Alito: Designer of Our Return to Monarchy

by

by Edward_

I was thinking today as I read an anti-Roe advertisement in the Times that the battle over abortion is like the war against drugs…a farcical bit of theater that does very little to address the supposed moral issues involved and ultimately only serves to punish the poor. As this connection became clearer to me, I realized that I have been totally off-base about what I had assumed was the true danger behind Alito being confirmed for SCOTUS. Circuses like "the war on drugs" and abortion battles don’t occupy the minds of the most powerful people in the world, not once the cameras are turned off anyway. And despite his rallying cry to the anti-Roe crowds that they "will prevail," it struck me that Bush’s keen interest in Alito has nothing to do with whether or not only those who can afford a plane ticket to New York or Europe (if it comes to that) will be able to get an abortion in this country. It couldn’t.

So what then? What was driving his support for this choice that he knows will further divide the nation? I had no idea.

Andrew Sullivan has some idea, however. In a column outlining the extraordinary use of "signing statements" by President Bush ("In eight years, Ronald Reagan used signing statements to challenge 71 legislative provisions, and Bill Clinton 105. […] In five years, President Bush has already challenged up to 500 provisions…."), he illustrates why Bush has never bothered to veto a single bill during his presidency. He doesn’t need to:

But more important than the number under Bush has been the systematic use of the statements and the scope of their content, asserting a very broad legal loophole for the Executive. Last December, for example, after a year of debate, the President signed the McCain amendment into law. In the wake of Abu Ghraib, the amendment banned all "cruel, inhuman and degrading" treatment of U.S. military detainees. For months, the President threatened a veto. Then the Senate passed it 90 to 9. The House chimed in with a veto-proof majority. So Bush backed down, embraced McCain and signed it. The debate was over, right? That’s how our democracy works, right?

Not according to this President. Although the meaning of the law was crystal clear and the Constitution says Congress has the exclusive power to "make Rules concerning Captures on Land and Water," Bush demurred.

He issued a signing statement that read, "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."

Translation: If the President believes torture is warranted to protect the country, he’ll violate the law and authorize torture. If the courts try to stop him, he’ll ignore them too. This wasn’t quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Phillip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."

But here’s the kicker:

And who came up with this innovative use of presidential signing statements? Drumroll, please. Samuel Alito, Supreme Court nominee, way back in 1986. In a Feb. 5 memo, he wrote, "Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress." That is, of course, a very strange idea–which is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed. In laws with veto-proof margins, the President’s view is utterly irrelevant.

Or at least it used to be that way. Through his systematic use of signing statements, Bush has attempted to effectively elevate himself about the law of the land. That cannot be overstated. Bush has attempted to elevate himself above the law of the land, and in doing so, by extension, above the will of the people. In other words, he has for all intents and purposes given himself wide monarchial powers.

And then, of course, the whole Harriet thing begins to make sense. Knowing that such a practice might land him in hot water in the courts one day, who better to put on the bench than his own personal pitbull? When that didn’t quite fly then, however, he had an even better idea. Put the man who found this loophole in democracy on the bench. Anxious yet? Try this:

Alito, of course, didn’t foresee the war on terrorism. But put a war President’s power together with the new use of signing statements, and Executive clout has been put on steroids. "If you take this to its logical conclusion, because during war the Commander in Chief has an obligation to protect us, any statute on the books could be summarily waived," argued Senator Lindsey Graham, a Republican from South Carolina.

So now, we have a war without end, a loophole through any law, and a President not even remotely shy about exploiting either:

As Graham shows, this isn’t a Republican-Democrat issue. It’s a very basic one. A President, Democrat or Republican, has every right to act unilaterally at times to defend the country. But a democracy cannot work if the person who is deputed to execute the laws exempts himself from them when he feels like it. Forget the imperial presidency. This is more like a monarchical one. America began by rejecting the claims of one King George. It’s disturbing to think we may now be quietly installing a second one.

It’s time to curb this fella’s power-grab, folks. Seriously…it’s well past time.

404 thoughts on “Alito: Designer of Our Return to Monarchy”

  1. “””It’s time to curb this fella’s power-grab, folks. Seriously…it’s well past time.”””
    You will get your chance, just have to wait till 06 & 08..

  3. But they wont- not on war powers, (perhaps they dont feel a strongly about it as you do)
    As far a singing statements go… the courts can put as much weight on them as they see fit.

  4. As far a singing statements go… the courts can put as much weight on them as they see fit
    assuming a court ever gets to see any of these issues.

  6. Edward, this is spot on.
    I felt the only reason Harriet was nominated was to protect him when certain of his actions and ploicies came before the SC. Alito is even stronger in that regard.
    Personally, I don’t think that the SC will overturn RvW, mainly because the Republicans need to keep it there to rile up the base.
    But Bush wants to make his powers unlimited, and knows that eventually it will come before the SC and wants to load it to protect himself.
    FDR tried it, and a Democratice Congress shot him down. Lets see if the Republicans have the integrity to do the same.

  7. I think you guys are in the fever swamp.
    This power mad dictator you are afraid of is limited to two terms.
    He has made his position very clear as to the scope of exectuive power (something resonable people can & do argue about) just as Clinton did.
    This is even more important in a war time situation.
    Under his war powers congress needs to speak up in order to limit them.
    They have not, and they wont.
    I for one will wait for any review – until another president is in place.
    Lets give him broad authority to prosecute this war – and only respond to specific instances of abuse that seem excessive.
    He cant appoint himself dictator for life you know

  8. Fitz,
    You seem to be suggesting that he can’t do any damange in two years. And you seem to be building that arguement on an assertion that he hasn’t done any damage yet. All of which seems to suggest that it’s fine if Bush is King because in your opinion he’s a benign king.
    Are you really so ambivalent about being a citizen versus a subject?

  9. “Seriously…it’s well past time.”
    Well past, long past, and too damn late.
    Really. It’s done.
    The only thing the Bushies have ever been about is money and power. That’s why they’re so damn lousy at everything else, like actually governing and actually protecting the country.
    No, wait, I take it back: they are good at one other thing. Agitprop. Man, are they good at that. They got half the country lined up and tremblingly eagerly to toss the Constitution, the rule of law, and 230-odd years of history on the ashheap.
    Sigh.
    Today I heard the Democrats aren’t going to even try filibustering Alito. They say it’s because they want to keep their powder dry for the NSA hearings. I don’t believe them. I don’t believe they have the stomch for the fight, not over Altio or the NSA wiretaps or anything else.
    I. Give. Up. I just freaking give up.

  10. I’m surprised President Head Case hasn’t tried to disarm the private gun owners by now. Watch for it. Maybe he’s counting on his supporters outgunning his opposition. At the minimum, he’s got an armed forces trained in house to house combat. That’s where he’s headed, right?

  11. are you joking Archie?
    I hope so.
    CaseyL’s right. The ultimate danger here is not a nation under house arrest, but one in which the President secures enough power to essentially accumulate wealth unhindered.

  12. “”” They got half the country lined up and tremblingly eagerly to toss the Constitution, the rule of law, and 230-odd years of history on the ashheap. “””
    This is the type of hyperbole Im talking about (talk about agiprop)
    Dont get lost in the fever swamps people..
    These things (presidential powers) naturally expand and contract in a democracy. (certainly in a time of war)
    Most of what this administration is straining against are the rules and mindset imposed after the revelation of the abuses of authority of the Johnson & Nixon Administration..
    This is a different administration, a different age and certainly a VERY differnt kind of WAR..
    Give it some time- history and the people will sort any abuses out (if their are any)
    We may just find he was not aggresive enough!

  13. Fitz, I hear a good deal of your world view from very well meaning moderates and conservatives.
    The issue for me is that I might accept this if there were not other indications he’s making his friends obscenely rich through it all.
    Follow the money and none of this looks benign.

  14. CaseyL’s right. The ultimate danger here is not a nation under house arrest, but one in which the President secures enough power to essentially accumulate wealth unhindered.
    You mean he’s trying to take out the IRS?
    It’s interesting to see what some people really fear–rich people keeping more of their own money.

  15. rich people keeping more of their own money.
    I’m not so sure the increase in profits the arms makers in this country are enjoying or record profits in the energy sector was originally their money, Scott…are you saying my tax dollars were somehow always theirs?

  16. I’m not so sure the increase in profits the arms makers in this country are enjoying or record profits in the energy sector was originally their money, Scott…are you saying my tax dollars were somehow always theirs?
    So, is your objection a matter of policy, or just that you don’t like seeing people making a lot of money? Your emphasis on accumulation of wealth strikes me more as coveting the wealth rather than objecting to (from your POV) questionable military and energy policies.

  17. The ultimate danger here is not a nation under house arrest
    The ultimate danger is, and always has been, not nation under house arrest, but the “mexification” of our government, its transformation into a body of corrupt, incompetent, inefficent authoritarian caudillos largely of one party, which ever party that is. And if that’s what the Republicans turn this country into, there’s no reason why the Democrats won’t harvest the spoils if they ever return to power.
    I continue to be amazed at how people, who, ten years ago saw Janet Reno under every bed, now happily welcome and/or excuse every attempt to expand the scope of executive power. They could be hypocrites, but I suspect that they really just don’t give a damn.

  18. M.Scott: So, is your objection a matter of policy, or just that you don’t like seeing people making a lot of money?
    Scott, are you saying that you have no objection to any individual making a lot of money from tax dollars, or is it just the people at the top of military industries that you have no problem becoming wealthy from tax dollars?

  19. or just that you don’t like seeing people making a lot of money? Your emphasis on accumulation of wealth strikes me more as coveting the wealth rather than objecting to (from your POV) questionable military and energy policies.
    er…OK…coveting wealth, yup, you’ve nailed me Scott…
    moving on.
    One of my objections is that the president is systematically enabling his friends in the energy sector and arm industry to take and take and take from the public kitty. He’s pro-big business, first and foremost, and now, under the guise of trying to balance the budget, he’s slashing public programs in order to make them even richer. That may suit you fine…but when I look at images of what happened in New Orleans, and realize that’s the price we pay for not funding public programs better, it makes me a bit sick to my stomach.
    My other objection, though, and the point of this post you’re conveniently not addressing, is that he’s also systematically removing any check or balances on his power to do so.
    No matter how much you believe he’s right to do the first, I can’t believe you support his doing the second, Scott.

  20. Scott, are you saying that you have no objection to any individual making a lot of money from tax dollars, or is it just the people at the top of military industries that you have no problem becoming wealthy from tax dollars?
    Government contracts aren’t welfare–not if they’re performed honestly. If they’re not performed honestly, that’s as wrong as it would be if any other contract was performed dishonestly.
    [Cue “Halliburton” mantra]

  21. Government contracts aren’t welfare–not if they’re performed honestly.
    So you agree that in our present circumstances, then, they are welfare?

  22. er…OK…coveting wealth, yup, you’ve nailed me Scott…
    Not personally–coveting it on behalf of the government for uses that you believe are better than those that the owner has for it–it’s the Left’s version of Original Sin these days.

  23. They could be hypocrites, but I suspect that they really just don’t give a damn.
    i suspect it’s both. they bitch about things they don’t actually care about, so long as it’s the other team that’s doing them.
    that’s just human nature, though; of course My team is better than Your team, i wouldn’t have chosen it otherwise (and i’m a smart boy).
    it’s a shame people are so horribly tribal about everything.

  24. [Cue “Halliburton” mantra]
    So you agree that in our present circumstances, then, they are welfare?
    And there goes the band! ]:-)

  25. That’s a nice attempt at derailing the thread, Scott, but I’m gonna ask you to address my central point in this context. Is it OK for the president to systematically remove the check and balances that keep him from awarding government contracts dishonestly?

  26. coveting it on behalf of the government for uses that you believe are better than those that the owner has for it–it’s the Left’s version of Original Sin these days.
    such a fine man of straw! it’d be a shame if anything happened to him.

  27. Not personally–coveting it on behalf of the government for uses that you believe are better than those that the owner has for it…
    I loathe dictionary flames, but have you looked up “coveting” recently?

  28. I loathe dictionary flames, but have you looked up “coveting” recently?
    Given the intensity with which lefties loathe tax cuts, it certainly “looks” like coveting, even if they ultimately want the money for the government (and their preferred programs therein) rather than themselves. Dictionary flames are to be eschewed because they tend to be, well, lame.

  29. I dont understand why the most powerfull man in the world who is already a millionare (Cheney to)
    Would crassly go around and enrich their friend for no other reason except they can.
    Were is the press on this unprecedented graft… and whats the purpose of it all.

  30. Were is the press on this unprecedented graft… and whats the purpose of it all.
    Last opportunity to do it, Fitz. Look East, my friend. As the tagline for ‘Why We Fight’ notes, nowhere is it written that the US empire lasts forever.

  31. I agree.. It is an empire and there is no reason to think it will last forever.
    I have not read “Why we fight”
    What is the Thesis?
    Im almost finished with Imperial Grunts.
    I trust are president on matters of National Security (just as I trusted Clinton – but though most of his policy was belated and weak)

  36. Are a faux paranoid or and honest to goodnesss paranoid?
    If wanting good government and a reasonable limitation on the scope of executive authority is what Republicans are calling “paranoid” these days, then I must be. Strange, I always thought conservatives wanted those things, too.

  37. Fitz: I dont understand why the most powerfull man in the world who is already a millionare (Cheney to)
    Would crassly go around and enrich their friend for no other reason except they can.
    There are folks out there who already have a lot of money but who are nonetheless still motivated to accumulate even more money? And some of these mythical beasts go about their self-enrichment in crass or unethical ways? Crazy talk!

  39. I retract my last statement seeing now that the antecedent was generically “conservatives”…only those conservatives not alarmed by Bush’s systemic use of signing statements were meant.

  40. That’s a nice attempt at derailing the thread, Scott, but I’m gonna ask you to address my central point in this context. Is it OK for the president to systematically remove the check and balances that keep him from awarding government contracts dishonestly?
    Since:
    1) I don’t acknowledge that what you say is happening is happening, finding this reading to be alarmist at best and outright paranoid at worst, and;
    2) because I admit to being heartened that this seems to be your idee fixee rather than the more typical for the left these days: “Chimpy McHitlerburton is a fascist who wants to throw us all into camps and kill innocent foreigners!”,
    I’m going to decline, nod, and head to work.

  41. I guess you may not see this Scott, but if you find the time, could you square “I don’t acknowledge that what you say is happening is happening” with the fact that “In five years, President Bush has already challenged up to 500 provisions”?
    I should warn you though, if you fall back on the so-called “war on terror,” I may just guffaw.

  42. Given the intensity with which lefties loathe tax cuts, it certainly “looks” like coveting, even if they ultimately want the money for the government (and their preferred programs therein) rather than themselves.
    At least “lefties” are willing to pay taxes for the programs they prefer. “Righties” seem to want to fund their preferences by borrowing money, thereby avoiding paying for them even partially, and shifting the cost onto future taxpayers. I’d say that’s the more “covetous” position of the two.

  44. john miller:
    “Personally, I don’t think that the SC will overturn RvW, mainly because the Republicans need to keep it there to rile up the base.”
    RvW doesn’t really need to be overturned, just gutted. Think of how long the Civil Rights Amendments were worthless. Also, when some people get to the point where they can seize a long-sought victory, keeping them from it is very hard.
    “But Bush wants to make his powers unlimited, and knows that eventually it will come before the SC and wants to load it to protect himself.”
    “FDR tried it, and a Democratice Congress shot him down. Lets see if the Republicans have the integrity to do the same.”
    After seeing this decade of a GOP Congress, do you really count on that? They’ve already given Bush so much, time after time. Financial corruption and right-wing social engineering seem to satisfy them.

  45. Why is it that this term “Chimpy McHitlerburton” is virtually always used by conservatives referring to liberals/left and virtually never by liberal / left itself?
    as to the rest of that comment, i’ll note that depositions are going on right now under seal in a lawsuit brought by detainees held in the Metropolitan Detention Center post 9/11 and then deported, on various constitutional grounds.

  46. Why is it that this term “Chimpy McHitlerburton” is virtually always used by conservatives referring to liberals/left and virtually never by liberal / left itself?
    an imaginary is so much easier to defeat than the real one.

  47. Barry: “After seeing this decade of a GOP Congress, do you really count on that? ”
    Since I really do try to be a realist, despite my “Chimpy McHitlerburton” ways of thinking, I don’t count on it.
    We have heard a lot of talk from the Grahams, Specters and McCains on the right, but I have not seen any real willingness to do anything about it.
    And I agree about the gutting of RvW, rather than actually overturning it. The naive middle which doesn’t want to see RvW overturned will stay content and quiet and the radical right can still be tossed the raw meat to keep them complaint with the overall agenda.

  48. an imaginary is so much easier to defeat than the real one ??
    the imaginary enemy is so much easier to defeat than the real one.
    on no other board do i make so many typos & spellos. blech.

  49. Francis, people who live in glass houses should perhaps not throw stones, but the rightwing in this country has learned that, if one is covered in mud, throw as much mud as possible. That way, both sides have some mud on them, and many can’t/won’t distinguish between the source and the target.

  50. Despite all the rest of my serious policy differences with Judge Alito, the dread I feel at his looming confirmation has to do with his views of executive power.
    You’d think John Warner, a man who’s been embroiled in a battle with the White House over this very issue as it relates to detainee torture, would be concerned. But no. Despite on-point pleas from constituents, he’s lining up with the rest of his party to take the step that will make the Senate irrelevant.

  51. “And then, of course, the whole Harriet thing begins to make sense. Knowing that such a practice might land him in hot water in the courts one day, who better to put on the bench than his own personal pitbull? ”
    What do you mean, begins to make sense? It was obvious from the start that was why he nominated her – the only surprise was that he didn’t nominate Gonzales (I still haven’t worked that out). It’s not as if there wasn’t a ton of cases that could have landed Dubya in jail, or at the very least destroyed his and Cheney’s vision of a monarchical presidency, long before the NSA stuff came out.

  52. I think the reason he opted out on Gonzales is that it was pretty obvious Gonzales would not have done anything to RvW, whereas Harriet was an unknown.

  53. I don’t think he ever expected ol’ Harriet to be confirmed or even have hearings. They just thrust her out, unqualified, so that the *real* nominee, Alito, would look good in comparison. Then everyone is supposed to be relieved, because he at least has some experience. She was nothing more than a feint.

