Human life is not too controversial

imageThe rhetorical case for protecting the unborn has succeeded. The debate is over.  It would be, that is, had the Supreme Court not issued – in Justice Ruth Bader Ginsburg’s own words – a “difficult to justify,” “heavy-handed judicial intervention” in Roe v. Wade 40 years ago.  Today, nearly two-thirds of Americans support making abortion generally illegal after the first three months of pregnancy.  A staggering four-fifths support bans in the last three months.  So if the pro-choice movement is just a paper tiger subsisting on the likes of distasteful “war on women” memes, how is it still so powerful?

Never underestimate the media as an ally.  True, people cannot justify the unjustifiable killing of a distinct, self-directing human life. But in this multimedia age, intellectual arguments simply do not carry the day.  Only pictures can tell a story and inspire people to action.  Without pictures, dizzying sophistry about zygotes and blastocysts lull readers into false complacency, while veiled accusations of waging “wars” on science and women cow them into silence. 

Pictures change all that.  No one knows that better than the media. 

LifeNews reported the other day that The Chicago Tribune, USA Today, and the LA Times refused to run an advertisement showing a hand holding a 20- to 24-week-old baby, pictured above, created by Heroic Media.  The pro-life organization said they were told the ad was “too controversial.” 

Objectively speaking, there is nothing controversial about the picture in the ad.  It is a human fetus pictured during a stage of development an overwhelming majority of Americans believe ought to be protected by law.  The text of the ad asks for support to “stop abortions from being allowed after 20 weeks when a child feels pain” – again, something a vast majority already support. 

The only potentially objectionable content is, perhaps, the call to “Stop the War on Children.”  As a reason for not running the ad, however, this does not wash.  First, the Chicago Tribune, after refusing the initial ad, did accept an alternative ad, pictured below.  The alternative ad features the very same copy as the original, including the “War on Children” reference.  The only difference is the imagery. 


Moreover, the Tribune does not seem to have a problem with “war on” references.  The first four links that came up on a Google search for the phrase “war on women” at the Tribune were these: 

There were more Google results, as well as other examples of “war on” and “anti-women” references on the Tribune’s own site under “Related Articles” for the above linked pieces.  But there is no need to belabor the point.  If “war on” and “assault on” rhetoric is “controversial,” it is only disqualifyingly so when it comes to disfavored causes. 

But as I said, in the battle for minds, rhetoric has only won the abortion-rights camp between a fifth and a mere third of America.  In the battle for hearts, I’d wager their ranks are thinner still.  They are right to fear photos like these.  Their proliferation would lay waste to what remains of their cause.

Prop 8 stands?

Consider this:

1.  The Supreme Court today ruled in its opinion holding DOMA unconstitutional that the states are entitled to decide their own marriage laws.  Assume this is not a meaningless statement – a “bald, unreasoned disclaimer,” as Justice Scalia called it.  (This may be asking much of those who recall the majority opinion author’s prior work in Lawrence and Romer, rich with such disclaimers.)

2.  President Obama also acknowledged today that Americans’ views on marriage are based on “deeply held beliefs,” i.e., not animus.  Recall that the challenge to Prop 8, California’s traditional marriage law, which challenge was also decided today, concerned whether to uphold the trial court’s ruling that that law could only be explained by “animus,” i.e., not deeply held beliefs.

3.  The Supreme Court also held today there was no standing in the Prop 8 challenge because of the fact that California’s then-AG (Jerry Brown) and present Governor (id.) refused to defend it.  Lacking the requisite “case” or “controversy,” judicial power could not legitimately be exercised in that case.

In light of (1) the Court’s ruling on DOMA, (2) the president’s statement, and (3) the Court’s finding of no legitimate Article III authority to decide the Prop 8 challenge and thus no ruling on its merits – does Prop 8 stand? Or is President Obama wrong about deeply held beliefs and the Court wrong about states getting to decide their own marriage laws?

Logically, exactly one of those two questions must be answered in the affirmative.  The President and the Supreme Court can’t both be wrong, can they?

