Printer friendly version

November 8, 2004

Clashing Constitutional Jewels?

Before the election, John MacArthur, publisher of Harper's Magazine, used his monthly Providence Journal column to advise John Kerry to declare that President Bush's statements and actions with respect to Iraq were "more akin to treason than mere lying." On election day, MacArthur turned his ire on American theists. After describing both candidates' frequent use of religious language, MacArthur writes:

This is a religious qualification for public servants desired by Puritans (ancient and modern) and banned by the Constitution -- yet now, in effect, established. The vote today may well turn on the perception of each candidate's religious faith.

Whoever wins, I fear that one of our principal constitutional jewels has been permanently defaced, at least in spirit. And my secular party believes fervently in a spirit -- the human kind.

The "constitutional jewel" to which MacArthur is referring is Article VI of the Constitution, which states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." On display, here, is the common error among liberals (particularly wealthy ones) to lose the distinction between popular consensus and government mandate. In this instance, MacArthur moves from the observation that the citizenry has "established" a rule that the law could not to the implied suggestion that government ought to thwart the popular consensus.

With this suggestion, he tramples another "constitutional jewel": the First Amendment. The religious test that his fevered atheism projects onto the campaign consists entirely of rhetoric — of speech. Not official oaths, not signed proclamations, just plain ol' speech. To keep from being offended by religious politicians, MacArthur would have to subvert their right to express their faith and the importance that they attribute to it. Indeed, in painting the current administration as the incarnation of religion's establishment, MacArthur chips away at the very jewel that he holds so dear:

In his role as "saved" Christian (from alcohol, drugs, and financial and political failure) President Bush has never missed a chance to profess his fealty, not to the manmade Constitution but to Jesus Christ, "king of kings." His attorney general, responsible for defending the separation of church and state, composes and performs gospel songs and invites his subordinates to morning prayers in the Justice Department.

Should John Ashcroft have been disqualified for his position on the grounds that he is a gospel musician? Should a willingness to suppress religious belief be a requirement for public office? MacArthur notes the "humor and common sense" of Thomas Jefferson in that Founder's argument that it "does me no injury for my neighbor to say there are twenty gods or no God." Well, apparently it does the publisher of Harper's injury for his neighbors to say that there is just one God.

Against Mr. Jefferson, MacArthur juxtaposes what he sees as "extreme Presbyterianism":

In New York, the Rev. John M. Mason declared that another radical innovation -- the explicit omission of God from the new Constitution -- would have dire consequences: "We will have every reason to tremble, lest the Governor of the Universe, who will not be treated with indignity by a people more than by individuals, overturn from its foundations the fabric we have been rearing, and crush us to atoms in the wreck."

Let it be noted that MacArthur could just as easily have quoted Ben Frankin to similar effect. But Rev. Mason's extremity aside, he raises a question that MacArthur either has no interest in or assumes answers itself: was he correct? Does America need God among its foundations?

I won't attempt an answer, here, but the relevant point is that citizens will respond differently. A liberal might find prescience in Mason's use of the word "atoms." A conservative might argue that all of our nation's enlightened constructions are at risk of springing from the loom if our moral ligaments rot from within. And if any government-granted right is central, it is the right of the people to vote and to form their government to address reality as they see it, within proscribed limits.

As our nation has this discussion and deals with the geopolitical and cultural dangers of our time, it seems to me that the MacArthurs of the world enter the debate not only as participants, but perhaps moreso as evidence.

Posted by Justin Katz at November 8, 2004 10:33 AM
Government
Comments

"Mac" also seems to forget a basic tenet of Con law - the Constitution is a restriction on GOVERMENT action, not citizens' actions. Thus, a citizen is completely free of all Con restraints and can bring whatever biases, prejudices and bigotries he wants to the voting booth - as Mr. Mac obviously does.

Posted by: c matt at November 8, 2004 12:25 PM

Conservatives increasingly reject the claim that atheism is not a religious view. It seems to be a hot button for the left; they get very angry if you call atheism a religion. I don't see how anyone can claim it isn't, simply as a matter of logic. But logic doesn't last long in those conversations.

