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July 07, 2008

Sacre Bleu!!!

Break out les secret decoder rings, mes amis!

M. Brodaire, he is resurrecting ze extremely conspiratorial Constitution-in-Exile theories.... and we all know who is ze Dread Lord of that dark plot to replace the Living Constitution with a bunch of stale, moldy words penned by a bunch of dead white dudes - that's right: He Who Must Nevaire Be Named!!!!

The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

Membership in this clandestine Brotherhood must have been an awfully well-kept secret, for the arcane and conspiratorial nature of the plot was such that the rank and file apparently went about their business for decades, blissfully unaware they were engaged in a desperate struggle to overthrow the Republic. But Evil will brook no delay. The Cause marched on. Sans soldiers, sans leader, even...until Gonzalez v. Raich reared its ugly head:

The most radical dissenting opinion was written by Thomas. Thomas has proved to be the most reliable ally of the movement to resurrect what some conservatives call the Constitution in Exile, referring to limitations on federal power that have been dormant since the New Deal. In his dissent, Thomas said that courts should take it upon themselves to decide whether congressional regulations are "appropriate" and "plainly adapted" to executing powers explicitly listed in Constitution. Thomas's logic would uproot more than a century of Supreme Court cases, including the 1942 wheat case, [Ed. Note: 'SWounds!... not the wheat case!] and could paralyze the government's effort to enforce myriad regulations, including environmental and labor laws. As Stevens pointed out, Thomas's reasoning would also call into question Congress's power to regulate the possession and use of pot for recreational purposes, an activity that all states now prohibit.

Thomas. Mein Gott Im Himmel!, who would have guessed it! That pudgy, avuncular-looking little man, suddenly rising up in his black robes like the Lord of the Nazgul. Stooping to pick at the flesh of a Woman's Right To Choose and grabbing welfare dollars from the hands of baby-Daddies all over this great nation! Sure, he may look like a teddy bear, but he's [[[shudder]]] worse than Scalia!

Dionne waxes fairly apoplectic over the prospect of the conservative court's ability to thwart what he views as the will of the progressive majority (i.e., the voters):

The spate of 5 to 4 conservative decisions during the Supreme Court term just ended should stand as a warning that we may soon revisit the fights of 70 years ago. Yet almost nobody is talking about this danger. To the extent that judges have been a campaign issue in recent elections, the focus has been on a few hot-button issues, notably abortion. After last week's decision in the sharply contested Second Amendment case, perhaps gun rights will join the list.

But the more important question is whether conservative judges will see fit to do exactly what conservative courts did for much of the New Deal era by using a narrow, 19th-century definition of property rights to void progressive economic, environmental and labor regulation.

Many judicial conservatives view the late 1930s as a disaster because it marked the end of their power on the courts. After the court-packing battle, the Supreme Court began to defer to the elected branches of government and their efforts to regulate the economy in the public interest. Property rights were well protected throughout this time, yet government was allowed to set rules on the uses of property that judicial conservatives of the pre-New Deal period viewed as suspect.

A new generation of conservatives wants to bring the old order back under the auspices of what's called the Constitution in Exile movement. Their driving idea is that the thrust of jurisprudence since the late 1930s voided the "real" Constitution.

As legal scholar Jeffrey Rosen noted in the New Republic, this movement favors "reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal." He wrote that "justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government to address problems for which the public demands a national response."

But he conveniently overlooks two things. The first is that it is not the Court's task to automatically uphold Congress, but rather to uphold the Constitution. This is important, because the Constitution is the primary source from which our rights as citizens flow. Congress may add to the rights guaranteed by the Constitution but it may not detract from them.

The second thing Dionne misses bears directly upon the first. It is the conservatives on the Court who have arguably been the most faithful guardians of the individual rights guaranteed by the Constitution:

The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides.

