It’s Ok if He’s OUR Activist Judge

From guestblogger Thomas:

Judge Sam Alito, or “Scalito” (because he’s at least as conservative as Scalia) has gotten a lot of press since his nomination. Roundup links are on every political blog, and I won’t try to replicate that here. Rather, I want to focus on one aspect of Scalito that I find troubling. The administration has talked about “judicial restraint” in a way that renders the term meaningless at best and Orwellian at worst, like the “healthy forest initiative” (which meant, “cutting down more trees”). Alito is no restrained jurist. He is, rather, a hammer-swinging activist who wants to change the way the American legal system works. There are major pillars of the current understanding of the Constitution that he appears to disagree with. He is not shy about throwing the weight of the bench full-force into the acts of legislators and smashing them to bits. Calling it “strict constructionism” isn’t really accurate, but calling it “restraint” is just misleading.

The inimitable Dahlia Lithwick picks up on this in her Slate piece:

“Best of all for Bush’s base, Alito is the kind of “restrained” jurist who isn’t above striking down acts of Congress whenever they offend him. Bush noted this morning: “He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.”

Except, of course, that Alito doesn’t think Congress has the power to regulate machine-gun possession, or to broadly enforce the Family and Medical Leave Act, … In that sense Bush has pulled off the perfect Halloween maneuver: He’s managed the trick of getting his sticky scandals off the front pages, and the treat of a right-wing activist dressed up as a constitutional minimalist.”

I’ve edited this down because I want to focus on just those first two cases Lithwick noted: Chittister v. Dept. of Community Econ. Dev. (the Family Medical Leave Act case) and Rybar V. United States (the machine gun possession case).
Chittister was already covered by Angrybear here.

To briefly summarize, Alito dissented from the other two judges on the three-judge panel. The problem Congress sought to fix in the FMLA was the disproportionate impact of childbearing on women in the workplace. To the Supremes (as lawyers sometimes call them), this was not all that tough a call. The question was, in part, whether Congress was within the limits of its power to find that there was a history of disparate impact of childbearing on women, and to enact the FMLA to fix it. Rehnquist was joined by five other justices (everyone but Kennedy, Thomas and, you guessed it, Scalia) in holding that, yes, the legislature could properly make those findings and pass that law. In doing so, they rejected Scalito’s position, and highlighted just how far out is was. The decision is in the link and Angrybear has the quote, so I’ll only summarize. Scalito said that Congress didn’t have enough support for finding that childbearing disproportionately affected women. Worse, he said that even if it had, mandating family leave was not a reasonable way to fix the problem.

First, there’s narrow issue: Alito’s belief that there was no support for the conclusion Congress reached. Not to put too fine a point on it, but this view is one that folks could only really hold if what they really think is that the “moms stay home to raise the kids” paradigm is ordained by some higher order that we shouldn’t mess with.

So, Alito wanted the Third Circuit to kill that part of the FMLA, using his interpretation of the Constitution and his view of the world to overrule what Congress thought the facts and policy solution were. And that raises the second issue: Alito has a really, really narrow view of what Congress ought to be able to do. This is in line with the “federalism” of the Federalist Society, the ideological movement among judges and legal academics that is their contribution to the conservative movement. They want to limit the power of Congress to regulate because, really, they think that both businesses and theocrats will do better with the states (unless they are losing in the states or think they can win in the federal government – witness same sex marriage, and the Class Action Fairness Act which moved most class action cases from state to federal courts).

To show just how much of the current legal infrastructure Alito calls into question, we ought to look at Rybar

This is the machine gun case. Brief backstory: In 1995, the Supremes invalidated a gun-free school zone provision of a broader law regulating firearms. They said that the Commerce Clause did not extend so far that, without any specific finding that it affected interstate commerce, Congress could regulate what could be possessed near a school. It was a bit of a shock, since before that most lawyers though the commerce clause was virtually infinite. In Wickard v. Filburn in 1942, the Supremes held that Congress could regulate production of wheat for a farmer’s own consumption because it affected the broader interstate wheat market – well, if the commerce clause extends that far, it really has no limit at least where regulating products and consumption are concerned.

