Politics: July 2007 Archives

Jan Crawford Greenburg has a nice post looking at some of the overblown rhetoric about the last Supreme Court term. Much of the criticism of this last term, from both legal scholars and legal reporters, has been wildly inaccurate, conveniently forgetting important details and drastically misrepresenting the reasoning of the majorities. This is true from both the left and the right, but I'm in agreement with her that there really has been a pretty strident panic on the left. What's particularly strange about it is that it's a reaction to a few small steps in a direction opposite of what the Warren Court and Rehnquist Court had virtually made seem inevitable, and those who have come to see the pretty radical direction of the post-FDR Supreme Court as guaranteeing leftward movement eternally have now recognized that when Republican presidents actually appoint conservative judges it has an effect.

The reality is that the five-person majority isn't remotely monolithic. Justices Scalia and Thomas are originalists. They insist on giving arguments from the original meaning of the law in question or relevant section of the Constiotution. In Thomas' case, later judicial decisions that he thinks were wrongly decided have little value in interpreting what the Supreme Court should say. Scalia is much more inclined to allow precedent to have some value given that it throws the legal system into disorder if you overturn precedent willy-nilly. But he's still somewhat resistant to such moves. They don't agree on everything, not even in theory, but they tend to argue on the basis of original meaning (Scalia usually in terms of what an informed audience at the time would have understood, while Thomas usually seeks to discover the original intent of those who came up with the language in question. Often these will lead to the same result.)

But Justice Kennedy is more results-oriented. He has principles, but they are moral and political principles, not legal principles. He overturns laws and precedents when he thinks a moral issue is at stake. He rarely gives arguments based on original meaning or original intent unless he's trying to garner votes from Scalia and/or Thomas. He cites precedent when he thinks it will get him votes from other justices. But the parts of his opinions that seem to do the most work for him (i.e. the ones that use the strongest language and argue about how high the stakes are) are the kind of thing you'd expect to see in a political election or a congressional debate. They aren't legal arguments. Many of his principles are conservative, often moderately conservative, but some of them are clearly in line with the liberal wing of the Court (e.g. on whether abortion in general should be legal, whether the government can take your property so a developer can build a Wal-Mart, on the rights of gay people to have sex, on detainee rights and executive power).

Then there are the two newest justices. Chief Justice Roberts and Justice Alito are definitely conservative, and they have usually agreed at least in part on the results with Justices Scalia and Thomas and often enough with Justice Kennedy to frustrate Justices Stevens, Souter, Ginsburg, and Breyer. But they are a different kind of justice. They are conservative not in the sense of going for politically conservative results whenever it suits them (as Kennedy would do if he were more morally and politically conservative than he is) and not in the sense of sticking with the original meaning of the law in question or the Constitution. They give much a higher place to precedent.

I've written several times before about James Dobson's views on voting for pro-choice candidates. I've criticized his stance that he could never vote for Rudy Giuliani, on the grounds that such a stance is actually worse for the pro-life movement. I've pointed out an interesting irony: he is a pragmatist about seeking incremental change on abortion rather than insisting on complete change to his ideal state, but at the same time he won't rely on a similar pragmatism in terms of which candidate he'd support between a militant pro-choicer and a lukewarm and moderate pro-choicer with federalist and judicial conservative leanings. I've defended my view that a pro-lifer should be willing to vote for Giuliani if it comes down to a race between him and any of the leading Democratic candidates, insisting that such a view is not simply a matter of doing what leads to the best consequences, relying on the theoretical background of what I'm calling a moderate deontology in ethical theory.

Now I'm being puzzled by a strange new phenomenon. Evangelicals and religious right types who have said they could never vote for Giuliani seem to be flocking to Fred Thompson. Joe Carter is among them, and I suspect the Family Research Council in general is with this movement from Mitt to Fred. There's a suggestion that James Dobson and Focus on the Family are part of it. There seem to be others, many of whom, including Richard Land, who are not willing to endorse just yet but who are whispering about what a good candidate he is or telling people behind the scenes that they will eventually support him. Blogs for Fred was started by evangelicals who want to prevent a Giuliani nomination, run by some prominent evangelical bloggers (Joe Carter, Jared Bridges, Andrew Jackson, and Josh Claybourn).

