Kramer is talking to Ezra Klein. It's Klein's podcast — audio and transcript at the link — and a bit later in their conversation, Klein says:
I want to spend some time in the liberal legal and constitutional culture that has emerged since the Warren court maybe has been at its apotheosis in recent years. I’m going to lay my cards on the table a little bit. Anybody who’s followed me for a long time knows I find the court functionally a bundle of myths dressed up in robes. And liberal legal thinking has struck me for some time now as somewhere between very defensive and very lame that it often appears to me to be animated much more by a defense of institutions, of courts, of procedures, of processes, of mystique, than any particular vision of the Constitution....
Kramer responds:
I think... there needs to be a substantive animating vision of what the Constitution is trying to do. And that’s what the left lost, right.... And so they’ve been left with a kind of potpourri of leftover things from the periods when liberals were ascendant in the 60s and 70s. You don’t see that on the right. They actually do have an animating vision of what the Constitution is meant to look like and do. Now you’re right about It being dressed up in mythic stuff. Because originalism and this notion that all we’re doing is letting history tell us what to do, that’s the myth....
Klein says liberals have been challenged by the critique inherent in originalism, which at least purports to be a "binding interpretive methodology," even if in practice, it's malleable.
Kramer repeats that liberals need "some kind of animating vision." Otherwise, it's "just your personal preferences" or "some pretended, sort of, thing out there that decides it for you."
What has been lost on the left is that — that kind of overarching animating principle that they can use to help them think about what to do.
Why does he keep saying "animating"?! To "animate" is "To give spirit, inspiration, or impulse... To move mentally, to excite to action of any kind; to inspire, actuate, incite, stir up" (OED). The liberals are uninspired.
What is this missing spirit? Is he looking for God? But he scoffs at "some pretended, sort of, thing out there that decides it for you." Where is the meaning? If it's not "deeply rooted in the Nation's history and traditions" — as the conservative Justices have it — then where can it be?
It can't be just the stare decisis that was all the Dobbs liberals talked about. As Kramer puts it:
And so you’ve just got holding on to lots of things, outcomes that were generated at a time when there was such a vision.
What was the vision? If it was once there, where did it go? Is it still "out there"? Kramer says:
But that vision itself is no longer widely embraced on the left, and it really hasn’t been replaced by anything....
It’s just, as I say on the left, they’ve, sort of, lost a coherent, overarching, animating vision of what the Constitution is trying to achieve that helps take it the rest of the way home and that would give them an affirmative agenda. As I say on the right, I think they have that, and then they use these, kind of, fake references to history, which just astonishingly seems in every single case to line up exactly with their current political preferences....
You can't beat something with nothing.
Speaking of looking for something to believe in, Kramer and Klein get around to the fact that — and Klein puts it — "this court is full of Catholics."
Kramer: "Yeah, really."
Klein: "I mean, but there’s something to that. Not against Catholics, Catholics are great. I’m married to one. But there is the idea that there is an original context that can survive unchanged to this day. It’s just very strange."
The very idea of something that can survive unchanged!
As the podcast goes on, Kramer uses the term "popular constitutionalism," which has to do with judging "by what resonates with us, what makes sense, what kind of society do we want to have" and "not just blindly following popular desires." What does that mean? What's the difference between "popular desires" and what "resonates... makes sense... [and] we want to have"? I suspect the answer is elitism. Look at Kramer's stress on "leadership":
It involves leadership. If you read Madison’s original stuff, he had an important role for leadership. But it wasn’t leadership tells the subjects what to do and what they should believe. It’s that we engage in an ongoing active conversation where the role of leadership is to lead towards some sort of better vision. You offer that vision, and you try and persuade, and if you do, the country follows you.... So that’s what political leaders are supposed to do.... The ability of leadership to exercise leadership is really impaired. The media system has been fragmented. Deference to leadership is down...
And then it's back to vision:
So it’s a little hard to see how it emerges, but the idea is that you get competing political visions of what the country should be that are themselves coherent and normatively attractive that are presented and people vote. I mean, Ronald Reagan did that, right. It’s not that we haven’t had visions. He had a vision, and he sold it....
But the liberals don't have a vision. They need a leader with a vision to animate them, but "we’re kind of between, betwixt and between uniting visions."
Posts
101 comments:
If the facts support your case, pound the facts.
If they don't, pound the table.
The liberals have a vision. Their vision is of a smoking remnant of a constitution that would no longer impeded their desire for a utopia administered by authoritarian do-gooders.
I've been thinking along similar lines. For decades, pro-abortion activists have been telling us that conservative judicial nominees will overturn Roe if confirmed to the court. For decades, they've been telling us we can't trust what they say in nomination hearings. That for all their dissembling in front of the Senate, we all know what they really think and what they're really going to do once they get on the bench and can remove their mask.
So they knew this was coming. Or at least they believed it was coming. And they did nothing about it. No attempt to enshrine the principle in federal law. Biden even made it a campaign promise, that he would work to secure abortion rights as a hedge against the overturning of Roe. But no, everyone sat on their hands and watched in ineffectual horror as the Supreme Court did exactly what they promised us the Supreme Court would do.
The dirty little secret is that pro-abortion activists don't want abortion to be "safe, legal, and rare". They don't want to promote a right to life, with some sadly necessary exceptions for the health of the mother and other rare conditions. They want abortions of convenience, to the uttermost limit they can finagle society into grudgingly accepting.