Posted by: Ben Bateman at November 8, 2004 1:11 PM

I think Atheism is a "religion." But, if that is the case, then atheism is entitled to all of the legal protections, as well as the legal restrictions (government not being able to endorse or establish it), of any other religion (for instance, Christianity) under our Constitutional system.

Posted by: Jon Rowe at November 8, 2004 4:32 PM

Jon,

Without a doubt, and that may come to pass. As with theism, however, the difficult part will be teasing atheistic dogma and evangelism from objective information.

I'm not sure atheists would trade any form of tax exemption for the possibility that the more-religion-like claims of the Evolutionists have to be handled in the same manner as, say, the notion of intelligent design.

Posted by: Justin Katz at November 8, 2004 4:37 PM

I don't think atheism is a religion, per se. It is a metaphysical worldview, however. People often conflate the two. There are Christians whose metaphysical worldviews are much closer to most atheists than they are to large numbers of fellow believers. And, there are atheists whose political views, at least, aren't that different from many conservative Christians.

The point about the separation of Church and State is not so much about particular beliefs - it is more about the tangible aspects of religion. Imagine that the government were to decree that the Methodist Church was the official church of the United States, but did nothing material (tax laws, property confiscation, zoning, legal action, etc.) to enforce this.

A government has to be based upon ideas that originate outside of itself. Whether atheists like it or not, in the case of the US those ideas are heavily (though not solely) derived from the Judeo-Christian tradition. To argue that a governement founded, in part, upon ideals from a particular source must be strictly neutral with regard to that source is nonsensical. "Now that the house is up, we don't care if the foundation crumbles away." This is especially true when the majority of the people governed view those ideals, and that source, as critically important. What Jon, and others of like mind, are asking is truly not for neutrality - they are asking that their ideas be given more weight, even though they are in the distinct minority. This is quite different from asking to be free of persecution.

The reason many atheists object so to atheism being called a religion is because to them atheism=rational, religion=irrational. (They are irrational about someone calling them irrational - think about it, what rational reason is there for getting upset about this?) This is the accomplishment of the Enlightenment - the idea truth must be based upon rational propositions, not on revelation. This distinction is (partly) what Ben always refers to when he says that liberals and conservatives are arguing based upon different fundamental understandings of reality, not just different interpretations.

Posted by: Mike S. at November 8, 2004 5:15 PM

"A government has to be based upon ideas that originate outside of itself. Whether atheists like it or not, in the case of the US those ideas are heavily (though not solely) derived from the Judeo-Christian tradition. To argue that a governement founded, in part, upon ideals from a particular source must be strictly neutral with regard to that source is nonsensical. 'Now that the house is up, we don't care if the foundation crumbles away.'"

First of all, I'm not an atheist and I've never argued "atheism=rational, religion=irrational." Second re: whether government is founded upon "Christian ideals,"...well that takes a lot of explaining, and I spend much of my time on my blog exploring this notion. In many ways the Separation of Church & State -- the notion that a government's function is essentially "civil" and must be neutral on the matter of religion -- is what we are founded on and is itself somewhat of a Christian ideal. At the very least, it has a rich very Protestant (Christian) history, as well as a rich Enlightenment history (and the Protestant history predates the Enlightenment).

This Protestant tradition is best summed up in the words of the great Roger Williams -- the founder of this particular tradition -- (as well as the founder of your state, Justin), "No Civil state or country can be truly called Christian, although the Christian be in it."

The problem I have with the religious right -- the people most likely to note that our government is "founded" on a Biblical foundation, is that they operate in (this sentiment in particular is part of) that "other" tradition of Protestantism, the tradition that Roger Williams was rebelling against (the tradition of John Winthrop, governor of the Puritan Mass. colony, the notion of the "Christian Commonwealth").

BTW: I link to a great article on my blog which explains why Roy Moore operates in the latter tradition (of John Winthrop, not Roger Williams). The article that Justin links to has some great stuff on the Williams v. Winthrop traditions as well. I'll be linking to that on my blog as well. Thanks Justin!