Yet Fred Thompson is very clearly pro-choice. He's likely a bit more moderate than Giuliani, who in turn is more moderate than any of the Democratic candidates. But Thompson seems to support abortion in the first trimester, even if he thinks the federal government shouldn't be limiting states from passing laws against abortion. He thinks the right policy, as Giuliani does, is for states to allow it, although Thompson would limit later abortions, while Giuliani would not. Both are judicial conservatives of a sort, and both are federalists of a sort. Both would appoint justices similar to the ones Bush did. The only difference is one that would manifest itself only at the state level, which a president wouldn't have anything to do with, and since most abortions are in the first trimester even the state difference wouldn't make an overwhelming difference anyway. On this issue, I think pro-lifers might prefer Thompson to Giuliani. So what? If the reason to oppose Giuliani is that he's too pro-choice, I can't see how Thompson should be less pro-choice enough to support him over the many candidates who are solidly pro-choice, including recent converts who are honest about their conversion to the pro-life view, unlike Fred Thompson, who has been pretending all along that he's pro-life and always has been.

So this just mystifies me. I can see how someone would support either Giuliani or Thompson because they think other issues are more important the pro-life ones. But I can't see supporting Thompson while saying you can't support Giuliani if the only issue serving as the basis for that decision is abortion. Their views are nearly indistinguishable when it comes to the role of a president. So what's going on here? Is this just ignorance, perhaps willful ignorance, of Thompson's actual views? Is it wishful thinking? Or is there some sophisticated defense of condemning Giuliani for his views on one issue while supporting Thompson despite his nearly-identical views on the same issue?

My next post in the series on religion and politics is up at Right Reason. It's called Augustine on Civil Government: The Two Cities, and it provides some of the background on Augustine's general views before I launch into his direct treatment of the issues I'm going to focus on.

From 2008 Central:
Tancredo is trying to keep the immigration issue alive. At his news conference Wednesday, he unveiled an immigration bill that would crack down on employers who hire illegal immigrants and limit citizenship to children born to at least one parent who is also a U.S. citizen or lawful resident.
Wait a minute. Wouldn't that be unconstitutional? From the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

He isn't proposing an amendment. He thinks it would be constitutional to do this. How so? I had to Google around to find his explanation, but here it is. He relies heavily on "and subject to the juridiction thereof", claiming that children of illegal immigrants aren't subject to the jurisdiction of the United States. I can think of lots of things that the contrast between those under U.S. jurisdiction and those not could come to, but the idea that children of illegal immigrants are not under U.S. jurisdiction is one of the least likely. Doesn't it raise problems for enforcing laws if illegal immigrants aren't under U.S. jurisdiction? Then why would their children not be?

Update: This post is about Tom Tancredo and the constitutionality of his proposal. Comments should be about that.


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Blogs are abuzz with the news the Sen. David Vitter (R-LA) is on a list of people who called a prostitute. Lots of things might be appropriate to say about this, but there's one thing I've been seeing that just isn't one of them. A lot of people have been calling him a hypocrite for being strong on family values politically while having an adulterous relation with a prostitute. This sort of comment derives from ignorance about what hypocrisy is.

According to Merriam-Webster, hypocrisy is "a feigning to be what one is not or to believe what one does not; especially : the false assumption of an appearance of virtue or religion". As far as I can tell, there isn't any evidence here that his claim to be in favor of family values was false, i.e. that he doesn't really believe it. He did do something that conflicts with such a belief, but that doesn't mean he doesn't really have the belief and was just faking it to get elected. That would be hypocrisy. Pretending you believe something in order to get elected fits with the Merriam-Webster definition. It's a kind of dishonesty.

On the other hand, many people often have higher standards for themselves than they actually meet. I certainly do. That doesn't make me a hypocrite. It just means that I'm bad. Being bad and being a hypocrite aren't the same thing. If you're bad, and you realize you're bad, you regret it afterward and not just because of the consequences. If you repent of the action and turn from it, then it reveals that you really disagree with the action but did it out of weakness. You're still morally responsible for it, and if it's a serious wrong then you're morally to blame for a serious wrong. But it's not hypocrisy unless you never really believed it to begin with, and committing an indiscretion like this isn't a sign of never having believed it. We do what's wrong knowingly all the time. There's a difference between that and pretending you're something you're not.

