November 23, 2004


Talking Sense On Court Choices (E. J. Dionne Jr., November 23, 2004, Washington Post)

Justice Stephen Breyer performed an enormous service for our country last week. He clarified what is at stake in the coming fights over judicial nominations. He made clear why it is important to raise our national argument over court appointments above the level of slogans and campaign speeches.

Breyer, in a series of lectures at Harvard University, offered a bold challenge to conservative judicial activism. While he was respectful of his colleagues, Breyer put forward an alternative to the theories of conservative jurists such as Justice Antonin Scalia.

Conservative politicians, including President Bush, say that they oppose judges who "legislate from the bench" and that they hope to fill the judiciary with "strict constructionists." That sounds good, because we want democratically elected politicians, not judges, making the crucial decisions. Yet, at this moment in our history, it is conservative judges who want to restrict the people's right to govern themselves.

That may sound sweeping, but the current trend among conservatives is to read the Constitution as sharply limiting the ability of Congress and the states to make laws protecting the environment, guaranteeing the rights of the disabled and regulating commerce in the public interest.

This new conservatism is actually a very old conservatism. It marks a return to the time before the mid-1930s....

Yes, that would be a return to the original understanding of the Constitution, a strict construction of the document.

Posted by Orrin Judd at November 23, 2004 11:41 AM

The more I hear E.J. Dionne opine on politics the more convinced I become of his intellectual dishonesty. The American experiment in constitutional liberty reached it's peak with the New Deal? The guy's a sophomoric idiot.

Posted by: Tom C, Stamford,Ct. at November 23, 2004 11:50 AM

I would love a return to the old-style conservatism, to an understanding of the constitution that pre-dated the New Deal.

The problem, of course, is that the Bush administration is talking out of both sides of its mouth. On the one hand, it wants judges who are strict constructionists. Who want limits on the exercise of federal power.

But on the other hand, the Bush DOJ wants the opposite. It claims, for instance, that the federal government has the authority to ban the use of marijuana for medicinal purposes, even though several states have passed laws to the contrary. The Bush DOJ's attemtpts to overturn Oregon's assisted suicide law is another example of this phenomenon.

There is no federal authority to legislate in these areas. The interstate commerce clause does not give it. Nor does the 14th Amendment. And yet there is not one peep out of right-wingers when it comes to these big-government power grabs. Why?

Intellectual consistency is the hallmark of authenticity.

Posted by: mkultra at November 23, 2004 12:03 PM

That's odd since I thought the FDA is created in 1906 and their regulation of Drugs for medicinal purposes was upheld as constitutional prior to 1930.

Posted by: h-man at November 23, 2004 12:18 PM

mkultra -- Also, "not one peep" is an overstatement. Nonetheless, I would willingly trade the ability for a federal ban on marijuana for an understanding of the commerce clause that doesn't allow such a ban.

Posted by: David Cohen at November 23, 2004 12:26 PM

Sure - the FDA has the power to regulate the interstate commerce in pharmaceuticals. But how does the decision of one terminally ill person to take one drug to end his life affect interstate commerce. Wickard v. Fillburn is the bane of conservatism and the height of New Deal lesgilating from the bench. But if the FDA has the power to tell a terminally ill person that he cannot take a controlled substance that is prescribed by a doctor to end his life, then Wickard is on solid ground.

Admit it - the DOJ is overstepping its authority. Ironically, the Clinton administration did not mess with Oregon's suicide law - only the Bush administration is doing that.

But the Bush administration knows what's better for Oregonians than Oregonians do.


Posted by: mkultra at November 23, 2004 12:45 PM

EJ's finally got it !

yes, yes, we do want to return to a pre - New Deal vision of America..

who said liberals can't learn!

Posted by: JonofAtlanta at November 23, 2004 12:59 PM

For those who don't know, in Wickard vs. Filburn the Supreme Court held that wheat grown for your own use effects interstate commerce (by removing you from it) and thus can be regulated under the commerce clause. If Wickard were reversed, then Congress would lose a substantial portion of its current power to regulate. That was the deal I offered mkultra, to which he hasn't responded.

There are, for that matter, a lot of conservatives in favor of drug legalization, some of whom care about the commerce clause issues and some of whom are libertarians, at least in this instance. Some of them run a small magazine you might have heard of: National Revew.

But the real answer here is Richard Posner's. He notes that if conservatives don't legislate from the bench and liberals do, then the bench becomes a one-way liberal ratchet, holding still when conservatives are in power and moving left when they're not.

Posted by: David Cohen at November 23, 2004 1:32 PM

The Federal Government's primary responsibility is for national security--it can do what we like about drugs.

Posted by: oj at November 23, 2004 1:34 PM

Sure - I will take that trade. But I don't see it happening, even under this supposedly conservative administration.

Here's the problem conservatives face now: They have the power, the power of the federal government, in their hands. Yet, according to their rhetoric, they want judges who are Lochner-style conservatives. The problem, of course, is that if these judges make it onto the bench, and if they implement their Lochnerian philosophy, it would have the effect of dismantiling federal power, the very power the right now wields.