The NSA and Privacy: Why Conservatives Should Not Be Sanguine

imageDefending the NSA’s program that collects information about the American public’s phone calls and emails, President Obama offered this bit of doublespeak:

Well, in the end, and what I’ve said, and I continue to believe, is that we don’t have to sacrifice our freedom in order to achieve security. That’s a false choice. That doesn’t mean that there are not tradeoffs involved in any given program, in any given action that we take. So all of us make a decision that we go through a whole bunch of security at airports, which when we were growing up that wasn’t the case…. And so that’s a tradeoff we make, the same way we make a tradeoff about drunk driving. We say, “Occasionally there are going to be checkpoints. They may be intrusive.” To say there’s a tradeoff doesn’t mean somehow that we’ve abandoned freedom. I don’t think anybody says we’re no longer free because we have checkpoints at airports.

What’s the difference between a “sacrifice” and a “tradeoff”?  If I’m being charitable, I might point to the penultimate sentence and conclude the president means that we don’t need to “abandon freedom,” i.e., in its entirety, in order to have security.  But why should I be charitable if the president’s not?  After all, no one is offering that “false choice” of “abandoning freedom” to get security.  No, the “false choice” we’ve been talking about since at least 2001 is the degree to which we should sacrifice some of our privacy to achieve some additional measure of security.  A trade-off, you might say.

But forget what the right balance is between freedom and security.  The problem is not that we haven’t gotten the balance right (I’m basically sanguine on that point, or, perhaps more precisely, uninterested).  It’s that we misunderstand the stakes.  This is especially frustrating on the right, because usually this is the first (sometimes only) thing conservatives get right – i.e., banging on the importance of individual rights and limited government.  But on this issue, conservatives who are “sanguine” about the NSA’s “PRISM” program have abandoned their principles.  I’ll explain.

I’ve never like the idea of “trade-offs.”  In the example of free speech, not being able to “shout fire in a crowded theater” or hurl “fighting words,” etc. have never seemed to me a sacrifice of any freedom, properly understood.  This is not justifiable conduct in the first place, and thus never part of “the freedom of speech.”  What constitutes “justifiable conduct” is at the heart of both our freedoms and the government’s authority to act.  This is roughly codified in the “unreasonable search and seizure” clause – the government has authority to act only where reasonable, i.e., justified, to deprive an individual of his rights, or else in instances where the individual has no right in the first place (e.g., searching in a public place).

The government is theoretically able to engage in determinations of what searches/seizures are justified in individual instances:  We can gather evidence to determine whether there is justification (i.e., “probable cause”) to search John Doe’s house.  If John Doe engaged in wrongdoing, he has forfeited his privacy, thus making the search/seizure justified.  This is how the eternal tension between the individual and government plays out:  The government makes out cases against individuals, individuals push back, it is adjudicated through a tribunal of some sort, and because of the regularity and balance of powers and burdens in that delicate process, we can all be reasonably satisfied with the legitimacy of the outcome.

But in a massive, impersonal program like PRISM, all this goes out the window.  No individualized determinations.  No “probable cause.”  Not even “reasonable suspicion.”  A judge is thrown in the mix, apparently, but not in the regular sort of way we’ve come to expect in legitimate conflicts between man and state.  These doctrines and procedures were developed around a concept of individual and natural liberties vested in individual persons, in which the government’s burden was to show good cause for exercising power in the form of evidence against the individual to justify depriving him of the liberties, to which he accounts to no earthly authority.

PRISM, on the other hand, suggests a new and different arrangement between individual and government in which privacy is not a natural right but a positive right, a right to which man owes and accounts to society and government.  It is what the government decides you may have – and likewise, may take away. The government doesn’t have to appeal to “individual rights.”  It appeals only to the welfare of the collective.  It matters not whether any single individual deserves to keep his liberties intact.  If the government deems the welfare of the collective would be served by the deprivation of individual liberties, it shall be so.

If we want programs like this, we need to rethink the relationship between man and state that this country was founded upon, and which conservatives in particular have sought to protect and restore.

As I say, I’m sanguine about the program itself.  My blood’s not boiling and I’m not losing any sleep.  But after talking with a friend who is less sanguine, I realized that the principle at stake here is the same one that does get my blood boiling on other issues.  And what sort of citizen would I be if I did not object to an ill principle when it is presented?  As Edmund Burke said, and as I am fond of quoting:  “In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle.”

Conservatives should be consistent and oppose this program, whether or not we are actually worried about our “metadata,” because it is founded on an ill principle.