Posted by: Jon Rowe at November 8, 2004 6:28 PM

"This is the accomplishment of the Enlightenment - the idea truth must be based upon rational propositions, not on revelation. This distinction is (partly) what Ben always refers to when he says that liberals and conservatives are arguing based upon different fundamental understandings of reality, not just different interpretations."

But doesn't Ben claim that he bases his arguments solely on rational propositions, not on revelation. BTW: This isn't just an Enlightenment idea, although the idea came to its full fruition in the Enlightenment, it's also, as far as I understand, a Catholic idea, and has its antecedents in Aristotle (what connects the Catholic natural law with the Enlightenment).

For more on this, see my blogpost "Catholics, Natural Law, and the Founding."

Posted by: Jon Rowe at November 8, 2004 6:33 PM

Jon,

It would be helpful if you'd link to the specific blogposts in your comments. (Don't know if you thought it impolite or something...)

Posted by: Justin Katz at November 8, 2004 6:35 PM

Here is the one on Roy Moore and the Williams v. Winthrop tradition:

http://jonrowe.blogspot.com/2004/11/nailing-roy-moore-while-giving-history.html

Here is the one on Catholics, Natural Law, and the Founding:

http://jonrowe.blogspot.com/2004/10/catholics-natural-law-and-founding.html

And here is one where I explore the implication of the notion that natural rights come from God:

http://jonrowe.blogspot.com/2004/11/rights-doctrinal-misunderstanding-that.html

I’m not sure if they link automatically. On some browsers they might. Does putting HTML tags before and after the text make a hyperlink?

Posted by: Jon Rowe at November 8, 2004 6:59 PM

Jon,

Whether or not a Web site automatically converts URLs to hypertext, you're always better off putting your link in html. (For one thing, it often causes annoying reflow problems to paste the address.) I'm sure you know this already, but just as a reminder:

<a href="www.url.com">Linked text</a>

Posted by: Justin Katz at November 8, 2004 7:04 PM

The Is-Ought Gap and Functional Morality
Jon: “But doesn't Ben claim that he bases his arguments solely on rational propositions, not on revelation?”

Neither.

Rational propositions alone can never create a moral conclusion. That's the is-ought gap. It isn't really a controversial idea, it's just hard to grasp and easy to forget. You must always start with a moral premise to arrive at a moral conclusion.

Revelation is one source of moral principles, but not the only one. You can base morality on custom or a shared set of ideals. I'm not deeply interested in where the morals came from. My question is the extent to which a group (like our country) shares a set of moral principles, and whether those principles work as a functional matter in promoting the group's prosperity.

Consider the Mormons
For example, the Mormons believe that their holy text appeared to their founder in the early 1800s as a set of golden tablets that somehow vanished once he transcribed them. They base their moral views in part on what was supposedly written on those tablets, and in part on the traditions they developed during the 1800s.

You can laugh all you want at the idea of mysterious vanishing golden tablets. But the fact is that the morality the Mormons share works pretty darn well. They breed like crazy, they hold together tightly as a community, and they're usually clean, hardworking, and polite. I don't care where their morality came from. The fact is that it works in many important ways, and so deserves some study and respect.

Moral Breakup in America
Within the bubble of a stable society, moral argument often seems to be based entirely on logic. But that's an illusion. No quantity of logic can move someone who does not share your moral premises. In our society, the left and right are losing that set of common premises, and thus are losing the ability to even communicate with each other. The most disturbing aspect of SSM, Roe v. Wade, and other moral constitutional-law issues is that they strike at one of the most basic principles that holds our country together: that the people decide what the law will be.

The Constitution was never intended to be an oracle at which the unwashed masses listen eagerly to pronouncements from black-robed priests. The people wrote the Constitution. They voted on it, and only their votes give it meaning. They can vote based on religious principles if they like. It's their government.

History is replete with failed governments in which an elite group tried to dictate moral preferences to the masses. In this country, the government is supposed to derive its just powers from the consent of the governed. The problem with claiming to find invisible-ink mandates in a constitution isn't so much with the immediate policy question. Treating a constitution as an oracle rather than a law undermines the very idea of self-government---which is one of the most important shared moral principles that holds this country together.

