A Liberal Scalia?
Slate‘s Dahlia Lithwick notes that with Obama in office liberals are agitating to get a bold, outspoken liberal on the Supreme Court. And not merely a liberal vote, but a liberal voice, an aggressive and eloquent defender of liberalism — in other words, a left-wing Scalia. She writes:
What Scalia has always done so much more effectively than anyone else at the court is sell his view of originalism and textualism. He has a coherent interpretive rulebook to which he almost always adheres. Oh, and he can explain it in 60 seconds on 60 Minutes.
But would it even be possible to come up with a liberal response to Scalia? Liberal jurists don’t have nearly as complete or comprehensive a theory as their conservative counterparts.
Scalia’s views are relatively clear and straightforward: We know what words and sentences mean, and that’s what we use when interpreting the law. And as far as the Constitution goes, we not only know what it means, it’s also always meant the same thing, and it’s always going to.
What’s the liberal alternative to this? We don’t know what words mean, exactly, and sometimes we should use other words outside the law, which may or may not mean what they seem to mean, to help us figure out how to understand legislation? And the Constitution may mean one thing today (although it also may not), but either way it might not mean that tomorrow?
This is, of course, oversimplified and exaggerated — but that’s part of the problem for the left: There’s not really a comprehensive playbook by which liberals interpret the law. The best overarching explanation they can offer, I suspect, is that they believe that Supreme Court justices should be guided by strong ethics and practical considerations rather than hemmed in by rules written hundreds of years ago by men who could not possibly have anticipated the problems of today. But that immediately opens them to the politically potent charge of ignoring the Constitution.
Call me crazy, but somehow I suspect that any contest that pits Supreme Court justices who are in favor of the Constitution versus those who aren’t — however unfair that framing may be — will be handily won by the Scalias of the world. The court of public opinion may not have a well-developed theory of the Constitution, but it knows what it likes — and simple, consistent, and comprehensive explanations of the world are it.
The court of public opinion may not have a well-developed theory of the Constitution, but it knows what it likes — and simple, consistent, and comprehensive explanations of the world are it.
Exactly so. Conservatives have an advantage in that they boil the world down to catchphrases and slogans. Sadly for liberals, it’s much harder to express our arguments on bumper stickers. Sadly for the country, the world is a place of vast complexity and nuance, so while the conservative viewpoint is the more politically powerful one, it is also the wrong one.
— Freddie · Feb 6, 05:33 AM · #
Freddie sez: “Sadly for liberals, it’s much harder to express our arguments on bumper stickers.”
COEXIST?
Visualize World Peace?
Be Green: Plant a Bush back in Texas.
You can’t hug your kids with nuclear arms?
Yes, We Can?
Department of Peace?
When Clinton Lied, No One Died?
It will be a great day when teachers have all the salaries they want and the Defense Department, etc., etc.?
— Klug · Feb 6, 06:39 AM · #
I too call bullshit on Freddie. Progressive ideology is inherently easier too turn into political narrative than any other. Lazy journalists constantly turn to the “look at these struggling people-lets give them government money” narrative in part because a true investigation of the causes and solutions of problems requires more than the emotions which are the pull for the story in the first place.
— DJT · Feb 6, 06:49 AM · #
One more bumper sticker. It doesn’t exist, but it represents much of what liberals believe: “The Poor Deserve More”
I might even agree with that statement.
— Klug · Feb 6, 07:04 AM · #
“There’s not really a comprehensive playbook by which liberals interpret the law.”
“Stuff White People Like” would function well enough as a start.
— Steve Sailer · Feb 6, 08:30 AM · #
Scalia’s claims to being an “originalist” (WETFTM) can easily be debunked by asking him his views in Miller v California. As a “liberal Scalia”, when the shit hits the fan, the SCOTUS is revealed to be nothing more than a collection of black roped, intellectually vapid, power grasping ideologues. Rather a come down from Mrs. Gully’s fifth grade civics lessons, (but then so has the rest of politics.) None the less, I’m embarrassed to say I was surprise.
— Tony Comstock · Feb 6, 12:58 PM · #
Abortion:
“A woman’s right to choose is connected to an inherent right to privacy; the state has no legitimate interest in the decisions made between a woman and her doctor.”
“ABORTION IS MURDER!”
Affirmative Action:
“Because of a centuries-long tradition of systematic discrimination, and because the battle against racism is ongoing, it is both fair and pragmatically beneficial to have a system of affirmative action that provides opportunity for racial minorities.”