[Originally posted on the main page]

How do you interpret a constitution?

imageThe biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has to do with how we can know what 18th century Americans were thinking.  And how can anyone know what Americans more than two and a quarter centuries ago thought “due process” was, or what a “reasonable search and seizure” was?  We can hardly get consensus on such questions in our own time, despite the best efforts of armies of pollsters.  And even if we did know what 18th century Americans were thinking, how would that tell us how to decide questions faced by 21st century Americans?  So much has changed since then, so does it even matter what the Constitution originally meant?

Those are tough questions, but they’re not what is confusing about Originalism.  What’s confusing is that most people don’t understand whose understanding we care about in fixing the meaning of the Constitution.  The people responsible for drafting the document?  The delegates who actually ratified it?  Or the American people in whose name they drafted and ratified?

I submit that confusion about this preliminary who question makes one more likely to conclude that the other problems—determining and applying the original meaning—are just too difficult and thus the Originalist project not worthwhile.  On the other hand, once we get the right answer to the who question, I submit that the importance of the Originalist project becomes clearer.  And while determining and applying original meaning is still difficult, it is central to the American experiment in self-government that we try.

The who question is easy to get wrong because we so often defer to founders like James Madison who drafted the Constitution.  It is natural to assume that the words meant what its writers intended.  But thinking a little deeper, it should be clear this is incorrect.  It was widely understood—including by Madison, by the way—that the American people were sovereign.  Though Madison and the other framers wordsmithed the Constitution, they did so on the sovereign people’s behalf.  This is also what happens when lawyers draft a contract on behalf of their clients.  The lawyer’s meaning doesn’t count—only the parties.  Why?  Because the document concerns the rights and obligations of the parties, not the lawyers.  The lawyers are just their scribes.

In the same way, it is the people’s understanding that controls the meaning of the Constitution, because the Constitution is authorized by the people’s authority and concerns the people’s rights.  The framers were just their scribes.

This, by the way, is the brand of Originalism known as original public meaning.  When I refer to Originalism, I mean specifically original public meaning, which I take to be the only correct variant.

Before asking your further indulgence in this exercise, let me briefly put Originalism in context with that other famous approach to constitutional law, Living Constitutionalism.  Originalism presumes a fixed meaning in the Constitution.  Living Constitutionalism, on the other hand, rejects the presumption that a fixed meaning exists or controls, and instead holds that its words take on new and different meanings to adapt to modern contexts and facilitate human progress.

In this contest, Originalism’s distinct advantage is this:  If the Constitution fails to reflect the meaning of the American people in whose name it was written, negotiated, and ratified, then the Constitution is no longer an act of self-government.  You would not expect to be bound by such a constitution any more than you would expect to be bound by a clever lawyer’s contractual interpretation that you never reasonably could have imagined.  In other words, self-government absolutely depends on presuming a fixed meaning in the Constitution in order to give effect to the people’s will.

Let’s assume for now that you’re with me on Originalism.  We still have to grapple with the “how do we know their meaning” and “how do we apply it” questions.  But since at this point you’ve signed on to my theory, you can’t simply call these questions too difficult and Originalism doomed.  You’d be admitting the defeat of self-government.  You’re not admitting that, are you?

Besides, it doesn’t make any sense to conclude that difficulty in determining or applying the Constitution’s original public meaning suggests the exercise is somehow unimportant.  When has difficulty ever undermined importance?  Quite the opposite.  Ending slavery was both extremely difficult and extremely important.  So was D-Day.  So were Civil Rights.  Nothing was ever drained of its importance by difficulty.

So the Constitution’s original public meaning does not become unimportant just because it is difficult to ascertain its precise meaning or apply it to contemporary problems.  But if we can’t determine or apply its meaning, then isn’t the self-government project doomed just as if we rejected Originalism outright?

To this, I respond that determining and applying Originalism does not require that we know with precision or certainty how 18th century Americans would have voted on specific legislation.   We don’t even know today how a vote on anything is going to come out until it actually happens.  But the 18th century was not a dark age, and there is much evidence of the mood of Americans as to a great number of important subjects that informed their understanding of the Constitution.