  55. With the Harriet Miers conspiracy you now have vered back off into the fever swamps again. Dont give the white house that much Machavelian credit. (things dont/cant work that way)
    As far as “why we fight” it may be brillant but its brillant prophaganda.
    Yes their is a military industrial complex in this country – but it does not care that we go to war, just that we buy its products.
    It biggest confirmable abuses is how it forces through unneccesary weapons systems (like the FY22) and spreads it contracts over multiple congresional districts and states to insure funding.
    No one has ever shown me how it started or has dictated any foreign policy of this or any other administration.

  57. I think that’s a fair enough question, Fitz, about how the interest in the military industrial complex has in making money translates into real wars. I agree that the assertion that that interest automatically leads to wars is a bit hard to swallow without more evidence. But aren’t you just a bit suspect that Cheney’s company got all the no-bid contracts? Even just a teensy-eensy bit?
    I mean, I know you trust the president, but we are talking about $750,000,000 dollars a year here.

  58. Yes their is a military industrial complex in this country – but it does not care that we go to war, just that we buy its products.
    And there is of course no relationship between war-fighting and increased consumption (and purchase) of war materiels. Right.
    No one has ever shown me how it started or has dictated any foreign policy of this or any other administration.
    Yeah, that’s crazy talk. It’s not like any members of the current administration have any relationship to the military-industrial complex. No sirree.

  60. Sullivan had said:

    And who came up with this innovative use of presidential signing statements? Drumroll, please. Samuel Alito, Supreme Court nominee, way back in 1986. In a Feb. 5 memo, he wrote, “Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress.” That is, of course, a very strange idea–which is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed.

    In the above passage, not a single proposition is true. In particular, Alito wasn’t the first to have the idea of presidential signing statements. He was tasked to write that memo based on what his bosses had planned. His memo was a lot more concerned with the theoretical problems of such statements, and his recommendation was that the President should issue such statements only where there was genuine ambiguity, not where the President disagreed with Congress. Also, there are plenty of courts that have looked at signing statements as an indication of how the President interpreted a given law. There’s nothing whatsoever “strange” about it.

  61. Nothing that I said is original, by the way. Do a little research; there are lots of smarter people than me who have pointed out how ridiculous it is to tie Alito’s 1985 memo to Bush’s signing statement on the torture bill.

  62. In particular, Alito wasn’t the first to have the idea of presidential signing statements.
    Well, what part of Sullivan’s “which is why, until then, signing statements had been sporadic and rare” suggests that he asserts Alito was the first? Furthermore, was the memo dated “Feb. 5”? Or is Sullivan wrong about that, too. You’ve already ascribed to Sullivan an untrue statement he didn’t make, and I’m going to assume he got the date correct, so your wholesale dismissal of Sullivan isn’t very credible.
    to tie Alito’s 1985 memo to Bush’s signing statement on the torture bill.
    Maybe Alito doesn’t approve of Bush’s signing “philosophy”–he should say so if he doesn’t. The important question is does Bush think Alito’s theories justify his signing statement on the torture bill?

  64. Paul — you might want to refer to the opening sentence of Sullivan’s statement. That’s where he asserts that Alito “came up with” this use of signing statements. “Came up” is a English phrase that is used to mean, “had the idea for,” or “invented,” or “originated.”
    Edward — this is all available elsewhere. Just a moment or two on Google is all it takes.
    A couple of pointers: There are several court decisions that relied on Presidential signing statements. See the Clinton administration’s memo here. So Sullivan was wrong about that.
    For an argument that Presidents should resist congressional interference with their own authority, here’s another memo that was written for the Clinton White House. So the idea of signing statements is not as “strange” as Sullivan pretends.
    As for Alito being the first to have the idea, he himself testified:

    I think the most important part of the memo that you’re referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised.
    And in that memo, I said, “This is an unexplored area, and here are the theoretical questions that” — and, of course, they are of more than theoretical importance — “that arise in this area.”
    That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes.
    And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: “There are difficult theoretical interpretive questions here, and here they are.” And had I followed up on it — and I don’t believe I had the opportunity to pursue this issue further during my time in the Justice Department — it would have been necessary to explore all those questions.

    So it wasn’t Alito’s idea; there’s nothing per se “strange” about looking to the President’s understanding of a law; there are indeed courts that have looked at presidential signing statements.
    So what’s left of Sullivan that is accurate? Oh right: As Paul points out, Sullivan probably got the DATE of the memo right. Um, yeah, that’s impressive, alright.

  65. you might want to refer to the opening sentence of Sullivan’s statement.
    You might want to, too, chief. Sullivan writes “And who came up with this innovative use of presidential signing statements?” That sentence and the phrase that follows “which is why, until then, signing statements had been sporadic and rare” make it very clear that Sullivan doesn’t think–as you say he does–that Alito invented signing statements. Sullivan is writing about using those statements to justify a conception of extremely broad executive authority.
    No one here thinks Alito invented signing statements, not me, not Sullivan. As I wrote before maybe Alito doesn’t approve of Bush’s signing “philosophy”–he should say so if he doesn’t. The important question is does Bush think Alito’s theories justify his signing statement on the torture bill?
    Sullivan probably got the DATE of the memo right. Um, yeah, that’s impressive
    Well, considering you denied him that at first, the man should take what he can get, right?

  66. As I wrote before maybe Alito doesn’t approve of Bush’s signing “philosophy”–he should say so if he doesn’t.
    too late now. he’s going to be confirmed.
    the Dems had their chance, but blew it giving longwinded speeches.

  67. OK, Paul, but Sullivan is still wrong that Alito was the first to have the idea to “use” signing statements in that way. Reagan’s Attorney General ALREADY had that idea before Alito started the job — as Alito testified.

  68. Any of you Con Law wizards out there know what the process would be that would cause this issue to be adjudicated?
    If a president issues a signing statement re how his administration will interpret a law and then applies that law according to the principles he/she established in the signing statement, who would or could mount a challenge to that interpretation in order to land the issue of the legitimacy or applicability of a signing statement (as a de facto part of the law itself) before SCOTUS?

  69. Well, I believe the monarchists still have at most three votes when it comes to U.S. citizens (Thomas, Roberts (who seems much too nice and smart for this nonsense but the Hamdan opinion he signed was very bad news), Alito) and four votes when it comes to non-citizens (those three plus Scalia, who might not even think what the President is doing to non-citizens is legal but is very very quick to find that the Court can’t hear the case.)
    That said–I don’t like the most basic things about our Constitution hanging on Anthony Kennedy’s consistency & John Paul Stevens and Ruth Bader Ginsburg’s good health.
    More troubling to me than Alito’s memo about signing statements or his support for the “unitary executive” are what he said, and wouldn’t say, at the hearings. Feingold laid it out today:

    At the hearing I and other senators repeatedly asked Judge Alito whether the president can violate a clear statutory prohibition such as the Foreign Intelligence Surveillance Act and the ban on torture. He never answered the question. We kept trying. He returned again and again to a formulated response to told us nothing at all. He said the president must follow the Constitution and must follow the laws that are consistent with the Constitution.
    Mr. Chairman, any first-year law student could tell you that. That kind of stock phrase, which Judge Alito repeated over and over again, tells us absolutely nothing, absolutely nothing about his view of whether the president can, consistent with the Constitution, violate a criminal law.
    Judge Alito did point to Justice Jackson’s three-point analysis in Youngstown, and of course that is an appropriate framework. But merely citing Youngstown doesn’t tell you anything about how he would apply that framework.
    FEINGOLD: Even when presented with the alarming hypothetical of whether a president can authorize a murder in the United States, Judge Alito would say no more than just citing the Youngstown three-part analysis of Justice Jackson.
    These practiced and opaque responses gave me no reassurance about Judge Alito’s views on these issues. But what troubled me even more was that he repeatedly, and in some cases gratuitously, Mr. Chairman, raised issues of justiciability and the political question doctrine. That is, he seemed to question whether the courts can even weigh in on these serious legal battles between the legislature and the executive.
    Although he said he thought the courts could address questions involving individual rights, Judge Alito’s instinct in discussing these historic issues was to focus on whether the courts even had a role to play. It wasn’t to talk about the gravity of the issues at stake or our system of government, but to question simply whether he as a judge could even participate in the resolution of such constitutional conflicts.
    Mr. Chairman, I found that very disturbing.

    He also misstated what Jackson’s concurrence in Youngstown says, as Leahy pointed out. Not reassuring.

  70. In seasons of war a nation needs a strong executive. Deliberation, whether legislative or judicial takes time, time is an element that leads to indecision. An indecisive executive might be the difference between tragedy or victory. I prefer victory. My concern is this: when the reasons for war have ceased, can the executive return to checks and balances? The danger is if the answer is no, then an executive will have crossed a rubicon to Caesarism.

    71. “A time comes when silence is betrayal.” That time has come for us […].
      The truth of these words is beyond doubt but the mission to which they call us is a most difficult one. Even when pressed by the demands of inner truth, men do not easily assume the task of opposing their government’s policy, especially in time of war. Nor does the human spirit move without great difficulty against all the apathy of conformist thought within one’s own bosom and in the surrounding world. Moreover when the issues at hand seem as perplexed as they often do in the case of this dreadful conflict we are always on the verge of being mesmerized by uncertainty; but we must move on.
      Some of us who have already begun to break the silence of the night have found that the calling to speak is often a vocation of agony, but we must speak. We must speak with all the humility that is appropriate to our limited vision, but we must speak.

    Eloquent words, from the late Rev. King (Riverside, 1967).
    i can only imagine having that kind of optimism about one’s country. all i see are dark days ahead.

  72. That is, he seemed to question whether the courts can even weigh in on these serious legal battles between the legislature and the executive.
    Geez. Ever heard of checks and balances?
    These Democrats are amazing. (Plus Specter.) When the subject is congressional power, they are offended to no end that the Supreme Court might EVER say that ANYTHING is beyond Congress’s constitutional authority. Commerce clause, schommerce clause. As far as Congress is concerned, the Constitution is a complete blank check.
    But as soon as the subject is presidential power, whoa nelly, stop the horses. Then they are horrified if anyone ventures the most hesitant suggestion that the Supreme Court doesn’t ALWAYS have the final say (i.e., because some issues are non-justiciable). Here, the Democrats appear to believe that the Court really is SUPREME, in that it absolutely has to have the final word over every possible issue.

  73. Niels, I would rather we had an executive willing to comply with its legal obligations, and a Congress willing to hold them to account, but we don’t have either of those things. We have an administration that feels free to disobey any statute it feels like until there is a court order potentially enforceable by the contempt power for them to obey. And we have a Congress that won’t do a damn thing about it.
    Anyway, I agree with–is it Brennan in Baker v. Carr?: the political question doctrine is about what remedies the court has the power to order and about what powers (like the pardon, like impeachment) that Congress never meant the courts to review. But there’s precious little in the Constitution that suggests that the founders wanted it to be systematically underenforced, and that’s what too much of this stuff–standing, justiciability, etc.–has become. The idea that whether the President has to obey any laws at all in wartime is a question committed to the President’s discretion is just ludicrous.
    And it’s not like Congress can’t step on the executive’s prerogatives either. Chadha springs to mind immediately but I’m sure there are others.
    For that matter I don’t know where on earth you get the idea that liberals want Congress to be able to do whatever it wants; I thought we were all about favoring unelected judges over the people’s representatives? I can’t keep this stuff straight.

  74. xanax, there are any number of ways the import of a particular signing statement could come up in a case. Suppose some CIA agent tortures some suspected AQ guy to death. Engaging in the torture under direct Presidential order. Suppose further that this is revealed in a tell-all book by the guy’s bitter ex-wife 3 years from now. And some new US Attorney decides to prosecute. CIA guy raises presidential order + signing statement in defense, and the district court says, ‘nice try, but the statute is unambiguous. Welcome to Club Fed.’

  75. Or even simpler, someone that gets tortured brings an action for assault. Torturer challenges application of DTA — court has to decide whether (a) Pres did authorize conduct (if not, then the signing statement is irrelevant) and (b) Pres can authorize conduct.
    This too might not come during the Bush administration. There’s that guy who was mistakenly thought to be Ivan the Terrible, but turned out (iirc) merely to be John the Pretty Awful — it took decades for him to be brought to justice, but his victims didn’t give up easy.

  76. Thanks for that, Charley. Not being a lawyer I am totally unfamiliar with how the process… well, proceeds. Is a US Attorney the only one who can prosecute? And must he/she first be given a case presented by some interested/injured third party? Or can the Congressional Judiciary Committee also investigate violations of the law by the executive and prosecute? Or is that simply what the old girls call “Impeachment Hearings?”
    Wish I knew more about the process. I’ve got a feeling the sparks will be flying furiously around the Capitol following the midterm elections. And I think this president is in for a very bumpy ride.

  77. Xanax:
    Congress can investigate, but cannot prosecute or adjudicate. Other than through impeachment, which is so unlikely as to be useless for discussion. No one in her/his right mind is going to testify in Congress about his/her own lawbreaking, unless immunity is granted. If lawbreaking of others is revealed, though, the US Attorney for an appropriate district can try to get a grand jury to return an indictment. As the US Attorneys are presidential appointees, this may not be likely in the short term.
    I would expect, though, that civilians (CIA or contractors) are going to be smart enough to understand that their liability exposure is going to outlast both Bush and the WOT, and so will stop short of violating the DTA unless they’re really forced.
    Soldiers can of course be prosecuted for violating the UCMJ (or the DTA), in the military justice system. I would expect that if a prosecution is commenced (and I think this would be less political than whether a US Attorney will do it), a smart defense attorney will argue the inapplicability of the DTA, and I’d expect a military court to rule for the prosecution on that. Soldiers will know this too, and so I’d expect them to stop short of violating the DTA — unless they’re basically lawless. (There are rapists and thieves in uniform, of course, and the fact that these things are illegal doesn’t prevent them entirely).
    So what’s the signing statement really for, then, if no thinking person on the front lines is going to rely on it? Swagger, for one. Preservation of the illusion of presidential perogative for another.

  78. For that matter I don’t know where on earth you get the idea that liberals want Congress to be able to do whatever it wants; I thought we were all about favoring unelected judges over the people’s representatives? I can’t keep this stuff straight.
    Where’d I get the idea? From the very place I mentioned: The Alito hearings. So I’ll mention it again: The Alito hearings. Where — if you pay any attention — the Democrats and Specter were utterly appalled that Alito might ever venture to suggest that Congress has ANY limits on its authority to regulate every intrastate non-commercial item in America.
    You’re getting confused over the fact that while liberals promote an omnipotent Congress (for Commerce Clause purposes), they also promote aggressive interpretations of Equal Protection, Due Process, and the First Amendment, particularly as to STATE governments.
    There’s no contradiction in observing the palpably obvious fact that: 1) When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power; 2) When it comes to Due Process, liberals are happy (usually) to have judges make up new constitutional rights (e.g., abortion, gay marriage) and impose those rights on an unwilling citizenry.
    Do you disagree with either of those observations? If so, please point out: 1) liberals who want the Commerce Clause to have some real teeth in it; or 2) liberals who don’t want judicial protection for abortion.
    In any event, this is all beside the point, which is that if Congress really wants to monitor, check, and balance what the President does, they should get busy doing just that, rather than sitting around whining that the Supreme Court doesn’t do all of their work for them.

  79. One more time, with feeling:
    There are lots of different people in Congress. If the majority of them refuse to act as a check and balance, it’s not really the minority’s fault. Russ Feingold can get as busy as he wants to be–the majority will rarely hold hearings, never vote for a subpoena, never vote for an independent investigation with subpoena power, etc. etc.
    There is a very very slim chance that they will vote for a statute checking the president. But if that happens, this president claims the power to secretly violate it. Not much Congress can do about that without the courts’ help. They could refuse to fund things but Presidents have been known to cheat about that too, and anyway, that is another thing the Republican majority will never do.

  80. Niels, wasn’t it the current administration that relied on a commerce clause argument against medical marijuana in Raich v. Ashcroft? I don’t think Democrats are the only ones occasionally enamored of the commerce clause.

  81. Larv: not to mention the fascinating assumption behind Ashcroft’s position in the Oregon case: that Congress has the power to delegate to the Attorney General the power to decide what counts as ‘medical practice’.

  82. You’re getting confused over the fact that while liberals promote an omnipotent Congress (for Commerce Clause purposes)
    What a wonderful flair for hyperbole you have, Niels. Do you have any evidence these liberals who seek an “omnipotent” Congress exist, or is it like your mistaken reading of Sullivan, just the result of haste and enthusiasm? In general, I abhor any politician, of whatever party, who suggests that she or her office can act without limits; but people will naturally disagree on precisely what those limits are and how they apply. Want to argue Congressional authority should be severely restricted? Make it. Want to make an argument for strong executive authority, then make one. Merely asserting TEH LIBERALS do X, so the President should get what he wants is a sad reason to bloat the executive.

  83. I didn’t watch all or even most of the Alito hearings, but would be surprised if Sen. Specter, or anyone else, expressed hostility to the notion that the Commerce Clause has some limit. More likely, I think they’d have been hostile to the notion that Title VII, or the ESA, for example, are beyond that limit.
    So, Mr. Jackson, tell us your position. Do you think Congress lacked authority to enact Title VII?
    And, wrt judicial vindication of the rights of individuals as against intrusion by government, do you believe that Loving v. Virginia was wrongly decided?

  84. OK, I’ll admit that not 100% of liberals believe that the Commerce Clause has no limits whatsoever. I’ve just personally never heard of any exceptions to that rule. Perhaps you could name some? Or even take that position for yourself (rather than referring to the fact that anonymous liberals somewhere might conceivably believe that there are structural limits to congressional power.)
    In short, I’ve never heard of 1) a liberal legal scholar, or 2) a liberal politician, who defends the notion that the Commerce Clause imposes even the most trivial limits on congressional power. To the contrary, as you saw in the Alito hearings, liberals were, without exception, trying to demonize Alito for having dared to follow the Supreme Court’s Lopez decision on that issue.
    So again: Where are the exceptions?

