up on small holes in the theory of evolution or questions around the edges of the theory, and then proceeds to infer that the entire theory is open to question. Similarly, I have enumerated a long list of core (not semi-random at all) evolutionary psychology ideas on which there seems to be a substantial degree of agreement. Indeed, from what I can tell, he does not disagree with my assessment that there is widespread agreement on these concepts, he simply dismisses this agreement as irrelevant under his particular definition of evolutionary psychology. His response, as I understand it, is that this scientific agreement on these many core principles of evolutionary psychology is irrelevant because there are some unsettled questions around the edges of the research program, and so that therefore the whole research program itself is questionable and that there is controversy about the entire field. This seems much more similar to the arguments that I have read by ID theorists critiquing Darwinian theory, rather than the arguments that I was making. For the record, I don’t know whether adherents to intelligent design theory also think that Pinker (or Darwin, for that matter) “is full of shit.”
And so on.
Blighter and his Leftist friends are so unsure of their grasp of truth — or so afraid of the truth — that they simply stoop to scurrilous prose. Dismissiveness is the last refuge of an ignoramus (one of blighter’s favorite terms for those who challenge his pointy-headed blatherings).
P.S. I’m purposely being scurrilous here and in my other posts about blighter because he endorses abusive and offensive blogging. If he says it’s all right, it must be — he knows all.
Jonathan Alter of Newsweek disgorges a few hundred self-serving words in “You Shield Us, We’ll Shield You.” Here’s the core of Alter’s argument for a federal shield law:
The Supreme Court refused [last week] to rule in the Valerie Plame case, leaving a federal judge free to jail innocent reporters. When Norman Pearlstine, editor in chief of Time Inc., agreed to turn over Time magazine reporter Matt Cooper’s sources to the prosecutor, the chilling message to any other anonymous sources thinking of telling their stories to Time Inc. publications was clear: don’t. Your identity cannot be protected. Reporters will now have to tell their confidential sources two things: (1) I’ll go to jail to protect you; and (2) I’ll never turn over my notes to my corporate bosses. That’s not going to be very comforting to whistle-blowers (see Time’s “Persons of the Year,” 2002) who put their jobs on the line when they talk to the press.
Innocent or not, Matt Cooper and the other jailed reporter (Judith Miller of The New York Times) have refused to give crucial testimony in a criminal case. What puts them above the law?
Alter studiedly ignores the fact that the two reporters were asked to reveal sources in the Plame case because Plame’s outing as a CIA agent, if done knowingly, was a crime. I certainly hope that the Supreme Court’s refusal to consider the reporters’ appeal in the Plame case will have a chilling effect on illegal disclosures.
Alter’s holier-than-thou defense of the press’s right to consort with criminals knows no logic:
[C]onsider that Judith Miller of The New York Times (who, unlike Cooper, is fully backed by her corporate boss) will likely go to jail soon over a story she never wrote. She simply talked to someone in the government, then did nothing.
Miller didn’t simply “talk to someone in the government.” She talked to someone who may have committed a crime by telling Miller something that neither Miller nor any other nor any other reporter had a right to know. The fact that Miller didn’t write a story based on the information she received is beside the point. Miller, and all other reporters in the case, should be compelled to cooperate in the pursuit of justice. But Alter doesn’t think so, because he’s a reporter. Well, he thinks of himself as one.
Alter’s scare-mongering aside, the Supreme Court’s refusal to hear Miller and Cooper’s appeal is unlikely to have a chilling effect on legal disclosures. For one thing, Congress has absolute power to investigate matters of its choosing and to subpoena relevant witnesses. For another thing, most whistle-blowing is born of an irrepresible desire to settle scores, which works just as much against the powers-that-be as in their favor. The Supreme Court’s action in the Plame case upholds the rule of law without harming the public’s so-called right to know.