The left routinely fractures between those who (1) achieve some set of goals vs. (2) those who don't know they've achieved their goals and continue to fight the last war vs. (3) those who move the goalposts and want something that #1 and #2 do not want.
The left thereby works together for a common cause until natural evolution pulls them apart. But, the ideological visionaries insisting on change (#2 and #3) refuse to accept evolution and won't bend without breaking. They thereby run into the sea as lemmings.
Those who don't drown join with the right to become New Generation conservatives. Always.
Welcome New Conservatives to rest, reflect, consolidate gains, and determine what actually works. You'll find a new useful change cause in about 20-30 years. Yin fades. Yang rises.
Kramer should google "living Constitution" and see if that rings a bell.
I love his assertion that everything conservatives ground their theories in is "fake" or "myth". It's all very meticulously documented, so he just waves away the reality of the history, like all leftists do. He prefers to make up his-story to replace what is actually history.
I am sort of astounded I waded through all this, and that "this" isn't even the entire article, I assume. Just Ann's selectiosn. It all seems to me to boil down to this: The left does not know how to make its case in an appealing way. They have become used to directives and top-down orders. It's not their "vision" that fails to be "animated" enough, it's that they have little interest in "animating" the rest of us. As to the Constitution, conservatives are animated by the words in the document. Somehow or other, the left wants the Constitution but without the words. I guess the search is for those penumbras and shadows, always the penumbras and shadows. Very hard stuff to animate. Easier to hide behind.
"All we need is a great plan. Too bad we don't have one."
You offer that vision, and you try and persuade
try to persuade
Sounds about right--conservatives have a vision; liberals have a jumbled collection of stuff they like. They're also right about "originalism" being a bit of a myth, but only if you claim it's intended to be a perfect approach implemented perfectly. If you see it instead as a philosophy and a goal that guides jurisprudence, then it's very real and legitimate.
Originalism is a substitute when the original isn't available. The original would be the same intuition about stable systems that the founders had. If you don't have that (say you're a woman), then go with the text.
They relied entirely on stare decisis.
Well, IF there is ONE THING, that we've Learnt from this blog..
It's that the sh*ttier the decision, the MORE you HAVE TO let it stand.
The fact that it IS a horrible decision is ALL THE REASON YOU NEED to Keep it.
(at least, if the decision does something that the person writing about it likes)
My instinct on why the dissenters didn't try to defend the right to abortion is that there's obviously no such right in the Constitution. Wasn't that the shaky basis Roe was decided on? Penumbras and such?
I recall another issue where stare decisis was involved. Had a company commander--1970--who had been a corporal commanding a gun jeep when Ike sent the paratroopers to Little Rock.
Two hundred fed agents and troops were injured by proponents of stare decisis at Ole Miss.
The issue of stare decisis as wrangled in New Orleans arguably inspired Norman Rockwell's most famous illustration.
Fifty-eight years Plessey had stood and...nine old men in robes pitched it out the window....
It is not to be stood.
But, anyway, where were we?
First question is why rely on state decisis at all on constitutional issues. None of the 9 thinks it’s absolute and the best argument for stare decisis is reliance but pregnancy is temporal. The reliance interests would have to be the fertile females who didn’t use birth control (or it was unreliable), lived in states that prohibited or restricted abortions, and didn’t have the means to travel to another state to get an abortion. The SC granted cert a year ago. So this group will also have to be ignorant that they were out on notice that the constitutional right to abortion might be aborted.
Second question is easier. There’s no way for any Justice to uphold the constitutional right to an abortion without it being a raw policy decision. The history is against them. So they either have to argue that the right to abortion is so important that it distinguishes it from the right to assisted suicide, the right to refuse vaccinations that have not yet proven historically effective (at least 25 years), the right to gamble, the right to do drugs of your choice, the right to drive, the right to eat meat, etc.
The Equal Protection argument is bullshit. Saying women have an absolute right to abort so it doesn’t interfere with their life goals would mean that men have a right to not support their unwanted children because it interferes with their life goals. Or else say that Men Must Be Responsible for their Actions but Women Have the Right to Be Careless. This is not law. It’s the worldview of Don Corleone.
All that’s left is the right to abort for serious health issues, due to rape reporters to law enforcement, and incest reported to law enforcement.
"Where is the meaning? If it's not "deeply rooted in the Nation's history and traditions" — as the conservative Justices have it — then where can it be?"
Uh, how about Soviet disinformation stretching back to the 1930s.
Ezra Klein quote from 2010:
“The issue with the Constitution is not that people don’t read the text and think they’re following it. The issue with the Constitution is that the text is confusing because it was written more than a hundred years ago.”
Not exactly penetrating analysis. Doesn’t seem to have learned much in the intervening years.
The left does have a consistent approach to Supreme Court cases.
1. Decide what "justice requires", and which side should win on that basis.
2. Come up with a plausible sounding argument to support that decision.
Otherwise, it's "just your personal preferences" or "some pretended, sort of, thing out there that decides it for you."
Do tell.
or its just that theyre bat shit crazy
LOL, the 3 leftwing justices do have a vision. Its "lets ignore the written constitution and the law and enforce our left wing beliefs". That's why they vote on the liberal/left side, as a bloc, on 95% of the important cases. If you can find a single IMPORTANT case in the last 20 year, where the Democrat appointees "crossed the aisle" to give conservatives the 5-4 win, I'd like to read about it.