  85. I don’t know how this happened, but my response to Hilzoy (Jan. 25 at 7:28 pm) shows up as being before that post.
    Katherine: If the majority of them refuse to act as a check and balance, it’s not really the minority’s fault.
    Who said it was? My point is that it’s certainly not the SUPREME COURT’S fault that not everything is justiciable, that the Court isn’t a bunch of Platonic guardians who can issue sua sponte rulings on everything that the government does, etc.
    Larv: There’s a reason that “tu quoque” is a fallacy. Look it up.
    CharleyCarp: If you don’t know anything about the Alito hearings, why bother to speculate? You can look up the transcripts on the Washington Post’s website. FYI: The Senators repeatedly inquired about Alito’s Rybar opinion, where Alito merely followed the Supreme Court’s decision in Lopez. Lopez said: Congress can’t criminalize the mere intrastate possession of guns near a school. Following Lopez, Alito said: Congress can’t criminalize the mere intrastate possession of machine guns. It was basically the same issue. And Alito went to great pains to point out that Congress had a very easy solution: Include a provision in the law looking to whether the gun had traveled in interstate commerce. This would work in 100% of cases.
    Even so, the Senators repeatedly adopted a tone of horror that Alito would dare to suggest that there is anything that Congress can’t regulate.
    Again, the overall observation I was making is: Isn’t it interesting that when it comes to Congressional power, the Senate’s liberals (is that specific enough?) act horrified that the Court would ever set any limits. But when it comes to presidential power, they act equally horrified that the Court would NOT set limits in all cases.
    A very interesting dichotomy in attitude there, and not a one of you seems to be willing to defend it.

  86. Just for the sake of people who keep completely missing the point, I’m NOT arguing that: 1) the Court should aggressively enforce the Commerce Clause; or 2) the Court should not enforce limits on presidential power. I’m not trying to argue the substantive merits of EITHER position. Indeed, if I took the positions that commenters mysteriously ascribed to me above, I’d be just as hypocritical as the Senate Democrats (but in the opposite direction).

  87. I just re-read Heart of Atlanta Motel v. US, a fine exploration of the limits of the Commerce Clause. I suppose Justice Clark can safely be called a liberal, but I’m not sure the label is appropriate for Chief Justice Marshall.
    I guess this passage of the majority opinion does lend credence to Mr. Jackson’s point:

    The same interest in protecting interstate commerce which led Congress to deal with segregation in interstate [379 U.S. 241, 257] carriers and the white-slave traffic has prompted it to extend the exercise of its power to gambling, Lottery Case, 188 U.S. 321 (1903); to criminal enterprises, Brooks v. United States, 267 U.S. 432 (1925); to deceptive practices in the sale of products, Federal Trade Comm’n v. Mandel Bros., Inc., 359 U.S. 385 (1959); to fraudulent security transactions, Securities & Exchange Comm’n v. Ralston Purina Co., 346 U.S. 119 (1953); to misbranding of drugs, Weeks v. United States, 245 U.S. 618 (1918); to wages and hours, United States, v. Darby, 312 U.S. 100 (1941); to members of labor unions, Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); to crop control, Wickard v. Filburn, 317 U.S. 111 (1942); to discrimination against shippers, United States v. Baltimore & Ohio R. Co., 333 U.S. 169 (1948); to the protection of small business from injurious price cutting, Moore v. Mead’s Fine Bread Co., 348 U.S. 115 (1954); to resale price maintenance, Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386 (1964), Schwegmann v. Calvert Distillers Corp., 341 U.S. 384 (1951); to professional football, Radovich v. National Football League, 352 U.S. 445 (1957); and to racial discrimination by owners and managers of terminal restaurants. Boynton v. Virginia, 364 U.S. 454 (1960).

    Damn liberals are ruining everything.

  88. I’m not trying to argue the substantive merits of EITHER position.
    I can tell. I don’t really know what you’re banging on about except for vague assertions about a “liberal” belief in absolute, ah, “omnipotent“–congressional authority, and some even more vague handwaving about how that somehow makes them hypocrites who won’t give the President the broad executive powers he wants.

  89. Mr. J.:
    Well, the specific discussion about Rybar is a lot more limited that the ‘aghast at the notion of any limits’ position you started with. My point was that I doubted they were aghast at any limits, but disagreed as to particular limits. Your response shows my speculation to have been correct.
    I don’t think the majority opinion in Rybar amounts to a failure to follow Lopez. (And Rybar couldn’t get four justices to think so either). Worse, I don’t think the needless formalism of requiring the commerce finding in the statute at issue — where the connection had been made long before in clearly related legislation — serves the cause of justice, or limitation of powers, well at all. Judge Alito’s position would lead to just the kind of acquittal for a legal technicality that conservatives rail about in all but gun-related cases.

  90. Isn’t it interesting that when it comes to Congressional power, the Senate’s liberals (is that specific enough?) act horrified that the Court would ever set any limits.
    Can you please give examples of this? And to be precise, not just examples of the Senate’s liberals being horrified of the limits being construed in that particular case, but of the Senate’s liberals being horrified of the very act of the SCOTUS setting any limits whatsoever. I’ve never seen anything like this before, but it’s entirely possible that such cases exist.

  91. Anarch:
    Can you please give examples of this? And to be precise, not just examples of the Senate’s liberals being horrified of the limits being construed in that particular case
    It requires an act of induction, which is a certain type of reasoning. The fact is, the liberals in the Senate and on the Supreme Court 1) have never identified ANY instance of congressional regulation that is beyond the Constitution’s grant of authority (and just to ward off the inevitable tu quoques, neither have a lot of conservative politicians). And conversely, the liberals in the Senate and on the Supreme Court oppose ANY instance in which a judge proposes to allow the Commerce Clause to mean anything more than, “Congress can do what it damn well pleases, because everything ultimately affects interstate commerce in some fashion.”
    So use your head here. Yes, the Alito opponents were talking about a specific case (Rybar). But it fits right in with a perfectly consistent pattern, as I’ve described above.

  92. Niels: something is definitely screwed up with comments. However: I think that there are limits on the commerce clause, and have said so previously. So there you are.

  93. It requires an act of induction, which is a certain type of reasoning.
    Thanks. As a logician, I’d never have known that.
    The fact is, the liberals in the Senate and on the Supreme Court 1) have never identified ANY instance of congressional regulation that is beyond the Constitution’s grant of authority (and just to ward off the inevitable tu quoques, neither have a lot of conservative politicians).
    That’s false on its face as you’ve phrased it; consider, e.g., driving ages or liquor laws and the like, where pretty much everyone (actually, *everyone*, I think, but I don’t know enough about the relevant debates to say with certainty) agreed that the ability to regulate such matters belonged to the states. They did manage to get such regulations enacted via tie-ins to transportation budgets — but note that they did it through budet tie-tines precisely because most everyone agreed that such legislation didn’t lie within the purview of Congress.
    And conversely, the liberals in the Senate and on the Supreme Court oppose ANY instance in which a judge proposes to allow the Commerce Clause to mean anything more than, “Congress can do what it damn well pleases, because everything ultimately affects interstate commerce in some fashion.”
    I’m fairly sure that’s also false on its face, but I lack the requisite SCOTUS knowledge — and not just of the cases, but of the political reaction to those cases — to say with certainty. CharleyCarp, hilzoy, et al.; is Niels’ (IMO) over-sweeping generalization right, or is he missing some (very large number of?) thing(s)?

  94. I chronically drive faster than the speed limit in Maryland, and have never gotten a speeding ticket there. Therefore, I am immune from the Maryland speed laws. I used to get speeding tickets from time to time when I was younger, and had less gray hair. Speed limits don’t apply to people with gray hair.
    Mr. Jackson, that’s the kind of flawed logic you get when you take a relatively small sample and try to extract principles from it. There have been very few instances when judges have tried to strike down statutes as exceeding the Commerce Clause. Thius is because it’s broad, and because Congress is not unaware that it is not infinite. The fact that it’s liberals and not conservatives who mostly complain about these few times, further, seems to me to be directly related to the subject matter of Rybar and Lopez, not to any principle of government. That is, had Raich gone the other way, the predominant wailing would have been on the conservative side. Lots of people, on all sides of every issue, are results oriented, rather than principle-driven.
    When Roe/Casey is overturned, we’ll have plenty of argument to the effect that abortion services — even if performed by a small town doctor on local women only — are necessarily part of interstate commerce, and that a total ban is within Congress’ power.

  96. I’m fairly sure that’s also false on its face, but I lack the requisite SCOTUS knowledge — and not just of the cases, but of the political reaction to those cases — to say with certainty.

    If you lack the relevant knowledge, what makes you “fairly sure”?
    Anyway, look up Lopez and Morrison. Both 5-4 decisions, with the Supreme Court’s liberals in the minority. Look up the reaction that both decisions received from congressional liberals. In fact, if you can find a single liberal who has ever penned a positive word about either decision, I’ll be amazed.
    Charley: Results-oriented. Yes. That’s why Congress loves to expand its own power and to curtail presidential power, by any hook or crook necessary.

  97. You’re wrong about this, though, Charley: That is, had Raich gone the other way, the predominant wailing would have been on the conservative side.
    The predominant wailing WAS on the conservative side, with Raich coming out the way it did.

  98. That’s false on its face as you’ve phrased it; consider, e.g., driving ages or liquor laws and the like, where pretty much everyone (actually, *everyone*, I think, but I don’t know enough about the relevant debates to say with certainty) agreed that the ability to regulate such matters belonged to the states. They did manage to get such regulations enacted via tie-ins to transportation budgets — but note that they did it through budet tie-tines precisely because most everyone agreed that such legislation didn’t lie within the purview of Congress.
    You’re thinking of the minimum drinking age statute. I don’t know what occurred in the legislative debates over that bill; but neither are you, right? You’ve said that you’re not familiar even with the most famous Supreme Court cases in this area — surely you’re not up to speed on congressional subcommittee reports from 1984, are you?
    Anyway, given that Congress clearly thinks that it has the power to directly regulate the intrastate use of marijuana (see the Raich case), why do you think “everyone” agrees that Congress cannot directly regulate the intrastate use of alcohol?

  99. Niels: we have an interesting custom here: we try not to assume that all liberals, or all conservatives, or all Democrats, or all Republicans, think the same way. Partly we do this because, once you think about it, it’s absurd to think that they do; partly because it strikes us as a form of intellectual laziness; and partly because it helps to preserve civility.
    I first became aware of this when I violated it and was brought to task by Moe. I have since decided that he was completely right.

  100. Anarch: are you a logician? We’re in neighboring fields, then, sort of.
    This could be a problem. People in neighboring fields seldom agree, because they argue from different premises.

  101. Good grief. I don’t have time, nor after this straw-bashing do I particularly have the inclination, to write cogently, so trenchantly will have to do.
    If you lack the relevant knowledge, what makes you “fairly sure”?
    I didn’t say I lacked relevant knowledge, I said I lacked the relevant knowledge to say with certainty. There’s a whole lotta daylight between the two.
    I don’t know what occurred in the legislative debates over that bill; but neither are you, right?
    Nope, but since you’re the one making the (over-arching) universal claim here — that would be that induction you so thoughtfully brought to my attention — surely it would behoove you to check such things before dismissing them out of hand?
    You’ve said that you’re not familiar even with the most famous Supreme Court cases in this area…
    Really? Where?
    [Hint: I didn’t.]
    …surely you’re not up to speed on congressional subcommittee reports from 1984, are you?
    Nope. Are you? If not, again I ask how you’re making this universal claim?
    [And why restrict to congressional subcommittee reports, incidentally? Seems a little… unduly dismissive of the whole concept, really.]
    …why do you think “everyone” agrees that Congress cannot directly regulate the intrastate use of alcohol?
    If you’d read what I wrote, I didn’t say “everyone”, I said “pretty much everyone” and “most everyone”. The modifiers are there for a reason; if you’re going to quote me, please do it correctly.
    As for why… well, I’ll offer one mindbogglingly obvious reason, gratis: if a large number of people had thought that Congress could enact those particular things via direct legislation — which, since you seem to have trouble responding to what I actually write, is a much more specific claim than “Congress cannot directly regulate the intrastate use of alcohol”, although as you correctly note not as a specific a claim as I could have, and perhaps should have, made — they probably would have, right? After all, they ended up with a budgetary end-run that accomplished much the same thing; I can’t really imagine they did it that way just for the sheer hell of it, y’know?
    Normally at this point I’d try to extend an olive branch to get the debate to proceed but since my rather mild request earlier was… rebuffed, I think I’ll take a pass. Nonetheless, I’ll point out (purely in the spirit of comity) that proceeding as if your interlocutors are either or stupid or ignorant — especially when you’re both offering definitions of logical fallacies and glossing over what people actually write — is a surefire to convince people that you’re either clueless or not worth responding to. I think you do have a good point lurking in there, just waiting for the the right combination of patience and precision to come out; a pity we’re not likely to see it.
    PS: FWIW, speaking in a semi-professional capacity… pretty much all your universal claims in this thread remain woefully unproven. I’d recommend shoring them up substantially, were I trying to convince anyone (beyond the choir) of them.

  102. Fecch. Spent so much time on that response, my best efforts to the contrary, that I nearly started hunting down Congressional reports on it anyway. What a waste.
    Anyhoo…
    Anarch: are you a logician? We’re in neighboring fields, then, sort of.
    Yep. I’m primarily in mathematical logic, but I’ve done some things with more general logical reasoning (ironically, in an ad hoc sort of way) so I’ve dipped into the philosophy side too.
    And Bernard? Boo! Shame.

  103. Anarch: I only dipped into it enough to fulfill my grad school logic requirement, thereby discovering (a) that I had, in fact, been thinking logically all along, except that (b) I became known, in my study group, as “the scofflaw”, for my ability to see the answer to problems, including (in outline form) how the proof had to go, without being able to explain, even in outline form, why I thought so.

  104. Look, Anarch, if you say things like, “I lack the requisite SCOTUS knowledge — and not just of the cases, but of the political reaction to those cases,” then don’t get so huffy that someone takes you at your word. If, on the other hand, you ARE familiar with Lopez, Morrison, and other Commerce Clause cases, why not mention that fact, rather than professing general ignorance about “SCOTUS”?
    As for this: After all, they ended up with a budgetary end-run that accomplished much the same thing; I can’t really imagine they did it that way just for the sheer hell of it, y’know?
    Well, I can think of lots of reasons that Congress sometimes chooses to use its Spending Clause authority. 1) Just as good; accomplishes just as much; 2) Avoids debates with a few prickly congressional conservatives/libertarians who don’t like direct federal authority but who acquiesce in federal spending power; 3) the bill happened to have been proposed in that fashion for no particular reason other than that a staffer wrote it that way; 4) Congressional Democrats were trying to compromise with Reagans. In any event, there are lots and lots of reasons that Congress would use its Spending Clause authority that do NOT even remotely imply (let alone prove, as you suggested) that “liberals,” of all people, were philosophically opposed to using the Commerce Clause.
    pretty much all your universal claims in this thread remain woefully unproven.
    Universal claims? Such as that: Congressional liberals believe, for all practical purposes, that nothing is beyond congressional regulation under the Commerce Clause? Or that most liberals support Roe? If you’re not familiar with those facts . . . wow. I might as well be asked to “prove” that the earth is generally round. Can’t educated people generally assume that such things are common knowledge? It’s quite laborious if one has to produce “proof” for even the most elementary and indisputable observations.

  105. You’re wrong about this, though, Charley: That is, had Raich gone the other way, the predominant wailing would have been on the conservative side.
    The predominant wailing WAS on the conservative side, with Raich coming out the way it did.
    Mr. Jackson, you are obviously not a logician. There is nothing inconsistent about mostly conservatives complaining about the actual result in Raich — although I’m accepting your premise only for discussion’s sake — and my hypothesis that most of the complaints had Raich gone the other way would have come from conservatives. Because conservatives come in a few different flavors. Plenty of your God Hates Fags crowd is down with God Hates Hippies Too. I suspect that this faction outnumbers the folks who would rather see drug laws invalidated while the Commerce Clause is limited.
    Discussions about the limits (or lack thereof) on the Commerce Clause are not about usurping Presidential power, of course. The President has only that authority in matters of commerce (foreign or domestic) that Congress gives him, and it cannot only give what it’s got. Limiting congressional power in this area also limits presidential power.

  107. I should leave this well enough alone, but apparently I was unclear:
    Congressional liberals believe, for all practical purposes, that nothing is beyond congressional regulation under the Commerce Clause? Or that most liberals support Roe? If you’re not familiar with those facts . . . wow. I might as well be asked to “prove” that the earth is generally round.
    Most liberals support Roe, yes. [Hence, once again, the use of the modifier “pretty much”.] “Congressional liberals believe, for all practical purposes, that nothing is beyond congressional regulation under the Commerce Clause” is, however, precisely the claim under contention. You can’t just smuggle that into the conversation under a blithe assumption of “common knowledge” since that’s the friggin’ question we’ve been talking about. Yeesh.
    And fwiw, what I’m huffy about is a) your need to lecture people on logic and fallacies — your “common knowledge” shot, incidentally, being a nice example of begging the question — and b) your seeming inability to read what’s actually been written. Since both are, IME, signs of someone who’s uninterested in doing their share of the work in a conversation, this is pretty much where I’ll end it.

  108. Congressional liberals believe, for all practical purposes, that nothing is beyond congressional regulation under the Commerce Clause” is, however, precisely the claim under contention. You can’t just smuggle that into the conversation under a blithe assumption of “common knowledge” since that’s the friggin’ question we’ve been talking about.
    Well, yes, it’s the claim under contention — but only because some people seem to be unaware of what I thought was common knowledge.
    It would be as if I happened to mention, “In the 1930s and 1940s, white Southerners supported segregation,” expecting this to be an uncontroversial claim. But then, people came up with three types of responses:
    1. Don’t make generalizations.
    2. What? Aren’t you going to offer some proof? I’ve never heard of segregation myself, but I’m fairly sure that your claim is wrong.
    3. That’s not true. Why, there was a white bus conductor in Huntsville, Alabama in 1927 who let a black woman sit on the front of the bus on one occasion.
    Anyway, let’s recap, shall we? Lopez. Morrison. Raich. In all of these cases, the Supreme Court’s liberals came down firmly on the side of the following proposition: A purely intrastate and non-commercial activity (such as owning a gun or possessing marijuana) can nonetheless be regulated under the INTERSTATE COMMERCE clause of the Constitution. The Court’s liberals do not identify any plausible limiting principle here. Once you say, “The purely intrastate possession of an item can be regulated solely because of some hypothetical chain of effects that eventually touches on interstate commerce,” you’ve given away the ballgame. There’s NOTHING that would not be susceptible to the same reasoning. Put another way, every conceivable human activity would “affect” interstate commerce by that sort of reasoning, and would therefore be regulable by Congress.
    Then look at public reaction to the majorities in Lopez and Morrison, where the conservatives on the Court won. Even though Lopez and Morrison were just two extremely modest decisions that still allowed Congress to do 99.99% of what it wants to do, liberals still complained to no end about the “federalism revolution.” Here’s a very typical article of the sort that would be familiar to anyone who reads the news, i.e., where Specter goes on and on about the enormous congressional discontent with Lopez and Morrison. Articles like this are a dime a dozen.
    You’ll no doubt say, “But liberals are right to fear that a more aggressive Court would then start to strike down environmental or other laws.” That’s all fine and well, but my point is unchanged: What’s important here is that liberals always complain about Lopez and Morrison without ever identifying any limiting principle that would keep Congress from having unlimited power under the Commerce Clause. If you think I’m unfairly generalizing, why not humor me: Come up with one example of a liberal (scholarly or not) who actually describes how the Court can and should strike down congressional enactments under the Commerce Clause. In my experience, liberals never identify any such principle. It’s always some complaint about “the radical Rehnquist Court,” or “conservatives are the real judicial activists,” or something like that. Always.
    Anyway, all of this is why it should be completely uncontroversial — common knowledge — to point out that congressional and judicial liberals act as if Congress can regulate anything it pleases under the Commerce Clause.