So, in a case called Lopez, the Court struck 18 USC 922(q), the school-zone provision. Then, in 1996, some sketchy gun dealer was arrested in Pennsylvania for selling a machine gun. In 18 USC 922(o), a different provision of the same law in Lopez, Congress said you can’t own a machine gun. Now, lots of asshole gun dealers and bad guys had run afoul of this, and in several cases, they challenged the provision on Lopez grounds. Every circuit, including the conservative Seventh, said, in effect, “What are you, kidding me with this? Of course the Commerce Clause permits Congress to say you can’t own a damned machine gun. And they don’t have to say exactly what their findings are, because it’s pretty obvious.” And so did Alito’s circuit, led by Chief Judge Delores Sloviter. But not Alito – he dissented. In a long and frighteningly well-written opinion, he tries to lay the intellectual groundwork to read Lopez as a broad gutting of the power of Congress to regulate. Other circuits had several good arguments – like, in order to possess a machine gun, you have to buy it, and drying up the market to buy them will certainly reduce the interstate traffic in machine guns. (I believe this is, by the way, the same reasoning that allow Congress to outlaw the possession of child pornography.) But Alito doesn’t accept that. He thinks that Congress would have to specifically make findings to this effect before it is entitled to regulate in that area.
Why did Alito do this? It’s not as if he’s saying that Congress couldn’t make such a finding and re-pass the act. So he’s not trying to protect machine gun ownership. And he’s a former prosecutor who according to some lawyers never saw a defendants’ right that he liked. He’s not trying to help out the gun dealers. He’s got bigger fish to fry.

What Alito was doing was taking the little hole in the broad power of Congress that Lopez made, and ripping at it to make it as big as he could, until he rips up Wickard and reduces the power of Congress to regulate commerce to a fraction of what it is today: as Grover Norquist says, “shrink the government until I can drown it in the bathtub.”

But Thomas, you may say (if you’re really interested in con law and still reading this), are there really people that want to overturn sixty years of Commerce Clause jurisprudence? Well, here we have conservatarian gadfly JeffG, on his own blog, quoting from his readership in rubbishing Wickard. Because the Commerce Clause undergirds so much of what Congress can do, and a lot of folks on the far, far right want to tear it in half. It sure looks like Scalito is one of those folks.


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39 comments for “It’s Ok if He’s OUR Activist Judge

  1. November 1, 2005 at 12:16 pm

    Er, a lot of folks on the NOT far right want to tear the commerce clause in half. (or diminish its hold)

    And some folks on the left, in certain situations, as it underpins federal regulation and enforcement of drugs, and by extension, assisted suicide and medicine.

  2. November 1, 2005 at 12:34 pm

    Like Bill, I wouldn’t define myself as “far right,” but Scalito’s Rybar dissent seems to make sense. How the heck could one justify within the context of the Commerce Clause, without the Commerce Clause extending to everything?

    I know that the term “judicial activism” means different things to different people. To me, the important thing is that a judge doesn’t decide on the policy result they would desire before working backward to formulate reasoning that would justify that result. Instead, they look at the relevant law and follow a linear path to an unforced conclusion.

    As you pointed out, it’s a reasonable assumption that Alito’s personal preference wasn’t to do anything he could to help out a drug dealer defendant. Could it be, though, that as opposed to some sinister Norquistian aim, he simply tried to apply a reasonable interpretation of a finite Commerce Clause? And is it accurate that his dissent was an attempt to “overturn sixty years of Commerce Clause jurisprudence”? Or was he simply applying the limits of the Commerce Clause as outlined in Lopez?

  3. November 1, 2005 at 12:36 pm

    And a lot folks, whether right or left, who support a broadly construed commerce clause nonetheless feel that the Federal government has gone much too far in its implementation of laws that “derive” from the CC.

    I believe that the commerce clause gives the Feds substantial power to regulate many economic questions. However, a Constitutional clause that (by interpretation) says that a product that a person makes in their own home for their own personal consumption using air, sunlight and water is nonetheless an object of interstate commerce – well, that’s a commerce clause that lets the government just do whatever it wants to do.

    And that’s not cool.

  4. November 1, 2005 at 12:41 pm

    I’d add that in a very specific way, this nomination could well create judicial restraint on the court.

    What they mean by judicial restraint is nullifying the ability of any court to overturn law passed by the legislative branch under any circumstances except where there is explicit text in the state or federal Constitution barring the law from taking hold.

    A prime example is my (very conservative) uncle who expressed disbelief that the Supreme Court of Arizona (his home state) overturned a ballot measure passed by a plurality. “They can’t do that, they can’t overturn the will of the people” he said.