Instead its opposite. Its the republican judges constantly joining the liberal bloc to give them a narrow 5-4 win. And there was no "vision" on Roe. It was just "We don't like laws banning abortion, so the Constitution says so".
"Kramer responds:
I think... there needs to be a substantive animating vision of what the Constitution is trying to do. And that’s what the left lost, right.... "
Liberals don't give a crap about "what the Constitution is trying to do". They only care about getting what they want.
They had weeks between the leaked draft and the actual opinion.
And they did nothing.
Who leaked it btw???
Leadership has been replaced by Power. Without leadership, we the people have become fractured and angry, trapped in the perpetual feud between the Elites. The young are being molded into nihilists.
If a judge overturned Roe, but upheld starry-de-cices in other cases, can you call him a liar when he told Congress he respects the hell out of starry-de-cices?
1. Constitution doesn't talk about abortion
2. Everyone until WW II thought abortion was NOT a constitutional right.
3. Several Judges in 1973 decided to make up a right out of thin air.
4. Grandma O'Connor and Kennedy refused to get rid of Roe because of youknow what.
5. Now 5 judges overturn Roe because they don't think Starry D. overules everything.
Of course, you blab on for 1000 pages about how there's somehow a constitutional right to an abortion. But that right only exists in your head.
As to stare decisis, I think it's a good principle. You can't go changing the rules that people live by every other day (it's one of my big gripes with tax law). But there can reach a point where it's clear that a law/ruling needs to be changed. When that happens, you need to bite the bullet and change it. It was clear with Roe a long time ago that the Constitution does not contain a right to abortion.
If they don't, pound the table.
============
if Jesus can turn over the temple tables what holds D back?
"I was surprised that the dissenters never tried to defend the right to abortion and never try and offer an alternative ground. They relied entirely on stare decisis."
Why?
There IS no justification for it in the US Constitution
If we had a "right to bodily autonomy" or any of the other bullshit the Left claims, there would be no prescription requirement for painkillers, essentially no "War on Drugs", and the FDA would have only an advisory role
Oh, and suicide would be perfectly legal, for any adult, at any time, for any reason.
Not ONE legal commentator or historian came up with ANY actual problems with the leaked Alito draft. The closest they came was some BS about "it was only illegal for 'quick" babies", without addressing ANY of the points Alito made in the draft about how that wasn't the case.
tim maguire said...
Sounds about right--conservatives have a vision; liberals have a jumbled collection of stuff they like.
No. The difference is that conservatives have actual principles that we follow, whereas the Left only has a lust for power.
The Left most certainly has a "vision": them in power, doing whatever they want because they want it
It's just that there's no principle behind it
Unfortunately for the Dems, the S in SCOTUS doesn’t stand for Social.
We have a living Constitution.
You just have to do the work to amend it.
"You can't beat something with nothing."
Wokeism is nothing 🤯
I think they have that, and then they use these, kind of, fake references to history, which just astonishingly seems in every single case to line up exactly with their current political preferences
...I keep reading this and all I hear is Why are they so right all the time?
"Now it doesn’t make it simple then to not take into account the additional issue of but what do we do about the fetus and the state’s interests in that."
I think the phrase "but what do we do about the fetus" is likely set out separately as an "additional issue," in the audio version.
If so, then Mr. Kramer has stumbled upon the problem of the court declaring the Mother to be the sole arbiter of the fate of that problematic human life.
What do we do about the fetus, indeed.
That is the only use of fetus in the podcast. I assume Kramer's answer would be to ignore it or wave it away and pretend it doesn't exist - as he does here.
a substantive animating vision of what the Constitution is trying to do. And that’s what the left lost
The left's substantive animating vision of what the Constitution is trying to do is POWER, that is, critical legal studies. And when your substantive vision is that the Constitution is nothing more than an imposition of power to keep the powerful in power, then there is no reason for reasoning.
Justice White had it right: Roe was nothing more than an "exercise in raw judicial power." As such, the only thing to keep it in place was the force of power. The dissent had nothing to support Roe beyond that power. The "right to abortion" in Roe was nothing more than might makes right and that is all the dissent could use in defense of it.
"that it often appears to me to be animated much more by a defense of institutions, of courts, of procedures, of processes, of mystique, than any particular vision of the Constitution..."
It is simply astonishing how utterly full of shit Ezra Klein is. The Left has a very, very clear vision of the Constitution- they proclaim this vision relentlessly wherever there is a microphone and an camera, or an op-ed editor willing to pay them for an essay. What has happened, though, is that vision- a constitution that changes solely via modern interpretations of what it means- is losing the argument to the people who demand that if you want to change what the constitution means, you have to do it through the amendment process, not do it through the legislature, the executive branch, or the court system.
If one's ideas for new rights or new powers for the various departments of government are all that great, then one shouldn't have a problem gathering up the popular support for a proposed amendment and ratification by 3/4s of the state legislatures. Sure, it requires supermajorities to pass, but that is the reason we have a constitution to begin with- if simple majorities were all that was required, then the constitution isn't worth the paper it is printed on, nor the ink- constitutions are designed to prevent majority overreach.