  109. This is absurd. Why am I getting into debates with people who refuse to believe the obvious? When I say that liberals believe in an expansive Commerce Clause that (for all practical purposes) has no limit, this (in any normal setting) would be about as controversial as pointing out that “Bush has pursued an interventionist foreign policy since 9/11,” or “Democrats have been skittish about national health care plans since Hillary Clinton’s experience,” or “Republicans today are not living up to the 1994 Gingrichian rhetoric about limiting the size of government.” I mean, these are things that any educated person would know from having read a million articles on related subjects.

  110. Niels; It would be as if I happened to mention, “In the 1930s and 1940s, white Southerners supported segregation,” expecting this to be an uncontroversial claim.
    More as if you happened to mention “In the 1930s and 1940s, all Southerners supported segregation” and expected this to be uncontroversial and go uncontradicted.

  111. Jes, I think you’re wrong about that. Mr. J. need not say “all” to be overgeneralizing.
    It wouldn’t be unreasonable, though, in discussing Mr. J.’s statement, to point out the extent of (a) support for segregation among whites in the North in the 30s and 40s — which was not trivial; and (b) opposition to (or indifference towards) segregation in the South — not trivial, but maybe not great either.
    Whether either point is material depends on the context of Mr. J.’s remark. If he’s contrasting support for segregation in the 30s and 40s with support now, the overgeneralization isn’t harmful, really. If the context shows him singling out Southerners as opposed to people from other regions, the generalization could well be unfair. (I assume for sake of argument that a majority of people in Indiana, for example, supported segregation in the 30s and 40s. I’d not be surprised to find majority support for segregation in the 30s and 40 just about everywhere, although not as strong in some places as others). Even the blandest generalization can become problematic, maybe even wrong, in the right context.
    The real trouble here is the sample size (only a couple of opinions), and the availability of other basis (than a position of no limits to the Commerce Clause) for the positions taken. I can say that I think the statutes in Lopez and Morrison were OK without necessarily meaning that I don’t think there are any limits at all to the CC. (I just re-read the dissents in Morrison. They’re both pretty good.)
    I’d be interested to know, though, if Mr. Jackson thinks that a federal ban on all abortion is permissible under his reading of the Commerce Clause. (Assuming, of course, the impending end of due process impediments to such a statute).

  112. Charley — a sample size of two? Come on. There are three relevant Supreme Court opinions, lots of lower court opinions (like Rybar), zillions of news articles and law review articles (by law professors) over the past decade, and zillions of advocacy pieces by liberal groups like PFAW or Alliance for Justice. I can’t prove a universal negative, but I have never seen any liberal — whether a judge, a politician, a law professor, or a commentator — who said, “Yes, the Commerce Clause has clear limits, and here’s how the Supreme Court could create a doctrine that doesn’t effectively sweep in anything and everything.”

  113. Why am I getting into debates with people who refuse to believe the obvious?

    Perhaps because it’s obvious you’re unwilling to back up such “obvious” things with anything beyond either a variation of “Because I say so,” or being insulting?

  114. I’d be interested to know, though, if Mr. Jackson thinks that a federal ban on all abortion is permissible under his reading of the Commerce Clause.
    Still interested.

  115. Just for the record, I think a federal ban on abortion would be within the commerce power…
    You know, you can make an plausible argument that liberals are lax about the constitutionality of economic regulations. You can also make a decent argument that they are lax about the constitutionality of laws that exceed enumerated powers as opposed to violating individual rights.
    But those just aren’t the same things as an argument that liberals want the president to have no powers and the legislature to have all powers. That was the initial assertion, and you never really defended it.

  116. “When I say that liberals believe in an expansive Commerce Clause that (for all practical purposes) has no limit, this (in any normal setting) would be about as controversial as pointing out that “Bush has pursued an interventionist foreign policy since 9/11,” or “Democrats have been skittish about national health care plans since Hillary Clinton’s experience,” or “Republicans today are not living up to the 1994 Gingrichian rhetoric about limiting the size of government.” I mean, these are things that any educated person would know from having read a million articles on related subjects.”
    This is definitely true.
    “There’s no contradiction in observing the palpably obvious fact that: 1) When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power; 2) When it comes to Due Process, liberals are happy (usually) to have judges make up new constitutional rights (e.g., abortion, gay marriage) and impose those rights on an unwilling citizenry.”
    This is true so long as you are sure to insert the ‘usually’.
    “And conversely, the liberals in the Senate and on the Supreme Court oppose ANY instance in which a judge proposes to allow the Commerce Clause to mean anything more than, “Congress can do what it damn well pleases, because everything ultimately affects interstate commerce in some fashion”
    That one, however is false–some liberals are ok with state rules on growing pot plants or euthanasia for instance.
    I’m on your side Niels. I don’t think much of what currently passes for liberal jurisprudence–especially as understood by Democratic Senators. But there is no need to overplay the flaws. They are disasterous enough as is. You could say “there is no commonly articulated limit on Congressional power as understood by liberal jurists and commentators” and you would have had a much stronger argument. You could say “there are no commonly articulated limits on the judicial power of expanding personal rights directly in opposition to both current democratic understanding of the issue and past understanding of the Constitution in liberal jurisprudence” and you would be correct.
    No need to overstate. The simple reality is ugly enough.

  117. Whoops, I was overpowered by context but I didn’t refer to it:
    “there is no commonly articulated limit on Congressional power as understood by liberal jurists and commentators”
    should really read “The Commerce Clause offers no commonly articulated limit on Congressional power as understood by liberal jurists and commentators…”

  118. Seb: remember also to modify this bit:
    “When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power”
    I know of no one (or: no one who knows enough about the Constitution to know that there is a commerce clause) who believes this. “Completely blank check”? “Horrifying to contemplate ANY limits”? Completely nuts. And it’s what everyone is objecting to.

  120. THanks, Sebastian, and I agree with your clarifications.
    Charley: Abortion is an act of commerce, which in itself is a far cry from the mere possession of an item in your home. But it’s not necessarily “interstate,” and I’m not comfortable with federal regulation of purely intrastate commerce. But under current caselaw, abortion would be an absolutely easy case for federal regulation.

  122. I am struck by the phrase “impose those rights on an unwilling citizenry”.
    Impose rights on citizens?
    Isn’t that sort of like imposing freedom, , or autonomy and personal responsibility for decision making?
    Also I question the “unwilling” since, at least in terms of abortion, most Americans do not feel imposed upon by right to choose.
    Isn’t the issue here not that rights were imposed on citizens but that government was restricted in its power, thereby leaving the power to the citizens?
    I’m not a lawyer and don’t have any opinion about the commerce clause or its applications or lack of application, in the lawyerly sense. I’m just struck by the view that the limiting of the power of government to make personal decisions for someone could be called the “imposing of rights”
    Was the government imposing the right to use birth control in the Griswold decision? I’m pretty sure most Americans would be absolutely outraged if any government entity at any level tried to restrict the access of adults to birthcontrol. My mom and dad, by the way, used to have to drive into NYC to buy condoms because even married couples couldn’t get them in New Jersey.

  123. Anarch: that’s a relief. I thought, as I posted that, ‘I didn’t say compelling to everyone…’, but then, after hitting ‘post’, thought: but what if I’m not compelling to anyone? What becomes of my claim then?
    Now my claim is true. Phew!

  124. Niels,
    just out of curiosity, I’m hoping you could outline your understanding of what the Commerce Clause covers. Imagine you’ve been made all of the members of the Supreme Court (Think “I sing the body electric’) and you get to tell everyone precisely what the Commerce Clause should and should not cover. Marijuana? Backyard wheat? Machine guns? Cigarettes? Indian Gaming? I get the impression you feel there is obviously a bright line, so I’m hoping you could explain it to me.

  125. Katherine: that liberals want the president to have no powers and the legislature to have all powers. That was the initial assertion, and you never really defended it.

    No, that wasn’t the initial assertion at all. The initial assertion came because of your post of Feingold’s statement. To which I responded by pointing out that it made quite a contrast that in the Alito hearings, liberals seem to rely on two propositions: 1) The Court should NOT dare to question Congress’s constitutional authority under Article I of the Constitution; but at the same time, 2) The Court should NOT dare to let any questions of presidential authority under Article II go unaddressed because of justiciability concerns or the political question doctrine.
    Now, this could have been an interesting discussion if anyone were willing or able to address the merits of that point, rather than engaging in wholesale nitpicking. Perhaps someone could have said, “There are good reasons why one should take an expansive view of congressional authority but not so expansive a view of presidential authority,” and then explained what those reasons might be. Or someone could have taken up the role-of-the-Court point: “Here’s why the Court is institutionally better suited to addressing claims of presidential authority but ill-suited for limiting the scope of Congress’s authority.”

  127. Neither of WHICH propositions? The two propositions in my first paragraph? Or my second? If you’re talking about the first paragraph, well, you’re not disagreeing with me. You’re disagreeing with the Senate’s liberals. And if the second paragraph, then again, you’re disagreeing with any potential explanation for the Senate liberals’ apparent hypocrisy.
    I take it, then, that you agree with me.
    Anyone else?

  128. If “Prodigal” was hamhandedly attempting to suggest that the Senate’s liberals do not, themselves, believe in either of those two propositions in any way — please. How clueless. As I said above, here’s a very typical article where Specter goes on and on about the enormous congressional discontent with Lopez and Morrison. You can find a million similar articles. And for the second proposition (i.e., that the Court MUST limit presidential power even at the expense of traditional doctrines of justiciability, etc.), see the Feingold statement quoted upthread. Feingold — again, very typically — finds it “troubling” and “disturbing” that Alito thinks there is any conceivable case where the Supreme Court might NOT “weigh in on these serious legal battles between the legislature and the executive.”
    Like I said, there could be an interesting discussion if anyone was willing or able to address this patent discrepancy in how Senatorial liberals view the role of the Court. There may be perfectly good explanations for it. Can’t someone give it a shot?

  129. From that article:

    The Pennsylvania Republican said in the letter that he sees “a great deal of popular and congressional dissatisfaction with the judicial activism” that trimmed congressional authority under the Commerce Clause. Specter characterized lawmakers as “irate about the court’s denigrating and, really, disrespectful statements about Congress’ competence” in several recent cases.
    * * * In a thinly veiled warning, he wrote of what he sees as “the Senate’s determination to confirm new justices who will respect Congress’ constitutional role.”

    Use your heads, folks! Lopez and Morrison were the first two cases in 60-odd years where the Supreme Court said that anything was beyond Congress’s constitutional power. Thanks to Lopez and Morrison, you could scratch out maybe one page from the United States Code — leaving hundreds of thousands of pages of laws left (enough to fill a wall-sized bookshelf, if you’ve ever seen the entire United States Code).
    So how is it not fair to ask: Where would congressional liberals have the Supreme Court draw the line? It really wouldn’t be possible for the Supreme Court to do any LESS in this area, other than to NOT RULE AT ALL. Which is exactly my point: Congressional liberals don’t want the Supreme Court looking over their shoulder and telling them that they can’t regulate something.
    Anyway, the best explanation that I see for the discrepancy identified above is this: Sheer institutional self-interest. All of of the process of checks and balances. Of course Congress (as a general matter) prefers for the Court to restrain the President but to leave them free to regulate to their heart’s content. Who wouldn’t want that? Likewise, of course the President prefers for the Supreme Court to leave him alone and/or to allow him greater powers. And for that matter, you’re not going to find much enthusiasm on the Supreme Court for Congress to start exercising its constitutional prerogative to create “Exceptions and Regulations” as to the Supreme Court’s jurisdiction.
    Each branch of government has its own institutional self-interest. They’re not necessarily being hypocritical. They’re just playing the game of checks and balances. Given that each branch sees the other branches exerting “too much” authority, the temptation is to 1) wish the other branches could be restrained, and/or 2) try to exert more authority yourself.
    Now I’m sure there are lots of objections to my defense of Congress’s attitude here. Can any of you improve on it? Take the discussion to something more meaningful here (as opposed to the usual head-in-the-sand denials of common knowledge).

  130. Can any of you improve on it?
    I’m still trying to figure out precisely what you are saying and what exactly is common knowledge. IANAL, but I am a liberal (though not a congressional one, mind you), and I find myself pretty surprised by the claim that my bedrock principles revolve around the Commerce Clause. My feeling is that legislators, well, legislate and that requires some sort of assertion that they can write laws about something. Absent that, there’s not much they can do. So, I ask again, what do you think the Commerce Clause covers and what does it not cover and why?

  131. I was referring to the claims you made in the post immediately preceding mine, Niels, neither of which were true.
    So could you try to be slightly less condescending, at least until you start posting some facts rather than strawmen?

  132. “My feeling is that legislators, well, legislate and that requires some sort of assertion that they can write laws about something. Absent that, there’s not much they can do.”
    That isn’t what the Constitution says. It has specifically ennumerated powers for Congress and they are in total:

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
    To borrow money on the credit of the United States;
    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
    To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
    To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
    To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
    To establish Post Offices and Post Roads;
    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
    To constitute Tribunals inferior to the supreme Court;
    To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
    To provide and maintain a Navy;
    To make Rules for the Government and Regulation of the land and naval Forces;
    To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
    To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Pretty much everything else was left to the states.

  133. Note by the way that a huge majority of the ennumerated powers have to do with borders or the military.

  134. lily: Isn’t the issue here not that rights were imposed on citizens but that government was restricted in its power, thereby leaving the power to the citizens?
    Yes. 🙂
    Hilzoy: I also happily adduce the compelling counterexample of -> ME! <-
    *is also compelled*

  135. That isn’t what the Constitution says. It has specifically ennumerated powers for Congress and they are in total:
    Sebastian,
    Again, IANAL, so excuse the probably silly question, but are you saying that Congress shouldn’t be making virtually all the laws it has, except primarily those related to borders and the military? I promise, this is not snark, but it seems that the assertion Niels has made is that the Commerce clause is at the root of every problem caused by liberals which has, at its root the overstepping the limits the founding fathers developed. I know you have reined that in a little, but this strikes me as one of those libertarian arguments that has some surface plausibility but then gets taken way too far. I certainly don’t demand that you answer for Niels, but where do you see the plausible line drawn by the Commerce Clause?

  136. I don’t see how it can be a libertarian argument because the rulings which upset conservatives and which come from the commerce clause often had the effect of limiting government power and “imposing rights on citizens”. Isn’t the imposition of rights on citizens by limiting government power the whole point of libertarianism?

  137. SH, I guess it all depends on what Commerce means. Do you think a federal ban on all* abortion would be within Congress’ power under your view the Commerce Clause?
    (I don’t need to ask what you think the result would be under current CC jurisprudence — this is more obvious that any proposition offered above for obviousness).
    *By “all,” I mean those that are interstate (Virginia woman comes to Maryland for the procedure), intrastate (Maryland woman has procedure done in Maryland), and non-commercial (neice of retired doctor who lives in Maryland has procedure done in Maryland at no charge).

  138. Well, it seems that no one is interested in (or capable of) addressing my main point, even with the head start that I provided (i.e., the institutional self-interest point). I’m not that interested in conducting a debate with myself here — pointing out Democratic hypocrisy on one hand, and then defending the Democrats on the other. So if no one is willing or able to act like an educated observer of the political scene, and to have a discussion on that basis, I’ll bow out.

  139. Well, it seems that no one is interested in (or capable of) addressing my main point, even with the head start that I provided (i.e., the institutional self-interest point). I’m not that interested in conducting a debate with myself here — pointing out Democratic hypocrisy on one hand, and then defending the Democrats on the other. So if no one is willing or able to act like an educated observer of the political scene, and to have a discussion on that basis, I’ll bow out.

  140. it seems that no one is interested in (or capable of) addressing my main point, even with the head start that I provided
    If you start answering polite questions posed and reposed, you might get an addressing of your main point, but until then, I think you actually are more interested in conducting a debate with yourself. Don’t worry, though, it really doesn’t make hair grow on your palms…

  141. LJ: Thanks for asking, but what I personally believe the Commerce Clause covers is completely irrelevant. Why am I obligated to take every detour thrown in my way?

  142. LJ: An analogy: Imagine that I had said something like this, “Isn’t it odd that Republicans constantly preach the virtues of federalism, and yet Ashcroft wanted to override Oregon’s legalization of assisted suicide?”
    A banal and trite point, one that has been made on a thousand (if not a million) liberal blogs by now.
    And what if the responses were these:
    1. Careful, now. Don’t generalize about what Republicans believe. [Hilzoy]
    2. Who says Republicans preach about federalism? That isn’t true in any shape or form. Prove it. And while you’re at it, who says that Ashcroft did anything here? Prove that too. [Prodigal]
    3. I don’t know anything about federalism, but I’m sure that you’re wrong. [Anarch]
    4. Well, what about you! What do YOU believe about federalism? [This is you, LJ, as well as Charley.]
    Can you not see how frustrating that would be? Particularly when one had started out with a observation that would be obvious to the point of banality, at least to anyone who was not determined to be maximally difficult.

  143. Whereas from our point of view it seems like:
    You know, all Republicans believe that there is no such thing as commerce, and thus that nothing falls under the interstate commerce clause.
    — Huh? Who thinks that, exactly?
    Well, it’s common knowledge.
    — Not to me, it isn’t. Could you explain who you’re talking about? Just a name?
    I can’t believe I’m having this conversation. Anyone who knows anything knows that Republicans deny the existence of commerce.
    — Please, if you could give us a single cite, it would help a lot. Honestly, I’ve been a republican all my life, and I have never heard any Republican deny the existence of commerce, ever.
    Puh-leez. Clearly you live in some alternate universe. Otherwise you’d know that Republicans don’t believe in commerce! Everyone who lives in the real world does.
    Etc., etc., etc.