    “But the hell they can’t,” I shot back, explaining the process is called “judicial review”, and courts do have incumbent on them the responsibility to overturn policies in violation of the Constitution. He then said that was an unfair distribution of power, and I explained that ultimately, the people do have the final say, but that say only comes in the form of a Constitutional amendment.

    That was the end of the discussion, because although I’m not a laywer, the fact remains that the courts are responsible for the oversight of legislation in constitutional matters, as the executive is responsible for oversight of legislation as well, either by signature or by veto. It’s called checks-and-balances, and what conservatives have found is that throughout time, the court system has been sympathetic to things like equal protection and so on. It pisses them off and they want it stopped.

    Basically, they want a separation of powers totally redfined from what the Consitution establishes, a tensed, equilibrium system, giving the majority most of the power, but imparting on them through other avenues of access to the policy process (the courts) the responsibility of defending the rights of the minority, and not engaging in tyrannical behavior.

    It totally is doublespeak, everything from “uniting not dividing” to “protect and defend the Consitution”.

  5. November 1, 2005 at 12:52 pm

    Thanks to Adam Felber for explaining it all in three steps:

    Q: Isn’t that being an “activist judge” who “legislates from the bench?”
    A: No.

    Q: Why not?
    A: He’s a conservative. Being an “activist judge” and “legislating from the bench” is something only liberals can do.

    Q: But isn’t that –
    A: Look, the only times Alito has ruled in those ways was when he had to, usually because activist congressmen were seeking to legislate from the legislature.

    (BONUS QUESTION)

    Q: But isn’t that-
    A: You hate Italian-Americans, don’t you?

  6. Andrew
    November 1, 2005 at 1:00 pm

    Just because Alito wants to reign in Congress’ power under the Commerce Clause doesn’t mean he’s an activist judge. The Commerce Clause gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” It doesn’t give Congress the power to regulate anything that affects the economy. If you want a good example of an activist judge, look at David Souter, who thinks that since rape affects the economy, Congress can allow victims to sue in federal court. If we went with his interpretation of the Commerce Clause, Congress’ authority would be limitless, which is pretty much the opposite of what the Founding Fathers intended. But who cares what the Founding Fathers thought, they were just slave-owning white men, right?

  7. November 1, 2005 at 1:11 pm

    norbizness,

    That’s funny, but I would certainly grant that there are “conservative” “activist” judges, and many decrying “judicial activism” would love to have them in place. Dobson, for example, would presumably love to see a “conservative activist “judge put in place despite his “down with judicial activism” rhetoric.

    Just because the terms are used problematically, though, doesn’t mean that there aren’t people who are trying to use them honestly.

  8. November 1, 2005 at 1:20 pm

    Alito has a really, really narrow view of what Congress ought to be able to do.

    Mercy. Imagine if legislators started thinking that way, too. We might get some federalism up in here.

  9. November 1, 2005 at 1:38 pm

    Umm, no, you wouldn’t, because Alito transfers the power of the legislature to the executive.

  10. November 1, 2005 at 1:40 pm

    I realize that the elastic commerce clause can be stretched into oblivion (although the same thing was said with respect to the underpinnings of the Civil Rights Act… a position that probably won’t be taken during confirmation hearings)– my main point is that the terms “judicial restraint,” “strict constructionist/constructionism,” and “activist judge” are all, separately, meaningless. Tying them together is like multiplying something by zero.

    For instance, take the FMLA case. If we subscribe to the concept of nominee infallibility, Alito exercised judicial restraint in actively limiting the scope of relief petitioners could get under the federal statute, and Rehnquist (in upholding the right to sue for FMLA plaintiffs and disagreeing with Alito’s Circuit Court dissent) was a judicial activist. If you’re talking about federal power, then you’re probably talking about the plenary power of the executive (without judicial review) to do anything under the guise of national security. However, Congress can be second-guessed as to the good faith of their preamble/findings in annulling legislative power.

    In a previous post, I quoted Rehnquist, when he was asked to give a definition of a strict constructionist/originalist during his stint as nominee-vetting Solicitor General in the early 70s. His basic definition was that such a person, as a starting point, favored prosecutors over criminal defendants and civil rights defendants over civil rights plaintiffs. I mean, I guess he should know.