All but one of the major decisions from the recent SCOTUS term simply tossed questions back to the proper legislative bodies- the abortion decision and the EPA vs WV decision- cases where the courts took inappropriate jurisdiction in the past and where the executive branch was taking power Congress had explicitly given it. The only real case where the court tied legislature's hands was in the concealed carry case where the state of New York was abrogating a protected right- the purpose the constitution itself is to stop such things.
"I was surprised that the dissenters never tried to defend the right to abortion and never try and offer an alternative ground. They relied entirely on stare decisis."
What else did they have? As a matter of constitutional law, there's nothing to defend. They couldn't very well put an Althousian bodily-autonomy or women-must do-morality kind of rationalization in an actual opinion. Even the Sotomayors must at least try to fake it.
"I find the court functionally a bundle of myths dressed up in robes"
Partly agree with Klein there.
"there needs to be a substantive animating vision of what the Constitution is trying to do. And that’s what the left lost, right"
I call BS. The left (are there any liberals anywhere?) does have an animating vision: the Constitution is trying to do whatever they want. They only thing they lost is their majority and influence, leaving the naked partisan fabrications exposed.
"Because originalism and this notion that all we’re doing is letting history tell us what to do, that’s the myth...."
It's a myth that that's what originalism says is all we are doing.
"Klein says liberals have been challenged by the critique inherent in originalism, which at least purports to be a "binding interpretive methodology," even if in practice, it's malleable."
Kramer doesn't want to recognize that progs don't want to be bound by anything, and especially not by a racist text that is, like, more than 100 years old. Didn't Klein himself say that?
"Kramer repeats that liberals need "some kind of animating vision." Otherwise, it's "just your personal preferences" or "some pretended, sort of, thing out there that decides it for you."
Slight problem there: when it comes to the Constitution, progs are all pretense.
"it really hasn’t been replaced by anything...."
Not at all: they haven't given up on their purely instrumental vision of the Constitution. What has changed is that the left has become much more critical of the Constitution itself--from the racist authors to the structure of the polity they designed to the formulation of the bourgeois rights to all the good socialist stuff missing. So progs are left having to pretend to have a vision of a thing they must, for the time being, pretend to "follow" in some sense but for the most part actively despise.
"this court is full of Catholics."
If they gave any thought to the actual opposition at all, they would realize that Dobbs proves the Catholics take their legal myth seriously even when the outcome does not fit their preferences: they are bound to hate abortion, and using their perch to outlaw it would have been the morally preferred outcome. Leaving it to the states will perpetuate what they view as evil in parts of the land.
Liberals believe in change (and new) way more than conservatives, who believe in tradition (and old). Liberals can go from "free speech! free speech!" to "censor everyone! censor everyone!" and not even notice they made a move.
The Constitution is tradition, and old, so conservatives are going to be way better at this.
Hugo Black was a Senator and a big fan of change (and new). So he hated the conservative Supreme Court, who was all about tradition (and old).
When Black got on the Court he decided to fight fire with fire. The Constitution was actually written by very liberal people. So just interpret their words literally and you have a document that is very liberal. So Black went more conservative than the conservatives, and embarrassed them. He won by quoting the classic texts, not the horseshit the Supreme Court said about it.
William Brennan was the Evil One who believed in the Supreme Court using the Constitution to rule the country. So that's how Democrats became anti-democratic. And they would talk about "stare decisis" like they were traditionalists.
If you want to re-animate the intelligence of the brain-dead left, you need to find some liberals who believe in free speech and equality. Find the true spirit of democracy. Find liberals who love Jefferson and the Constitution. (Akhil Amar!)
Rh said...
Originalism is a substitute when the original isn't available.
If you can get past the video presenter's quirks and twists, the video I link to below will be highly rewarding. I promise. Stay with it. (I started the video at 3:10 in order to cut needless blather)
Review: 'The Name of The Rose' by... Umberto Eco
It's pretty clear that the reasonably intelligent SCOTUS liberals know that the Roe decision was ridiculous and do not want to look stupid trying to defend it.
Of course it is not just about originalism or strict constructionism, borrowed from contract law. There is also an element of natural law carried over from the Declaration, especially in the Bill of Rights which recognizes pre-existing rights and does not create rights, with an emphasis on right reason, which is the animating principle of the common law.
Scalia was an originalist. Thomas appreciates more natural law.
First, maybe a reason why so many Catholics in the right side justices is that the left has abandoned religion to the point that a female Justice has to ask a biologist to define a woman.
Second, nobody under 50 knows any history or has ever taken a Civics class.
The only religion the left recognizes is global warming.
It's that the sh*ttier the decision, the MORE you HAVE TO let it stand.
on the Other Hand..
Dobbs is well thought out (and does something some people don't like). So stare decisis don't apply
Liberals believe in change (and new) way more than conservatives, who believe in tradition (and old). Liberals can go from "free speech! free speech!" to "censor everyone! censor everyone!" and not even notice they made a move.
The Constitution is tradition, and old, so conservatives are going to be way better at this.
Hugo Black was a Senator and a big fan of change (and new). So he hated the conservative Supreme Court, who was all about tradition (and old).
When Black got on the Court he decided to fight fire with fire. The Constitution was actually written by very liberal people. So just interpret their words literally and you have a document that is very liberal. So Black went more conservative than the conservatives, and embarrassed them. He won by quoting the classic texts, not the horseshit the Supreme Court said about it.