  145. I apparently am not as familiar with the Commerce Clause as I should be, seeing as how it is the root of all liberal evil, so I did want to provide an interesting link to the Lewis and Clark Law Journal issue on ‘Federalism after Gonzales v. Raich’. I hasten to add that I don’t adduce any of these points of view to represent Niels Jackson’s opinions, which, as he himself noted (and I agree with him totally on this), are completely irrelevant.

  146. Oh, and I didn’t mean to dodge the question to me. I don’t think any of the following are interstate commerce under normal circumstances:
    Abortion
    Pot growing for personal use
    Euthanasia
    And by the way, I really really don’t like two out of the three, and the pot growing I just sort-of don’t like.
    The interstate commerce clause shouldn’t be a nullity.

  147. So if no one is willing or able to act like an educated observer of the political scene, and to have a discussion on that basis, I’ll bow out.
    Plenty of people are willing to have a discussion on that basis, they just aren’t willing to have that discussion with you.

  148. thanks Sebastian, I agree with you on all of the above, though obviously my feelings towards the actual acts themselves are a bit different. I thought the Pushaw article in the link I gave was interesting in proposing a ‘Neo-Federalist’ perspective. And he writes
    Although the use of a Neo-Federalist methodology would result in sustaining most modern enactments under the Commerce Clause, it would prevent Congress from continuing its recent pattern of adopting crowd-pleasing
    laws that do not regulate interstate commerce in any meaningful way. Most crucially, it would halt the federalization of noncommercial and local crimes already prohibited by the states, such as gun possession near schools, sexual assault, arson, and carjacking. I hasten to add, however, that Congress can
    deal with crimes that involve the voluntary sale of goods (like illegal drugs and
    guns) and services (e.g., loan sharking and prostitution).Thus, the proposed
    approach would confine Congress to its proper constitutional role of regulating
    true “commerce” that flows interstate, not any social issue that appears to be
    politically compelling.
    That seems right-ish (as in correct) and I think this is insightful in locating the urge to overextend the Commerce Clause within a crowd pleasing motivation rather than a liberal or conservative persuasion.
    What do you and anyone else make of this? I also failed to point out that both Randy Barnett of Volokh does the preface and Glen Reynolds of you-know-where is a co-author, as well as a few other conservative names.

  149. Sebastian: I agree with you on all three as well, though in the case of marijuana growing I almost immediately think: well, what about that case involving wheat grown for personal consumption, which seemed to be exactly like the pot case except for the plant species involved? I think that was wrongly decided, based on my nearly nonexistent understanding of the relevant precedents to it, but what role should I give it as a precedent? (My views on stare decisis being roughly: it matters, since continuity and predictability matter in the law, but how much? I have no idea.)

  150. Hilzoy:
    The obvious rejoinder to your post is that the following two propositions are not at all analogous:
    “all Republicans believe that there is no such thing as commerce, and thus that nothing falls under the interstate commerce clause.”
    “For all practical purposes, congressional Democrats act as if everything either directly involves, or remotely affects, interstate commerce, and they are highly resentful of any court decision that puts any boundaries on the Commerce Clause AT ALL, no matter how loose.”
    The former proposition — yours — is patently silly. The latter proposition — mine — is patently true, as anyone who reads the news would know. Congressional Democrats DO resent any court decision that puts ANY limits on the Commerce Clause, which is exactly why they howled about Lopez, and gave Alito a lot of hostile questioning about his Rybar decision.
    And if my proposition is so easily disputable, I’ll ask this again: Find ONE congressional Democrat who has EVER agreed with a court decision imposing ANY limits on the Commerce Clause. Just one. This should be a simple task, if you’re right.

  151. LJ: It is a particularly silly misreading to claim that I said that the Commerce Clause is “the root of all liberal evil.” For the umpteenth time, I did not say anything of the sort, nor did I express a personal opinion on the Commerce Clause. Frankly, I’m not sure how to draw the line. But that is irrelevant to the purely factual point that: Congressional Democrats do not like courts drawing a line, no matter what. This point is indisputable.
    And given that congressional Democrats don’t like courts drawing a line — any line — regarding congressional power under Article I, why are they so eager for the courts to draw a line regarding presidential power under Article II?
    I’ve provided one answer: Institutional self-interest. But no one else seems to be able to grasp the question.

  152. “But no one else seems to be able to grasp the question.”
    What can you expect of us petty and inferior minds, really? Clearly, by now you have come to understand your vastly superior ability to grasp, analyze, and correctly understand situations and people, and have realized that few people here, if any, are capable of following the brilliance of your magnificent brain and its eminently deep and subtle reasoning, let alone match your sweeping grasp of the necessary facts.
    I’m sure you’ll soon realize the futility of expecting ignorant inferiors to be able to keep up with your own powerfully driving intellect, and you’ll draw the appropriate conclusions. Any superior mind would, of course.

  153. Person A: “Faction X thinks law Y does not mean what I think it obviously means, and this shows their bad faith.”
    Person B: “Hey, don’t people not in Faction X frequently make essentially the same assertions about law Y when it serves their interest? Many, for example, assert that law Y covers situation Z (applying the same reasoning as those of Faction X to law Y generally):* I know you have strong views about situation Z, do you agree that law Y covers situation Z?”
    Person C: [after A’s ducking, then disparaging the latter question] No.
    Person B: [to self] OK, then, no surprise here — Person C generally tries and often succeeds in putting principle over interest. I don’t ‘know’ Person A nearly as well; can this be said of Preson A? Person A doesn’t owe me a response, of course, but I can certainly draw an inference from his unwillingness to offer one.
    * E.g., Republicans in Congress, in passing the Partial-Birth Abortion Ban Act of 2003.

  154. Mr. Farber — sorry if my condescension sparked even greater condescension in you. But it is quite exasperating when one’s disputants 1) consistently misrepresent my position (i.e., claiming that I had said that the liberal position is evil); 2) deny the obvious (such as that congressional Democrats don’t like judicial enforcement of the Commerce Clause, even though there is ZERO evidence that Democrats favor such judicial enforcement and thousands of news articles to the contrary); 3) continually change the subject (i.e., asking me for my personal opinion on the Commerce Clause); 4) all while NEVER MANAGING TO ADDRESS THE QUESTION.

  155. Charley: I’m having trouble following your letter designations and figuring out who is represented there. Anyway: 1) to the extent you are claiming that I imputed “bad faith” to the Democrats, I deny it. If I wrote words that imply bad faith, I retract them. Hell, I’m the only person who managed to come up with a genuine good faith reason that Congressional Democrats would take opposite positions on whether the Supreme Court should enforce [congressional limits vs. presidential limits]. 2) To the extent that you are claiming that Republicans disregard the Commerce Clause when it suits their interests: Damn right. But so what? Pointing out a tu quoque might make you feel more satisfied, but how is it relevant to my question?

  156. Continuation of my pointless little dialogue:
    — But that’s like saying that all Democrats hold ridiculous claim C!
    Well, obviously there’s no analogy whatsoever between the ridiculous claim C and the claim that Republicans deny the existence of commerce — after all, the latter os obviously true!

  157. “But it is quite exasperating when one’s disputants….”
    Indeed, it is. However, breaking one’s arm patting one’s self on the back for one’s own superiority, and displaying contempt for one’s interlocuters doesn’t go well with pleading for responses and then engaging in tantrums at receiving few answers.
    It’s remotely possible there’s a connection between the two.
    I have no dog in the substance of this food fight. I do have an observation or two about social graces, and effective ways of communicating with people, although I’ve now made my primary point.
    Conversation is a social interaction; something to perhaps keep in mind; if nothing else, at least in choosing an effective stylistic tack designed to gain desired response.
    Breaking out into all caps traditionally is considered in online situations to be “shouting.” Consider the reaction were you conversing in someone else’s living room, and you were saying the words you wrote above aloud, and you broke into shouting the all caps part.
    What reaction do you think you’d see on people’s faces, in their body language, and in the choices they would then make?
    Consider the possibility that, in fact, the reaction of people to reading the same in print might be little different.

  158. Niels: before I go off and spend hours scouring the Congressional Record, I want to get the rules of this game straight. You seem to be asserting the following rule of inference:
    If no Congressperson of a given party can be found saying that P, it follows that members of that party believe that not-P.
    If you accept this rule, then I challenge you to find Republicans who assert any of the following claims:
    Republicans are corporeal beings.
    No member of Congress is (literally) an insect.
    The Capitol is not made of styrofoam.
    It is false that Britney Spears is an android created by a malevolent God to torment us.
    Pencils are not intelligent, sentient beings who disguise their feelings because they are the strong, silent type.
    If you are willing to either find Republicans who deny any of these claims, or admit that all Republicans believe them to be false, then I will go off on your little errand.

  159. I’m sorry, but if you have no view of what the commerce clause means this discussion is a pointless threadjack. The reason that Lopez and Morrison freaked some liberals out is that they didn’t know where the courts would draw the line, and they feared that we’d be back on our merry way to the days of Hammer v. Dagenhart where it’s not interstate commerce as long as you’re not standing on the state line. I’ve had classmates in law school tell me that the 1964 civil rights act, the minimum wage law, and indeed most labor laws as well as most environmental laws, were unconsitutional. I have a huge problem with that. With Lopez in itself, not much problem.
    It’s similar to Brennan’s position in the obscenity cases: he couldn’t see where to draw the line, so he gave up trying in the end.
    In cases where it’s hard to draw the line, where you end up striking down no laws at all or a whole lot of laws, I think the Court should read enumerated powers broadly, and should also read enumerated rights broadly. (This is why Sebastian’s statement that “The interstate commerce clause shouldn’t be a nullity” puzzles me. The commerce clause is a grant of federal power, not a limitation on it–it’s my federalist society classmates who want to make it a nullity. Liberals want to make it a blank check perhaps but that’s not the same thing.)
    My objection to the Bush administration’s commander in chief arguments is NOT that he reads that power broadly. It’s that he doesn’t read it like an enumerated power at all; he reads it like it’s an inalienable right. He doesn’t accept that any other part of the Constitution limits it. He thinks it entitles him to simply ignore the “take care that the laws be faithfully executed” clause, most of Article I, section 8 (Congress’ enumerated powers), the habeas corpus suspension clause, the treaty clause, the supremacy clause, the due process clause, and on and on.
    And, the breadth commerce clause is really NOT a separation of powers issue. It’s a federalism issue. I care more about separation of powers than federalism, simple as that. You can point to plenty of successful democracies where the central government has the general police power and the role of the states and local governments are much more limited. I can’t think of any successful democracies where there are no limits on executive power.
    I don’t expect any of this to penetrate this hugely successful threadjack any more than any other argument of course. sigh.

  160. It is a particularly silly misreading to claim that I said that the Commerce Clause is “the root of all liberal evil.”
    No, you just said
    When the subject is congressional power, they are offended to no end that the Supreme Court might EVER say that ANYTHING is beyond Congress’s constitutional authority. Commerce clause, schommerce clause. As far as Congress is concerned, the Constitution is a complete blank check.
    and
    You’re getting confused over the fact that while liberals promote an omnipotent Congress (for Commerce Clause purposes)
    and
    1) When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power;
    I have no earthly idea where I could have gotten such a silly notion….

  162. LJ: Those are factual statements intended to describe what congressional liberals believe, for all practical purposes. I never intended to insinuate that their belief is “evil.” That is a misreading.
    Hilzoy: You’re being facetious. Your propositions are self-evidently silly, and there would be no reason for anyone to affirm or deny them. But it is patently obvious that: 1) congressional Democrats highly resent any judicial interference with Commerce Clause legislation (or Spending Clause legislation, for that matter); and 2) they take every opportunity to demonize Alito or any other judicial nominee who has ever suggested that the Commerce Clause has any limits.
    So if you deny that congressional liberals, in fact, do those things that I just mentioned, what is your basis for saying so? Just your intuition? Or the mere fact that you, personally, believe there are limits on the Commerce Clause? Try to come up with something better to go on here.

  163. “It is false that Britney Spears is an android created by a malevolent God to torment us.”
    I have a miraculous proof that, on the contrary, it is true, but, alas, this comment box is too small to contain it.

  164. Katherine:
    I’m sorry, but if you have no view of what the commerce clause means this discussion is a pointless threadjack.
    No it’s not. I’m not allowed to point out that someone else takes two contradictory views unless I stake out a personal opinion on one or both of the views? Why is that again?
    The reason that Lopez and Morrison freaked some liberals out is that they didn’t know where the courts would draw the line, and they feared that we’d be back on our merry way to the days of Hammer v. Dagenhart where it’s not interstate commerce as long as you’re not standing on the state line. I’ve had classmates in law school tell me that the 1964 civil rights act, the minimum wage law, and indeed most labor laws as well as most environmental laws, were unconsitutional. I have a huge problem with that.
    You’re proving my point. Not that this is relevant, but I’m happy to have Congress enforce civil rights laws, environmental laws, etc. But that’s the point: Liberals (as well as some moderates like me) want Congress to do lots of things that the Constitution itself doesn’t literally authorize, and they do not want the Court to interfere. Yes, yes, yes. Now the question is: Can this view — that Congress can and should do lots and lots of things that are beyond its enumerated powers — be squared with the view that 1) the President is limited to Article II powers, and/or 2) the Supreme Court should carefully monitor presidential power (declining even to deploy the doctrine of justiciability, or the political question doctrine).
    It’s similar to Brennan’s position in the obscenity cases: he couldn’t see where to draw the line, so he gave up trying in the end.
    Yes, it’s quite striking to see the contrast between the Roth opinion and later Brennan obscenity case.
    This is why Sebastian’s statement that “The interstate commerce clause shouldn’t be a nullity” puzzles me. The commerce clause is a grant of federal power, not a limitation on it–it’s my federalist society classmates who want to make it a nullity. Liberals want to make it a blank check perhaps but that’s not the same thing.)
    A blank check! Yes! That’s what I’ve been saying all along. Hilzoy: To the battlestations here; you’re going to have to write another imaginary dialogue in an attempt to refute Katherine.
    But Katherine, it’s surely wrong to say, “The commerce clause is a grant of federal power, not a limitation on it.” Well, yes, it is stated as a grant of power. But that grant of power is limited, not unlimited. And the federal government was originally supposed to be one of limited, enumerated powers (hence the 10th Amendment). That’s the objection made by people who care about the Commerce Clause’s text and/or history.
    Moreover, any grant of power could be restated as a limitation on power. If the Constitution says, “Congress can grant patents for a limited time,” it could as easily say, “Congress cannot grant perpetual patents.” If the Constitution says, “Congress can regulate commercial activity that takes place between states,” then given enumerated powers, it might as well say, “Congress cannot regulate things that are non-commercial and intrastate.”
    Anyway, this is all beside the point. The Commerce Clause is no longer much of a limit on congressional power, because (as you point out) it’s too difficult for courts to draw a line here. The question is why you (or other Democrats) believe that courts are going to be any better at drawing a line when it comes to how the President conducts foreign policy, etc.

  165. Pencils are not intelligent, sentient beings who disguise their feelings because they are the strong, silent type.
    I just put that in there because I wanted to read it again, an I think I’m beginning to agree.
    Hilzoy: You’re being facetious.
    For cripes sake, Niels, can you lighten up just a little bit? As a “conservative” commenter, I appreciate the other guys jumping into the debate, especially when they have some expertise, but this blog does not strictly follow the “Keep a tight a$$hole, all the time” rule.
    Sorry if that last sentence violated posting rules.

  166. And by the way Niels, I generally agree with you. Democrats, if they had their way would come up with plenty of laws like the 55 mph national speed limit, which may make sense in urban areas, but conflicts with what is customary and practical in the middle of Iowa or South Dakota. Most people would agree for instance, that Christmas decorations, outdoor lights and such, should be removed by Feb 1st, for instance, and I will add that I am in compliance with this, but I don’t think it should be a federal law because of the commerce Claus.

  167. Earlier, Niels wrote: There’s no contradiction in observing the palpably obvious fact that: 1) When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power; 2) When it comes to Due Process, liberals are happy (usually) to have judges make up new constitutional rights (e.g., abortion, gay marriage) and impose those rights on an unwilling citizenry.
    As to clause 1, that is mostly a true statement. Of course, it also applies to social conservatives, big business conservatives and, in fact, most everybody except con. law students and professors, libertarians and whoever is getting his ox gored by the particular federal law. Even the purported true conservatives / traditionalists on the Supreme Court seem incapable of articulating a bright line on what is within the scope of the commerce power. So, those baaaad liberals being tarred with the brush of disrespecting limits of federal power actually include most everyone.
    As to clause 2, the very purpose of the Bill of Rights is to protect individual rights against majoritarian oppression. So, by definition, these cases will be imposed on an unwilling public.

  168. Another comment for Hilzoy:
    I’m not asserting the proposition:
    If no Congressperson of a given party can be found saying that P, it follows that members of that party believe that not-P.
    Rather, the proposition would be something more like this:
    If no Congressperson of a given party can be found saying that P, and news articles are overflowing with examples where they say ~P, it is fair to infer that members of that party generally believe ~P. The burden of proof is therefore on anyone who tries to insist that members of that party believe something other than ~P.

  169. Niels, again, until you can give some semblance of a position on what the Commerce Clause does and doesn’t allow, or at least what you think it does mean and what you’re unsure about, it’s completely impossible to have a useful discussion.
    You plain don’t seem to get the grant of power/limitation on power thing I’m talking about & I’m not sure how to explain it in a way you will get. Again, even the liberals who have the most expansive view of the commerce clause do NOT think it overrides every other clause in the Constitution, unlike the Commander-in-Chief clause.