`When I use a word,’ Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’
Lewis Carroll in Through the Looking Glass, Chapter VI, Humpty Dumpty*
Reminds me of B. Leiter (blighter), who uses his command of philosophical argot to call easy questions “hard” and hard questions “easy”:
Start with some examples of hard questions, the kinds of questions I largely avoid on the blog (though some of them are the subject of my scholarly work):
Does the now orthodox thesis of the token-identity of the mental and the physical (the supervenience of the mental on the physical) have the unintended consequence that the mental is epiphenomenal? (Relatedly: is there really an intelligible kind of metaphysical relationship between properties [i.e., supervenience] that is intermediate between property-dualism and type-identity?)
Is there any reason to think that putative moral facts will figure in the best causal explanation of any aspect of our experience?
What exactly is Nietzsche’s doctrine of the will to power, and what role is it playing in the argument of the Genealogy?
Do authoritative reasons in Raz’s sense really have to be exclusionary reasons, or will it suffice if they simply have more “weight” than other kinds of reasons?
What reasons, if any, does (or can) Quine give for his naturalism, and are they sound?
Is it an obstacle to descriptive jurisprudence that the concepts central to law are (as I have called them) hermeneutic concepts, i.e., concepts whose extension is supposed to be fixed by the role they play in how people understand themselves and their social world?
What is Foucault’s view of the cognitive and epistemic status of the claims of the human sciences?…
By contrast, here are some easy questions:
Was the U.S. justified in invading Iraq?
Are Bush’s economic policies in the interests of most people?
Is Darwin’s theory of evolution by natural selection a well-confirmed scientific theory?
Is there a social security “crisis”?
Leiter goes on, in his usual egotistical manner, to assume that he has a monopoly on the answers to the “easy” questions (presumably “no,” “no,” “yes,” and “no,” respectively), which entitles him to dismiss those who have different answers:
These questions, and many others, are easily addressed in the blogosphere, since there is no serious–or at least no honest or intelligent–dispute about the epistemic merits of the possible answers. Where I get into “trouble,” of course, is with those who can’t tell the difference between the two kinds of questions, the ones who think that the dialectical care, caution, and intellectual humility required for the genuinely “hard” questions ought to apply to the easy questions as well. These folks are a bit miffed when I dismiss their positions out of hand. But that is what their positions usually deserve.
Part of intellectual maturity is being able to tell the difference between questions where humility is required and questions which are not worth one’s time. The so-called “blogosphere,” like the public culture in general, is not a rich repository of intellectual maturity, needless to say. And, unsurprisingly, intellectual lightweights with trite opinions, and limited analytical skills, take offense when I make it all too clear what the answers to the easy questions are. Many of these folks are no doubt honest, well-intentioned, decent people, who have been led down unhappy paths by circumstances or indoctrination. It is an important question, far beyond my ken, what can be done to set them straight. But it is not the aim of this blog to do so.
Leiter’s “hard” questions are nothing more than the kind of intellectual pornography that stimulates professional academics and pseudo-intellectuals to engage in endless, meaningless bouts of mutual, mental masturbation.
Leiter’s first two “easy” questions are in fact hard questions with indeterminate, political answers and real consequences for real people (as opposed to academics). Leiter’s third “easy” question is in fact a hard scientific question which cannot be answered “yes” or “no” because it pertains to a falsifiable hypothesis. Leiter’s fourth “easy” question is easy only because of the way Leiter has framed it. The real question (what to do about Social Security) is as hard as his first two “easy” questions.
Leiter would object that I am not using “hard” and easy” as he intends them. But I am using “hard” and “easy” as they are commonly understood; Leiter is not. He has no monopoly on the terms of public discourse, just as he has no monopoly on the answers to truly hard questions, his delusions of intellectual superiority to the contrary.
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* Who must look like this:
Source: B. Leiter’s homepage.
The titles of two recent entries, “Nicholas Kristof Is an Idiot” and “Brian Leiter Is an Idiot,” might have you wondering if this blog has suddenly become one of those hate-filled, shout-at-everything rantfests that one encounters on the Left and Right fringes of the blogosphere. No, it’s just that two supremely anti-libertarian decisions by the U.S. Supreme Court (Raich and Kelo), coming back to back, are tantamount to a declaration of war on liberty. And as I said here,
“I’m mad as hell, and I’m not going to take it anymore.” Well, I won’t take it quietly.