William Brennan was the Evil One who believed in the Supreme Court using the Constitution to rule the country. So that's how Democrats became anti-democratic. And they would talk about "stare decisis" like they were traditionalists.
If you want to re-animate the intelligence of the brain-dead left, you need to find some liberals who believe in free speech and equality. Find the true spirit of democracy. Find liberals who love Jefferson and the Constitution. (Akhil Amar!)
I come back to the fact that Roe was a 7-2 decision by Republicans. Originalism was a subsequent development by fedsoc types based on tendencies picking and choosing in the historical record. So folks not trained as historians were basing decisions on their inner amateur historian. While at the same time attacking statutory interpretation that looks to legislative history. Go figure.
I don't remember Kramer or Klein counting heads a few years ago when there were three Jewish justices, 33% of the court in a nation where only 2% of the population is Jewish.
I wish I was surprised they feel so cheerfully uninhibited in voicing their prejudice against Catholics.
In the history of the court since 1916, Jews have been the most overrepresented faith by percentage of population, and Catholics -- by very far -- the most under-represented.
Jews are overrepresented even now, with only one Jewish justice, which makes her 11% of the court. Catholics are currently overrepresented too, but not by as much in terms of population, especially considering that Sotomayor rejects the Catholic faith.
The currently most underrepresented faith is non-Catholic Christians. There are two, while 45% of Americans are non-Catholic Christians. About 24% of Americans say they are not religious or will not answer, so Sotomayor alone makes that group the second-most under-represented.
There has never been a conservative Jewish justice. Oddly, racist Democrat Woodrow Wilson nominated the first Jewish Justice. Then again, Brandeis shared WW's racism against blacks too.
Maybe Kramer and Klein aren't prejudiced: maybe they just suck at their jobs.
The Left wants to discard the past so they can destroy the future. They really seem to think that's an obviously attractive plan.
William Brennan was the Evil One
William Brennan, another Catholic.
I once ran into Justice Brennan. Literally. Or almost literally. I was walking through the Great Hall at the Court building looking all around and suddenly this old guy was in front of me. It was him.
If you go back and read the opinions that William Brennan wrote, you would get an animating vision of the Constitution from the liberal point of view. Geof Stone at the UChicago Law School (who clerked for Brennan) can get very animated on the subject. I heard him give a talk on the difference between Brennan's clear Constitutional vision compared to Scalia's cherry-picking approach to originalism. I booed at the end of the talk, but Geof really has thought hard about Brennan's vision (shared with justices such as Stevens, Souter, and Kagan), which saw the administrative state as something necessary and worth defending in a world that was much more complicated than the late XVIIIth century world of the founders. Procedure is important, but due process once achieved can steamroll rights reserved to the states and the people.
The ur-legal realist, O. W. Holmes, Jr., famously said in his book The Common Law:
"The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."
He was writing about judge-made law, the common law, but that line of thinking also animated the liberal constitutional vision. The liberal vision has always been open to thinking anew, especially when that thinking is done by contemporary elites rather than either sages of ages past or hoi polloi.
If Larry Kramer or Ezra Klein or the dissenters in Dobbs had anything to offer in defence of Roe and Casey (other than that they were the judge-made law of the land for fifty years), I am sure they could have spun it out. But they didn't, did they? If you go back and reread Roe, you see that the justices made it up. White got it right in his dissent: this was "an exercise of raw judicial power". White laid it out:
"The Court apparently values the convenience of the pregnant mother more than the continued
existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs."
Few realize that USSC opinions are NOT listed in Article VI's Supremacy Clause.
Liberals have a strong and consistent view of the constitution.
What liberals want in the present is what the constitution says. "The Right Thing".
No more, no less. Simple and clear.
Concepts such as "judicial supremacy" are academic fluff to them.
I think we're witnessing a dramatic transformation of the court for which much of the credit needs to go to Antonin Scalia. What's happening is that originalism is winning, not simply because Trump (to his lasting credit) provided the additional votes, but because it is correct. Leftists prefer that justices rule on matters in an ad hoc way, arriving at the desired result first and then figuring out the rationale. But, as Roe illustrated, this is unsustainable as a theory of jurisprudence and it inevitably brings the court into disrespect because people come to see SCOTUS as a purely political institution.
I can easily see a liberal animating principal of the right to equality before the law and a right to personal autonomy absent compelling government interests. However, that's going to conflict with the liberal projects of telling everyone what they should think and using government to repay for offenses against prior generations' offenses. It would also strike down vaccine mandates.
I am far from a constitutional scholar. But here's my understanding:
The constitution states what it states and leaves anything not stated as subject to states rights and laws.
240+ years of interpretation of the constitution has taken place, mostly ceding certain rights to be federally legislated and mandated and sometimes upholding that an area is meant for state legislation.
The constitution does not speak about pregnancy, the unborn, abortion, medical procedures, etc....but 50 years ago the Supreme Court interpreted that the constitutional clauses around due process and that states may not deprive life, liberty, or property, without due process of the law....that that clause meant a state couldn't ban abortion. Roe v Wade in particular was about Texas banning abortion except when it saves a mother's life. The SC decided that was unconstitutional.
For 50 years, that's been known to be such a weak result that it could be overturned by a different ruling of the SC.
With all that being said...