  170. Mr. Jackson: It looked like an accusation of bad faith to me. Sorry if I misunderstood you.
    I think there’s a real difference between saying that the statutes in Lopez, Morrison, Carhart, and Rybar are within the Commerce Clause — and I think they are — and saying there’s no limit. I find Raich to be all the way out there at the edge. Can you postulate a statute I’d think is too far? I bet you could. Can you postulate a statute Justice Souter would think is too far out there? I’m certain you could. The fact that he, and most others, has gone no further than endorsing the decisions as to several specific statutes does not mean that there is no boundary.
    I’m not aware, by the way, of some kind of liberal canon that such challenges are non-justiciable. The clause is broad, but the Court is fully empowered to decide whether any particular statute is beyond Congress’ power to enact.
    This stands in some contrast to the government’s position on Article II powers.
    As Katherine notes, it’s not really correct to simply compare reactions to assertions of Article I power and to assertions of Article II power. Not least because Article I confers power over substantial matters (including the power to legislate as necessary not only for Congress’ enumerated powers, but also regarding “all other powers vested by this Constitution in the Government of the United States . . .”) while the powers conferred in Article II are generally more procedural in nature. The pardon power is one of the few truly unrestricted powers conferred on the President in the Constitution. I don’t see the foreign policy power in Article II that Presidents commonly claim (and yes, I think Curtis Wright wrongly decided), or the unlimited war powers that this President is claiming.
    I’m not one who has thought your generalizations, with limits and caveats as suggested, are untrue. Disputes about Article I powers are nearly always about whether the power resides in the state or US governments: I think it’s fair to say, generally, that “liberals” favor a federal state with broad powers to address national issues, and believe that the Constitution creates one. Disputes about Article II are nearly always about whether the power resides in the people (either individually or through their representatives) or in the President. Fair again to say that liberals don’t generally favor an unchecked executive, and that they don’t think the Constitution has created one. Disputes about Amd XIV are nearly always about whether power resides in the people or in the State governments. It’s fair to say that in a contest between an individual and a state that wishes to impose on the individual’s rights, liberals generally side with the individual — unless the interest of the state is truly compelling, and the intrusion truly necessary to vindicate that interest. And that the Amd XIV embodies this preference (having been enacted because states were manifestly incapable of respecting the rights of the individual). Again, I am unaware of any strain of liberal thought that suggests that Amd XIV questions are or ought to be unreviewable.
    I don’t regard any of the foregoing paragraph as particularly controversial, and I don’t think you do either, Mr. Jackson.
    Sebastian: Thanks for answering. What about race discrimination in hotels and restaurants?
    Hil: And you?

  171. DaveC: Most people would agree for instance, that Christmas decorations, outdoor lights and such, should be removed by Feb 1st, for instance, and I will add that I am in compliance with this, but I don’t think it should be a federal law because of the commerce Claus.
    *splutters coffee over keyboard*

  172. Also, I wasn’t making an affirmative statement that “liberals want to make the commerce clause a blank check.” I’m saying it’s a position you could make a defensible argument for. You, however, are not doing that. You are saying, over and over again, that “everyone knows it”.

  173. Most people would agree for instance, that Christmas decorations, outdoor lights and such, should be removed by Feb 1st, for instance, and I will add that I am in compliance with this, but I don’t think it should be a federal law because of the commerce Claus.
    DaveC, you might well have found the limit to the CC! Of course, I’d want to see the congressional findings before I completely buy into the notion that your statute violates the CC.
    ;- )

  174. Charley, I have heard one guy who should know better say it’s non-justiciable but I think that’s a very silly argument, and like I said, it’s one guy. It is not a common liberal position.
    Agreed on Curtiss-Wright.
    I always wondered why so many people who accept implied nationality security powers and “powers inherent in sovereignty” because the “constitution is not a suicide pact” and no one would have ever wanted to deny the government that power….
    think it’s completely absurd and laughable that there are implied and inherent rights because “the constitution is not a suicide pact” and no one would have ever wanted to give the government that power.
    I don’t think it’s absurd for Niels to say that liberals want a broad commerce power. I think he’s overstating the claim, providing no evidence for it, and am still completely perplexed as to why this is evidence that we shouldn’t care about claims of absolute executive power. And it is simply false to say that liberals want an absolute commerce power, because, again, they are not arguing that the commerce power makes Dennis Hastert the commander in chief of the armed forces or gives Harry Reid or Bill Frist the veto power, or strip the federal courts of power to judge the legality of Congress’ actions, or pass ex post facto laws or bills of attainder, or suspend the writ of habeas corpus except in time of rebellion or invasion, or the 1st amendment, or the 4th amendment, or the 5th amendment, or the 6th amendment, or the 7th amendment, or the 8th amendment, etc. etc. ad infinitum. And no one’s saying COngress can pass laws in secret, either. At most, liberals argue that the commerce clause has become a general grantlike the states’ “police power”. But the states’ police power is very far from absolute. The power that Bush is claiming as commander in chief, on the other hand, is very very close to absolute.

  175. “Sebastian: I agree with you on all three as well, though in the case of marijuana growing I almost immediately think: well, what about that case involving wheat grown for personal consumption, which seemed to be exactly like the pot case except for the plant species involved? I think that was wrongly decided, based on my nearly nonexistent understanding of the relevant precedents to it, but what role should I give it as a precedent?”
    It is indeed very similar to Wickard and its related cases, though distinguishable in that Wickard was growing feed for his animals which the Court said made it commerce. (I don’t buy the argument that growing feed for your animals is necessarily interstate commerce either but it puts it still one step past growing a plant for your personal consumption.) I think there is also an even broader case than Wickard from that time period, but I can’t remember its name right now.
    I’ll return to the precedent question after I respond to Katherine.

    In cases where it’s hard to draw the line, where you end up striking down no laws at all or a whole lot of laws, I think the Court should read enumerated powers broadly, and should also read enumerated rights broadly. (This is why Sebastian’s statement that “The interstate commerce clause shouldn’t be a nullity” puzzles me. The commerce clause is a grant of federal power, not a limitation on it–it’s my federalist society classmates who want to make it a nullity. Liberals want to make it a blank check perhaps but that’s not the same thing.)

    I meant making the words of the clause a nullity, but if you want to call it a blank check that is fine.
    The point is that the words: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” do not mean simply “To regulate commerce”. When I say “make a nullity” I mean that liberal jurisprudence wants to completely ignore the words “with foreign Nations, and among the several States, and with the Indian Tribes”. Asking the Court to take that seriously is most certainly not trying to make the clause a nullity. It is trying to bother with what is actually found in the Constitution. What really irritates me about modern liberal jurisprudence is that it happy to reach to penumbras and emmanations of meaning for clauses it likes, but it also wants to ignore clearer words. Arguably you can use prenumbras to reach conclusions in certain cases (I’m personally skeptical about it but in theory there could be something there) but if you are going to do so you can’t get away with ignoring clearer parts of the text. Just because you might have to reach complicated questions with difficulty to understand penumbras doesn’t give you license to do what you want on less complicated questions that are clearly dealt with.
    The commerce clause is indeed a grant of federal power. It is not however a grant of federal power over all commerce. Treating it is if it were is not taking the Constitution seriously. And frankly current liberal jurisprudence as I understand does not even limit it to all “commerce” because the definition of “commerce” has been expanded to include literally anything. (And for those who complain about improper use of ‘literally’, I’m not using it to mean “metaphorically”). [BTW did I get the use/mention convention right in that sentence? I’ve gotten into that problem hilzoy talks about where I know my old instinct was wrong but I haven’t replaced it with proper understanding of the rule, so I get into the “is this my old instinct I’m supposed to resist or the new instinct I’m supposed to embrace” problem.]
    As for respecting precedent, if we want the ennumerated powers to mean something rather than nothing, we can’t keep Wickard around. And we really can’t keep the idea that all things are commerce around either. Since I like federalism as a concept, and since it is a huge part of how the Constitution is set up, I don’t see how Wickard can stand. It was very clearly wrong. It very clearly expanded Congressional power over states vastly beyond what was intended.

    Also, I wasn’t making an affirmative statement that “liberals want to make the commerce clause a blank check.” I’m saying it’s a position you could make a defensible argument for. You, however, are not doing that. You are saying, over and over again, that “everyone knows it”.

    On this I’m rather inclined to side with Niels. I’m not sure if “everyone knows it”, but you of all people certainly you know it. Super-carefully drawn I suppose Niels should have said “Modern liberal understandings of jurisprudence offer no limit on Congressional power based on the Commerce Clause and anyone who is aware of Commerce Clause discussions should already know that.” Asking anyone to establish the fact that liberal jurisprudence reads away all of the limitations in the clause is really a waste of time. Either you know that is true or you don’t. It is so basic to the conversation that spending time establishing it is silly. It is so well understood that if someone thought that liberal jurisprudence limited Congressional power via the Commerce Clause they would have to raise evidence to prove it or no knowledgeable person in the debate would take them seriously. Niels overstated it by suggesting that liberals couldn’t even cognize a limit, but if you are reading him as saying that liberals jurists and legislators act as if the clause was a blank check, you really shouldn’t waste time asking him to prove that. They do. You know they do. We all know they do.

  176. Niels, again, until you can give some semblance of a position on what the Commerce Clause does and doesn’t allow, or at least what you think it does mean and what you’re unsure about, it’s completely impossible to have a useful discussion.
    Well, maybe we can’t have a “useful discussion” about what the Commerce Clause means, in and of itself, but we can certainly have a discussion about whether it is appropriate to 1) interpret the Commerce Clause with much latitude than anything in Article II, and/or 2) believe that the Supreme Court should take a more aggressive role in limiting the President than in limiting Congress.
    You plain don’t seem to get the grant of power/limitation on power thing I’m talking about & I’m not sure how to explain it in a way you will get.

    I understand your point, which is wrong.
    If a provision in the Constitution grants only a limited power to Congress, and that grant gets treated as if it were effectively unlimited, then it makes no sense to say, “Well, the clause is not a limit, it’s a grant.” That’s just being evasive. Of course it’s phrased as a “grant,” but that doesn’t mean it has no limits inherent in that grant of power.
    Besides, if: A) The Commerce Clause grants Congress the power to regulate interstate commerce and not intrastate non-commerce, and B) liberals generally want Congress to regulate a whole bunch of additional things that include intrastate non-commerce (b/c of aggregate effects, etc.), and C) your friends say that Congress should stick to interstate commerce (because that’s all that was authorized in the first place), then it isn’t your friends who are trying to make the Commerce Clause a nullity.

  177. SH, I think there’s some overbreadth in your final blank check sequence. Introduce a bill requiring Christmas decorations be brought down, and you might find it.
    Rather than take another whack at that horse, I just wanted to think for a minute about what happens if partial-birth abortion comes before the Court and gets 4 votes to strike down on due process grounds, 4 votes to strike down on commerce clause grounds, and 1 vote concurring in the judgment.

  178. Personally, I view INS v. Chadha as the decision that most effectively increased executive power at the expense of Congress in recent years, and think that remedying the problem created (executive agencies becoming effectively unfettered in issuing regulations as far as Congressional views go, which was not the original intent when those agencies were first set up) would be a good idea (in spite of the Court’s opinion in Chadha, it should be a simple matter to create a procedure by which Congress would have to actively approve all new regulations from the executive agencies, and to withhold that approval if they were so inclined to create a functional “legislative veto” that would not constitute a form violation). Executive orders could use a bit of gelding, too–I was rather miffed when Bubba went on that land grab in red states near the end of his second term, and I wouldn’t mind taking that temptation away from Republican presidents as well. The specifics of that would require some work to avoid overdoing the cutback, of course.

  179. Charley — I actually agree with most of what you wrote.
    That said, is there anything that Souter would find beyond the Commerce Clause’s grant of authority? I don’t think so. His dissent in Lopez begins by saying that the Court should defer to “what is often a merely implicit congressional judgment that its regulation addresses a subject substantially affecting interstate commerce ‘if there is any rational basis for such a finding.'”
    And later in the opinion, he approvingly cites an Equal Protection case that said, “those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it; . . . it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.”
    I don’t think that any law would ever be struck down under judicial review that is as lax as Justice Souter would have it. All that would have to happen is that DOJ (defending the law) would say, “Congress could hypothetically have thought that this activity might have an effect somehow on interstate commerce, and the plaintiffs haven’t disproved every conceivable thing that Congress might have thought.” Then, the law would survive.
    Note: This goes to the common knowledge that I’ve been referring to above, i.e., that judicial liberals set a standard that is so loose that it is no standard at all. Maybe I shouldn’t assume that people are familiar with Justice Souter’s writings, or any judicial decisions, for that matter.

  180. Also, Charley, no one says that the Fourteenth Amendment is not justiciable as a general matter, but I don’t believe (I could be wrong) that Alito said that Article II is itself non-justiciable either. What he said was that some questions in particular cases might be non-justiciable.
    And that is equally true of the Fourteenth Amendment. You can’t just file an Equal Protection claim willy-nilly. You have to have standing (i.e., prove that you are injured in a concrete fashion, that the court will be able to redress the injury, etc.). The claim has to be ripe. The claim cannot be moot. And so forth — those are doctrines that apply in all cases, given that federal courts are authorized only to hear live cases or controversies under Article III.
    Interestingly enough, Alito’s statements appear to be consistent with what the Supreme Court decided in Raines v. Byrd, where members of Congress were not allowed to sue to challenge the line-item veto. As Souter and Ginsburg put it in their concurrence:

    Because it is fairly debatable whether appellees’ injury is sufficiently personal and concrete to give them standing, it behooves us to resolve the question under more general separation of powers principles underlying our standing requirements. See Allen v. Wright, 468 U.S. 737, 752 (1984); United States v. Richardson, 418 U.S. 166, 188 -197 (1974) (Powell, J., concurring). While “our constitutional structure [does not] require . . . that the Judicial Branch shrink from a confrontation with the other two coequal branches,” Valley Forge Christian College, supra, at 474, we have cautioned that respect for the separation of powers requires the Judicial Branch to exercise restraint in deciding constitutional issues by resolving those implicating the powers of the three branches of Government as a “last resort,” see ibid. The counsel of restraint in this case begins with the fact that a dispute involving only officials, and the official interests of those, who serve in the branches of the National Government lies far from the model of the traditional common law cause of action at the conceptual core of the case or controversy requirement, see Joint Anti-Fascist Refugee Comm., supra, at 150, 152 (Frankfurter, J., concurring). Although the contest here is not formally between the political branches (since Congress passed the bill augmenting Presidential power and the President signed it), it is in substance an interbranch controversy about calibrating the legislative and executive powers, as well as an intrabranch dispute between segments of Congress itself. Intervention in such a controversy would risk damaging the public confidence that is vital to the functioning of the Judicial Branch, cf. Valley Forge Christian College, supra, at 474 (quoting Richardson, supra, at 188 (Powell, J., concurring)), by embroiling the federal courts in a power contest nearly at the height of its political tension.

  181. Niels: I’m just objecting to your overstatement. Here’s why:
    The interstate commerce clause grants Congress the right to regulate interstate commerce. The courts have held that when something is sufficiently closely related to interstate commerce, then Congress can regulate it as well.
    Your claim that liberals recognize no limits on the commerce clause might be interpreted to mean either (a) that given the court’s actual rulings, nothing whatsoever falls outside the commerce clause, or (b) that the commerce clause ought to be interpreted in such a way that it grants the Congress the power to regulate anything.
    These claims will be true only if either the Supreme Court (a) has held or (b) ought to hold that everything is interstate commerce, or if it either (a) has held or (b) ought to hold that everything is sufficiently closely related to interstate commerce that Congress can regulate it.
    Either claim is simply ludicrous. Consider, for example, my habit of splashing water on my face when I wake up. (I get my water from a well, for what it’s worth.) Is that “interstate commerce”? Not unless you’re Humpty Dumpty, and the words get to mean whatever you want. Is it sufficiently closely related to interstate commerce that Congress could regulate it under the commerce clause? I don’t see how even the appalling wheat decision gets you anywhere close to that.
    Now: for someone to accept the view you ascribe to Democrats, they would have to believe that splashing my face with water is, in fact, regulable as interstate commerce, or as being in some way closely tied to it. And if someone comes up with an ingenious story about that example, pick another. (Sometimes, when I’m feeling very bored and I’m in some situation in which I can’t do anything about it — e.g., waiting for a bus — I count in Arabic in my head. Why? No reason. Is that regulable? According to the view you’re attributing to Democrats, it is. That’s absurd.)
    Why this matters, apart from precision in language being a generally good thing, is that if you stopped saying that Democrats held this ludicrous view, you might have to try attributing to us a view that took the ‘sufficiently closely connected’ relation to be broader than you think, though not so broad as to encompass literally anything. Then we could have an argument, and you could argue against a view that wasn’t a straw man of your own devising. Until then, however, I really think you are in “strong, silent pencil” territory.

  182. Mr. Jackson, I think you’re overstating Justice Souter’s position. He’s willing to defer to congressional findings of a relationship to interstate commerce, if supported by a rational basis. That’s common enough, and no more a grant (as opposed to a limitation) than the CC itself. And that he’ll affirm a statute is it is a legitimate exercise of congressional power — even if the appropriate provisions were not invoked when the law was passed — doesn’t strike me as radical either. The alternative is to strike down the statute, saying ‘gee, Congress, you can pass this same law again with just a few magic words that have nothing to do with the substance of the law.’ I’d be surprised if this is controversial at all: of course the default position of a court ought to be upholding a statute if any legitimate basis for doing so should be found.

  183. “These claims will be true only if either the Supreme Court (a) has held or (b) ought to hold that everything is interstate commerce, or if it either (a) has held or (b) ought to hold that everything is sufficiently closely related to interstate commerce that Congress can regulate it.
    Either claim is simply ludicrous. Consider, for example, my habit of splashing water on my face when I wake up. (I get my water from a well, for what it’s worth.) Is that “interstate commerce”? Not unless you’re Humpty Dumpty, and the words get to mean whatever you want. Is it sufficiently closely related to interstate commerce that Congress could regulate it under the commerce clause?”
    How did you get the water? If through the public pipes that take some draw (and pay for it) on a river that goes through more than one state–interstate commerce. Heck, it is more related to interstate commerce than growing something for your personal use. Combine that with the hotel cases (which by the way I don’t think you should, the race related cases are really more of an emergency kind of thing and should almost never be expanded beyond race in my opinion because nothing else has the pernicious history that race/slavery had in the US) and I think you have an excellent argument that pre-Lopez splashing water on your face in the morning could be regulated under the interstate commerce clause. (And by excellent I mean “not contradicting the judicial rulings and policies between in the years between Wickard and Lopez). And Lopez, of course, is not exactly well received in liberal jurisprudence.

  185. Sebastian: that’s why I mentioned my well. It comes out of the ground. And, just in case anyone wonders, I live nowhere near a state line, so the water table does not cross state boundaries.

