Friday, October 14, 2005


Conservative Judicial Activism

Confirmed or not, Miers has opened up a fissure among conservatives

There is no doubt in my mind that Harriet Miers is a good person. She might even turn into a great justice- a Scalia clone. But at this point she has taken so many broadsides from within the conservative movement there is almost no way she could not end up disappointing some segment and that would prove to be very divisive and destructive. As I noted, there are some conservatives who are not particularly worried about whether the next justice has a grounding in constitutional law and I suspect that is because they want a conservative who will vote for conservative outcomes which may contradict the principles of original intent and federalism.

Let's take the Oregon assisted suicide law which is before the Supreme Court as an example. A conservative would, most likely, not favor this law. However, the question is whether the state of Oregon can have an assisted suicide law without violating the constitution. If there is nothing in the constitution on this, then the law should stand. I would be distressed if a conservative justice stood against the law as a matter of personal preference.

What if Miers becomes a conservative activist? She will alienate libertarian leaning conservatives who will ask themselves if they really want to support a party that wants to rule from on high.

What if she is a strict constructionist/originalist? She will vote in favor of upholding laws she might politically oppose but which are the will of the people. The issue will simply go back to the state and it will be fought within the proper arena: politics.

The Schiavo business in Congress strikes me as an astonishing violation of the most purpose of federalism. In the same way, Ashcroft's attack on Oregon's Death with Dignity Act is a deep violation of principles of federalism. I say "deep violation" advisedly: I believe that a central purpose of federalism is Westphalian (after the famous treaty that ended the 30 Years War): We properly use federalism to defuse quasi-religious political controversies over the meaning of fundamental things — "life," "personhood," "consent to die," "familial autonomy," etc. Such issues are appropriately divisive: their resolution depends on one's acceptance of fundamental systems of belief — acceptance that will almost never admit of much compromise and that cannot be rationally resolved through positive social or "hard" science.

The Westphalian principle decentralizes these issues to lower levels of government to allow each side in the debate to get some chance for their reasonable, heartfelt position to prevail. To centralize such issues simply because one can muster a necessary majority in either Congress or the Supreme Court is repulsive to this view of federalism.

I think the debate over Miers has degenerated because some conservatives do not mind the idea of activism if it is conservative. I can understand the frustration behind this position. There are many bad judicial decrees, like Rowe v. Wade, that need to be reversed. However, we must do this within the system the founders created or risk discrediting ourselves. Now that we are the majority we cannot confirm judges who will ignore the will of the people or we will lose our majority. You will have to live with winning our battles slowly. Maybe, not at all. Liberals have tried to turn our courts into super-legislatures which enact liberal policies. We do not want to make the same mistake.

Update: Bookworm argues that as a convert to conservatism Miers is unlikely to betray those principles:
"Have you ever noticed that there's no zealot like a convert?" But is she a zealot for the constitution?


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