  11. Jon C.
    November 1, 2005 at 1:49 pm

    Wow…I can’t believe how amazingly incoherent the liberal case against Alito is becoming. Okay, so now he’s an “activist”…if so, he is the most bizarre “conservative activist” ever to sit on the bench. After all, as Jill has explicitly acknowledged, he has a record of applying Supreme Court precedent to uphold partial birth abortion. Why would such a conservative activist reactionary do that?

    Re: Rybar, recall that Alito was writing this while trying to interpret Supreme Court precedent (Lopez) that strongly indicated there at least some limits on Congress’ power to regulate non-economic activity under the Commerce Clause. Remember how Democrats have been telling us that we must have a new justice in the mold of Sandra O’Connor? Well, O’Connor signed on to Lopez, and just last term (in her dissent in Gonzales v. Raich) strongly reiterated her support for the position that Congress’ regulatory power is not plenary. So it seems that Alito just might turn out to be an O’Connor-esque justice after all.

  12. November 1, 2005 at 1:51 pm

    Althouse on FMLA:

    This is stunningly well and concisely written and quite correct, though it is not the position the Court ultimately took in Nevada Department of Human Resources v Hibbs. I have a law review article on Hibbs, which you can read in PDF here. Alito took the position Justice Kennedy took in dissent in Hibbs. Chief Justice Rehnquist wrote the majority opinion, which purported to apply Boerne and Kimel, but most certainly did not. You can argue that Boerne and Kimel were wrongly decided, but Alito was bound by them and duly and competently applied them. Anyone who tries to say that Alito is hostile to women’s rights because of this decision is utterly wrong.

    Note: The FMLA is still supported by the commerce power. The issue under the 14th amendment only concerns whether the plaintiff can receive retroactive relief when the employer is the state.

    Go to it.

  13. Thomas
    November 1, 2005 at 1:53 pm

    Andrew, the founding fathers did intend a much more limited federal role. That was the structure of the nation for the first seven decades or so. That system tried to paper over a rift that could not be papered over. So the South seceeded and fired on Fort Sumter. The Union fought and won the war, and imposed the Reconstruction Amendments.

    (I’m not exactly parroting Bruce Ackerman here, but …) post- the Civil War, we had a different structure of government. The uneasy relationship of the states to the whole was resolved decisively in favor of federal supremacy, and Congress was understood to be able to do a lot more — not least because of the 14th Amendment, but the change was across the board. After the Civil War, the nation became a bigger, more complex, more modern place with a lot more interstate communications, and the ability to regulate interstate commerce grew partly organically as a result, until it encompassed almost all economic activity.

    So, we don’t live in the founders’ America. The founders were slaveholding white males, and also slaveholding white males that lived in a nation of small farms and very limited interstate travel. They lived in a world where activity that had any real connection to interstate commerce was the exception. They lived in a world different from ours.

    If the Constitution cannot be read flexibly, it cannot survive the changes that the decades and centuries bring.

    By the way, I worried that nobody on this blog would be stand-up enough to oppose Wickard. I was worried for nothing. We’ve got loads of people that are ready to take a claw hammer to the structure every reader has lived with for our entire lives and roll us back to the beginning of the Gilded Age. Such people may not consider themselves far, far right: in the strictest definition, such people are constitutional reactionaries.

  14. Thomas
    November 1, 2005 at 1:58 pm

    Jon, between the time of Lopez and Alito’s Rybar dissent, five other circuits decided the same question and they all thought the Commerce Clause, post-Lopez, still allowed a ban on machine guns. So did the other two judges from the 3d Cir. panel. Alito, in trying to make the case that Lopez at the CC, was on his own way out on the right.

  15. Thomas
    November 1, 2005 at 2:16 pm

    After all, as Jill has explicitly acknowledged, he has a record of applying Supreme Court precedent to uphold partial birth abortion. Why would such a conservative activist reactionary do that?

    Jon, that’s a superficial analysis. As a circuit court judge, he obviously recognized that the Supremes get the last word and respected precedent when he didn’t think it gave him room. Therefore, if the Supremes clearly think that a certain restriction is a non-started under existing jurisprudence, he’s follow.

    In his Rybar attack on the CC, he obviously thought he had a chance to influence the Supremes to take the hole they made in Lopezand enlarge it — he was trying to facilitate a revolution.