  186. I just re-read Chadha, inspired by MSE. Justice Powell’s opinion, in particular, is worth a read, and I liked Justice White’s as well.
    [nods]
    White–as Scalia did in Morrison v. Olson–plays the role of Cassandra and has, IMO, been proven right in retrospect. Powell correctly suggests that the Court could have decided the case on far narrower grounds and should have done so.

  187. the race related cases are really more of an emergency kind of thing
    Well now wait a minute. Is there an emergency exception to the commerce clause? A race exception? Or are you heading out into Justice Douglas* territory?
    *In his concurring opinion in Heart of Atlanta Hotel, Justice Douglas wrote

    the result reached by the Court is for me much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual not with the impact on commerce of local activities or vice versa. Hence I would prefer to rest on the assertion of legislative power contained in @ 5 of the Fourteenth Amendment which states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article” — a power which the Court concedes was exercised at least in part in this Act.
    A decision based on the Fourteenth Amendment would have a more settling effect, making unnecessary litigation over whether a particular restaurant or inn is within the commerce definitions of the Act or whether a particular customer is an interstate traveler. Under my construction, the Act would apply to all customers in all the enumerated places of public accommodation. And that construction would put an end to all obstructionist strategies and finally close one door on a bitter chapter in American history.

    I wouldn’t have pegged you as a fan.

  188. OT: Just saw this about Gitmo hunger strikers. Even if one accepts the basic premises of the government’s detention policy, surely deaths of prisoners by hunger strike isn’t really an optimal result for US standing.

  189. Hil, what if you wanted to dump a toxic substance in the instrastate water table?
    Sebastian, do you think federal child labor laws are unconstitutional?

  190. Katherine: I would have thought that would be for the state or local governments, unless there was some wheat-like “really, we can’t be bothered to see exactly which water tables flow across the state, now can we?” exception. But this would (I would think) not mean that any use of my well water is regulable; just that any use that could possibly be relevantly related to commerce could be.
    (Just as the fact that I can use my car to conduct interstate commerce doesn’t per se make all my driving subject to Congress.)

  191. ” I would have thought that would be for the state or local governments”
    Oh, that works real great in practice. So you think the Clean Water Act and CERCLA are probably unconstitutional?

  192. My basic attitude about hunger strikes is that the willingness of some fool to starve himself to death as a means of forcing someone to do something tells us precisely zero about the validity of their cause–and that human beings, including incarcerated ones, should be free to end their existences if the mood strikes them–though if one is doing it in their right mind it is a rather selfish act given the effect it is likely to have on their loved ones.

  193. I don’t want to jump into the Constitutional arguments here, but I do think
    “There are good reasons why one should take an expansive view of congressional authority but not so expansive a view of presidential authority,”
    and there are good reasons why the Court ought to be very suspicious of Presidential overreaching.
    Briefly, Congress acts slowly and in public view. It requires agreement among substantial number of members to do anything (even if that number is much less than a majority of either house).
    The President may act quickly, in secret, and without concurrence from anyone. Thus Presidential power is much more prone to abuse than Congressional power. In addition, Presidential abuses are much more likely to be actually harmful, rather than merely unconstitutional. (I am not suggesting we ignore constitutionality, just that a law that goes beyond the limits of the Commerce Clause is less likely to be harmful than an action taken in secret by the President. Can anyone argue that the statutes invalidated in Lopez and Morrison were disastrously unwise?)
    For these reasons I think the views Niels Jackson wants to consider inconsistent are not inconsistent at all.
    Much of this is influenced by the current abuses of power by the Bush Administration. So my arguments may be too “results-oriented,” and insufficiently “grounded in principle” for some. That is a reflection of how I think about the world. Striving for Euclidean rigor in political matters does not make sense to me.

  194. “My basic attitude about hunger strikes is that the willingness of some fool to starve himself to death as a means of forcing someone to do something tells us precisely zero about the validity of their cause….”
    That Gandhi sure was a freaking idiot.

  195. “Congress acts […] in public view.
    Yeah, not so much these days.
    “It requires agreement among substantial number of members to do anything….”
    Again, only if “substantial numbers” mean “the majority of the conference committee,” so about maybe 8 members.
    “The President may act quickly, in secret, and without concurrence from anyone.”
    You mean, like the Republican majority Congress acts.
    Everything you say, Bernard, was perfectly true. Ten years ago. Not in this century.

  196. I understood Charley’s point to be that, no matter what you think of the justice of the cause, it is a terrible result for the Muslim world’s opinion of the U.S.
    It is also a sign of desperation, of course: either you would prefer death to life in these conditions; or you think the only way you see to change the situation is to threaten to starve yourself to death–and to act on that threat if necessary. I assume that’s not a decision people make lightly. It doesn’t mean their cause is just or they’re making the right decision, but it’s a sign of desperation and sincerity, that causes people to ask: why has this person decided to starve himself to death?
    I guess there are probably countries where you wouldn’t even bother trying, because you knew people would not be very surprised about prisoners who haven’t been charged or convicted starving themselves to death. We may not be the kind of country where this can’t happen, but at least we’re still the kind of country that finds it embarrassing.
    Gary, as corrupt as the conference committees are, it’s not the same level of secrecy. It is still possible to read the bill. Often not with enough time to stop it from passing, but you can read the bills & the laws they pass. Whereas as some of the stuff Bush has done was intended to be kept from public view indefinitely.

  197. MSE, I’m not in complete disagreement with you. As to the question whether the US’s foreign policy interests are best served by allowing prisoners to starve themselves, your remarks are non-responsive.
    As you surely know, the point of a HS is not to demonstrate the validity of the cause, it is to get people to notice the cause — and let the validity question be resolved on the merits.

  198. “As you surely know, the point of a HS is not to demonstrate the validity of the cause, it is to get people to notice the cause — and let the validity question be resolved on the merits.”
    This isn’t obvious to me. Somewhere in Moorcock’s _Gloriana_ a man leaves a note confessing to a crime and kills himself to prove his sincerity – at least it has that effect.

  199. Thanks Bernard — finally someone addressed the question I was interested in. And you’ve got a point: Publicness of the governmental action makes a difference.
    Charley: “I think you’re overstating Justice Souter’s position. He’s willing to defer to congressional findings of a relationship to interstate commerce, if supported by a rational basis.”
    But in the very passage I quoted, there don’t have to be any congressional findings at all — the mere fact that Congress passed the law is viewed as an “implicit” finding that commerce is involved.
    Hilzoy: Your first proposition is correct, at least mostly: ” given the court’s actual rulings, nothing whatsoever falls outside the commerce clause.”
    That should be, “Given the Court’s actual rulings, and excluding the Lopez and Morrison decisions that most liberals despise, nothing whatsoever in principle is certain to fall outside the Commerce Clause.”
    Water splashing on your face? Well, hold on: If you’re using well water, you’re not buying BOTTLED water for that purpose. And you’re therefore affecting the interstate market for bottled water. That makes just as much sense as Wickard — the farmer who grows wheat for his own use, which was regulable because his failure to purchase wheat supposedly would have a negative effect on the interstate market.
    That’s what I mean: Take the liberal Supreme Court decisions to their logical conclusion, and you can regulate absolutely anything.

  200. K: I think that a lot of the water whose cleanliness is governed by the clean water act is, in fact, relevant to interstate commerce, and, as I said, I’m open to the idea that figuring out which is not is unduly cumbersome. (I’d have to think about it.)
    Honestly, though, I think that there are issues that are obviously federal, but which the authors of the Constitution did not anticipate, and that the thing to do about them is either to pass an amendment, or to govern them by making federal money contingent on states’ doing stuff about them. And the environment has always been, in my mind, the obvious example of something like this.
    It ought to be federal, since there’s no other way in which one state can protect its own environment from the acts of other states, or in which, if 49 states want to have a clean environment, but the 50th (which let’s suppose is centrally located, not e.g. Hawai’i) has no environmental regulations at all, the residents of the 49 can get their desires acted on. But instead of being regulated directly, it has to be brought in under the interstate commerce clause.
    I’d much rather not make the argument that e.g. polluting lakes in the very middle of a large state, whose effect on other states is due to its being a crucial nesting or flyover site for birds, is wrong because ensuring the survival of migratory birds is in some way a form of regulating interstate commerce. Thus, I’d be happier either using strings on federal money to protect them or amending the Constitution.

  201. “It is still possible to read the bill.”
    After it’s been passed. Not terribly useful, that. I grant that it’s a step above keeping it secret forever (or for the next decade or so, at least).
    On the other, to note the obvious, a willingness to engage in a hunger strike unto death of course says nothing whatever about the correctness or wisdom of the cause involved; it does, as Katherine notes, demonstrate the depth of sincerity of the striker in their belief.
    It’s an attempt to shock the conscience, and nothing more. Naturally, those without conscience will be bothered not at all.
    Those with conscience may still entirely disagree with the cause, but might still care to engage their humanity, for just a moment, before striding onwards, sure of their righteousness.
    Rilkefan, I’m afraid I didn’t understand your post: are you equating “sincerity” with “validity”? If not, what is it you’re saying isn’t obvious to you? I’m probably just being obtuse.

  202. “That Gandhi sure was a freaking idiot.”
    Apparently not–he succeeded. Probably because his cause was a lot more merit than that of the Gitmo hunger strikers, and the Brits ultimately were more sympathetic to the suffering of their colonial subjects than, say, Americans are for enemy combatants who were trying to kill Americans when they were captured.
    Just a thought, Gary.

  203. Hil, my position is, the reason so many more issues are now obviously federal and impossible for the states to effectively regulate is that so much more commerce is now either interstate commerce, or intrastate commerce that it is necessary and proper to regulate in order to regulate interstate commerce.

  204. “That’s what I mean: Take the liberal Supreme Court decisions to their logical conclusion, and you can regulate absolutely anything.”
    You have a small logic problem here. Any proposition can be extended “to [its] logical conclusion” and anything can therefore, by this methodology, be “proven” extremist unto absurdity.
    The fact is that it is not a necessity to to extend a given proposition so, absent a specific reason, and thus your conclusion fails.

  205. “…than, say, Americans are for enemy combatants who were trying to kill Americans when they were captured.”
    And, indeed, I quite lack sympathy for such people, myself, although moreso if they were previously involved in attacking Americans, rather than in merely defending themselves. I’ll assume that’s what you meant.
    However, if you’d care to demonstrate that all the prisoners at Guantanamo Bay are in that category, I’d be absolutely fascinated.
    I’ll wait. Feel free, if you prefer, to just demonstrate it of those who are hunger striking. That should make it even easier.

  206. M. Scott–
    is your position that they’re all “enemy combatants”, or that an innocent person’s objection to being detained forever lacks merit?
    And by “they were trying to kill Americans when they were captured”, do you mean that in the traditional sense that they were actually physically trying to kill Americans, or do you mean it in some vague metaphysical way?

  207. Gary, I think CC‘s claim was too sweeping. Of course a HS is intended to bring an issue to the public – but whether or not the pity of the situation is meant to sway public opinion is not knowable.

  209. enemy combatants who were trying to kill Americans when they were captured
    Obviously, some further attention to the cause is called for — even the government does not claim that this is an accurate description of all its Guantanamo prisoners.
    Of course, the object is not to get your attention/sympathy anyway. For people in your position, MSE, the question is as I put it. Even if you assume that everyone arrested is guilty of something, are we not still better off having trials/tribunals that demonstrate this to the world, rather than stubbornly clinging to the propositions that we don’t have to prove anything to anyone (including ourselves) and that our government is infallible in selecting people to imprison, while prisoners kill themselves out of desperation.

  210. Hilzoy: Notice something. You dared to suggest that the Commerce Clause has limits, and (gasp) that the state and local governments might regulate local waters that don’t touch upon other states. And Katherine’s response was to suggest that maybe you believe the Clean Water Act and CERCLA are unconstitutional.
    This is utterly typical. Katherine is not the outlier among liberals — you are.
    Indeed, if you were ever nominated for a federal judgeship, we’d see People for the American Way running ads (to then be echoed by Democratic Senators) about how you are an extremist radical right-winger who wants to gut environmental and civil rights laws. Heck, you’ve given liberal groups and Senators much more excuse to use such language than did Roberts and Alito (neither of whom expressed any disagreement with Wickard).

  211. “Of course a HS is intended to bring an issue to the public – but whether or not the pity of the situation is meant to sway public opinion is not knowable.”
    Well, clearly mind-reading caps are still unavailable, despite the seeming frequent use of them in discussions here by some.
    Could you perhaps try restating what you’re suggesting the alternative motivations might be? I’m afraid I didn’t follow the distinction you seemed to be trying to make with the Gloriana example. Again, I’m perfectly willing to believe I’m just being somewhat dense. (Since it’s clearly necessary: the previous statement is meant to mean what it says; it is not ironic; it has no other implications; it does not mean other than what it says; it means “I’m perfectly willing to believe I’m just being somewhat dense.”)

  212. “Katherine is not the outlier among liberals — you are.”
    I’ve stayed out of the substance of the debate on the Commerce Clause so far, but I’ll certainly say that if we’re counting liberals and taking names, I’ll stand up to be counted as one, and to say that I certainly believe their are limits on the Commerce Clause and what it can be invoked to grant federal power to regulate to.
    No, I’m not going to discuss it further. But if Hilzoy is an “outlier” in believing there are limits, so am I.
    Any other liberals care to say whether or not they agree that there are limits to said power? (Note, Niels: absent a direct “yea,” you are not entitled to assume a “nay.”)

  213. I must not have been clear – and the issue is unimportant – but:
    The question was about the goal or goals of a HS. Two possibilities were considered above: to gain popular awareness, to gain popular sympathy. CC denied the latter, saying HSers intended the merits to be discussed independent of the emotional situation. I claimed that HSers might well have both possibilites in mind.
    The example I gave was of a suicide taken to prove sincerity when it could have occurred out of manipulativeness.
    Do I think that’s the case at Gitmo? No, but what do I know.

  214. Thanks Bernard — finally someone addressed the question I was interested in. And you’ve got a point: Publicness of the governmental action makes a difference.
    Glad to be helpful. I do think, though, that another matter I raised – potential for harm – is even more important. Laws that attempt to regulate economic activity that not interstate commerce are not inherently undesirable. After all, state legislatures could constitutionally pass them. They may violate our rules about jurisdiction, but they are unlikely to offend our moral sense.
    Presidential overreach, on the other hand, will often occur in the national security arena, where the stakes are higher. It is one thing to be told how much wheat to grow; it is quite another to be imprisoned indefinitely because the President thinks you are dangerous.
    On a different matter, leaving hilzoy’s careful example of a body of water aside, I fail to see how environmental laws in general can be objected on the grounds that they are not “interstate commerce.” If the Acme Corp spews pollution into the air that winds up in another state it is indisputably engaged in “interstate commerce,” because it is using property – clean air – obtained from another state. That it is taking it without paying is irrelevant. This is neither an extreme nor a particularly liberal idea.

  215. In another remarkable coincidence and amazing example of something else Hilzoy and I turn out to have in common, I, too, also throw water on my face every morning!
    I forgot to mention that I’m an outlier there, too. Sorry for the extra comment noting this.

  217. Guess I could say “I, too, also”, but I don’t in fact throw water on my face, preferring to set the shower to cold and immerse my head in the stream.

  218. Some morning thoughts
    It is a particularly silly misreading to claim that I said that the Commerce Clause is “the root of all liberal evil.”
    Sorry to have misread you, so I guess this is just a Safire-like diatribe on uninterested versus disinterested. Given that the last century saw two World Wars, the creation of the creation of the United Nations, the Bretton-Woods system and any number of initiatives, it would seem that an increase in the power of the federal entity at the expense of the states was unavoidable. I also hope that legislators are not going to spend all their time talking about what legislation they can’t write, but maybe that’s just me and whatever outlier I represent.
    I thought I would never say this, but that god the lawyers have taken over this thread.
    Sebastian: that’s why I mentioned my well.
    Geez Louise, is there anything that Hilzoy ever misses in an argument? (that’s a rhetorical question, please don’t give me a rejoinder about missing things all the time, Hil)
    And as a liberal, let me stand up and say that I think there are some cases that shouldn’t be regulated by the commerce clause. But maybe the objection is that I am willing to let someone make the argument and let whatever court ajudicate if it actually is, no matter how far out I may consider it. I guess I’m just funny like that. Like that water thing that we all do.

  219. “CC denied the latter, saying HSers intended the merits to be discussed independent of the emotional situation.”
    Okay, now I understand what you’re saying, but also why I was confused. Because Charley Carp didn’t say that until after you’d made your first remark. What he said that you replied to was this:
    “As you surely know, the point of a HS is not to demonstrate the validity of the cause, it is to get people to notice the cause — and let the validity question be resolved on the merits.”
    There’s nothing there whatever about “the emotional situation.” I’m maybe missing something, but you seem to be applying an ex post facto explanation based upon the statement CC made after you first brought up your Gloriana example. Unless the time-stamps are fouled again, or, of course, the possibility that I’m simply somehow confused.
    In any case, it doesn’t seem important enough to bother with further scrutiny; feel free to further clarify or not, and I doubt I’ll respond further on it; thanks for explaining what you had in mind.
    Back on the topic of how the modern Republican Congress does business, by the way. Ah, modern conservatism in action! Gotta admire those principles!

  220. “…so I guess this is just a Safire-like diatribe on uninterested versus disinterested.”
    No, I really am unconvinced as yet that Niels is making an incredibly useful distinction.

  221. and let the validity question be resolved on the merits.

    There’s nothing there whatever about “the emotional situation.” I’m maybe missing something, […]
    Seems to me that one hand are the merits and on the other the piteous starvelings (or my two possibilites above). Unless I’m confused, CC by process of elimination originally meant what I claimed.
    As seen before, we have rather different approaches to the interpretation of sentences, so it shouldn’t be surprising that our inferences differ.

  223. “As seen before, we have rather different approaches to the interpretation of sentences, so it shouldn’t be surprising that our inferences differ.”
    I blame George W. Bush.
    “I don’t in fact throw water on my face, preferring to set the shower to cold and immerse my head in the stream.”
    I have a process, but anything further would be TMI. You’re all welcome.
    Squeezing it in under being another example of our return to monarchy, the Republican war on science marches on.

  224. lj: remember, a lot of my teaching involves the construction of examples, for an audience of very bright students who love — LOVE — to catch me having overlooked the odd well. I have a lot of practice.
    (Designing grading and extension policies for them helps, too. I really have had students who have shown up at my door, at home, a few minutes before midnight, saying “well, you never said what TIME the paper had to be turned in…) (And forever after, I have specified the time.)