Posted by: Ben Bateman at November 9, 2004 2:00 AM

Ah -- I was starting to think that you were a natural lawyer. But now I see that you posit a more "Borkian" understanding -- morality is whatever the majority says it is.

Sorry, in a "liberal" democracy, there are certain rights that are antecedent to majority rule. That is what we are founded on.

Re: what we can all embrace as "common creed" even if we can prove it to be an "ought": The Declaration of Independence.

Posted by: Jon Rowe at November 9, 2004 9:14 AM

Jon,

"First of all, I'm not an atheist and I've never argued "atheism=rational, religion=irrational.""

Though my post was in response to yours, I didn't mean necessarily to impute that you were an atheist, or that you believed anything in particular that I described as an athiest view. However, the particular sentiment that you expressed, that the atheistic viewpoint deserved equal standing with religious-based ones in our government, is a common claim that atheists make. I was arguing against that idea (or particular forms of it), not against you, personally.

While most atheists make the 'atheism=rational, religion=irrational' assumption, there are also many theists who have absorbed this view, as well. That is, they think it is OK to hold their personal religious beliefs, which may be irrational, but that they can't base public arguments on such beliefs - their public arguments must be secular, and have a fully rational defense. I think this is wrong. It is true that it is easier to convince someone who does not share your faith about the rightness of your position if you can offer a rational defense of it, but that is a different proposition than saying an argument is illegitimate if it is not rational. As Ben said, you cannot make moral arguments that are fully rational, and politics is largely the practice of putting moral sentiments about how we want our society to be governed into practice.

The problem I have with the religious right -- the people most likely to note that our government is "founded" on a Biblical foundation, is that they operate in (this sentiment in particular is part of) that "other" tradition of Protestantism, the tradition that Roger Williams was rebelling against (the tradition of John Winthrop, governor of the Puritan Mass. colony, the notion of the "Christian Commonwealth").

I don't doubt that there are people with such views, but I think they are either a) a relatively small number of the total group that could be called the 'religious right', or b) the 'religious right' that you are describing is relatively small. This is a characteristic of many libertarians, liberals, and the MSM - to ascribe extreme right-wing views to a huge block of the population. If they are extreme, then by definition they can't be held by a large fraction of the population. There is no danger of the government being turned into an explicitly Christian government (just as there is no danger that Mass. will be called a 'Christian Commonwealth' anytime soon...). When people use this line of argument, what they mean is that they don't like some particular value or set of values that conservative Christians want the government to reflect. Rather than discussing the particular value, law, or policy on its merits, and defending their own preferred policy, they try to claim that their opponents are trying to set up a theocracy. This is especially true when the conservatives have numerical superiority and win elections.

Winthrop's views didn't prevail back then, Jon - what are the chances they will prevail now?

Posted by: Mike S. at November 9, 2004 10:56 AM

"That is, they think it is OK to hold their personal religious beliefs, which may be irrational, but that they can't base public arguments on such beliefs - their public arguments must be secular, and have a fully rational defense. I think this is wrong. It is true that it is easier to convince someone who does not share your faith about the rightness of your position if you can offer a rational defense of it, but that is a different proposition than saying an argument is illegitimate if it is not rational. As Ben said, you cannot make moral arguments that are fully rational, and politics is largely the practice of putting moral sentiments about how we want our society to be governed into practice."

Well I certainly don't share your sentiment of what politics is. And I do believe that laws must reflect some sort of secular rationality and that Revelation and faith are properly regarded as "opinion" and not "Truths" upon which we base our public policy.

And I have spent much time on my blog demonstrating that there is a rich tradition within our founding that holds the very same. In order to take the religious passion out of politics, religious faith was consigned -- by the teachings of Hobbes & Locke and our founders who followed them like Jefferson, Madison, Adams and others -- to the realm of "opinion" as opposed to "moral and political Knowledge or Truth."

That doesn't necessarily mean that there is now no factual moral basis upon which we build our polity: Indeed the Enlightenment philosophers gave a natural law / natural rights theory (read the Declaration of Independence), based solely on rational principles to serve as this basis.