Take the National Day of Prayer, about which Mr. Likko recently wrote.  True, we cannot tell how a vote on such an act would have come out in 1791 when the original public meaning of “establishment of religion” presumably was never fresher in mind.  But we do have an understanding of how Americans generally understood the role of religion and government.  For example, the Constitution of Massachusetts in 1780 provided that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of GOD, and of public instructions in piety, religion and morality.”  The Northwest Ordinance of 1789 provided that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”  And if the views of John Adams can be said to harmonize with the public’s, “if you want the good order that comes from instruction in religion, particularly the Jewish and Christian religion, then you have to pay for it.”  We should at least be skeptical, then, at suggestions that the Constitution requires that we approach or resolve a question today in a manner that probably would have seemed very odd then.

In other words, approaching a question like a national day or prayer with considerations about whether it falls within Congress’s enumerated powers, whether it violates its role vis-à-vis the states, freedom of conscience, etc., seems to be in line with concerns felt by 18th century Americans.  Approaching it with considerations about categorically keeping anything smacking of religion out of government, on the other hand, is probably pouring new wine into old skins.

But again, certainty and precision are not the touchstone.  In our attempt to glean the original public meaning of a constitution, we are looking at how the people understood the structure of government and the role of man, society, and government. Beyond that, Originalism does not require or suggest that we precisely determine or apply 18th century Americans’ reaction to specific policy proposals.

Instead, what Originalism requires is that we at least pay homage to why the Constitution mattered, what it set out to do—indeed, why it exists at all.  I see much room for discussion in how we answer such questions.  But I find misguided Originalism’s detractors who object that those things are unimportant, that we have better things to do than worry about what the people intended by ratifying the Constitution; better things such as finding new meanings for those words.  Justice Sutherland once wrote that “to say … that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.”

The good justice was right. The people are no longer sovereign if we cease to interpret their laws.   To reject the original public meaning is to remove the people from the seat of sovereign power and install Webster in their place.

[Cross-posted at the main page]

[Updated to correct an error pointed out by Mr. Corneille.]

“You don’t ‘seize’ the center, you create the center”

imageWhen I learned it, I thought the motion for this month’s Intelligence Squared U.S. debate – “The GOP Must Seize the Center or Die” – was simply dreadful.  How could the opposing case possibly be made without fighting a losing battle with the proposition itself?  Of course the GOP needs to win more votes from the center; of course they’ve been successfully characterized as out-of-touch with centrists.  And indeed, the pre-debate poll showed a staggering 65% in favor of the motion and only 14% opposed.  This lousy motion seemed certain to succeed.

Yet Laura Ingraham and Ralph Reed, to their great credit, defeated David Brooks and Mickey Reynolds by successfully convincing the audience,* as Ingraham put it, that “You don’t seize the center; you create the center.”  And not only that, but that the GOP could successfully create a new center instead of settling for the one we have.

Both Ingraham’s and Reed’s performances were excellent, and Brooks and Edwards performed ably, but Ingraham’s closing deserves special mention:

I want to start by saying — you’re not going to believe I’m saying this. But I’m going to say you should reject this proposition that the Republican Party should seize the center or die because I have a lot of faith and respect in the decision-making that Barack Obama made when he could have gone that way. He could have, himself, seized the center. He could have seized it in 1985 when it looked like liberalism was on the run.  He could have seized in 1994, when this Newt Gingrich guy just took the country by storm, love him or hate him, but changed the face of politics. He could have given up hope in 2001 and 2002 when the whole country was rallying toward this war in Iraq, and he decided, "You know something? It’s — in my view, it’s the wrong thing to do. Because the establishment and everyone around him was probably telling him, "The center has moved. You’ve got to go that way."

He didn’t go that way. He had a certain set of principles. I disagree with him deeply, but he had a certain sense of himself and sense of principles that he decided to follow, and he followed in a new way by reaching out to all those disaffected Democrats who were kind of tired of the old way and Republicans who were kind of sick of where the Republicans were falling down. And, lo and behold, Barack Obama, by not seizing the center , unseated the establishment candidate of, of course, Hillary Clinton, decided, "Guess what? Liberalism is back. I never let it go. I never moved to the center, and I’m going to bring along constituency after constituency in looking at the world and the country in a new way." He found his center. Republicans, guess what? They know where they — what they believe and how they believe it.

Seizing the new center is political death. Please reject the proposition.