For starters, I’m going to spend more time firing back at the enemies of liberty as they pop up on my radar screen. I will focus on American enemies of liberty — like Kristof and Leiter — because they are parasites who would destroy the host on which they feed: the very liberty that enables them to spew their half-baked, anti-libertarian ideologies, at great personal profit. As I said, they are idiots.
Nicholas D. Kristof, a Lefty columnist for The New York Times, today succumbs to budget-deficit hysteria. Here’s a sample:
[T]hree-fourths of our new debt is now being purchased by foreigners, with China the biggest buyer of all. That gives China leverage over us, and it undermines our national security.
Let’s see here: We have China’s money; the Chinese would like to get it back from us, with interest. Who has leverage over whom?
I wonder what Kristof would have to say about government debt if Clinton were still in the White House and the debt had been incurred to buy out America’s health-care system and give flying lessons to members of al Qaeda?
Kristof, like most debt-hysterics (or pseudo-hysterics) misunderstands the true significance of the central government’s debt. I summarized it here:
The debt really is a measure of the extent to which spending by the U.S. government has exceeded taxes collected by the U.S. government since 1789. In other words, the damage has already been done: first, by government spending, which on balance diverts resources from productive uses; second, by the inflationary effects of government spending, which deficits merely aggravate.
…and explained it more fully here:
Government spending, however it is financed, is a way of commandeering resources that otherwise would flow to private consumption and investment (i.e., capital formation). To the extent that government activities fail to pay their own way by yielding goods and services of equivalent value — and they don’t (a) — the resources used by government are simply wasted — thrown down a rat hole (b).
Government nevertheless goes through the charade of taxing and borrowing to finance its activities, instead of simply sending goon squads to impress those resources into government service. Thus the total amount of money in circulation remains more or less unaffected by government spending, while the total output of real goods and services (including capital assets) is reduced as government commandeers resources. The result, of course, is inflationary (c).
In particular, the injection of government bonds into financial markets, with the help of the Federal Reserve’s authority to create money, means that the total nominal value of financial assets is at least the same as it would have been in the absence of government borrowing, and probably higher (d). At the same time, government spending reduces the output of real assets, thus diluting the value of financial assets. Financial assets are fungible, so the holder of a government bond has the same claim on real assets as the holder of, say, a share of Berkshire Hathaway stock.
Think of it this way: Every time the government issues a new bond because it’s spending more money, your real share of stock in America’s economy becomes worth less, even if the nominal price of the stock rises. Depressing, isn’t it?
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a. An official estimate of the annual benefits flowing from federal regulations places the value of those benefits at less than $200 billion. But the annual cost of those regulations — including the hidden costs not included in the government estimate — is approaching or has exceeded $1 trillion, as discussed here, here, here, and here. But that’s just the tip of the iceberg that rammed into the American economy about 100 years ago, as I [have shown] in Part V [and the addendum to Part V] of “Practical Libertarianism for Americans.”b. I exclude most expenditures on defense and justice from that indictment.
c. That is, government spending causes prices to be higher than they otherwise would be because total spending remains about the same as it would have been, whereas real output is reduced. Whether or not those nominal prices rise (the usual meaning of inflation) depends on the rate at which government spending grows relative to the growth of output of real consumer goods, services, and assets.
d. The total nominal value of financial assets is approximately unaffected by government borrowing, if you accept the crowding-out theory. The total nominal value of financial assets rises with government borrowing if you don’t, if you don’t accept the crowding-out theory. I don’t.
Brian Leiter,* a lawprof at the University of Texas, writes:
Why is it even remotely relevant what [the] words [of the Constitution] meant when the Constitution was adopted? The right has been pushing this non-sequitur for a couple of decades now, but they still have no answers to the simplest questions about the legal or moral relevance of the “original meaning” or “original intent” of Constitutional provisions. Those who produced the “original” meanings have no claim of democratically sanctioned authority over us.
Hmmm… I recently came upon similar words, in Lysander Spooner’s 1870 essay, “The Constitution of No Authority.” Spooner’s anarchistic thesis is that the Constitution never was and never will be binding because it isn’t a voluntary contract entered into by those presumed to be bound by it. That is, by Spooner’s reckoning, the Constitution was simply imposed on us by Madison and his cronies.