Has anyone gotten any serious momentum for a proper constitutional amendment? How about actual legislation at a federal level?
No? People have just had 50 years saying this right but not be enunciated but must stand by judicial ruling?
I guess it was more useful for democrats to keep it as-is and promote the cause to elect democrats.
Your Tax Dollars At Work...
"Joe Biden is transporting minor illegal aliens — children — to states outside of Texas to kill their babies and has been for some time—nine months, actually, if you can appreciate a ghoulish irony."
https://www.breitbart.com/politics/2022/07/07/nolte-biden-admin-flies-illegal-alien-minors-out-of-texas-for-abortions/
To me the biggest turn-off of the pro abortion people was to pretend that the baby is not human, it’s an obvious lie. They are trying to use manipulation rather than being direct about it. There are good arguments in support of the right to abortion that don’t depend on lies. Dehumanization of certain classes of people has an ugly history.
UNACCOMPANIED MINORS!
Lefties have always insulted me. They act gaga over something that's not in the Constitution insisting it's "there" if we all play "lets pretend." They equally go gaga over something that is in the Constitution - the 2d Amendment - and pretends that it's not there.
Either way, they show themselves to be quite lazy refusing to do the hard work of seeking specific amendments to the Constitution. If, as they repeatedly tell us, the "right" to aborting your child is favored by the people and absolute gun control is likewise favored by the people, then getting amendments through Congress and then out to the states for ratification shouldn't be a heavy left at all.
Liberals’ case for abortion: “No backsies!”
Liberals have no guiding vision because they see every event as a campaign issue. Abortion is simply an issue they can use to whip up their base.
That's why Joe Biden was able to "evolve" his position(s) on abortion over the last 50 years. Joe supports whatever will get him elected. Having a vision requires having principles.
> You can't beat something with nothing.
"Sometimes Nothing it a pretty cool hand."
As I say on the right, I think they have that, and then they use these, kind of, fake references to history, which just astonishingly seems in every single case to line up exactly with their current political preferences...
1: I note he provides no actual examples of this claim
2: He's got cause and effect backwards: We say "SCOTUS should rule this way" BECAUSE of the actual history etc. that says to do that
It's not our fault that the American Left has gotten to the point where it is continually opposed to the actual US written Constitution, it's the fault of the Left.
We have plenty of other policy issues where the US Constitution remains silent. So we simply dont' ask SCOTUS to get involved.
It's called "being decent, principled, and honest human beings." So I guess I understand why it's so foreign to the Left that they can't even wrap their minds around the basic concepts
Let's try that link (that didn't work 👆🏽) again.
Link to video
The Democratic party, the collectivists disintegrating because of their infinite number of individual aggrieved constituents. Their vision is "freedom of speech" in the classroom for degenerate groomers, "safety" for little gangs of terminal juveniles incapable of taking care of themselves in the most fundamental ways and "identity" for deluded self hating sickos who have no idea whether or not they should sit down to piss.
They do not want to elevate the Constitution, they want to bury it!
The Court has been treated as the ultimate legislature by Democrats for a long time. As long as it made up laws that Democrats favored, all was well. But just like the "real" legislatures, this one can pass new laws and rescind old ones. And now that it has done so, the Court is suddenly "Illegitimate!"
Roe was decided on the basis of the justices' preferences, not a law or the Constitution. And it was un-decided the same way. Why not?
"Oddly, racist Democrat Woodrow Wilson nominated the first Jewish Justice. Then again, Brandeis shared WW's racism against blacks too."
Brandeis also had copies of the love letters Wilson sent to his neighbor's wife at Princeton.
"You can't beat something with nothing."
On the other hand: better than nothing is a high standard.
The left is upset about the decisions this term because they have grown to rely on the courts’ giving them easy victories that they could not achieve through the legislative process. And if they can get their policy adopted by the Supreme Court…there is no appeal, is there? Nirvana!!
Why is it a "mortal sin" to liberals to admit some time limits to abortion? They could win a lot of votes if they made the first move.
Granted the crazies on the left would go into apoplexy, but aren't they interested in governing rather than being Don Quixote?
The Court should stick as closely to the text of the Constitution as possible. If the readers of the New York Times don't like the results, they can amend the Constitution.
"Originalism was a subsequent development by fedsoc types based on tendencies picking and choosing in the historical record. So folks not trained as historians were basing decisions on their inner amateur historian."
Apparently Kramer was just carrying the Leftist talking points forward, in the same manner as one of our Local Lefties has done.
I think the funniest thing about this silly statement is that somehow one needs to be a "trained" historian to understand history. In general in our modern America, the more "trained" you are as a historian the more likely you are to NOT understand history.
Men marrying women and having children that they then raise in a religious tradition is the enemy under constant Dem attack. The green new deal is now the Dems #1 propaganda Final Solution. For more dictatorial power, starve them all, unless they obey our insane orders and submit to the Dems destruction of their children. Oh yeah, first confiscate their guns.
Because, "A baby might cramp your lifestyle! You might not be able to go swimming with dolphins in Hawaii if you have a baby around! This is why we must be able to kill babies right up to birth," doesn't sound very convincing.
if 'woman' and 'man' cannot be identified how can you even practice/conceptualize reproduction etc.
