Ray Bradbury said, ""

Second rant against Miers *updated and refined*

Some conservatives who support Harriet Miers' nomination argue that the conservative opposition to her is motivated by a hypocritical wish to confirm a nominee based on desired results, and thus is engaging in the same legislating-from-the-bench behavior as Democrats.

For example, William Teach of The Pirate's Cove said,

This was a chance to make the Court what it should be: a neutral branch of the government that rules by the Constitution, rather then by their political affiliation and/or feelings. Rule of law.

Stating the general case, Beth of My Vast Right Wing Conspiracy said,

I suspect many of pining for an activist (results-oriented) nominee, despite proclamations to the contrary. Judicial activism isn’t confined solely to the left, y’know…there are just more of them. Despite the error of their ways, to their credit, at least they also don’t pretend to be “strict constructionists.

Both are partially right. Justices should not be confirmed on the expectation that they will expand the powers of government beyond the limits of the Constitution.

This expectation is inherent in the legal philosophy of the Left. In order to carry out any of their welfare or environmentalist schemes, the limits the Constitution imposes on the government must be neglected and purposely distorted to grant government new powers. Where this cannot be done through the amendment process and within representative legislature, it is done through the unelected judiciary.

The independent judiciary, given the function of defending the long-run self-interests and property rights of each citizen against encroachment by private coercion and the false lure of immediate political privilege, becomes the wielder of that same disregard of long-run interests and rights. Once divorced from the direct elective process to further shield the judiciary from the short-run privilege-seeking promises inherent in elections, the judiciary itself joins the legislature in promising immediate gains to some at the expense of future harm to all. The judiciary turns from applying isonomic law under which the rights of all before the court receive equal consideration and none can determine beforehand who will be specifically harmed or benefited by legislation;  to applying capricious law which targets some for gain and some for harm, and depends not on the equal consideration of rights but on the whim of the court. It is precisely this fluid law, divorced from rights and the long-term interests of all, that is essential to the liberal platform.

A liberal, by definition, must seek to nominate justices to the Supreme Court who will force the Constitution into yielding government new powers or retaining those already secured through past efforts. Nothing is gained for a liberal by nominating a justice to the Court who will roll government back toward its constitutional functions, who will consider long-run interests rather than immediate privileges. This judicial activism has for decades been a way for liberals to expand the powers of government without recourse to representative democracy and the check to universal plunder it represents.

Obviously, the Right is not immune to such expansion of government for the sake of immediate gain to some at the expense of harm to all. Many conservatives have embraced along with the Left, albeit for their own reasons, the formation of the FCC and Federal Reserve, anti-trust legislation, price and labor controls, welfare programs, environmentalist programs, zoning laws, and other exercises of power not granted by the Constitution. Witness John Sherman, Herbert Hoover, Dwight Eisenhower, Richard Nixon, John McCain, David Souter, and any Republican representative who has proposed pork projects.

Such conservatives, like liberals, must also neglect the boundaries the Constitution has placed on government. They too must seek to nominate justices who will force the Constitution into yielding and retaining the new powers they favor, granting privilege instead of equal consideration of future interests and rights. And to the degree their legal philosophy contradicts the Constitution and the will of the people, they must engage in judicial activism to accomplish their goals (it must be noted that unlike the Democrats, Republicans have usually been able to expand government directly through the legislature, without recourse to an unelected judiciary). It is this portion of the Right that William Teach and Beth rightly condemn for opposing any judicial activism except the kind they favor, especially when disguising it in strict-constructionist arguments. 

Yet there are other members of the Right who seek not to expand the powers of the government, but to reduce them to those the Constitution enumerates. This portion of the Right is variously composed of "Republitarians," Jeffersonian-Republicans, unreconstructed Jacksonian-Democrats, and classical liberal libertarians. These limited-government conservatives do not desire judicial activism of any stripe, but the judicial passivism of a judiciary bound to uphold the Constitution and the long-run self-interests of all citizens. Where a law exists which expresses powers not enumerated in the Constitution and which destroys isonomy, they want the Justice to vote it down. Where a law which falls within an enumerated power comes before the court, they want the Justice to vote so as to keep it within its defined sphere of power. The only result sought is that which is consonant with the limited government of isonomic law and protection of property rights created by the Founders whose concepts are expressed in the Constitution- and requires only the process of repeal and firm arguments capable of persuading other Justices against expansion beyond the original intent of the Founders whose concepts are expressed within the Constitution. It must be remembered that the Constitution does not express the concepts of all the Founders- the older Hamilton's support of centralized banking, is absent from the Constitution.

Limited-government conservatives oppose Miers in part because we believe there is no reason to expect her, based on her legal experience and qualifications, to argue forcefully and persuasively in the Court against the judicial activism of both parties. We oppose her precisely because we don't want to take the chance of supporting someone who will disregard the Constitution and isonomic law for the sake of either party's myopic promises of immediate gains.

Posted by: Tom "The Pooklekufr" Treloar at October 07, 2005 02:06 EST | Permalink | comments (1) |
politics, constitutionalism, scotus

Comments open but moderated. I reserve permission to kill spammers on sight.

#1  07 October 2005 - 03:57

 

Seeing as though we live on different political planets, there's way too much in here for me to comment on with the time I have -- but this is not a drive-by comment. The use of the adjective "unelected" to modify "judiciary" is amusing. The judiciary has constitutional powers and is a cornerstone of the system of checks and balances that makes our Constitution as robust and wonderful as it is. We can argue all day about what the limits of judicial power are, but it is merely a rhetorical crutch to use it as you do to pound home your point. You argument either stands on its own or doesn't.

You may argue that you intended to make a reference to the fact that when the judiciary gets hyperactive, in your opinion, they are legislating and thus the "unelected" is relevant. I disagree and argue that even the exercise of the kind of judicial oversight that you endorse will often have a "legislative" effect and in any and all cases will have an effect on the people that did not elect them.

The non-elected status of the judiciary is the stroke of genius that makes it all work.

I also find the notion that the policy you favor will somehow produce a "neutral branch of the government" to be wishful thinking at best, but more like self-delusion. It reminds me of the joke about how many Buddhists does it take to change a light bulb? Two. One to change it. One not to.

howard

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