Or perhaps it's not as remarkable as we've been led to think. Consider the Court's First Amendment decisions. Contrary to popular belief, conservative justices are about as likely to vote in favor of individuals bringing First Amendment challenges to government regulations as are the liberals. Indeed, the justice most likely to vote to uphold a First Amendment claim is the "conservative" Justice Anthony Kennedy. The least likely is the "liberal" Justice Stephen Breyer. Consistent with general conservative/liberal patterns in commercial speech cases, Justices Clarence Thomas and Antonin Scalia have voted to invalidate restrictions on advertising more than 75 percent of the time. Justices Breyer and Ruth Bader Ginsburg, meanwhile, have voted to uphold such restrictions in most cases.

Conservative justices also typically vote to limit the government's ability to regulate election-related speech, while liberal justices are willing to uphold virtually any regulation in the name of "campaign finance reform." In Davis v. Federal Election Commission, decided the same day as Heller, Justice Samuel Alito, writing for the Court's conservatives, reaffirmed the "fundamental nature of the right to spend personal funds for campaign speech." The dissenters argued that "in the context of elections . . . limiting the quantity of speech" is perfectly acceptable.

Liberals have also been more willing than conservatives to limit the First Amendment's protection of "expressive association." The Court's conservatives held that forcing the Boy Scouts of America to employ a gay scoutmaster violated the Scouts' right to promote its belief in traditional sexual morality. The liberal dissenters thought the government should be allowed to force the Scouts to present a message inconsistent with the Scouts' values.

The Fifth Amendment's protection of property rights presents, if anything, an even starker example of greater commitment to individual rights by the conservative majority. In the infamous Kelo v. New London, the Court's liberal justices, joined by Justice Kennedy, held that the government may take an individual's property and turn it over to a private party for commercial use. The four conservative dissenters argued that such actions violate the Fifth Amendment's requirement that government takings be for "public use."

A few years earlier, the Court's conservative majority held that a government regulation that deprives a land owner of any use of his property amounts to a "taking" that requires compensation. The liberal dissenters would have permitted the government to totally wipe out an individual's investment without any redress.

Progressives like Dionne love to conflate the will of the people with freedom, but as Federalist 10 reminded us, they are not always one and the same:

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, -- is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

Dionne is so worried about thwarting the will of the "progressive majority". As decisions like Kelo show, he might more properly be concerned about preserving the individual rights guaranteed to all citizens, irrespective of political affiliation, by the Constitution.

Posted by Cassandra at July 7, 2008 08:20 AM

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Roosevelt's reach for expanded executive authority was unwise because he made it easy for his opponents to compare him to Hitler and Stalin. FDR lost the court-packing fight but eventually got to name justices in the normal way, and conservative judicial dominance ebbed.

In the normal way? Oh! You mean in the constitutional manner, rather than in the *cough* progressive manner.

Can this man really be so dense?

Posted by: spd rdr at July 7, 2008 10:29 AM

Yes. Yes he can.

Posted by: MikeD at July 7, 2008 11:29 AM

"Can this man really be so dense?"
Deluded maybe.

I can only imagine how sporting it must be to find one's self at a gathering populated by this sort. To patiently wait while two 2 martini's and several hand-rolled Gauloise are consumed. And then, in a casual but detached tone, directed at no one in particular, throw out the phrase checks and balances for slaps and tickles.

Well as long as you are behind a spittle-shield of course.

Posted by: bthun at July 7, 2008 11:56 AM

You have to keep in mind that these people are still seething because FDR's Four Freedoms have not been permanently Enshrined in the Constitution by the Berobed Nine.

The thought process isn't one that is going to make sense to you or to me. They don't want the process to be legal. They just want a result they consider "just and equitable". To that end, any means that accomplishes that end is kosher.

Posted by: Cassandra at July 7, 2008 12:04 PM

They keep talking about this "Constitution in Exile" movement, which I'm not sure really exists (more's the pity); but there really is a movement to require the adoption of a whole bunch of new Constitutional rights. My favorite, I believe, is the "Right to Housing."