  16. Thomas
    November 1, 2005 at 2:21 pm

    Shankar, states’ rights is and always has been primarily a flag of convenience, used to forum-shop the multi-sovereign system for a level at which the proponent can win.

  17. November 1, 2005 at 2:25 pm

    I was worried for nothing. We’ve got loads of people that are ready to take a claw hammer to the structure every reader has lived with for our entire lives and roll us back to the beginning of the Gilded Age.

    Yes, that’s exactly what I’m advocating by asserting that there are limits to the Commerce Clause. You caught me!

  18. rls
    November 1, 2005 at 2:42 pm

    If the Constitution cannot be read flexibly, it cannot survive the changes that the decades and centuries bring.

    That is exactly what the amendment process is for. You know, it’s been done several times.

  19. November 1, 2005 at 2:45 pm

    WHY DO YOU WANT TO PISS ON THE GRAVE OF ROSA PARKS, CONSERVAREACTIONARIES?

  20. Thomas
    November 1, 2005 at 3:01 pm

    Well, Jeff, you do advocate both a more limited reading of the Commerce Clause and of Section 5 of the 14th Amendment, right?

    Those are the principal bases for desegregation of public accomodations, right?

    The Montgomery bus boycott was essentially about segregated public accomodations, right?

    Just sayin’.

  21. Jon C.
    November 1, 2005 at 3:14 pm

    As a circuit court judge, he obviously recognized that the Supremes get the last word and respected precedent when he didn’t think it gave him room.

    Excellent point, Thomas. That takes a lot of wind out of your argument that Alito was a reactionary, activist judge.

    In his Rybar attack on the CC, he obviously thought he had a chance to influence the Supremes to take the hole they made in Lopez and enlarge it — he was trying to facilitate a revolution.

    Oooh, a revolution…scary. Since you seem to be a pretty law-savvy guy , Thomas, I’m sure you know that before backing away in Raich last year, SCOTUS itself expanded the reasoning of Lopez to certain sex crimes when it struck down part of VAWA in US v. Morrison in 2000 (there’s another decision where O’Connor, the new liberal gold standard for judging, was in the majority).

    And for the record, why are you acting like limits on Commerce Clause power are on inherently conservative or inherently bad? It was the infamously liberal 9th Circuit that appealed to this rationale in Raich, and limits on the Commerce Clause are just as likely to favor liberal or libertarian goals like ending the drug war, or promoting gay rights and abortion, as they are to favor conservative goals.

  22. Thomas
    November 1, 2005 at 3:39 pm

    Jon, all I’m saying about the late-term abortion case is that Alito recognizes that discretion is the better part of valor. If what he wants to do is roll back the Commerce Clause to something much smaller, once he’s on the Supreme Court he won’t have to defer to anybody’s precedent. Circuit judges can only do what they think with persuade the Supremes or escape review. Justices can do more. That’s why Morrison makes the problem worse: the increasing conservatism of the Supreme Court has rendered it ripe to be swung farther by Alito. If I thought that 8 justices held a very broad view of the CC, Alito’s view to the contrary would be relatively unimportant.

  23. Jon C.
    November 1, 2005 at 3:57 pm

    Jon, all I’m saying about the late-term abortion case is that Alito recognizes that discretion is the better part of valor.

    Okay, that’s all good and well, but then let’s just all be clear that when you’re arguing Aito is a conservaitve hack who will inevitably tear down Roe, you’re in the realm of your own personal crystal ball-gazing and not the realm of informed legal punditry.

    RE: the CC, I think it was made perfetly clear in Raich that at least 5 justices find it limitless, and not even Scalia was willing to disagree where it would have made a difference. With O’Connor retiring and Rehnquist’s death, by the time Alito arrives on SCOTUS there will be only one sure-fire vote (Thomas) in favor of any substantive limits on it. Since Alito’s confirmation is all but assured, this should help you get some sleep at night: the modern regulatory state, for good or ill, is not going anywhere.

  24. Thomas
    November 1, 2005 at 4:09 pm

    when you’re arguing Aito is a conservaitve hack who will inevitably tear down Roe

    Are you referring to something I said? If so, I don’t recall it. Or are you referring to Alito opponents in general?

  25. Jon C.
    November 1, 2005 at 4:48 pm

    I am referring to Alito’s critics generally and to your explicit attacks on Alito as a “conservative activist” hack. If you don’t in fact think Alito will oppose Roe, then I apologize for suggesting that you might. I’m pretty sure that was the strong subtext of your post though, so let’s just get it all clear: do you think Alito is a conservative hack will vote against Roe because his personal policy preferences control his jurisprudence?