I strongly agree with Ingraham.  The premature reports of average Americans’ leftward turn are greatly exaggerated.  Polls show Americans still prefer state and local government to federal governmentMost want smaller governmentA vast majority favor making second and third term abortions illegal (64% and 80% respectively).  (Did you know that?  I didn’t.  Even the cited Gallup poll buries that underreported fact near the bottom of the page, underneath nonsense questions like whether people identify as “pro-choice” or “pro-life,” or whether Roe v. Wade should be overturned (ignoring that it’s already been largely overturned by Planned Parenthood v. Casey).)  The claim that most Americans are conservative even passes dejected fact-checker muster: Kevin Drum glumly exonerated Marco Rubio when he made the claim:  At least a plurality of Americans self-identify as conservative, and a Politico poll last year reported an overwhelming 61% of likely voters identified as conservative.

Ingraham is right: It would be folly to rush to adopt the views of such a “mushy middle” held together in large part by a personally popular president now in his second term. The problem with talking about “the center” is that it is a constantly shifting thing.  That a generally conservative nation has gotten on board with a big-federal-government lefty suggests that there’s lots of room for the GOP to remake the center – should the GOP get its messaging act together, that is. Best that the GOP not cash out during this string of bad hands.  Keep a seat at the table and wait for a new dealer – it likely won’t be another New Dealer, after all.

*Per the debate rules, the team that wins the most number of converts to its position by the end of the debate wins, no matter whether its side of the motion wins a majority of votes.

Irregular Constitutional Order

I’ve seldom agreed with Hugh Hewitt so strongly—and readers know I agree with him a lot—as I do on repealing the medical device tax through regular constitutional order and not the usual rendering of pig lips and cow parts.  Hewitt has a post today on the issue at his blogHere’s a key exchange from Hewitt’s interview yesterday with Rep. Kevin Brady, chairman of the Ways and Means health subcommittee, who agrees with Ways and Means chairman Dave Camp on refusing to pass a clean repeal bill through regular order:

HH: He’s [Camp] got more than enough votes to pass a clean repeal bill of the medical device tax. When’s it coming?

KB: Well, hopefully soon. There’s two, you talked with Erik, who’s doing an amazing job. And there’s strong bipartisan support. And the Senate vote was hugely, hugely helpful. You know, now we just need to get it to the President’s desk. And the way you do that, one of two ways. You do it through fundamental tax reform, which we hope is sooner rather than later, or the simpler, faster way would be to have the head of the Senate Democrats, Harry Reid, simply agree with Chairman Dave Camp that this needs to move, and can do so without the shenanigans, because my fear is we know if we send a tax bill to the Senate, what they’ll do with it, that that then kills the medical device tax, which is what we want to repeal. So what we really want to do is an agreement, a legislative agreement, to move the bill separately. That’s how I think we do it sooner.

HH: Now Mr. Chairman, with all due respect, all I can do is speak for me and the people listening to this show. Regular order is what we were expecting at the beginning of this session, which to me means that you guys pass good bills, and you send them to the Senate, and then you let the Senate do with them what they ought to do, and if they pass something different, you go to conference and you come to it. I do not like us waiting. In fact, I’ve got, I’m getting very exercised over the fact that we’re waiting to do a secret deal with Harry Reid.

KB: No, Hugh, it’s not a secret deal. It’s simply a recognition that we are not going to send over a tax bill that gets hijacked for a lot of politics, and at the end of the day doesn’t repeal the device tax, which is what our goal is. And so all this is, is a recognition that this issue, because of its impact on jobs and innovation, it’s important enough not to be played political games with.

. . . .

HH: I know you do, but, and God bless you if you can get it out of committee and get it over to the Senate. But if you can’t stop medical device tax from being hijacked, you can’t stop comprehensive tax reform from being hijacked. Mitch McConnell has said send me a clean bill. If you don’t, that means you don’t trust the Republicans to be able to run their own side in the Senate. And it’s a secret deal. Mr. Chairman, there’s no other way. What you’re outlining is a secret negotiation as opposed to regular order.

. . . .