(Note: Vitter has dealt with this issue within his own marriage and has been in counseling with his wife because of it. I think that's evidence that he is committed to his marriage and really is in favor of family values, even if he did something that undermines the family and his family in pretty serious ways. So I would think the evidence is even fairly strong that he's not a hypocrite.)

Update: There may be an inconsistency issue here. I may need to think about that a little more, but I would insist that that's a separate issue from whether he's a hypocrite for merely doing something he believes is wrong. That wouldn't constitute grounds for a hyocrisy charge. But that doesn't mean there's no issue here related to his role as a senator passing laws against pornography while engaging in the act and then thinking his repentance and reconciliation with his wife is sufficient while a criminal investigation of the prostitute is taking place. If Vitter committed a crime, and he's been endorsing the prosecution of that crime, and yet he was complicit with the crime, that is indeed a problem, and it might constitute hypocrisy. I'd need to see the details more to be sure, but that's the suggestion. There is a difference between running a prostitution ring and paying to use one of the prostitutes in that prostitution ring, but I think there might be an issue, but it may not be as simple an issue as it sounds.

People often speak as if personal attacks in politics have been getting increasingly worse. Perhaps they have in the short term. I have no idea. But personal attacks have not been a recent phenomenon, and the kind we have now wouldn't have been beyond the pale in past generations. 08 Guru ASC has some choice morsels from some pretty nasty personal attacks in presidential elections in the past, some of them going way back to Adams (both of them, actually), Jefferson, and Jackson.

As I was typing up the post announcing the Christian Carnival that I just posted, it took great effort to refrain from a snarky comment about the July 4 anniversary of U.S. independence. Here is what I was going to say, but I thought it needed to be in a separate post.

I was going to say that the Christian Carnival is up, complete with quotes from the Federalist Papers to celebrate the anniversary of U.S. independence from the oppressive, dictatorial regime rule of the British monarchy that had previously treated the colonists the way Saddam Hussein did the Kurds.

Seriously, I have to wonder at those who yesterday celebrated American independence from the relatively mild discomforts of British rule who yet think those who supported freeing Iraq from Saddam Hussein had no just cause.
Now I admit that that isn't the only reason someone might have opposed the invasion of Iraq, but it is a common enough complaint, and I'm sure some making it nevertheless defend the American Revolution, which in my view was an unjust war. Clearly there have been worse wars in terms of the motivation, but I don't see it as having been one of the better ones either. The key comparison I have in mind is between the kind of oppressive regime in Iraq under Saddam Hussein and the comparatively mild situation that the colonists considered oppressive enough to start a war to eliminate. I do think the oppression of the Afircan slaves of the colonists would have constituted a good case for a just cause, but the colonists were complicit in that while complaining about how they were being treated by the British government.
There are ways to resolve the inconsistency (although I think they involve false premises, e.g. the premise that it's ok to initiate a revolution against your own government but not ok to assist others in overthrowing theirs, which I would say gets it backwards in terms of which is more morally justified). But those who hold both views ought at least to try to resolve the potential inconsistency rather than simply not thinking about the tension between their views on these different issues. So I think it's worth pointing out the potential problem.
I want to say that I consider the U.S. system of government perhaps the best human government the world has seen. The ideal government would be rule by an omniscient, omnipotent, perfectly good dictator, but that's not going to happen until the final resurrection. Until then, (at most) few have come up with a better way to govern over fallen human beings than the U.S. model. My conviction on that matter doesn't mean I think the method of attaining such a system was right. I don't, and it amazes me the ease at which people will approve of it without ever thinking that such approval might even raise questions about their views on the invasion or Iraq.
While I'm at it, I might as well link to my What Should Christians Think About July 4? post from three years ago.

In two previous posts, I first presented an account of deontological ethics in which it is sometimes ok to go against moral principles in order to previous seriously grave consequences. Moral principles are not all absolutes. Many of them have thresholds, and if the consequences are bad enough the principle is no longer in effect. I then argued that this kind of deontological view allows a pro-life voter to vote for a pro-choice candidate who is not as bad (to a pro-lifer) than a more strongly pro-choice candidate (and who is better in the voter's mind on other issues).