Allan Bloom, in "The Closing of the American Mind," describes the objective political principle that this nation was founded on:

"[Enlightenment] provides the structure for the key term of liberal democracy, the most successful and useful political notion of our world: rights. Government exists to protect the product of men's labor, their property, and therewith life and liberty. The notion that man possesses inalienable natural rights, that they belong to him as an individual prior, both in time and in sanctity, to any civil society, and that civil societies exist for and acquire their legitimacy from ensuring those rights, is an invention of modern philosophy. Rights, like the other terms discussed in this chapter, are new in modernity, not a part of the common-sense language of politics or of classical political philosophy. Hobbes initiated the notion of rights, and it was given its greatest respectability by Locke." p. 165.

What is put in bold is the natural rights theory that we are founded on. The rest is the historical context in which such rights arose. Now, I’m not sure if I can prove as a matter of objective principle (Bloom didn't think they could be), that these rights exist as truly as do the principles of Euclidean Geometry (although Harry Jaffa argues precisely that—he disagrees with Ben on the “is”-“ought” gap). But if there is to be “a moral premise” that we must start with in order to arrive at a moral conclusion, it is that one, not faith derived solely from Biblical Revelation I that I support using.

Posted by: Jon Rowe at November 9, 2004 12:21 PM

"Now, I’m not sure if I can prove as a matter of objective principle (Bloom didn't think they could be), that these rights exist as truly as do the principles of Euclidean Geometry (although Harry Jaffa argues precisely that—he disagrees with Ben on the “is”-“ought” gap). But if there is to be “a moral premise” that we must start with in order to arrive at a moral conclusion, it is that one, not faith derived solely from Biblical Revelation I that I support using."

There are two different questions here: should religiously-based arguments be given respect in the public square, and what is the moral basis undergirding the principles of our government? You seem to be arguing that in the case of the former, the answer is essentially no. That is, it seems to me that you are saying that religious opinions can be offered, but they will not be given any weight in determining policy or law, which means they might as well not have been offered in the first place.

As to the second, that's a much deeper topic (even though it is related to the first). One comment I'll make on that score is that I think comparing the French and American revolutions is instructive. The American one was a mixture of Protestant and Enlightenment ideas, whereas the French one was entirely Enlightenment-based. I think the American version has been much more successful.

Posted by: Mike S. at November 9, 2004 3:45 PM

Who Decides?
Jon: “you posit a more "Borkian" understanding -- morality is whatever the majority says it is.”

Closer, but not quite. You’re confusing absolute moral truth with the social process for approximating it.

Suppose that we disagree about some point of history: You think that event X happened this way, and I think it happened differently. We can devise a process for resolving the dispute among ourselves. We could agree to submit the matter to an expert, and agree to accept whatever opinion he gives. We could take a survey of historians on the matter. We could go back to original documents. There are many ways to settle a friendly historical argument.

But no matter what method we agree on to resolve our dispute, nothing we do will change the actual historical fact of what really happened. That historical truth is unalterable, even if nobody knows it today and no one will ever know it in the future. Hundreds of top-flight historians may agree on one story, and we may all accept it as true, but that doesn’t make it true.

That’s how I view morality. Moral truths do not change with our opinions of them. (If they did, they wouldn’t be moral truths.) Our opinions about morality change all the time, and we can have grand arguments about it. But the resolution of our argument never changes morality, only our perception of it.

Jon: “Sorry, in a "liberal" democracy, there are certain rights that are antecedent to majority rule. That is what we are founded on.”

The question isn’t whether those rights exist. The question is how we determine what they are. The modern struggle over constitutional law is whether the people will determine what those rights are, or whether judges will arrogate that role to themselves. The assertion that natural rights exist independently of a government does not ipso facto authorize the judiciary to determine what those rights are.

The question is simple: Who decides? That’s totally different from asking whether human rights exist independently of majority will.

Posted by: Ben Bateman at November 9, 2004 4:13 PM

"Who decides? That’s totally different from asking whether human rights exist independently of majority will."

How about this? All 3 branches of government can decide. Nobody is stopping legislatures from recognizing rights. If an executive wants to not enforce laws that violate natural right, go for it (the executive at the very least has the moral obligation to veto such laws, even though they are passed by the majority vote in the legislature).