So the question becomes: Now that conservatives have the power, will they put judges on the bench who are intent on taking it away? I doubt it - very highly. I don't see the right giving power away.

This problem goes straight to the heart of the problem with conservatism today. The coming civil war on the right is the war between the libertarians and the big government conservatives. For instance, a libertarian should tell Michael Powell to f*** off, as a libertarians understands that the power to turn off Howard Stern or Monday Night Football is in the hands of the people and the government has no business regulating the content of television programming. The big government types, by contrast, love the fact that Powell is cracking down on the media. Indeed, they would love to see Powell to go even farther.

My guess is the big government types will win - and because they will, I doubt very highly that this rhetoric about "original understanding" and "strict constructionists" will in the end have any impact on the drift of the judiciary.

Sorry to disappoint, but the propaganda about strict constructionsis is simply to a means to keep the libertarian wing of the GOP in line. A return to a pre-New Deal understanding of the constitution will never happen, if only because the big government conservatives are winning and will win the civil war.

The question for libertarians is when will they finally acknowledge this fact.

Posted by: mkultra at November 23, 2004 1:50 PM


The entire Ownership Society/Neoconomy shifts power from the federal government to the citizenry.

Posted by: oj at November 23, 2004 1:59 PM

Rhetoric. Pure rhetoric at this point.

Michael Powell has increased the reach of the FCC. Ashcroft has increased the reach of the DOJ. Rightly or wrongly, the Patriot Act has increased the power of the FBI. No Child Left Behind has increased the reach of the Department of Education. Etc.

Tell me again how Bush is diminishing the power of the federal government in favor of the citizenry.

Posted by: mkultra at November 23, 2004 2:08 PM


Think about it for a second. The feds have the power to reg. interstate commerce, always have. Poor court interpretations of that power will be overridden. The FCC regs. a finite radio/tv spectrum. Conservbatives have nothing to complain about there since alternatives exist. The NCLB reforms will empower states and localities at the expense of all of the education interest groups. Presently, they are now unaccountable for results. The bureacratic/statist infrasctrucure is in place and backed by the courts. The kind of reformation of the federal government you would wish to see overnight takes time. Placing judges who interpret the plain meaning of the constitution on the bench is a good place to start.

As far as the DOJ and J. Ashcroft are concerned: The country was attacked. An open, multi-ethnic society has unique vulnerabilities. My freedom has not been affected. Has your?

Posted by: Tom C, Stamford,Ct. at November 23, 2004 2:48 PM


NCLB creates school choice.

Posted by: oj at November 23, 2004 3:21 PM

NCLB is an unfunded mandate that requires state governments and their functionaries to answer to the federal government in ways they were not required to do so before. You may think that is a good thing, but lets not mistake the goal for the means. Anyway, as I recall there used to be calls in conservative circles for the abolishment of the Department of Education. You don't hear that talk anymore. Is it any coincidence that this talk ended as the Republicans gained power? No.

Is the DOJ threatening my freedoms? yes. As an Oregonian, I currently have the right to end my life in a humane manner should I become terminally ill. The DOJ wants to take away that right. THAT IS WHAT BIG GOVERNMENT DOES - it takes the power over life and death decisions from the individual.

Another example? I do not check out books at the library anymore, now that I know the government has the authority to get a list of what I check out for any reason whatsoever.

Conservatives have nothing to complain about regarding the FCC because alternatives exist? Well, I could always emigrate to Mexico, therefore I should not be concerned if the US turns into a police state, right? The point is that the FCC is now MORE AGGRESSIVE under conservatives than it was under Clinton. Do you see a trend? When television stations are afraid to put Saving Private Ryan over airwaves that I OWN because they are worried about big government fining them out of existence, I guess I am not that thrilled at the prospect of the ownership society.

Of course the worst part of this all is that the Bush administration is making us beholden to big government, except that government is in Beijing, not DC. When the Commmunist pigs who run China are buying our bonds to finance our runaway debt (thanks Bush), they effectively are holding us hostage.

Big debt = big government.

Posted by: mkultra at November 23, 2004 3:47 PM


With all due respect, you gotta cheer up!

Posted by: at November 23, 2004 4:09 PM


And when they fail, as they must,m kids are provided vouchers, to public schools now nbut one amendment and that's private and parochial schools as well.

Posted by: oj at November 23, 2004 4:37 PM

m: Got lots of private libraries up there in Oregon?

Posted by: David Cohen at November 23, 2004 6:45 PM

Bring back the Lochner era! It gets a bad (completely unfair) rap!

Seriously, West Coast Hotel v. Parrish is one of those 1930s decisions referenced by Dionne that simply needs to go.

We could do much worse than resurrect the jurisprudence of Sutherlan.

Posted by: kevin whited at November 23, 2004 8:34 PM