“RACE BLIND! RACE BLIIIIIIIIIIND! YOU HATE WHITE PEOPLE!”
Gun Control:
“While few of us call for an outright ban on private gun ownership, the good of society compels us to ask for a stringent regulatory regime regarding the possession of firearms.”
“FROM MY COLD DEAD HANDS!”
Taxation:
“Although we should endeavor to create a society that provides many opportunities for personal wealth and material abundance, because the rich are capable of being taxed more without taking a significant hit to their standards of living, and because society has a legitimate need to provide opportunity for all strata of society, a progressive income tax is desirable.”
“STOP STEALING MONEY YOU STEALING STEALERS!”
Foreign Policy:
“Although we must be vigilant in protecting our borders and interests, and swiftly act to defend ourselves from threats at home and abroad, a judicious, restrained military apparatus both ensures a more effective response and protects the international reputation that is so dear to our diplomatic maneuvers.”
“KILL THEM ALL! KILL EVERY LAST ONE OF THE BASTARDS!”
The protection of civil rights in a time of crisis:
“While we recognize that the threats we face are real and major, we must not abandon our core values of freedom, privacy and due process, as doing so would damage our country and its ideals just as much as any terrorist attack, and indeed may not prevent an attack in the first place.”
“AL QAEDA GONNA KILL YOU! THEY’RE GONNA KILL YOU! THAT CALL CAME FROM INSIDE YOUR HOUSE AND IT WAS OSAMA ON THE LINE!”
— Freddie · Feb 6, 02:21 PM · #
Quite frankly, at this point in time there seems to be very little comprehensive in the Right’s playbook save for a handful of talking points and an echo chamber of who is and who is not actually conservative. What the Left needs is an intellect like Obama, who can in fact sum up, quite eloquently and succinctly, what a liberal vision for American Law.
But yes, finding that Justice will be a trick….
— E.D.Kain · Feb 6, 02:36 PM · #
“Conservatives have an advantage in that they boil the world down to catchphrases and slogans. Sadly for liberals, it’s much harder to express our arguments on bumper stickers. Sadly for the country, the world is a place of vast complexity and nuance, so while the conservative viewpoint is the more politically powerful one, it is also the wrong one.”
I find it difficult to comprehend why contemporary thinkers and writers claim that the Founders did not understand that the “world is a place of vast complexity and nuance.” It’s no surprise then that one who holds this view also finds constitutionalits to be the bearers of “slogans and bumper stickers.”
This type of political rhetoric inhibits the development of a “liberal Scalia.” As long as those who seek a jurist in this mold view the the Constitution as a series of antiquated rules no longer applicable to society, the development of a persuasive, liberal constitutionalist is improbable.
This is the defining philosophical issue within the progressive movement. How do you connect your governing philosophy to the intent of the Founders? If you can’t—to merely dismiss those who retort with “the Constitution says this” as sloganeers—you deserve to lose the argument. The Constitution, despite all its imperfections, is the Supreme Law of the land. To disregard those who follow such guidance to the letter of the law as political hacks is to woefully underestimate the reasoning of your opponent.
— mattc · Feb 6, 03:07 PM · #
And I’m also going to assume that the list of crap Freddie just posted is tongue-in-cheek.
— mattc · Feb 6, 03:13 PM · #
It is much harder because you have to write out all of the contortions of logic and language to make people see your point of view. Your own post at 9:21 demonstrates how most liberals have absolutely no nuance in their own views.
Take, for instance, your view on affirmative action. It never occurs to you that what you are engaging in is a form of collective punishment. Simply never even occurs to you that what you are doing is an injustice to some white people because like most liberals, you only see things on the aggregate unless there is some particular individual who has caught your attention. In a very real sense, the liberal view on affirmative action which results in the discrimination against white people today, for the sins of white people who are dead or elderly now is punishing the son for the sins of the father.
Conservatives correctly realize that this fosters racism because people see one group getting favored over another and they say, “but what did I do?” The answer is, of course, that the individual white person who is passed over to give a black person a job didn’t do anything, but they are being denied their own opportunity for things they never did. If mass, open white racism ever reappears in the United States it will be because programs like affirmative action created a view that says “look at all of the advantages given to minorities and they STILL failed while we paid the price to give them a chance.” In fact, anti-black and hispanic racism is pretty strong in the Asian communities for this very reason.