  26. Andrew
    November 1, 2005 at 4:53 pm

    Andrew, the founding fathers did intend a much more limited federal role. That was the structure of the nation for the first seven decades or so. That system tried to paper over a rift that could not be papered over. So the South seceeded and fired on Fort Sumter. The Union fought and won the war, and imposed the Reconstruction Amendments.

    The South was justified in firing on Ft. Sumter. The federal occupation of Ft. Sumter was a threat to the sovereignity of the CSA and South Carolina. How was the attack on Ft. Sumter any different than the attacks by American militamen on British soldiers and marines in the Battle of Lexington?

    And the Reconstruction Amendments didn’t end federalism. In US v. Morrison lawyers for Christy Brzonkala and the Department of Justice used the 14th Amendment as one of the justifications for the provison of VAWA that was being contested, but SCOTUS disagreed with that use of the 14th Amendment and struck down the law, creating a victory for federalism.

    (I’m not exactly parroting Bruce Ackerman here, but …) post- the Civil War, we had a different structure of government. The uneasy relationship of the states to the whole was resolved decisively in favor of federal supremacy, and Congress was understood to be able to do a lot more — not least because of the 14th Amendment, but the change was across the board. After the Civil War, the nation became a bigger, more complex, more modern place with a lot more interstate communications, and the ability to regulate interstate commerce grew partly organically as a result, until it encompassed almost all economic activity.

    I’m well aware of the changes in commerce, but read the fucking constitution. It doesn’t say Congress can regulate anything that remotely affects the economy, it says Congress can regulate interstate commerce. As for regulating effects on the economy, in Lopez and Morrison, SCOTUS ruled that Congress can only regulate something that substantially effects the economy. But most of the laws passed under the Commerce Clause have little or no relation to interstate commerce and don’t substantially affect the economy. How are rape, bringing a gun into a school, building a machine gun, and growing marijuana interstate commerce? The federal government should not be regulating those things – that should be the responsibility of the states.

    So, we don’t live in the founders’ America. The founders were slaveholding white males, and also slaveholding white males that lived in a nation of small farms and very limited interstate travel. They lived in a world where activity that had any real connection to interstate commerce was the exception. They lived in a world different from ours.

    If the Constitution cannot be read flexibly, it cannot survive the changes that the decades and centuries bring.

    If they created a Constitution for a world different from ours, perhaps we should create a new Constitution instead of relying on a relic created by evil white men (of course, to leftists and feminists, all white men are evil so that’s kind of redundant) who owned slaves.

    By the way, I worried that nobody on this blog would be stand-up enough to oppose Wickard. I was worried for nothing. We’ve got loads of people that are ready to take a claw hammer to the structure every reader has lived with for our entire lives and roll us back to the beginning of the Gilded Age. Such people may not consider themselves far, far right: in the strictest definition, such people are constitutional reactionaries.

    So anyone who believes that the 2nd Amendment allows Americans to own guns, that the 14th Amendment doesn’t contain a right to abortion, and that rape isn’t interstate commerce is a reactionary? Then I’m proud to be a reactionary. And not everyone who believes in a strict interpretation of the Constitution is “far, far right.” Many are libertarians and libertarianism is not the same as conservatism.

  27. November 1, 2005 at 4:59 pm

    of course, to leftists and feminists, all white men are evil so that’s kind of redundant

    Beg pardon, Andrew? I believe this leftist feminist is providing you with an open forum on my tab. If you don’t like it, feel free to go. Any bullshit like that again, and I’ll see you out myself.

  28. Thomas
    November 1, 2005 at 5:40 pm

    The South was justified in firing on Ft. Sumter. The federal occupation of Ft. Sumter was a threat to the sovereignity of the CSA and South Carolina. How was the attack on Ft. Sumter any different than the attacks by American militamen on British soldiers and marines in the Battle of Lexington?

    How is it different? 1) the American revolution was not fought to protect one of the greatest injustices in history; 2) we won.

    I have to thank you, really. I never thought I’d get a conservative poster to actually whistle dixie in public. Folks, we got ourselves a real live confederate sympathizer here.