KB: Well, and I will tell you what, I don’t see it, I just don’t see it that way. I wish things up here worked like they did in the textbook, but they don’t. And to me, it seems like having leaders in a bipartisan way, with bipartisan support saying this is so important, this is so important, and there is such agreement, that we will move it promptly and cleanly? It seems to me that’s how you solve this problem and help save those jobs, because again, too often good intentions and good ideas get hijacked for the opposite, so…

Look, if things aren’t working right, stop right there.  You’ve put your finger on the problem, now fix it.  If you truly believe that necessary and proper laws cannot be passed in the manner the constitution prescribes, then repealing medical devices taxes is just rearranging deck chairs.  Hewitt hits back hard with this: 

HH: But what makes me uncomfortable is I’m just done. I’m done with the NRCC. I’m done raising a dime for any of you folks, and I’m finally going to throw in with the Campaign For Primary Accountability and hope that they run people against you, because honestly, I did not work this hard for 13 years to send Republicans to do secret deals with lame duck Ways And Means chairmen with Max Baucus. I worked hard to send Republicans to Congress to pass tax repeal, send it over, and let us put pressure on the Senate, because it is everything I hate about the Beltway.

This is my feeling as well.  I care about good policy, but I care more—and I think conservatives in general care more—about the rule of law and enacting policy through regular constitutional order. 

I don’t know if it is fair to accuse, so let me ask the question instead:  Is this sort of thing—the deviation from regular constitutional order to achieve a particular policy—more or less likely to occur among establishment Republicans than among Tea Party Republicans?  My feeling is that, because the Tea Party is partly a populist movement by definition, and because they spend such great effort paying homage to the Constitution, they are more likely to adhere to its prescribed procedures even when they make it less likely to promulgate policies they like. 

Am I wrong?  Can someone make the case for David Camp and Kevin Brady? 

The judge as moral philosopher

Reviewing Supreme Court Justice Antonin Scalia and Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts in the Claremont Review of Books, David Forte exposes Justice Scalia’s famous legal positivism as moral philosophy by another name.  “They call false,” Forte writes of Scalia and Garner, “the ‘notion that the quest in statutory interpretation is to do justice,’” and they, like Alexander Hamilton, prefer judges to be “‘bound down by strict rules and precedents.”  But judging, Forte pushes back, is an inescapably moral craft. 

Here’s Forte making his case:

But the maxim “no man should profit from his own wrong,” [the application of which Scalia and Garner dispute in the absence of a statute to that effect] which is a corollary to “no man should be a judge in his own case,” is an element of the rule of law itself, which can, in reason, suffer no absurdity or self-contradiction.  It is contradictory for a judge who personifies legal neutrality to decide a case in which his interests are at stake.  It is an absurdity for a regime of law that seeks to deter murder to embed an incentive to murder in its law [referring to the example of a orphan who petitions for his inheritance after murdering his parents].

These maxims are not moral rules drawn from some extrinsic standard and emplaced into the law by the judge’s whim; they are implicit in the nature of what is law, the determination of which is, as Marshall insisted, the essence of the judicial enterprise. If the command of the positively enacted law defines all there is to law, then the maxim (also from Lord Coke) that “the law compels no man to impossible things” would also have no place.  The irony of Scalia and Garner’s position is that it disputes the historical provenance of judicial review itself, namely Coke’s opinion in Bonham’s Case (1610) in which a parliamentary enactment was struck down as offending the maxim that no man can be a judge in his own case. 

Writing in his Dissertation on First Principles of Government, Thomas Paine observed: “Every art and science has some point or alphabet at which the study of that art or science begins and by the assistance of which the progress is facilitated.”  This is true of the enterprise of judging. 

Incidentally, I don’t think Justice Scalia disagrees with the basic nub of natural law arguments.  I don’t think he writes off Lord Coke as a shiftless foreshadowing of living constitutionalism.  Instead, Justice Scalia points out that we are no longer a new nation barren of laws.  The United States has matured since Chief Justice Marshall’s time.  Our land is now planted thick with laws, canons, maxims, and precedents.  It is thus both needless and dangerous for judges to presume we need yet another class of lawmakers.  It’s not an easy argument to dismiss. 

Gosnell and our inadequate public discourse on abortion

Tim Carney wrote yesterday that when Obama was a state senator, he “repeatedly voted against legislation requiring hospitals to care for babies born during abortions” because “[s]uch laws might somehow be used in the future to infringe on abortion’s legality.”  Carney argues that “Gosnell’s method for aborting babies wasn’t substantially different from a procedure Obama enthusiastically defends.” 

