HT: John Fea.
Our Unlovable Constitution
A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building blocks of global rights constitutionalism,” including “women’s rights,” “the right to social security, the right to health care, and the right to food.” The study suggests that the U.S., “rooted in a libertarian constitutional tradition that is inherently antithetical to the notion of positive rights,” is in danger of becoming a “legal backwater.”
Supreme Court Justice Ruth Bader Ginsburg seems to agree. According to a recent interview, Justice Ginsburg said “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommends the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights. (Via NY Times.) Law and Versteeg similarly find that “the average constitution has increasingly grown to resemble the International Covenant on Civil and Political Rights and the European Convention on Human Rights, as well as the African Charter on Human and Peoples’ Rights and the Charter of Civil Society for the Caribbean Community.”
The other “generic building blocks” Law and Versteeg conclude are missing from the U.S. Constitution include “Right to work,” “Right to unionize and/or strike,” “Physical needs rights,” “Right to education,” and “Limits on property rights” (e.g., “property may be limited by its social function”). Other popular “rights” include “Citizen duties,” “Right to a healthy environment,” “Other worker’s rights,” and “Artistic freedom.”
Two observations:
First, it is not clear that Americans ought to care whether other countries use the U.S. Constitution as a template. I can think of just two possible arguments why they should: (1) conformity is somehow good for its on sake; or (2) other countries’ constitutions are somehow substantively better than ours, and thus we should bring ours up to snuff. The study does not raise either argument, but it is hard assume the authors have no opinion on the matter and yet proceeded to spill 80 pages of ink painstakingly studying the issue. This is the way modern social science is done, I understand: treat all facts as created equal and avoid offering any overt “value judgments.” The authors’ silence on the values question is so deafening, though, that their refusal to simply lay them on the table is a perhaps unexpected distraction.
Second, neither the study nor Justice Ginsburg address the role the Court has played in modifying the constitution and preventing formal amendments. The Constitution used to be formally amended more frequently than it is today. It is counter-intuitive that it is now seldom amended even as people tend to understand less and less of its “original” meaning. As I expressed in a recent discussion with James Hanley, by now, the meaning of the Constitution must seem very distant to most Americans. Most discussions about the Constitution do not even quote its text. Originalism makes the Constitution distant because it means people need a history degree before they can understand it. Living constitutionalism makes it distant because it means people need a law degree to understand it.
If Americans are taught that they can’t understand what their Constitution says—or worse, that it has no fixed meaning at all—then they will never agitate for change. Constitutional participation will never be more than fighting over who gets to nominate and approve Supreme Court justices—the delegates to what Woodrow Wilson called our “constitutional convention in continuous session.” A recent poll (which I can’t seem to find now) reported the oft-repeated observation that of all American political institutions, the courts are by far the most trusted. But the poll went on to observe that most Americans believe that, when courts find rights in the Constitution, the rights are really in there and not just spun out of judicial philosophy. If Americans are astray in their constitutional understanding, they’ve been led there.
Despite this disconnect between modern Americans and their Constitution, we’ve little hope of amending it. Even if the breathtaking amount of political will could be mustered, it can be bested or undone by a crack legal team and a carefully selected litigation strategy, or by a willful executive armed with a good crisis to forge a “constitutional moment” that changes our constitutional presumptions without any formal writing at all.
Americans thus have little reason to feel they can understand the constitution, and less reason to feel they can change it.
It seems unfair, then, for Justice Ginsburg to criticize the Constitution. That document has proven fertile ground for her and her living constitutionalist colleagues. And its ossification owes in no small part to legal and judicial philosophies to which she subscribes.
Not that this is all the Court’s fault. The great sin of slavery brought us Civil War, and with it a remade Constitution. This, even before the progressive and liberal legal revolutions of the 20th century, made it almost impossible to know exactly what would be required by that new constitution, rededicated to the proposition that all men are created equal. But it is still overwhelmingly true that Americans swear fealty to the original principles of the Declaration and the Constitution—that the basic unit of our political system is the individual and not the state; that rights are something in us and not given to us; that government is best which governs least. Those American principles seem conspicuously absent from the constitutions in Law and Versteeg’s study. If that fact has any effect at all on Americans, it will likely only cause them to redouble their commitment.
If you’re in Orange County on Thursday…
…Come hear Ed Whelan of NRO’s Bench Memos speak on the judicial nomination and confirmation process. Hosted by the Orange County Federalist Society.
Details here.
California’s not-so-stringent legal ethics education
Every three years, members of the California State Bar have to complete a minimum of 25 hours of continuing legal education (“CLE”). These include four hours of specifically approved “legal ethics” training. CLE hours typically run from about $35 to $50 or so per hour, of $875 to $1,250 per reporting period. Not going to break anyone’s bank—these are lawyers, after all. But catching up on hours every third January tightens the budget a bit.