  29. Jon C.
    November 1, 2005 at 5:58 pm

    I find Andrew’s Fort Sumter comment unfortunate, because that will now probably become the main theme of this thread, and opens the door to let conservatives be painted as neo-Confederates. I’d just like to let it be known that I have no sympathy for neo-Confederate arguments, and that one can still believe in reasonable limits on federal power without believing the Confederacy’s cause and the American revolution were equally justifiable.

  30. Thomas
    November 1, 2005 at 5:59 pm

    do you think Alito is a conservative hack will vote against Roe because his personal policy preferences control his jurisprudence?

    Conservative hack? If you mean a mere apparatus of the Republican Party’s conservative wing, driven by passing partisan politics, then absolutely not. I believe Alito is concerned with more abstract matters of constitutional jurisprudence. That is to say, I don’t accuse him of disingenuousness. I believe, for example, that he wants to greatly restrict the CC because he believes in a restricted CC, and not that this is merely a means to some more result-driven end.

    I would not use the word “hack” to describe a very smart, able jurist who has strongly conservative views on how to read the Constitution. Hack, I believe, implies either mediocrity or disingenuousness.

    vote against Roe because his personal policy preferences control his jurisprudence?

    No. I don’t believe he will vote to reverse Roe for the reason I believe Scalia does. I believe Scalia is disingenuous. His jurisprudence on abortion and on homosexuality is tinged with a personal animus that Alito has never displayed. Scalia turns positively red when talking about homosexuality, for example. His flaring temper betrays his real motive: queers disgust him. If Alito feels that way, I’ve never heard it, and I don’t suggest that.

    (I’m calling Scalia a conservative hack. Despite the greatest intellect on the Court, on some issues he merely marshalls it in service of prejudice, like a drunk using a lamp-post for support rather than illumination.)

    If Alito votes to reverse Roe, and I think he will, it will be because he looks back at Griswald and really believes that the Court took a wrong turn — that the rights mean only what the cold parchment says, that there is no higher purpose to serve by understanding a system of ordered liberties.

    I’m not saying that’s a conclusion independent of one’s view on the issues. None of us is an island, capable of Platonically pure reason and sealed off from influences. So, if Alito’s view is that abortion and sodomy are wrong (and we don’t know for sure that those are his view), that might factor into a conclusion that an expansive reading of a right to privacy in the Constitution is a bad thing. But that’s not the same thing as self-consciously saying to one’s self, “self, we need to end abortion, so we better eliminate the right to privacy and destroy any underpinnings for a right to terminate a pregnancy.”

    Jon, is it your view that Alito will not vote to reverse Roe, or do you think we can’t tell?

  31. EricP
    November 1, 2005 at 6:25 pm

    I think that it is a pretty safe bet that he’ll vote to over turn Roe. Unlike some, I think he’ll do because he strongly believes that it was wrongly decided on constitutional terms. I also believe that he would to over turn any attempt by Congress to regulate abortion under the CC. It will then go back to the States to be settled by the legislatures. And then democrats will start winning elections for the foreseeable future.

  32. November 1, 2005 at 6:28 pm

    EricP, that is why, in my darkest hours, I sometimes wish that conservatives get exactly what they want (and nothing they expected).

  33. Jon C.
    November 1, 2005 at 6:42 pm

    Jon, is it your view that Alito will not vote to reverse Roe, or do you think we can’t tell?

    I don’t think we can tell. On the one hand, we have things like his dissent in Casey, and then on the other hand we have some indications that he believes in substantive due process. But I do think however he votes, it will be a well-reasoned opinion.

    I appreciate the tone of your most recent posts, Thomas. It’s pretty hard to square them with some of the more over-the-top attacks you made on Alito initially, but at least you can admit that you think Alito is reasoning in good faith and isn’t just a results-oriented conservative who comes to the conclusion he wants and then reasons backward from there.

    I believe Scalia is disingenuous. His jurisprudence on abortion and on homosexuality is tinged with a personal animus that Alito has never displayed.

    I would disagree with you there, particularly on abortion. Scalia’s abortion jurisprudence makes very clear that he doesn’t think the Constitution requires it to be outlawed. He simply believes that it’s a matter to be sorted out legislatively. I also don’t see the raging anti-gay bigot that you seem to see in his opinions, but I guess that’s just a difference in how we read him.