But if these two branches of government fail to act -- if something indeed is properly a minority right that the majority, through its democratic processes won't secure -- there is nothing wrong with a court stepping in and resolving the issue, so long as there is a basis in the text of the constitution or in the Declaration of Independence -- in the ends of government, which is to secure our rights of liberty, equality, and property, -- for such a move.

If the people -- through the legislature or referendum -- are the one's who decide what minority rights are, then in effect, minority rights are subject to majority whim.

I'm very skeptical of democracy; it allows 51% of the people to put their hands into the pocketbooks of the other 49%. There are certain things that simply aren't proper functions of government, like sodomy laws. If a court is the one that has to finalize that issue, then so be it.

Posted by: Jon Rowe at November 9, 2004 6:21 PM

But Jon, you're skirting the question. You say that sodomy laws "simply aren't proper functions of government." I disagree, at least inasmuch as I think it ought to be a state issue. Others will disagree with you more dramatically. Your view is the self-evidently correct one because... ?

Posted by: Justin Katz at November 9, 2004 6:31 PM

"I'm very skeptical of democracy; it allows 51% of the people to put their hands into the pocketbooks of the other 49%. There are certain things that simply aren't proper functions of government, like sodomy laws. If a court is the one that has to finalize that issue, then so be it."

Jon, you're firmly on your way to a benevolent dictatorship. If the ignorant masses won't decide correctly, then their betters on the courts will decide for them. You assume without stating that the elites know more than the common people, that the few and powerful ought to rule over the many and powerless.

That idea has been tried many times before and earned a long and bloody pedigree. Are you sure you want to embrace it?

Posted by: Ben Bateman at November 9, 2004 7:00 PM

"Your view is the self-evidently correct one because... ?"

The Declaration of Independence and its theory of natural right refers to certain "ends" of government -- all government. The passage that I bolded from Bloom's book...that's it. That's all that is appropriate for government to do: protect men's equal rights to life, liberty, property, and pursuit of happiness, not concerning itself with what consenting adults do within the privacy of their own home.

Re: Ben's comment's, I like judges interving b/c they do so on behalf of individual rights. How that equates with the bloody masses is beyond me. Plus, b/c of the separation of powers, judges have no power of the sword (or the purse), making it unlikely that they will be able bring tyranny to the masses. Finally look at when it is when judges often intervene to "settle" the question, nationally. It's usually towards the end of the game, not the beggining. For instance, how many states had sodomy laws when Lawrence was decided?

This quote from Jack Balkin is appropos:

"Judges are sort of like place kickers in football. Most place kickers are pretty bad at making an open-field tackle to stop a speedy running back returning a kickoff. But place kickers can help pile on after the other players have tackled or slowed down a runner. That is sometimes how I imagine courts and their relationship to social change: They see the running back lying on the ground, groaning under the weight of a huge pile of linebackers. The judges say to themselves, 'It's time for us to do some justice!' and they throw themselves on the pile."

Posted by: Jon Rowe at November 10, 2004 10:27 AM

"Re: Ben's comment's, I like judges interving b/c they do so on behalf of individual rights."

So it's OK for them to make law, as long as you agree with the laws they make. Very principled of you.

"How that equates with the bloody masses is beyond me."

The issue is the concentration of power - does it reside in a handful of judges, many of whom are not elected and have lifetime appointments, or does it reside in the people via their elected representatives. I think the main disagreement/misunderstanding here is that you have a different understanding of what the judiciary has been doing for the last 40 years than we do (to the extent I can presume to speak for Justin and Ben). We think they have been legislating (i.e. creating law) from the bench, whereas you seem to think they are correctly enforcing an external morality that the legislature has violated.

"Plus, b/c of the separation of powers, judges have no power of the sword (or the purse), making it unlikely that they will be able bring tyranny to the masses."