Finishing up my final hour this afternoon, I was struck by the quiz at the end. Check out the instructions at the top:
Passing score is 14% on a 20-question on a true/false exam! That’s 3 out of 20. I would have had to actually try to deviate that far from the 50% score I could have gotten by random guessing.
It made me wonder whether the CLE requirements are really designed to improve the quality of lawyering in the state, or whether, like the State Bar’s annual dues form, they’re just padding the bill.
Newt Fatigue
My patience with Newt is about up. I was willing to overlook the fact that he’s a ball of contradictions with a short temper when he was at least bringing sanity and big, fun ideas to the debates. And, being a red-blooded conservative American, I do love a good zing on the media. But when he attacked the free market just to take Mitt down a peg or two, it irked me. And since then, that mean old political operative turned lobbyist is all I see.
Sure, I’d rather Mitt had made his wealth as a creative inventor a la Steve Jobs than as a financier (though they are two sides of the same free market coin). Stacking finance against lobbying, however, I’d take even a Gordon Gekko over a Boss Tweed. Flitting between public office (which doesn’t pay a lot) and powerful lobbying firms (which do) is the very sort of power brokering, Washington insiderism everyone, myself included, is getting really fed up with.
In political Rochambeau, Jobs beats Gekko, but Gekko beats Tweed.
Count me a happy Mitt backer.
The Best Argument in Favor of Capital Punishment
Christopher Carr comments that “if we’re going to have capital punishment, we shouldn’t sugarcoat or whitewash it. We should have public gladiatorial competition or hangings with children in attendance. If we’re going to be barbarians, let’s at least be barbarians with balls. There’s a real deterrent right there.”
Indeed, it would be a deterrent. But not a deterrent from barbarism, as Christopher calls it. A deterrent from acting with moral clarity. I explained this in response to my cohort’s post, The Best Argument Against Capital Punishment, as follows:
Indeed, the taking of human life—even justifiably—takes a toll on a right-minded person. However, this truth resides in a layer of abstraction that includes other particulars of human political organization. Local police are called upon to use reasonable force, extending often to deadly force, in the discharge of their duties. In some instances, civilians must kill in their own self-defense or in the defense of others, and in so doing are justified by the law.
At a slightly higher level of abstraction, we can also say that jailers who lock up human beings continuously deprive these individuals of their liberty. Sheriffs who enforce on civil judgments must, in the course of their duties, deprive defendants of their property.
What is the common thread in all of these cases? A man who has defrauded another has no moral right to the property he holds as a result of his fraud. A sheriff thus does not deprive the fraudster of “property” in the [proper] understanding of the word. A man who is convicted of crimes of violence has forfeited his moral right to liberty, and thus the jailer deprives him of nothing by locking him in a cage.
Similarly, in a case where a human being has intentionally and imminently threatened the life of another, he is deemed by moral reason to have forfeited his moral right to be free from mortal threat to his own life. A man who kills in self-defense not only has committed no moral wrong: he has saved one innocent life at the expense of none. His courage profits the world an invaluable gift.
What difference is there, then, in the taking of a life forfeited through aggression in the moment of that aggression, and the taking of a life forfeited through aggression at a later time upon conviction through a due process of law? In moral reason, there is none. The decision to kill another in self-defense is no different than the decision to kill an individual convicted of murder and sentenced through due process to death. In each case, that individual has forfeited his life.
Still, your point is well taken: aggression actually perceived by the senses in the moment of passion better satisfies the moral faculty than does a court judgment many months or years later. There is a difference, however, between a moral faculty that is unpersuaded and one that is inoperative. Beings who have moral reason must also have the moral courage to see it carried out. A man who refuses to execute because he is unconvinced the life is truly already forfeit is courageous for the same reason as he who carries out the order who is convinced of the moral forfeiture. A man who does not believe in moral forfeiture, however, lacks moral reason to begin with.
I take it by Christopher’s comment that he is unpersuaded that life can ever be deemed forfeit by acts of mortal aggression against innocent human life. We will have to disagree on that point. However, to those who do not share that view, then obviously it would not profit the human race anything to muddy our moral faculties by infusing more violence into the death penalty process. Assuming due process has been given (this is no small assumption, granted, but let’s not fight the hypothetical), then what good is there in making the ultimate act more emotional, more gut-wrenching, more tormenting to the tender feelings of the community? Think back to the fraudster who has forfeited his right to a sum of money: should we collect damages by taking his family’s home instead of “sugarcoating” or “whitewashing” it by levying his bank account? Or the jailer who has to deprive prisoners of their liberty: should he dangle images of the prisoner’s family in front of him to cause the jailer to witness the anguish the prisoner feels? Or the victim who kills his assailant in self-defense: does he owe a moral obligation to defend himself in the most violent manner available to him so that he fully appreciates the gravity of what he’s done?
