a.SafaLab
The Neolibertarian NetworkThoughts on the 10 Commandments case
Don Surber makes the case why conservatives should oppose public financing of desplays of the 10 Commandments. Money quote:
The Ten Commandments are at odds with the First Amendment and no amount of judicial embroidery will get around that that fundamental conflict.Man does not need governemnt-surplus religion.
The conservative opposes the government intervening in man’s relationship to the Lord they God. The conservative wants to maintain the difference between public school and Sunday school as sacrosanct. The conservative knows that the Lord thy God does not need the help of government; it is the other way around.
State-approved religion is as ridiculous as state-approved television or state-approved speech.
Go read it.
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Do you support moral-majority based law?
I don’t quite know what you mean, but I’ll give it a stab. Obviously in some contextual cases majoritarian legislation is quite appropriate inside the limits of Bill of Rights (although that discussion could, and does, pose problematic due to judicial fiat.)
That said, I’m not a fan of school prayer, public payment for religious symbolism, anti-gay marriage proposals, and daft legislation such as the Flag Burning Amendment.
So, for instance, if a red-neck state like Mississippi has a majoritarian mandate not to teach sex-ed in its schools I’m OK with that. Don’t get me wrong, I’m neutral on the issue of the curriculum. As a libertarian I have some problems with public funding of sex-ed for fiscal reasons – but not its morality.
Locke wrote much about the premise of “permission” as granted by legislative authority, such as the permission of “taking” of taxes by majoritarian mandate. That sword has two edges, both must be respected.
And too, like most libertarians, I’m not paranoid about the religious right and see very little Constitutional water fundamentalist can carry into restraining our liberties. In other words, I have a great deal of faith in the Constitution withstanding being attacked by Hobbesian democracy.
It just seems to me that moral-majority based law is a wide door to an area that I think generally the government ought not be in. Scalia talks a lot about the end of the moral majority in his dissent in Texas v. Johnson. I am mostly interested in the line between libertarians and Republicans. For example, were you a Badnerick supporter over Bush? It must be very hard for libertarians to make a choice like that, given their pull in two very different directions. On the one hand, you appear to be pragmatic and so it stings to throw your vote away even though Bush had Montana handily. On the other hand, you must be at least in part driven by idealism. Otherwise, you would likely have caved and begun calling yourself a Republican (maybe a McCain Republican, or something like that), even though fiscal responsibility and small government waved bye-bye to that party when Bush took office. Third party members are very interesting tio me.
V,
It is important to understand that I am not a member of the Libertarian party but I am a libertarian in ideology. That is primarily due to the fact the LP has been radicalized by a majority of econo-anarchists who really are not very well grounded in political philosophy of have no sense of pragmatic incrementalism. Accordingly they don’t offer a rational agenda for change.
Actually my political biography runs almost the full spectrum of thought over my life. So perhaps I get an “F” for consistency in the 32 years since I became voting age. I began as a Socialist in the early 70’s, morphed into a Democrat by 1976, became a Reagan Democrat in 1980, Became a Republican in ‘84 and finally left the GOP in 2001. The underpinning of all that, however, is my consistency in my position on civil liberties. It wasn’t until the 80’s that I began to really study the effects of statism, its failures, and the greater deleterious effects it has on personal liberty. That, however, is a quite lengthy discussion.
Libertarians seem to have a more natural alliance with Republicans due to the historical truths of limiting government. Although the current machination of the GOP is anything but that, many libertarians, knowing that voting LP is horribly impragmatic, still hitch their wagons to the Republican Party because history inclines us to believe that under a Democrat things would be quite worse. I no longer believe that to be true but many of my contemporaries do. As for voting for Bush or Badnarik, there was really no conflict for us in Montana. Bush would take the state hands down so voting for Badnarik was justifies as a protest vote with no chance that Kerry would win the state. That “protest vote” was, if nothing else, word to the GOP that libertarians can no longer be held as a natural constituency.