— Mike T · Feb 6, 03:23 PM · #
Ironically, the Constitution is actually quite prescient in its organization of government. If the federal government were to stick to its constitutional jurisdictions, it would be a very efficient, effective government. Liberals have increasingly been having a hard time accepting the fact that the powerful, centralized state is on its way out because it is a grossly inefficient system of government. Think of just how little we actually get for the $2.5T spent every year on the federal government because the federal government has overreached on so many issues. Right now, we can’t even afford to maintain existing programs and do needed infrastructure repairs because there is so much unaccountable money going everywhere that no one can really maximize its benefit (though the ~3-4M strong Department of Defense is amazingly efficient at spending its peace time budget when you consider how vast its bureaucracy is compared to the rest of the federal government).
— Mike T · Feb 6, 03:31 PM · #
Out here in Oakland and Berkeley, those in the local ideological mainstream have an almost impossible time fitting their complex political ideas onto bumper stickers. They have to resort to affixing placards and scrolling LED readouts (like you see at sports bars) to express long paragraphs of scrupulous political analysis from their Toyota Priuses and Subaru Foresters. But bumper stickers? You hardly ever see ‘em.
— Matt Feeney · Feb 6, 03:58 PM · #
The problem here is this assumption that, because Scalia says the Constitution means what it says, liberals have to disagree with that. Here’s my stab at a good sum-up:
“The Constitution means what it says, but conservatives don’t know how to read.”
— Ryan · Feb 6, 04:09 PM · #
“Conservatives have an advantage in that they boil the world down to catchphrases and slogans.”
Far and away the dumbest thing I’ve ever read from Freddie. I can only imagine where he lives because any proximity to liberals would disabuse him of that notion.
— John Henry · Feb 6, 04:15 PM · #
Every time I feel a little down about the liberal cause, I can just read stuff like the comments here, and be reminded of conservatives utter deficit of skill in humor, composition, and reading comprehension. Then I don’t feel so bad.
By the way, that Michael Moore parody movie— classic!
— Freddie · Feb 6, 04:16 PM · #
Feeling tribal today, are we Freddie?
— John Henry · Feb 6, 04:23 PM · #
You know what, Freddie? Just because I’ve easily falsified one of your arguments, there’s really no reason for that kind of condescension. I’m disappointed.
That being said, I’m amused that you’ve only managed to come up with a couple of actual conservative bumper stickers. Sigh — you need to get out of Connecticut.
— Klug · Feb 6, 05:43 PM · #
Here’s your liberal constitutionalism bumper sticker:
“Make It Real”
The constitution embodies a set of values and aspirations, and the liberal jurist serves justice by seeing to it that those rights and privileges described in the constitution retain their substantive content.
Conveniently for Obama and any potential liberal Scalia(s), this is also the the line advanced by the American Constitution Society. You haven’t heard it articulated much yet outside of law school colloquia, but you will.
— Son of Warren · Feb 6, 05:48 PM · #
Son of Warren, I don’t doubt that you’ve accurately summarized the progressive alternative. The biggest snag, of course, is that the Constitution is fundamentally a document that enumerates and therefore limits the power of government. Giving the judicial branch the unenumerated (ex nihilo) power to “make it real” doesn’t seem to jive with the Constitution, the purpose of the Founders, or the doctrine of judicial review on which it must depend.
Perhaps more problematic, the “make it real” movement already happened; its dubious provenance and ends-justify-the-means abuse are what gave originalism its public and academic salience in the first place.
Not because “make it real” gave us bad outcomes, but because it gave us bad (idiosyncratic, undisciplined, unpedigreed) jurisprudence.
— JA · Feb 6, 06:39 PM · #
Scalia as originalist? Bush v. Gore.
From reading some liberal jurists, you get the idea that they believe that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. It’s a good thing we have solid (and even-tempered!) originalists like Scalia around to tell them that that kind of twaddle has nothing to do with the Constitution the founders gave us.
— Dale · Feb 6, 07:18 PM · #
A “liberal Scalia” may be the best we conservatives can hope for. Because, let’s face it, Antonin Scalia has been a pretty dismal failure as a justice.
Sure, he almost always votes as I would, and he almost always makes the same arguments I would. The problem is, his job isn’t to convince ME that he’s right, it’s to convince Anthony Kennedy and David Souter!
Scalia has shown little in the way of diplomatic skills. He doesn’t seem to know how to cobble together winning majorites. If anything, he’s regularly alienated the Kennedys and O’Connors, sometimes pushing them farther left than they really wanted to go. Too often, he ends up writing clever, witty, acerbic, useless dissents.
Scalia is a reliable vote for my side, on almost every important issue. But a great justice has to do more than that.