No, Americans are not “operationally liberal”
Responding to my demurrer to “the old saw that Americans are ideologically conservative but operationally liberal,” Yeggmen sticks up for the saw:
what researchers have (repeatedly) done is get a bunch of people together and have them fill out a long and comprehensive political questionnaire. They ask them to choose an ideological label, vague questions about principles (e.g., whether the government should do more or less), and ask them thousands of questions on specific policies in order to ascertain the ideological character of their policy preferences.
In the aggregate, Americans are always operationally liberal on average.
They prefer policies through which the government does and spends more to solve social
problems. And they are always symbolically conservative on average: they consistently prefer the
conservative label to the liberal one.
With respect, to explain the saw is not to defend it. My argument is not that Americans do act consistently with their conservative self-identification. My argument is that if Americans are “operationally liberal,” it’s because they’ve been painted into a corner. As I wrote on Yeggman’s blog,
one might say Americans are “operationally liberal” who support laws like RLUIPA, or national education reforms, etc. Point being, liberals have changed the way political structures can be influenced, and conservatives have to play by these rules. For example, I might oppose federal dollars being spent on local schools. But a liberal California court changed the way residents paid for their children’s education, resulting in the passage of Prop 13 by concerned homeowners who suddenly lost the value of their investments due to the ruling, which ultimately wound up starving many California schools. ESL and other programs required by law, as well as overhead for liberal teachers unions also use up limited local funds. Am I “operationally liberal” to approve of federal funds or other national reforms to keep the whole patchwork going at least until my daughter graduates? Again, I think it’s a lousy political dig to say so.
Americans might also be “operationally liberal” because programs like Social Security work like, and may even be branded as, investment arrangements when they are actually generic liberal tax-and-spend programs. Again, as I wrote in the comments on Yeggman’s blog,
many Americans believe that they’re entitled to social security not because young working people have a general moral obligation to pay for their retirement, but because they understand, incorrectly, that they’ve paid into something of a trust account. Thus, their support for social security is actually quite conservative (notwithstanding the big government aspect of it). I’d guess roughly the same psychological phenomenon is happening with medicare. It is disingenuous to call these folks “operationally liberal” when they have been made to pay into a system that looks like a retirement account and acts like a retirement account but is, by design of New Deal liberals, a liberal tax and spend program.
Public education is an especially impacted victim of 20th century progressive liberalism, suffering the confusion, expense, and indignity of having to incorporate the vagaries of First Amendment decisional law—and later other civil rights, some welcome but many bizarre—into the operations of local schools. When student performance nosedived in the latter half of the century, there was no use in troubleshooting—everything had been changed. The only thing left to do was follow one period of rash liberal experimentation with another. And then another. There’s no such thing as a “conservative” position on education anymore. It’s got a century of liberalism’s fingerprints all over it.
Beyond education, many liberal policies have become status quo. And people don’t tend to assign labels to the political furniture they’ve become accustomed to. Should we have a progressive tax code? Well geez, haven’t we always? Next. Should the government require that workers get a “living wage”? What should they get, a dying wage? Next. Should we spend a lot of money to protect the environment? Aren’t we already? And there’s always those folks mouthing off about how badly we’re still doing. Better not do any less, then, I guess. Next.
If this is what “operationally liberal” looks like, you can go right ahead and spare me.
And this is not to mention favoring policies that directly benefit those being polled, such as laws favoring unions or subsidies, etc. When President Bush sought to introduce personalized accounts into the Social Security system, a 2005 survey showed the most negative responses to the proposal was from respondents in their 50s—older baby boomers. This was explored by Andrea Louise Campbell in How Policies Make Citizens. Government policy was directly connected to this constituency’s well-being. It would be obtuse to call this “operational liberalism.”
(I’ll drop this in as a parenthetical, because I can’t figure out how to read the report Yeggman cited. But the “political questionnaire” referenced there provides only topics, not actual questions. E.g., “Spending on Welfare,” “Spending on the Poor,” “School Choice,” “Abortion,” etc. How are the researchers interpreting responses to any of these topics as “conservative” or “liberal”? I can think of both conservative and liberal reasons to favor and disfavor each of them until they’re made into English sentences.)
There’s all sorts of deck-stacking that goes into why people favor particular policies. And it’s easy for liberals to sell a single policy, because they sound nice taken individually. But when offered a choice between political philosophies, theories, worldviews, whatever you want to call them, Americans identify as conservative. That counts for something. It means that the informed liberal knows it’s going to take some doing to get these conservative Americans to endorse their policies. More than just huckstering. Americans are smarter than they’re sometimes given credit for.