As for the “moral majority” concerns, I pay little attention to them for several reasons. First, most people who vote on moral issues are in fact hoping for a return to the past legal environment that previously existed. For instance (that is if I have the case right) in Texas v Johnson moralists were simply attempting to uphold long standing law rather than enact new law that became more restrictive. Even in the case of Roe v Wade many who oppose that decision do so on the basis that it was a major (and non-democratic) departure from the existing body of law. It is true that there is a large minority of people who are staunchly pro-life, but not a majority now some 32 years after Roe. Accordingly, their reaction comes from a particular sense of loss. Reality has it that we have been, for nearly fifty years, increasing the level of social liberties rather than reducing them. This is often where I say, in the largest of contexts, Democrats don’t know how to take “yes” for an answer. I can see no evidence of the law sliding back toward highly moralistic constraints. I would be interested in hearing of some from you if you can site an actual instance other than what is in the debate rhetoric except perhaps issues of parental consent for abortions (which, btw, the pros and cons both withstand libertarian scrutiny.)
It is in the area economic liberty that keeps me at all tied to the GOP ideologically, but that too is failing rapidly. But the Democrats places economic liberty far below economic equity so it’s fair to say that I’ll never vote Democratic again. And as one knows, the balance between economic efficiency and equity is an argument that will not soon end.
There is a significant difference in my mind between a body of judicially enacted legal standards, such as the jurisprudence known as “substantive due process” or “substantive equal protection” and moral-majority laws in that moral-majority bases are usually a defense of a legislative action, as opposed to say necessity or decisive branch theory as a defense for what some would call an activist judiciary. That is not to say that both are not also used as defenses of the status quo. I think that we differ in terms of what we would call bad activism, since you pin yourself as a contructionist, and I pin myself a judicial realist, with high hopes for the ability of the court to do good. This is another debate that I think is far from over. As far as privacy goes coupled as it is with substantive due process, I think that the judiciary of today could do a lot better. Democrat appointees in cases like Kyllo at the 9th circuit are particularly worisome to me, not to mention the dissents of the big government tendencied liberals on the High Court. At any rate, the neo-conservative standard of change appears to me to slide us back towards moral restraint regarding, say, sexual orientation, but more than that the arguments of evangelicals and born-agains on the front lines of youth, that is to say public schools, is even more backward and yielding without any sort of appeal to reason or intellect. I am watching particularly the textbook business in school district 2 and elsewhere. You may have read my post on the subject of philosophy v. science.
Your biography reads similar to that of David Horrowitz, albeit with less inane tendencies, but tell me what do you think of him?
V, you never answered my question from your previous post about being a law student and now I think maybe your a lawyer. I say this because, other than me, you’re the only other local blogger with speaks about “substantive due process” etc. I recently watched a two hour conversation between Justice Scalia and Justice Kennedy covering that issue and issues of federalism. Not being a lawyer, I’m not equipped to speak about the nuances of such but I am well versed in the judicial theories. (I must be sick)
Anyhow, while reading your last comment I was struck how you call legislated law “moral majority law” at least as far as the legal defense goes. In that context does not Kelo qualify as that in the majority showed broad deference to the legislature? Activism (I use the term loosely) then was on the side of federalism. On Raich, activism was on the side centralized government. So the question must be posed of where the 12th Amendment ends and “substantive due process” begins. The best example in recent history is Bush v Gore. The majority was right to the extent that the Florida SC was overturned, but SCOTUS had the ability to remand the matter to the Florida legislature by nullifying the lower court and keeping out the part of the decision that ended the counting. In that way Bush would have won on the due process grounds and Florida’s rights under the 12th Amendment would not have been usurped. Interesting the SCOTUS came down the way it did as the Constitution provides for these disputes to be managed in the House. It’s a head scratcher primarily for the fact that Bush would have won if the matter had gone to the House.
That said, I see both ends of the court as “activist” in a certain sense. The Chief has been quite activist in pushing cases of federalism (except in Bush v Gore), and it not always makes sense as in that case (I forget the name) excluding Oklahoma public employees from filing ADA cases in federal court.