Ask a liberal: would the Left be better off with a Court of 8 William Rehnquists and 1 William Brennan, or with a Court of 5 Rehnquists and 4 Thurgood Marshalls? the answer is obvious: Brennan was a master of charming, cajoling, coaxing and seducing other justices to his side. So, a Court with 8 Rehnqusits and 1 Brennan would, improbably, render liberal verdicts every now and then. Thurgood Marshall, on the other hand, couldn’t have swayed a conservative jrist to his side if his life depended on it. In his final years on the bench, Marshall was regarded as an irrelevant grouch.
While Scalia is far smarter than Marshall ever was, he’s now closer to Marshall than to Brennan.
So, if Ruth Bader Ginsburg’s replacement is a “liberal Scalia,” we on the Right should breathe a sigh of relief. One predictable liberal vote will replace another, but the COurt’s center won’t be moved atr all. If anything, a liberal Scalia might be so annoying that Anthony Kennedy will remember that he’s a Republican!
— astorian · Feb 6, 08:52 PM · #
JA –
Oh, sure. It’s hardly an unassailable approach. I’m just saying that if one needs slogans, there are slogans to be had. And frankly, that’s probably enough. Scalia-style originalism sounds rigorous, but it’s pretty under-determined when you get down to brass tacks. That’s how there’s room for the kind of liberal originalism Ryan hints at above. A thoroughgoing theory of jurisprudence based on “making it real” would invoke lots of question-begging, and a lot of justices choosing to emphasize the comstitutional values they find congenial, but that’s par for the course on the Court.
— Son of Warren · Feb 6, 08:55 PM · #
“So, if Ruth Bader Ginsburg’s replacement is a “liberal Scalia,” we on the Right should breathe a sigh of relief. One predictable liberal vote will replace another, but the COurt’s center won’t be moved atr all. If anything, a liberal Scalia might be so annoying that Anthony Kennedy will remember that he’s a Republican!”
Lucid
— Tony Comstock · Feb 6, 08:57 PM · #
“Every time I feel a little down about the liberal cause, I can just read stuff like the comments here, and be reminded of conservatives utter deficit of skill in humor, composition, and reading comprehension. Then I don’t feel so bad.”
I feel bad that you have read the comments section at the American Scene to feel good about your political philosophy.
— mattc · Feb 6, 09:44 PM · #
Have you never heard of my book?
http://www.hup.harvard.edu/catalog/DWOLAW.html
— ronald dworkin · Feb 6, 10:09 PM · #
(Sobbing) It’s so hard to be liberal when all you dumb conservatives don’t understand how complex the world is. You beat us up with your powerful sloganeering. You don’t even get my pedantic and heavy-handed humor!! Oh, whoa is us, Obama! When shall the enlightenment come? (Sniff)
— Freddie's Inner Child · Feb 7, 01:40 AM · #
Freddie, how about this: Can we agree that there are sloganeers on both ends of the political spectrum? And that there are also thoughtful people on both ends of the political spectrum? And that there’s really no point in trying to deal with the sloganeers? And that, therefore, thoughtful people should try to engage respectfully and seriously with each other while ignoring the sloganeers? If we can agree on those four points, then I think we’re good to go.
— Alan Jacobs · Feb 7, 02:05 AM · #
Peter,
Your view of the supreme court and the constitution seem to conform pretty neatly to typical conservative dogma. Not very nuanced to say the least. You might want to do a little research. This is actually a very complicated and interesting field of study. Nothing fits as neatly into the boxes the political promoters provide. Legal Theory blog (http://lsolum.blogspot.com/) is an excellent place to start. I believe Lawrence Solum is as intellectually honest and well intentioned as any blogger I can think of.
— cw · Feb 7, 03:34 AM · #
Here’s a position that passes as liberal these days, just because what passes for conservative in Washington now is such a mess:
Respect the Constitution. Respect the Bill of Rights. Require the powerful as well as the weak to respect the law. The law is a foundation of society, not a political tool for the party in power.
I’d call this American rather than liberal or conservative, but it’s hard to imagine anything more directly opposed to the Bush Republicans.
— peterg · Feb 7, 04:15 AM · #
[E.D.Kain says: What the Left needs is an intellect like Obama, who can in fact sum up, quite eloquently and succinctly, what a liberal vision for American Law. But yes, finding that Justice will be a trick…]
So maybe I’m stating an obvious implication here, but… Obama for SCOTUS in ten years? Or will he be too much of a celebrity to pull a Taft?
— Gherald L · Feb 7, 07:28 AM · #