For all you law-talkin'-guys - especially our hostess - is there any serious argument for a 9th amendment right to abortion? And for "serious" I'm willing to accept student arguments in con-law classes. Damon Root tried one on for size over at Reason. I didn't find it persuasive, but at least it took a shot at it.
Stare decisis is this flabby doctrine.
Yes and no. Stare decisis is all about deferring to prior rulings. However, simply deferring to whatever was previously ruled is foolish if the legal-Constitutional argument that won the day is obviously wrong, and/or if the prior ruling was obviously motivated by political goals rather the Constitution or the law. Everyone who paid attention knows that Roe was an extremely flimsy ruling that was only enacted because the justices decided they wanted that result and did not care about doing their actual jobs. If you are just going to make up BS, then you cannot expect justices who take their job seriously to prop it up for you.
Stare decisis's power is when the prior ruling makes sense. When the prior court has ruled in a way that is logically coherent and aligns with the Constitution, then the court should be very reluctant to overrule it, even if they do not necessarily agree with the logic and would have gone in a different direction. That's not Roe. That's not remotely close to Roe.
Readering: "So folks not trained as historians were basing decisions on their inner amateur historian. While at the same time attacking statutory interpretation that looks to legislative history. Go figure."
So ONLY biologists can tell if someone is a woman!
ONLY "trained historians" are capable of understanding history!
LOL
How does readering cram so much dumb into such short posts?
Maybe a graduate of the Inga School Of Commenting?
realestateacct said...
I can easily see a liberal animating principal of the right to equality before the law and a right to personal autonomy absent compelling government interests.
That's a meaningless statement.
What makes a government interest "compelling"?
Answer: it's important to the personal political beliefs of the judge making the ruling
I'd saying that "saving a baby's life" is a pretty "compelling" government interest
Who defines what's "a baby", and what's "a clump of cells"?
Well, certainly not some unelected and unaccountable "judge" or "expert",
There are something like 160 other countries around the world. To the extent that those countries haven't already failed because they don't have a strong and clear governing code, document or traditional framework for how their political system operates, those countries are certainly free to try political systems that they think might help them to achieve the wonderful peace, happiness and prosperity that their liberal elites think they can achieve.
Our country has a governing document and a governing set of principles that have served the country quite well, thank you. It has its flaws, but it's working out a whole lot better than anybody else's system. (And one of its key tenets is that it is very hard to change things).
So maybe we should let the other countries come up with something that works better, before we throw out what we have.
Fools.
If illegal alien minors are showing up pregnant and have to get abortions, so what?
Who the hell is going to raise the little SOBs, and pay for the ones who are sure to follow?
Consider the SCOTUS of my lifetime. How many of the "liberal" decisions of the Warren Court and the Berger Court were authored by Republican appointees? The animating spirit of Warren, Blackmun, O'Connor, Berger (in his Griggs mode), Souter was what? The anxiety of a mediocre legal mind to be thought well of by the DC social circuit. Small wonder that they produced no coherent liberal vision of Constitutional interpretation in their opinions that could endure hard scrutiny. (CJ Roberts is--hopefully-- the last of their breed.)
And the "true liberals" on the SCOTUS, the Democrat appointees? Brennan and Douglas? The very definition of "knee-jerk liberal," incapable of articulating (or needing to) a reasoned basis for Constitutional interpretation. When the liberal Zeitgeist evaporates (as geists--ghosts-- tend to), what arguments are left to Liberals?
Stare decisis is good but needs a constitutional basis to build froom. Just like Abood vs. Detroit had plenty of meaningless stare decisis to follow but that house of cards collasped because its constitutional basis was bogus.
"For decades now the conservative legal movement has been on a mission to remake this nation's laws from the bench." How about "a mission to compel legislatures to make this nation's laws"? FIFY!
"There has never been a conservative Jewish justice."
Au contraire. These days the Left views Felix Frankfurter as a reactionary conservative. 'Cause anyone who wants to limit the power of government must be.
https://m.youtube.com/watch?v=i1JuWVeJS-E&t=2993s
Peterson interviews Rod Dreher.
Live Not By Lies.
I’m almost 1/2way through listening. Intelligent conversation is a pleasure to listen to.
I share b/c it gets to the root of Totalitarianism, group think, elitism… education!
How to formulate individual thought and to defend it. Not just bully others into accepting, or else…
I almost never agree with her, but Kagen is very smart and can make a very good argument. That she did not is really all that need be said. If it was there, she would have made it. Of course, Ginsburg had already admitted that the emporer wore no clothes.
Catholics, even Sotomayor, are raised under the Magisterium, a repository of the faith. It's the ultimate in stare decisis. The Catholics instituted the Devil's Advocate, the first opposing counsel arguing the case.
Of course the SCOTUS is loaded with Catholics. It's in our frickin blood.
It's interesting that the Left recognizes their weakness but doesn't know how to fix it. They do everything in their power to destroy the social equivalent of a Magisterium.
Kagen is very smart and can make a very good argument. That she did not is really all that need be said. If it was there, she would have made it.
An interesting exercise is to read through the dissenters' joint opinion and try to figure out who wrote what sections. I think the sections that Sotomayor are fairly easy to spot -- they are the most partisan in word choice and hysterical in approach -- but separating Kagan from Breyer is a bit harder.