What would that mean, exactly? A right to be housed at government expense, obviously: but is that going to be one of those "style to which she's become accustomed" standards? Would it be like Hillarycare, where you have a right to government-funded healthcare -- and it becomes illegal to buy extra on the market? Will the government take over my mortgage payments, but also require me to put up a few homeless families "since you have extra space beyond your lawful allotment"?

Yeah, I think I'd like a few "meaningful restrictions on federal power."

Posted by: Grim at July 7, 2008 12:13 PM

I was reminded this weekend that when folks kvetch about the Federal Government overstepping its bounds and needing another Revolution (they do so love to quote Jefferson), they REALLY have no idea what the Founders were talking about in the Declaration. They weren't just mad that their taxes were high. They were having taxes levied with no input into the creation of those taxes, they had government troops forcibly quartered in their houses living at the expense of the locals, they were unable to get any local laws passed without the King's consent (which he refused to give), literally they had no political control over anything that directly affected them.

Today, I might not like taxes (or the IRS), I might not like the decisions the SCOTUS makes, I may not like the McCain/Feingold campaign finance reform bill... but the fact is, I at least have a political voice in those things. It may be small, but it's there.

Grim... if the government tried forcing me to house other people, I would consider that a breach of the Third Amendment and an actual breach of contractual agreement between the government and the people (aka, the Constitution). THhat would be something that would make me willing to say "yes, it's time". But thankfully, I don't think they're that stupid yet.

Posted by: MikeD at July 7, 2008 01:53 PM

Not yet.

Posted by: Don Brouhaha at July 7, 2008 01:58 PM

Technically it's a violation of the 3rd only if they try to quarter soldiers in your house -- during times of peace. During times of war, they can if they want to, providing they pass a law about it.

I expect that means that non-soldiers can be quartered in your house by simple passage of a law (or court order) to that effect.

That is going rather far afield, though. The point is that, unlike what the Left loves to call "negative liberty" -- which is to say, actual liberty, freedom of speech and gun rights and so forth -- what they call "positive liberty" is remarkably open-ended. If "Congress shall make no law regarding the freedom of speech," that's the start and finish of it; but if "Congress shall ensure that all Americans are housed," that leaves open a remarkable scope of potential power.

They could do so simply by providing minimal, free housing to people below a certain income level. But they could also do a whole lot of other things.

Posted by: Grim at July 7, 2008 01:59 PM

I realize the text of the Third Amendment literally deals with the quartering of soldiers in one's home. I suspect that has more to do with the fact that the idea the government would attempt to quarter other citizens in your home would be completely alien to them. But you're right (as usual), it would technically not be a violation of the Third (even though I'd make a case that the intent was violated). What I do think it would constitute a literal breach of would be the Fifth (whereas putting someone else in your home is seizing that home for public use). But either way, it's an egregious violation of two fundamental Constitutional rights. Rights that the Founding Fathers considered "Natural" rights (thus, those rights which no government could legitimately seperate from the people).

The problem I have with the Left's concept of "Rights" is that most of them seem to require the infringement of the property of someone else. What is free healthcare but the seizure of a doctor's time and labor? Free housing would require the taking of a supplier's materials and the forced labor of construction workers to make the home. And if you're "simply" talking about having the government pay those people for their time and property, then you're talking about seizing money from the people by force through taxation to pay for it.

The fundamental freedoms that the Founders layed out were all freedoms that do not require I take something from anyone else in order to enjoy (though you MIGHT make the case for trial by jury that I'm taking time from the jurors... but that's part of the social contract with the understanding that I would do the same for them). These modern "Rights" do. And that's wrong. I do not have the right to anyone else's life, liberty or property. Nor should anyone else.

Posted by: MikeD at July 7, 2008 02:38 PM

The thought process isn't one that is going to make sense to you or to me. They don't want the process to be legal. They just want a result they consider "just and equitable". To that end, any means that accomplishes that end is kosher.

As you have seen with Obama, many Leftists want a strong man to "change things". Cause changing things the "normal way" is not working as well as full totalitarian revolution.

Posted by: Ymarsakar at July 7, 2008 06:55 PM