Today, the White House has no comment on Gosnell, noting that it concerns on an ongoing legal matter.  A totally valid response—is what I would have said if Obama didn’t have such a track record of commenting on ongoing legal matters when he felt it was politically advantageous to do so.  White House press secretary Jay Carney also had no comment on whether, similar to Newtown, babies who are being snuffed out in Gosnellian clinics deserve a vote on some new form of preventive legislation.  No such legislation has been proposed, Carney responded.  And besides, Carney went on, “the President’s views on choice are quite clear.” 

I’m surprised no one in the comments to my last post drew the connection to Alisa LaPolt Snow, the Planned Parenthood rep who suggested to a Florida legislator that babies born alive do not need further intervention from the state.  Here’s a remarkably on-point exchange:

One of the lawmakers asked her what Planned Parenthood’s position would be if a baby is born as a result of a botched abortion.

"We believe that any decision that’s made should be left up to the woman, her family and the physician," she said.

Whoops. Had the media been covering Gosnell’s trial, Ms. LaPolt Snow probably could have qualified her response a bit better.  And then there was this: 

When another lawmaker asks her specifically what Planned Parenthood does when such a scenario happens at its clinics, she said simply, "I do not have that information."

Another lawmaker made the point that the baby born alive would become a patient as well, not just the mother.

"That’s a very good question," Snow said. "I really don’t know how to answer that."

Watching the exchange before the Gosnell story broke, I chalked that up to a failure of imagination.  A dismal failure, to be sure, but if there aren’t any reported incidents of abortion doctors murdering and mutilating babies born alive, that’s about the end of the discussion.  But if there are such incidents, well, Ms. LaPolt Snow, we have some more questions for you. 

Ms. LaPolt Snow’s responses severely undercut the suggestion that we’ve already closed the loop on the relevant moral and policy questions. As her comments indicate, while we might expect better sterilization procedures and overall compliance with health codes in abortion clinics, the basic evil of what happened in Gosnell’s clinic is not terribly surprising given the principles implicated in abortion policy when that policy is not subjected to the rigors of serious and sustained public scrutiny, when those discussions are conducted with kid-gloves, and when they are just left to judges to decide as if these questions could be answered by lawyers alone. I take the Gosnell case as an example of the failure to trace a principle to its possible consequences. "In other countries,” Edmund Burke once wrote, “the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle."

Somewhere between then and now, we have thrown in with the mercurial cast.  We vote not when we have judged the badness of a principle and anticipated an evil.  In the case of gun control, we are specifically asked not to wait and judge, but to judge now, while we’re still overcome with grief about it—because we’re still overcome with grief about it. 

Abortion policy, of course, developed quite differently than gun control policy.  But it similarly developed without enough of an attempt to anticipate its evils.  I suspect the Gosnell case suggests a wrong principle lurking in our abortion policy.  While most of mainstream discussion on the topic is polite and civil, it’s nonetheless failing to expose that wrong principle.  Our discourse is not working.  How do we fix it?

New New Deal, same old Turkey Farm

In the latest Claremont Review of Books released this week, William Voegeli reviews Time magazine reporter Michael Grunwald’s The New New Deal: The Hidden Story of Change in the Obama Era.  Voegeli’s review is worth reading as usual, but I am excerpting this passage quoting Grunwald’s account of the sclerotic legacy of New Deal bureaucracy for its value as an admission against interest:

One of his book’s heroes is Claire Broido Johnson, an investment banker hired by Energy Secretary Steven Chu to run the department’s Office of Weatherization and Intergovernmental Programs. The Recovery Act allocated $5 billion to a three-year program to weatherize 600,000 low-income families’ homes through such prosaic enhancements as better windows, insulation, furnaces, and air conditioners. The effort was snake-bit from the start. Johnson took over the weatherization office-known informally as the “Turkey Farm” for the number of subpar civil servants sent there over the years when no other agency would take them—at a time when it had finished the program’s first year of operation by weatherizing not 200,000 but 30,252 homes. Johnson came into the job “like a hurricane hitting the building,” setting goals for every agency receiving money from the program, holding weekly calls to monitor progress, and creating a call center where staffers helped local officials navigate the elaborate procedures for getting and spending stimulus dollars.