But you have yet to site me a case where your liberties have been impinged from the activities of the religious right. I’m quite willing, as you might guess, to consider your arguments. I have been looking at this for a great while, and although I see many areas where our liberties are being diminished (the patriot act is the villain that comes to mind first) I don’t see much on the “morality” side.
Let me say too that I have this same discussion with many of my “progressive” friends and they, as you, provide me with a perceived concern rather than an actual case. I grant you all the concern. I just think it’s way overblown.
As for Horowitz, let me say this: I like very much his message but I often deplore his delivery. I agree with him on the radicalization of the academy, but I’m much more measured in my reaction to it.
I am an undergraduate at UM, but I did recently take the LSAT. I follow legal strategy closely and so I have picked up a couple of cases that underline points that I think are interesting, though I actually think Matt has a better range of jurisprudential reading under his belt than do I. Likely your trouble with extracting an example is because your progressive friends like you and I, may not often be at any serious risk of losing their rights completely. I am a white, straight male, and while the patriot act frightens me, I am not really a target of its enforcement.
Moral majority is not the basis for all laws made by a legislative body. Many of the laws are dictated by those phrases in the constitution which explicitly give or imply the power to act in certain areas and also by those which limit explicitly and implicitly (this is a major Federalism issue, under the 11th Amend). Regardless of your feelings about the expansion of the elastic clause or others those powers are now protected by the constitution and a majority on the court in favor of stare decisis. On the other hand, legislatures both state and federal often take actions that don’t necessarily fall within that purview and while they could be challenged they often aren’t either because they are too unimportant or they are essentially victimless within the special interest community. The basis for these laws according to many legislators is that a representative body can always act because in a democracy the majority rules, and thus even morality can be dictated to the minority along even religious grounds so long as an elected majority votes for it. I am working on a case example, but I want to have another look at my case notes, before I offer it.
In the meantime we can tackle Bush v. Gore. This case is easy if you take a step back from legal analyses. Supreme Court Justices are smart, and certainly smart enough to see the outcome of their votes in that case (specifically Rehnquist who you will note is almost more a historian than he is a justice). That said five people on that court voted for Bush in the 2000 election via ballot and the same five voted for Bush in the decision. I don’t hold this against them. Rather I hold it against the legislative branch that should have banded together in outrage at the usurpation of their power, but they didn’t. The judiciary has little or no business in political decisions for this very reason, and so the founders came up with a solution that didn’t involve the “cloak and dagger,” albeit decisive decision making process of the Judiciary. It would have been a cleaner win all around if the matter had gone to the HoR, and as you said the outcome would have been the same. As far as the Federalism issues you raised, states have an opportunity to keep decisions out of the jurisdiction of the federal courts via “independant and adequate state grounds” doctrine (O’ Conner), but when they wave that option, which I tend to think an overzealous judiciary in Florida did on purpose, the question of federalism is a non-issue.
First I think you’re wrong that Matt has a better grasp of jurisprudence than you. In fact, I would suggest that Matt often fails to separate judicial precedent with political philosophy. I think he’s rather Machiavellian in his view of Constitutional interpretation.
Secondly, I wrote “12th Amendment” when I meant “11th Amendment” in my previous post. when referring to Raich.
Lastly, I agree with almost everything in your last post but I’m still having a hard time with your pretext on legislated “morality.” That, in as much as murder, rape, theft, pedophilia, polygamy etc. are “moral” issues addressed by majoritarian mandate primarily through state legislatures.. Seems that those issues in the gray areas of morality somehow become less valid under our current state of judicial review and substantive due process. In a great many of those decisions I agree with the outcomes but disagree with the process and subsequent judicial fiat because it often violates the Lochean tenet of “permission.” Hence, I too give great deference to the legislature in most cases except when it violates (my interpretation of) the Bill of Rights. My utopian view prefers broad consensus building over judicial dictate. But hey, we’re all entitled to our opinions.
I look forward to the case you’re working on.
Actually you should engage Matt on Machiavelli, as I believe it is a major motivation for him to be a Democrat, although its been nearly two years since Matt and I sat together to design and deconstruct the perfect republic to replace the current structure of the Montana Associated Students.