  34. Andrew
    November 1, 2005 at 7:04 pm

    Beg pardon, Andrew? I believe this leftist feminist is providing you with an open forum on my tab. If you don’t like it, feel free to go. Any bullshit like that again, and I’ll see you out myself.

    I was using hyperbole.

    How is it different? 1) the American revolution was not fought to protect one of the greatest injustices in history; 2) we won.

    I have to thank you, really. I never thought I’d get a conservative poster to actually whistle dixie in public. Folks, we got ourselves a real live confederate sympathizer here.

    I’m not a Confederate sympathizer or neo-Confederate. I just happen to believe in self-determination. And I’m not even a conservative, I’m a libertarian.

    Despite what politically correct leftists may say, the Civil War was fought to keep the Union together, not to end slavery. Keep in mind that slavery was legal in several of the United States and that the Emancipation Procalmation only applied to CSA territory under Union control – slaves in Confederate-held land and the Union weren’t freed.

  35. November 1, 2005 at 7:20 pm

    Hyperbole or not, the warning stands.

  36. Thomas
    November 1, 2005 at 9:19 pm

    the Civil War was fought to keep the Union together, not to end slavery. Keep in mind that slavery was legal in several of the United States and that the Emancipation Procalmation only applied to CSA territory under Union control – slaves in Confederate-held land and the Union weren’t freed.

    True only in a very narrow sense. This was the political compromise necessary to get the war fought — but the Union was only in danger because of slavery. The irreconsilable conflict pressed slave and free states to seek more of their own, to tip the balance in their favor in the Senate. Without slavery, a middleground between the North and South would have emerged. Slavery was binary, and created a faultline. The limitation on emancipation lasted only as long as necessary to keep the border states on board — the first Reconstruction Amendment ended slavery everywhere in the U.S.

  37. November 2, 2005 at 10:14 am

    I guess you don’t read Scalia’s opinions, which are so Bill Maherish–albeit, on the opposite side of the political spectrum–in terms of comedic value and lack of actual thought.

  38. Thomas
    November 2, 2005 at 11:59 am

    Jon, note I said about Scalia,

    Scalia turns positively red when talking about homosexuality, for example. His flaring temper betrays his real motive: queers disgust him.

    One big clue is outside the text of his opinions: his questions, and also his demeanor, at oral argument. In Jacobson v. US, for just one example, the Court was considering an entrapment claim by a defendant who had been caught ordering child pornography. The guy had ordered photos of teens before the legal limit was 18, and the postal inspector kept sending him advertising until he finally ordered some child porn. At argument, one attorney (prosecution’s appellate counsel, I believe) mentioned that Jacobson was bisexual. Another justice said, “well, how is that relevant to whether he was predisposed to violate the law?” Scalia chimed in with, IIRC, “doesn’t it show that he’s a deviant? That he has rejected society’s sexual norms?” These quotes are approximate — it was a 1992 case, and I don’t have a ready free source for the transcript. (Some of you law school folks may have free access.)

    (BTW, Scalia dissented in Jacobson, which held that, even if someone is predisposed to do an act, if that act then becomes illegal, to overcome an entrapment defense by predisposition the prosecution must show that the defendant was predisposed to break the law. Think alcohol here — if prohibition were reinstated, mere history of drinking would not be enough to prove a predisposition to violate the new Volstead act. Instead, the prosecutor would have to prove a predisposition to break the law to drink. In that regard, a history of pot smoking would be more relevant than a history of drinking pre-ban alcohol.)

  39. November 3, 2005 at 11:46 pm

    “I think that it is a pretty safe bet that he’ll vote to over turn Roe. Unlike some, I think he’ll do because he strongly believes that it was wrongly decided on constitutional terms. I also believe that he would to over turn any attempt by Congress to regulate abortion under the CC. It will then go back to the States to be settled by the legislatures. And then democrats will start winning elections for the foreseeable future.”

    Forgive me if I don’t exactly agree with the last sentence in your analysis. The rest of it is pretty solid, though. You might be surprised to know that most conservatives want exactly what you describe to happen. Then we’ll actually be able to have a productive debate on the matter of abortion and there’s a very good chance that real people (as opposed to activists on either side who have a financial stake in the outcome of the debate) will manage to come to agreement on abortion’s sub-issues like personhood and rights vs responsibilities and will agree to legislation with wihch we can all live.

    I don’t know that such a scenario is a recipe for Democratic election victories, though, any more than it’s a recipe for Republican victories.

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