What Leiter the Lefty and Spooner the Anarchist fail to grasp is that the binding nature of the Constitution’s original meaning is implicit in the fact that it can be amended. The Framers’ willingness to submit their work to emendations proves that the Constitution, as it was then understood, was meant to be binding in perpetuity, unless and until those who came later chose to amend it in order to change its meaning. Acceptance is implied consent.
Leiter presumably objects to the notion of implied consent (if it has crossed his mind) because the process of amending the Constitution relies on supermajorities. That’s “undemocratic,” don’t you know? I wonder how Leiter would feel if a mere majority of the Texas legislature were to strip him of his cushy professorship? That would be democratic, after all.
I’m sure that with his professorship at stake Leiter would prove himself a hypocrite about democracy, just as he has proved himself a hypocrite about the concept of original meaning, which he accepts when it suits him:
Suppose the legislature prohibits the killing of “fish”” within 100 miles of the coast, intending quite clearly (as the legislative history reveals) to protect whales, but not realizing that “fish” is a natural kind term that does not include whales within its extension. The new theory of reference tells us that the statute protects sea bass but not whales, yet surely a court that interpreted the statute as also protecting whales would not be making a mistake. Indeed, one might think the reverse is true: for a court not to protect whales would be to contravene the will of the legislature, and thus, indirectly, the will of the people.
Actually, it’s all about original meaning, isn’t it? But Leiter’s views about original meaning seem to depend very much on whose whale is being harpooned.
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* Our hero:
Howard Zinn, ranting from the Left, assembles a hodge-podge of non-sequiturs, false premises, and excluded middles in his attack on American exceptionalism (“The Power and the Glory,” Boston Review). Or is it an attack on American self-defense, religion, and G.W. Bush? It’s all of the above, premised on the notion that because America isn’t perfect it must be evil and resisted by the rest of the world. Same to you, Howard.
Reactions to an appearance by George Neumayr, executive editor of The American Spectator on PBS’s NewsHour With Jim Lehrer, in a segment entitled “Public Broadcasting Under Fire“:
Your whole organization is a sorry pile of manure in the first place but that crap that Neumayr was spreading on tonight’s “NewsHour” was an embarrassment even for a sorry bunch like you.
Christ on a Ritz, could that sorry bastard possibly be the best you could offer to state your warped and perverted view of PBS….
You have overstepped the bounds of free speech this time….
Dick Cheney’s use of F— has liberated me from restraining my vitriol in these circumstances, about the only thing that lying, war/death-profiteering canker’s ever done for the rest of us….
I’m not happy with PBS as I think it lets you people off too lightly when it should expose you as the elitist parasitic vermin you are. But I’m an adult and realize that PBS doesn’t belong to me….
Please tell [Mr. Neumayr] that he needs to have his chin tucked. It’s fat and hangs over his collar. He could also benefit from bigger lips. His oral cavity looks more like a hole than a mouth….
You sicken me….
You should discourage Mr. Neumayr from seeking the camera — he just comes across as the typical twitchy repressed gay Catholic weirdo. Basically, he’s a repulsive pile of pixels on our digital screens. The fact that the cartoon didn’t show the Klan lynching the queer mommies clearly has his goat — and judging by some of the confessions on talk shows recently, conservatives are likely to be jealous of their farm animals….
Just saw your smug little face on PBS — stick it in your [bleep]….
Doesn’t Mr. Neumayr realize the only good conservative is a dead conservative?…
The tolerant, loving Left has spoken.
I have defended judicial review, albeit reluctantly, on several occasions.* But I have never defended judicial review as a way to make law, which is the ground on which Erwin Chemerinsky stands in the current debate at the Legal Affairs Debate Club: Should We Get Rid of Judicial Review? For example, in one posting Chemerinsky responds to his opponent, Mark Tushnet, as follows:
I do have substantive value preferences. These include that the Supreme Court was right in ordering desegregation and striking down Jim Crow laws, in protecting reproductive privacy including abortion rights, in finding a right to privacy for consenting adults in their bedroom.