Now I want to apply the same kind of reasoning to a situation within the Republican primary. A commenter on this post said the following:

Actually, it is NOT the federal government's purpose to protect our life, liberty, and property. The federal govt's job is much narrower than that, and is spelled out clearly in Article 1, Sec 8, for anyone who can read. If you insist on giving the feds more powers than those granted by the Constitution, you promote lawlessness and open up to the Congress and Executive a boundless field of power, no longer subject to definition.

The Bill of Rights doesn't say, "Congress shall make laws protecting our freedom of speech" (for example.) No, rather it's a negative, "Congress shall make no law..." Congress is prohibited from infringing on our rights. The Constitution should be viewed as a restrictive document, defining and restraining federal power.

The only crimes Congress has a right to punish are piracy, counterfeiting, and treason. Murder, jaywalking, rape, embezzling do not fall under federal jurisdiction, therefore may not be punished by the feds. Abortion is murder. But even if abortion were "healthcare" it would still be without federal jurisdiction, as healthcare is not listed among the enumerated powers.

To insist that the feds must prosecute abortionists is to trash the whole Constitution in letter and spirit. If we amend the Constitution to prohibit abortion (in order to restrain the out of control courts) then we are also putting the nail in the coffin of federalism, and altering the spirit of the Constitution.

Ron Paul is the most principled and consistent opponent of abortion in DC today! He is principled rather than pragmatic; ends do not justify means.

One issue is the original meaning/intent of the Constitution as opposed to all that's been added in how courts have interpreted the Constitution and how the government now functions as a result. The U.S. Constitution does give a very narrow purpose for Congress's role. But two things might be said for rejecting such a narrow view today, and neither involves the idea of a living Constitution that typifies judicial liberalism.

Does the Constitution set up the judiciary branch to interpret the law and the Constitution? The Constitution never speaks of judicial review (although the Federalist Papers do). The Supreme Court is never given any task at all in the Constitution itself, although it is said to have power extending to all cases in law and equity that arise under the Constitution. But power to do what?

A few days ago I posted about the differences between deontological and consequentialist views in ethics. Consequentialists think consequences are all that matters in terms of evaluating the moral status of an action. Deontologists think other factors can sometimes trump consequences, and thus you'll end up with situations when doing the right thing requires doing something that doesn't lead to the best consequences.

My main point in the post was to defend a moderate deontological position in one respect. Absolutists think the moral principles that are more important than consequences are always more important than the consequences. In other words, absolutists hold that deontological moral principles always apply, and consequences are irrelevant. A moderate deontologist in this respect will argue that deontological principles are not always absolute in that sense. Sometimes consequences will be so much more important that the principle doesn't truimp the consequences in that case. These deontological principles will then have a threshold. If the consequences are serious enough that they surpass the threshold, then the principle no longer holds for that action. If they are below that threshold, then they hold.

An example of how this works comes from Plato. It's usually wrong to steal, and if you borrow something it's usually immoral to refuse to return it. But what if you borrow your friend's sword, and your friend returns to you asking for the sword after you've discovered that your friend intends to use it to commit a great evil? Plato argues that it would be wrong to return the sword, even though normally you ought to do so. The moderate deontologist explains this in terms of this particular action being above the threshold for the immorality of stealing (or more precisely of refusing to return borrowed possesions).

In the rest of this post, I'd like to apply this line of thought to the first case I presented at the outset of my previous post. I want to say that in those cases a deontologist can say what I want to say without being a consequentialist. The first case was a pro-life voter who shudders at pulling the lever for someone as pro-choice as Rudy Giuliani, even if the consequence of pro-lifers taking such an attitude is that the even more pro-choice Hillary Clinton would be guaranteed to become the next president. Two things matter here. One is that Rudy Giuliani really is preferable to Hillary Clinton according to pro-life criteria, even if both are much closer to the not preferred end of the spectrum. The second is that the moral principles at stake here are not absolutes, and in certain situations above the threshold the principles no longer apply.

As a fiscal conservative with federalist tendencies, Giuliani doesn't think the federal government is the place to further such an agenda. He didn't even further it at the local level when he was mayor of New York City. He simply retained the status quo. Hillary Clinton would much more militantly pursue a pro-choice regime.



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