If Americans won’t be sold on the liberal narrative, then the liberal’s play is scorched earth: convince them that all narratives are a stupid waste of time. Liberals, in fact, don’t even have a narrative. That’s offered as proof enough. Narratives are then subverted by modern social science that villainizes “value judgments” through which to interpret the endless data it collects, and divorces science from human ends and destroys our ability to learn from or build upon the past. Sound bite politics works well in this cause. If I get all my politics in op-eds and four-minute news segments, that’s just enough to hear the conclusions of some of the aforementioned liberal social science data miners. There’s no possibility I’ll learn the role liberalism played in creating the problem at issue, and thus why I should reject the solution it offers. Status quo, ho.
Just please stop calling it liberalism.
On the Third Rail: Race, Poverty, Culture
“Generational poverty” is often used or taken as code for “black.” Even by those who mean well.
However, rural poverty is just as persistent, and it of course is as caucasian as it is anything else and usually more so. I do find Thomas Sowell’s “Black Rednecks” thesis intriguing, that it’s lowbrow Scots-Irish culture that infects the poor of both races:
[Wiki, sorry]: “Sowell argues that the black ghetto culture, which is claimed to be “authentic black culture”, is historically neither authentic nor black in origin. Instead, Sowell argues that the black ghetto culture is in fact a relic of a highly dysfunctional white southern redneck culture which existed during the antebellum South. This culture came, in turn, from the “Cracker culture” of the North Britons and Scots-Irish who migrated from the generally lawless border regions of Britain.
Sowell gives a number of examples that he regards as supporting the lineage, e.g.,
an aversion to work, proneness to violence, neglect of education, sexual promiscuity, improvidence, drunkenness, lack of entrepreneurship,… and a style of religious oratory marked by strident rhetoric, unbridled emotions, and flamboyant imagery.”
I’ve done some poking around on my own, and as recently as 1950 or so, both marriage and employment rates for blacks and whites were approximately equal.
[See also Herbert G. Gutman’s seminal The Black Family in Slavery and Freedom, 1750-1925.]
Something happened since then. Indeed, whites have been similarly beset by an increase in these pathologies, albeit not as accentuated as in the urban black community.
Indeed, see Theodore Dalrymple’s Life at the Bottom: The Worldview That Makes the Underclass, of which John Derbyshire wrote
Americans may find it surprising that most of the people wallowing in this slough of ignorance, illiteracy, promiscuity, bastardy, intoxication, vice, folly, lawlessness, and hopelessness are white English people. Much of what is described here is the sort of thing Americans instinctively associate with this country’s own black underclass. There is some satisfaction, I suppose, though of a very melancholy kind, to be drawn from the revelation that sufficiently wrong-headed social policies, persisted in with sufficiently dogged refusal to face simple truths, will visit moral catastrophe on people of any race.
I find this essential to keep in mind while discussing this subject. Race may be a factor but only in degree, not kind. “Code” is unnecessary [and then the predictable implication of a racist agenda] in looking at the problem, if we’re to look at it at all.
Merger Mania in 2012!
Interesting emailia from me Dad:
1. Hale Business Systems, Mary Kay Cosmetics, Fuller Brush, and W. R. Grace Co…
Will merge and become: Hale, Mary, Fuller, Grace.
2. Polygram Records, Warner Bros., and Zesta Crackers join forces and become: Poly Warner Cracker.
3. 3M will merge with Goodyear and become: MMMGood.
4. Zippo Manufacturing, Audi Motors, Dofasco, and Dakota Mining will merge and become: ZipAudiDoDa.
5. FedEx is expected to join its competitor, UPS, and become: FedUP.
6. Fairchild Electronics and Honeywell Computers
will become: Fairwell Honeychild.
7. Grey Poupon and Docker Pants are expected
to become: Poupon Pants.
8. Knotts Berry Farm and the National Organization of Women will become: Knott NOW!
About Tebow Time
According to a recent poll
Hispanic fans also feel that a holy power is helping the Broncos quarterback as 81 percent of those polled believe God is behind Tebow, compared to 59.5 percent among blacks and 38 percent among whites.
It’s fun and PC-acceptable to mock all those fundie caucasoids for believing such things, but this one will pass without comment by the chattering classes.
The Tebow Time run ends Saturday against the Patriots, since God doesn’t like to be too obvious about things. And it’s not as like I think God actually cares who wins football games.
But do I believe He let Tebow win all those games just to give the fundie-haters and atheists fits? Hell, yeah. What, God can’t have some fun too?