The catch is that the Supreme Court’s decisions ordering desegregation (Brown v. Board of Education), legalizing abortion (Roe v. Wade), and finding various zones of privacy (e.g., a right to buy contraceptives in Griswold v. Connecticut; a right to commit homosexual acts in Lawrence v. Texas) were based on extra-legal, sociological flim-flam and tortured readings of the Constitution. Why? Because the majority in each case wanted to make law, not apply the Constitution.
You may like the outcomes in Brown v. Board of Education, Roe v. Wade, Griswold v. Connecticut, and Lawrence v. Texas. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in “penumbras, formed by emanations” of the Constitution. It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt’s play about Sir Thomas More, A Man for All Seasons:
Roper: So now you’d give the Devil benefit of law.
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that.
More: Oh? And when the last law was down–and the Devil turned round on you–where would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
Chemerinsky’s defense of judicial review is opportunistic. He wants a Court that will make his kind of law, not a court that will apply the meaning of the Constitution to the law. We need judicial review to hold legislatures and executives in check, but it must be judicial review that is grounded in the meaning of the Constitution. As I argued here:
Something resembling [liberty] will come about only if a Republican president, aided by a strongly Republican Senate, is able to stock the courts with judges who are committed to the restraint of government power — at all levels of government. (Janice Rogers Brown is that kind of judge.)
Certainly not all decisions by all Republican appointees to the bench will satisfy all libertarians, many of whom seem to focus on narrowly tailored “rights,” such as abortion and gay marriage (both of which are in fact threats to liberty, as I argue here and here). But by siding with the Left on such issues, libertarians effectively abjure more basic rights — rights that broadly affect the ability of most Americans to pursue happiness — such as freedom of speech, freedom of association, and freedom of contract.
In the real world there are real choices. The real choice for libertarians is between what seems “best” for a few and what is actually “better” for the many. I choose the latter, without hesitation.
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* Links to my previous posts about judicial review:
When Must the Executive Enforce the Law?
More on the Debate about Judicial Supremacy
Another Look at Judicial SupremacyIs Nullification the Answer to Judicial Supremacy?
The Alternative to Nullification
REVISED 05/10/05 (9:18 AM)
Thanks to a pointer from Randy Barnett (The Volokh Conspiracy), I read Lysander Spooner’s 1870 essay, “The Constitution of No Authority.” Spooner’s anarchistic thesis is that the Constitution never was and never will be binding because it isn’t a voluntary contract entered into by those presumed to be bound by it. That is, by Spooner’s reckoning, the Constitution was simply imposed on us.
Spooner’s right: The Constitution was simply imposed on us by those who actually consented to it. But so what? That doesn’t necessarily make the imposition of the Constitution a bad thing. Consider this:
There’s nothing wrong with that outcome, unless you’re a murderer — or an anarchist. It strikes me as a good thing to impose a set of rules designed to protect life, liberty, and property from those who would deprive others of life, liberty, and property.
The Constitution is such a set of rules. It’s an instrument of self-defense. Even anarchists believe in self-defense.
It’s true that the Constitution isn’t always properly interpreted or enforced, but the alternative is no common set of rules — a state of anarchistic bliss in which Spooner and his ilk repose misplaced faith. As we have seen time and time again — especially in America’s cities — lawlessness spreads like a cancer when the state does not or cannot enforce the rule of law. The ranks of the “20 percent” swell and a barbarous minority holds sway over a peaceable majority. And there’s never an anarchist cop around when you need one.
Legal Affairs Debate Club this week hosted an exchange between Cass Sunstein and Randy Barnett (“Constitution in Exile?“), in which Sunstein exuded his usual slipperiness. I was taken especially by this bit of casuistry:
Let’s define judicial activism neutrally, as invalidation of government action.
Sunstein, in his zeal to discredit judges who try to enforce the Constitution, attempts to smear them with the term “judicial activism,” which was coined to describe judges who try to rewrite the Constitution. Moreover, Sunstein subtly tries to illegitimate the judiciary by separating it from “government,” which he — as a knee-jerk majoritarian — identifies with the legislature.
Politics and Prosperity 