The legal scholar Larry Kramer on why the left’s embrace of judicial supremacy was a mistake
That is the headline writer's take, but it sounds like what Kramer was looking for was an "animating vision" that would make the courts impose his views on the country, not a shift away from judicial action towards legislation. He doesn't really have such an "animating vision." That's why he keeps repeating the same words.
The strategy probably should have been to get enough states to legislate what he wants. When 2/3 or 3/4 of the states have legislated a certain way, the Court steps in and "finds" the right somewhere, pulling out of their proverbial hat (or out of somewhere else). Originalists and strict constructionists would naturally object, but it looks like a surrogate for the amendment process. For the Court to lead the way courts and leads to trouble.
The Catholic thing is new. It seems like the postwar court was mostly Protestants with a token Jew and a token Catholic.
"How does readering cram so much dumb into such short posts?"
Because their brain can't contain it all?
“You offer that vision, and you try and persuade…”
“… try to persuade…”
Uh, the carrot goes in front of the horse.
Roe's regrets. Ruth's remorse. Human rights, not rites. A Constitution not recorded in emanations from its penumbras.
Readering said...
I come back to the fact that Roe was a 7-2 decision by Republicans
No, it wasn't.
It was a decision by President nominee by Republicans and Democrats. But Neither Nixon nor Eisenhower nominated based on political ideology / judicial policy
Originalism was a subsequent development by fedsoc types based on tendencies picking and choosing in the historical record.
Bullshit
So folks not trained as historians were basing decisions on their inner amateur historian.
I love this whine, from people who absolutely refuse to provide any historical evidence that the deciding judges were actually wrong.
Note: Find ing out that a lot of States regulated "concealed carry" does not support NY's position, when all but one of those same States allowed just about anyone to open carry.
Blocking open and concealed carry of some pistols doesn't justify the NY laws, when that State allows unregulated carrying of "military pistols".
While at the same time attacking statutory interpretation that looks to legislative history. Go figure.
It's easy to figure, if you're honest and not a moron.
What "original understanding" justices do is say:
1: The text of the law trumps all else
2: Where the text is not clear, you look at how people of the time understand that text.
What someone wrote in their diary, or what someone said in one committee meeting that got absolutely no coverage, does not qualify as "original public understanding"
Esp. when members of Congress are allowed to edit the Congressional Record, so that there's no way to actually know what they said.
I think the "vision" is to call mothers birthing people and to deny the biological reality of male and female. Plus, government debt doesn't matter, sin doesn't exist and socialism is a good idea. It's not the lack of a vision that's the issue, it's the idiocy of the vision.
In response to Dobbs, most of the Lefties I know assert that the Constitution was written by slaveholders and is therefore irrelevant. It seems to me they will permit no principle to stand in the way of their goals. That is terrifying.
For all you law-talkin'-guys - especially our hostess - is there any serious argument for a 9th amendment right to abortion?
Roe actually mentioned the 9th. And the 14th.
Either one. They didn't care.
What ultimately killed the opinion was not the alleged textual basis for the right-at-issue. What killed the opinion was the disgraceful section about the word "person" as used in the equal protection clause.
In Roe v. Wade the Supreme Court classified human beings as non-persons (again!). The opinion was so bad, Blackmun actually cited the slavery parts of the Constitution as justification for defining a class of human beings as non-persons.
Yes, Blackmun was an idiot.
He also argued that we never counted unborn babies in the census, so they don't count.
It was the homicidal nature of the opinion that caused all the pushback and upset. It was the pro-life movement that killed Roe v. Wade.
Dobbs implicitly acknowledged this with all the discussion about unborn children, and how this distinguishes the fight over abortion from all the other "substantive" due process cases (e.g. gay marriage, birth control, living with your grandmother).
So regardless of what you think or say about unenumerated rights -- if you're finding one you ought to be damn sure your opinion will be popular and non-controversial. In the words of the 9th Amendment, "by the people" suggests these rights should be majoritarian and popular. It's not a license for five attorneys to go into a room and make shit up.
Using "substantive" due process to find a right to own slaves, or abort unwanted children, was the real fuck up. At a minimum, any Supreme Court that is finding an unenumerated right has a duty to make sure this is a popular right. Jurists like Black would say there is no way to test for "popularity" and it's not the court's business anyway. But Roe -- and Dred Scott before it -- knew their shit was unpopular and they did it anyway.
There are a lot of flaws with originalism, but it’s still better than the alternatives.
The left has always had a superficial understanding of the USSC. They think that once a ruling goes their way, there's no more discussion to be had, despite many USSC cases that prove the opposite.
All they have is emotional appeals and threats when they lose. They claim "civil rights" but they are plenty hypocritical about other Constitutional rights that are actually in the document that they would like to get rid of.
Live by the USSC, die by the USSC.
Readering said...
. . . Originalism was a subsequent development by fedsoc types based on tendencies picking and choosing in the historical record. So folks not trained as historians were basing decisions on their inner amateur historian. While at the same time attacking statutory interpretation that looks to legislative history. Go figure.
_________________________
This is hilarious, given that Roe was decided in part on a historical brief that was simply made up out of whole cloth.
It’s even more hilarious when you recall that lawyers and judges are trained to find legal precedents, which is entirely a form of historical research in the legal field.
Apparently readering thinks legal history should be produced by the ministry of truth, as needed.
"LARRY KRAMER".
Why the poor old creature thinks his opinion matters to anyone decent is a mystery.
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