It worked. “The program ultimately surpassed its goal of 600,000 homes three months early,” Grunwald reports. The success story convinced Mark Schmitt, former editor of the American Prospect, that with “one of the two best books ever written about government,” Grunwald has shown how the Obama Administration made “government more responsive, imaginative, tough on failure but supportive of promising ideas.”

But even one of Grunwald’s most inspiring stories has an equivocal moral. Predictably, Johnson “was not hailed at the Turkey Farm.”

Early on, when she asked all of the division’s staffers what they were accountable for, two responded: “You can’t make me accountable for anything.” One employee buried his nose in a newspaper whenever she approached. When she chastised another lifer for napping on the job, he filed a union grievance.

Increasingly frustrated, Johnson launched a secret “Operation Cupcake” to try to fire the worst laggards, but she never stood a chance against the cupcakes. They knew that political appointees come and go, but civil servants are forever. They call themselves “WeBe’s,” as in “We be here, you be gone.”

Eventually, those enemies got their boss in trouble with Energy’s inspector general when they reported that she circumvented cumbersome hiring procedures preventing the appointment of an urgently needed deputy. The investigation “ended Johnson’s career at the department,” and left her vowing never to work for the federal government again.

So, yes, 600,000 homes got weatherized in three years after it looked like it might take 20. But the official who made it happen be gone and is never coming back. Meanwhile, the turkeys who were making it not happen be there and are never going away. Johnson also left behind and intact the maze of regulations so conducive to getting nothing done, slowly and expensively, and so lethal to responsive, imaginative, and efficacious government. The extent to which renewed confidence in the activist state is justified by the attainments of prodigious high-achievers like Johnson, who overcome government dysfunction before being overcome by it, is highly debatable.

Can we agree that THIS is wrong?

gosnell powersThis seems like a good way to ease back into blogging after a long absence.  Planned Parenthood of Delaware faces “allegations of unsafe and unsanitary conditions” as witnesses report a failure to wear gloves, use of unsterilized instruments, and unclean surfaces.  This April 9 story ran on ABC’s local Action News program in Philadelphia.  What you probably haven’t seen on your local news stations, however, are the stories of “Infant beheadings. Severed baby feet in jars. A child screaming after it was delivered alive during an abortion procedure.”  In her USA Today piece today entitled “We’ve forgotten what belongs on Page One,” Kirsten Powers explains that “Since the murder trial of Pennsylvania abortion doctor Kermit Gosnell began March 18, there has been precious little coverage of the case that should be on every news show and front page.”

If ungloved hands and unsterilized instruments count as news, then certainly so should these macabre accounts:

NBC-10 Philadelphia reported that, Stephen Massof, a former Gosnell worker, "described how he snipped the spinal cords of babies, calling it, ‘literally a beheading. It is separating the brain from the body." One former worker, Adrienne Moton, testified that Gosnell taught her his "snipping" technique to use on infants born alive.

Massof, who, like other witnesses, has himself pleaded guilty to serious crimes, testified "It would rain fetuses. Fetuses and blood all over the place." Here is the headline the Associated Press put on a story about his testimony that he saw 100 babies born and then snipped: "Staffer describes chaos at PA abortion clinic."

"Chaos" isn’t really the story here. Butchering babies that were already born and were older than the state’s 24-week limit for abortions is the story. There is a reason the late Democratic senator Daniel Patrick Moynihan called this procedure infanticide.

Planned Parenthood recently claimed that the possibility of infants surviving late-term abortions was "highly unusual." The Gosnell case suggests otherwise.

There’s much worse compiled at HotAir.  And yet, Powers reports, “none of the news shows on the three major national television networks has mentioned the Gosnell trial in the last three months.”  Even during the original trial, The Washington Post did not publish original reporting, and The New York Times ran only one original story on the trial’s first day, says Powers.  That story appeared on page A-17.

The reason for the silence seems obvious:  it renders indefensible an issue that, for ideologues, must be defended.  I ask only this:  It is indefensible, isn’t it?  “On this,” Charles Krauthammer said today,

“I would think there would be unanimity in the country, and the reason that there is resistance, against either outlawing or heavily regulating it is because the pro-choice people imagine that any regulation, at any level, at any kind, is the beginning of the end of abortion rights. I think there is room for a national consensus on this.”