Well, it's true that the reason they have so much power is that we live in a society where the rule of law applies. That means that the vast majority of people will abide by judicial rulings, even if they find them abhorrent or nonsensical (see: Roe v. Wade). But are you seriously suggesting that the courts don't have coercive power? Try ignoring a judges order and see how long it is before they confiscate your property and/or throw you in jail. Try telling that to a family that improperly had their property confiscated by a judges ruling on the application of emminent domain. There are numerous more examples - your definition of tyranny is too narrow.

"Finally look at when it is when judges often intervene to "settle" the question, nationally. It's usually towards the end of the game, not the beggining. For instance, how many states had sodomy laws when Lawrence was decided?"

That's preposterous: Roe v. Wade, Goodridge, Brown v. Board of Education, for starters. The courts would not be so contentious if what you say is true. Besides, just because there weren't many anti-sodomy laws on the books at the time of Lawrence says nothing about whether it was good jurisprudence or not. In that case, the judges, again, made the claim that they get to determine what the moral standards for a community are, rather than the people who live in that community. Just because a law is bigoted, or wrong-headed, does not make it unconstitutional. And just because some judges don't like a particular law, doesn't mean that they have the authority to strike it down.

Posted by: Mike S. at November 10, 2004 11:49 AM

I've replied to the Declaration-as-guideline question here.

As for the missing sword of the judiciary, I'd suggest (as Mike has already implied) that this particular means of branch-separation is only relevant if the other branches are willing to refuse the orders of the judiciary. (There's an interesting analogy here: the judiciary has no police power without the consent of the executive in the same way that the executive has no police power without the consent of the police bureau.)

As John Derbyshire pointed out the other day, there's a clear route to erasing this restriction on the judiciary's power.

Posted by: Justin Katz at November 10, 2004 1:18 PM

At the risk of repeating what Mike S. said:

Jon: “I like judges interving b/c they do so on behalf of individual rights. How that equates with the bloody masses is beyond me.”

But courts don’t intervene on behalf of individual rights. They don’t even pretend to. They pretend to intervene based on the text of a constitution, or some vague notion of equality, or an unwritten right to privacy. And then they do whatever they want.

Even if courts were in fact claiming to intervene on behalf of individual rights, how can you be confident that they’re right? All they have to do is claim it. All they have to do is lie, and no one can call them on it.

What you’re really proposing is that judges should be able to do pretty much anything as long as they claim to be doing it on behalf of individual rights. You want them to have unchecked, unaccountable power, which is precisely contrary to the main point of the US Constitution. The founders were quite familiar with the consequences of power concentrations. When the elites rule the masses with unchecked power, the masses eventually rise up and try to overthrow the elites. That’s the history of absolute monarchy. Do you need some specific examples? Would you prefer English or French?

It’s even harder to ignore the consequences of concentrated, unaccountable power at this point in history, as we’ve just emerged from a century dominated by the horrors of communism and fascism. The modern history of concentrated, unaccountable power is much more familiar and vivid than the pre-founding history, but it’s all basically the same. Would you prefer those examples instead? Russian, Chinese, Cambodian or Cuban?

The purse and sword argument is a bit dated, don’t you think? The past 50 years have amply demonstrated that it’s extremely difficult to rein in a rogue court without causing severe damage to our system of government. It’s a big weakness: Our government relies on the assumption that judges will voluntarily stick to interpreting the law and not creating it. We have no effective mechanism within the legal system for stopping rogue judges. I think we should create one.

Posted by: Ben Bateman at November 10, 2004 2:01 PM

Justin, your link to Derbyshire's proposal goes to a paragraph about the Vlaams Blok decision. What restriction on judicial power were you thinking of? Jurisdiction stripping?

Posted by: Ben Bateman at November 10, 2004 2:28 PM

Ben,

I meant the lack of a police power. With the Vlaams Blok decision, we see how a court could work its way toward effective police power by manipulating the elections of other branches in order to maintain legislators/executives who will cede to its power.

Posted by: Justin Katz at November 10, 2004 3:09 PM

Jon,

Andrew McCarthy has posted a pretty complete discussion of this question on NRO today (in the context of the flap over Specter and the Chairmanship of the Senate Judiciary committee). It's far more lucid than anything I've said.

Posted by: Mike S. at November 10, 2004 4:47 PM