  225. Other than a comment at the very beginning of this thred, which seems like ages ago, I have stayed out of this. The reasons are multiple, but a few are that IANAL, my knowledge of the Constitution is only slightly above the average, and most of the cases mentioned are known by name only.
    However, if I understand Niels right, he is trying to point out the hypocrisy of liberals who, in his belief, think the Commerce Clause gives the Congress unlimited power, but who at the same time are saying that the Cosntitution limits the President. Of course, as Gary as pointed out to me in the past, I may be mind reading, so I clarify that this is my reading of the case.
    Based on that, Katherine is wrong in asking Niels to state his belief of what the Commerce Clause means.
    First of all, I am a liberal, who, added to Gary and Hilzoy, do believe there are limits. Secondly, to the best of my knowledge, Specter can hardly be called a liberal or a Democrat.
    Here is where Niels argument falls apart. I don’t know of any Democrats or liberals who say that the President does not have the right to veto any bill they send to him for signing. Additionally, although they may disagree with a SC decision, I don’t know of any who would say the SC does not have the right to strike down the law.
    Therefore, they may say they have the power to write any legislation they want, and use the Commerce Clause to justify the constitutionality of said law.
    However, what this current administration is saying is that the President has the right to bypass any laws Congress may pass and which he signs without any oversight or consequences.
    And, to some degree, based upon my understanding (which may be faulty) that the courts have no ability to interfer with his decisions. The concern with Alito is that he appears to agree with that way of thinking.
    Okay, that is all very simplistic, so come after me.

  226. Hilzoy, I don’t think the well saves your hypothetical. Wickard grew plants on his own property for use on his own property. Your water example could be regulated by Congress in the post-Wickard pre-Lopez (which is to say the liberal jurisprudence version) of the Commerce Clause. You failing to buy water for your own use is exactly like Wickard failing to buy grain for his own use. It effects the scarcity of the grain/water on the open market and thus effects the interstate prices. The sad thing about your hypothetical is that it should be self-evidently ridiculous to classify it as pertaining to inter-state commerce, but under the actual cases it is at best a close call–and probably something that could be regulated by Congress.
    Gary, you aren’t writing to me but when you say:
    “You have a small logic problem here. Any proposition can be extended “to [its] logical conclusion” and anything can therefore, by this methodology, be “proven” extremist unto absurdity.
    The fact is that it is not a necessity to to extend a given”
    you are right in a platonic ideal of argument, but wrong with respect to the commerce clause. You don’t have to take it to some extremist conclusion. The pre-Lopez jurisprudence is already at the absurd conclusion.
    That is why this whole discussion is so sad. Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything. But under the current liberal understanding of jurisprudence it really does. I don’t know what to say. You are right, it is ridiculous. And that is one of the reasons I say things like: under modern liberal jurisprudence almost anything goes, even if it expressly contradicts the Constitution.
    Katherine, most CERCLA projects are either a result of interstate commerce or effect it afterwards. We could probably be fine not dealing with those that don’t. Same with most of the Clean Water and Clean Air act. Most large polluting plants are engaged in interstate commerce. It wouldn’t be horrifying to limit the federal governments reach to only those. Do you think Exxon is going to stop its interstate commerce to avoid the Clean Air act?

  227. Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything.
    I can’t speak for every other liberal in this discussion, but I certainly don’t want to say this. I don’t think there is any principle that is so all encompassing as to have me want that in any way shape or form, unless it is some variant of the Golden Rule, which I don’t think can be a basis for legislation, except in some sort of ethereal sense.

  228. “Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything.”
    I’ve not followed this discussion closely. We have at least three liberals who disagree. Could you name three liberals in this thread who say as above?
    IANAL, and I’ve not at all closely followed Commerce Clause history or debate, although I have some limited knowledge of it.
    I’m reasonably sure, however, that I’m on safe ground in suggesting that United States v. Lopez drew a line in the sand, as did United States v. Morrison. And I have no problem with that, speaking as a liberal.
    As for Gonzales v. Raich, which I do have a problem with, that wacky liberal Justice Scalia concurred, and wacky liberal Chief Justice Rehnquist and wacky liberal Clarence Thomas affirmed Parts I and II, and that wacky liberal John Ashcroft prosecuted the case. How this makes for “liberal jurisprudence” is unclear to me.
    But, as I said, IANAL, and I’m definitely no expert on Commerce Clause history.

  229. “We have at least three liberals who disagree.”
    Four, with LJ. To demonstrate that more liberals disagree, you actually now need to cite five who have already commented in this thread, Sebastian.
    Of course, you said “many,” not “most.” Although I’m unclear that a demonstrated minority is significant, I’m also unclear what an appropriate measure of “many” would be in this context. More than three, though, I think. Am I being unreasonable or unfair?
    Presumably, though, if there are lots of liberals running around who agree with John Ashcroft and Rehnquist and Scalia and Thomas, those out-of-control liberal scalawags, it should be easy to find at leave five who have raved on here, right?
    It’s not as if there’s a shortage of liberals posting to ObWings, after all. Why, we just refer to “Bushitler” all the time, according to some, after all (not you, of course; but according to at least one self-identified conservative who has posted a lot here).

  230. Karnak alert: I read Seb’s sentence: “Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything. ” — as having lost a ‘doesn’t’ somewhere in the typing. But I’ve been wrong before …

  231. “I read Seb’s sentence: ‘Many of the liberals in the discussion want to say […]’ as having lost a ‘doesn’t’ somewhere in the typing.”
    Looking again, a reasonable possibility given the following sentence, but I wouldn’t know until he says. Don’t you hate when that happens, though?

  232. “Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything.”
    I think it is more accurate to say that people in general want Congress to regulate the things they want regulated, and are prepared to base their arguments on the Commerce Clause or anything else that comes handy.
    It probably is true that liberals take a looser view of the Commerce Clause than conservatives, but that is likely because liberals generally are more inclined to favor government intervention in the economy. But I doubt that conservatives are any less willing to justify the results they favor based on the Commerce Clause.
    Somewhere up above, Sebastian, you identified abortion as not being subject to regulation as interstate commerce. Suppose, hypothetically, that Roe is overturned and that Congress then considers a national ban on abortion. How much conservative opposition do you expect to see on constitutional grounds?

  233. Five liberals. If people are getting the impression I don’t believe in any limits….I’m not sure I even disagree with Lopez–if anything I lean towards agreeing. I’d have to reread Morrison. What I wanted to get across was that the reason Lopez and Morrison caused alarm is that liberals want to make sure there’s a clear, well marked exit between Lopez and Hammer v. Dagenhart before they decide to pull onto the highway. And if you decide that “no purely instrastate activities are limited”, I’m not sure there’s an exit.
    What I was also trying to get across, which was directly responsive to Niels’ original argument, and which he has completely ignored, was that even if I thought it was a general police power, it would still not be true that I thought there were no limits:

    And it is simply false to say that liberals want an absolute commerce power, because, again, they are not arguing that the commerce power makes Dennis Hastert the commander in chief of the armed forces or gives Harry Reid or Bill Frist the veto power, or strip the federal courts of power to judge the legality of Congress’ actions, or pass ex post facto laws or bills of attainder, or suspend the writ of habeas corpus except in time of rebellion or invasion, or the 1st amendment, or the 4th amendment, or the 5th amendment, or the 6th amendment, or the 7th amendment, or the 8th amendment, etc. etc. ad infinitum. And no one’s saying Congress can pass laws in secret, either. At most, liberals argue that the commerce clause has become a general grantlike the states’ “police power”. But the states’ police power is very far from absolute. The power that Bush is claiming as commander in chief, on the other hand, is very very close to absolute.

  234. “How much conservative opposition do you expect to see on constitutional grounds?”
    I’m neither conservative, nor Seb, but I’ll toss in my own opinion that it would split the conservatives between those who are actually conservative, who would oppose, and those who are social Christian conservatives, who would largely approve. Percentages and numbers I wouldn’t even offer to pull out of my rear, and I’m surely stating the obvious, but sometimes I do that.
    “If people are getting the impression I don’t believe in any limits….”
    I try to never assume anything unstated, is all. (I really should write down my Rules For Approaching Life in one place sometime; that’s one; another is to try more or less to not believe anything until I’ve personally cross-checked it and found four — at least three, anyway, but preferably four — different sources that I find credible that affirm it, and to then still be tentative and skeptical; if it’s a real life thing, personally check it and try it that many times before tentatively believing it is so, and the keep in mind that time and circumstances change things.) (This also overlaps with the “Vital Freedom Lost In Uzbekistan” thread, and why I was, if I do say so myself, good at running conventions.)

  235. Unless I’m confused, CC by process of elimination originally meant what I claimed.
    I didn’t mean to rule out purely emotional appeal, based on pity. What I meant to rule out was the notion that validity of the cause itself is supposed to be demonstrated by the strike. Which responded to MSE saying that he thought hunger strikers fail to demonstrate the validity of their cause by going on hunger strike.
    Whether pity is supposed to be a goal of hunger strikers in general I’m not sure. The piteous nature of the circumstances in which the Gitmo prisoners find themselves — prisoners for life, no way out, no law — is not really separable from the merits of their cause.
    I thought a couple of times earlier today about saying I agreed with RF, but then I wasn’t exactly sure what he’s saying.

  236. “Karnak alert: I read Seb’s sentence: “Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything. ” — as having lost a ‘doesn’t’ somewhere in the typing. But I’ve been wrong before …”
    Sorry the sentence should have the doesn’t.
    But you all are making my point for me. You want to say that of course the commerce clause means something. Fine, I’m thrilled we agree. But that is most definitely not the strand of thought that is actually in play.
    1942-1995 the liberal strain of jurisprudence and the legal minds who justify it in law articles were pretty much for the blank check Wickard approach. In 1995, Breyer, Stevens, Souter and Ginsburg voted to affirm that view. I’ll let you determine for yourself whether or not they represent the liberal side of the argument more than Rehnquist, O’connor, Kennedy, Scalia, and Thomas. The same four reiterated their view in U.S. v. Morrison in 2000.
    Both were reported on with horror by many law professors and were reacted to negatively by many Democrats in the Senate.
    See for example:
    Feinstein ;
    Biden;
    National Women’s Law Center;
    Professor Demleitner as called to witness by Senator Leahy.
    Katherine, you constantly admonish me to engage the Republican senators I have instead of the ones I wish I had. On jurisprudence the proponents you have for liberal jurisprudence really are the ones who are also proponents for a blank check view of the commerce clause. It is an ugly fact, but it is a fact.

  237. Ok, there are three possible ideas behind a hunger strike: gain attention, prove righteousness (swaying public opinion), be piteous (swaying public opinion). My example above of a confession note sealed by suicide was more apropos of idea 2, which I take it CC was referring to, and I conflated ideas 2 and 3. So that’s all crystal clear. Hurrah.
    SH: “I’ll let you determine for yourself whether or not they represent the liberal side of the argument more than Rehnquist, O’connor, Kennedy, Scalia, and Thomas.” Depends on the case which side is which, I suspect. Or perhaps you were being facetious.

  238. For the record, I’m quite sure that you’ll find no trace anywhere on the internet of my ever having had a kind word for Senator Feinstein. (I could give you a list of other Democratic Senators of whom I can say the same.)
    I have at times had a kind word for Biden, however. And certainly I would take Feinstein over a considerable number of Republican Senators, while holding my nose, and eyeing the figurative gun at my head. That’s the kindest thing I’ve had to say about her yet. Just noting.
    It’s not a matter of how “liberal” or not she or a Senator is, incidentally. It’s a matter of how much of an idiot and panderer she is or not. I have a fair number of kind words for Russ Feingold, for instance, despite a number of differences of opinion. Ditto Bernie Sanders.

  241. “Somewhere up above, Sebastian, you identified abortion as not being subject to regulation as interstate commerce. Suppose, hypothetically, that Roe is overturned and that Congress then considers a national ban on abortion. How much conservative opposition do you expect to see on constitutional grounds?”
    As someone who is fond of suggesting that a federally protected right of abortion should be based on the Thirteenth Amendment, let me suggest that a far more obvious and defensible ground for a constitutional ban on abortion would be a reversal of Roe‘s ruling that a fetus is not a person as far as the Fourteenth Amendment is concerned–with the consequence that a fetus would have a constitutionally protected right to “life.” Though, IMO, that right would still be subject to a balancing test against the absolute right to be free of involuntary servitude under the Fourteenth Amendment, it would still be a far more reputable and defensible ground for banning abortion than yet another intellectually bankrupt extension of the Commerce Clause. Also–given that the specific language in Roe that fetuses are not “persons” under the Fourteenth Amendment has been a subject of vitriolic attack in the pro-life movement–I would expect that any federal abortion-banning legislation after a hypothetical reversal of Roe would feature a repudiation of that language prominently.

  242. Ooops, typo there–the absolute right to be free of involuntary servitude is found under the Thirteenth Amendment, not the Fourteenth.

  243. The kindest thing I’ve ever said about Senator Feinstein is that she is much better than Senator Boxer. 🙂

  244. Sebastian,
    I’m really sorry that I jumped on your typo, but after listening to Commerce Clause on and on and on, when I saw ‘That is why this discussion is so sad’ followed by that sentence, it sort of short circuited the rest of what you were saying.
    I agree completely with Bernard’s point that people want legislators to deal with the matters that bother them, and I think that the increase of federal power has been historically unavoidable. This is why I like Pushaw’s observation that the problem of the Commerce Clause is using it for ‘crowd-pleasing’ legislation, which points not to a liberal problem but a human nature problem, exacerbated by the full-time campaign that has evolved. That the Commerce Clause has been the primary rationale for this is historically interesting, but if it hadn’t been the Commerce Clause, I think there would have been something else, so taking this as proving your point is a bit unfair, I think.
    Scott,
    As someone who is fond of suggesting that a federally protected right of abortion should be based on the Thirteenth (correct to 14th) Amendment I’m really confused by this, because this makes it sound like if the decision were based on different precendents, you wouldn’t object. I can imagine in the abstract of there being a case like this, but for something like abortion, I’m having a difficult time imagining it.

  245. a far more obvious and defensible ground for a constitutional ban on abortion would be a reversal of Roe’s ruling that a fetus is not a person as far as the Fourteenth Amendment is concerned–with the consequence that a fetus would have a constitutionally protected right to “life.”
    We have a law to regulate abortions. That law is limited by another, seperate, law that says that killing a fetus that might be expected to live outside of the body of the mother is equal to killing someone else or a baby just before/after birth.

  246. It seems to me that basing a national ban on Amd XIV would entail exactly the kind of stretch of the meaning of words that so bothers our principled conservatives (as opposed to unprncipled conservatives). If an ordinary garden variety private abortion is “state action,” then maybe a whole lot of other things are state action too. I’m not sure how you’d get to Hil splashing her face in the morning, but then I’m also not sure how you’d get to abortion either.
    Similarly, I think basing a right to abortion (but obviously not a ban!) on Amd XIII raises interesting further meanings of the provision. Is requiring any parent to support a child (including a non-custodial parent) a violation of Amd XIII? Jury duty?
    LJ, the point is really that if it hadn’t been the CC, it wouldn’t have been anything else. We’d just not have the federal state we have now.

  247. I’ve always favored basing a ban on abortion on two separate grounds: first, the ninth amendment, but let’s not argue about that, and second, the first amendment. I believe that all the arguments against abortion that hold water are either explicitly religious, or stand in the same relation to religious views as, say, intelligent design.

  248. DM, states here are allowed to treat the intentional killing of a viable fetus in the same manner, but must allow an exception for necessity. (And I would guess that your Dutch law does the same . . .)
    This, Hil, brings us to the problem with using the First Amendment. How do you factor viability into it? And how do you continue to maintain the criminal prohibition on third party killing a non-viable fetus (mugger — or abusive boyfriend — pushes pregnant woman down stairs, brings on miscarriage)?
    I wouldn’t say, today, that we should base the right on the Ninth Amendment. But that doesn’t make Amd IX totally irrelevant: it stands for the proposition that fact that you don’t see the words ‘right to privacy’ in the Constitution doesn’t mean squat. It’s not a license to make stuff up, but means that in any close call, you go with the individual rather than with the state.

  249. To be clearer: I think one can support a ban on abortions before the fetus develops the capacity for sentience or consciousness (somewhere around midway through the pregnancy, last time I checked) on 1st amendment grounds, the basic argument being that there is no reason, outside religion, to regard a being that is not sentient or conscious, and has never been sentient or conscious, as having rights or interests.
    I think that the way to punish people for killing a fetus earlier is to regard it as a harm to the mother. Injuring a fetus (without killing it) before this point could of course be prosecuted as a harm to the child, since in that case there would ultimately be a child.
    Later abortions are, I think, a matter of balancing the rights of the fetus against those of the mother. But I don’t think earlier ones are.

  250. “It’s not a license to make stuff up, but means that in any close call, you go with the individual rather than with the state.”
    But as usual with abortion that doesn’t answer the question of what an individual is. As a general rule your formulation might resolve some issues, but with respect to abortion it doesn’t.
    Hilzoy,
    “I believe that all the arguments against abortion that hold water are either explicitly religious, or stand in the same relation to religious views as, say, intelligent design.”
    I would be very leary of changing the first amendment jursiprudence in the direction you seem to suggest. Basically it involves second guessing why people vote the way they do. If you believe they vote because of religion, you would have it not count. As a practical matter that seems like it could be a very dangerous weapon. How would you judge if they were voting religiously? Who would be the arbiter of acceptable religious beliefs (things you can vote for) and unacceptable religious beliefs (things you can’t vote for)? At the moment it is governed by other conflicts with the Constitution. So if you have a religious belief that black people should be slaves, you can’t legitimately vote that way because it contradicts what the Constitution says on the subject of slavery. But if you were a Muslim and had a religious belief that the poor should be given food, you don’t run afoul with any provision in the Constitution so you can vote as your religion dictates. Your interpretation of the 1st amendment would seemingly (and by that I mean that I don’t have to play any ‘taken to its logical conclusions’ reductio game) disallow a law for feeding the poor if the people who voted for it were informed by religion. I’m not a relativist substantively, but procedurally I don’t think you can have judges deciding which views make for legitimate votes based purely on whether or not they are informed by religion.
    And do you really mean this that all arguments against abortion are explicitly religious or so close to religion as to be non-rational? Maybe you are talking about complete bans on abortion (all 9 months)? An argument for a ban in the late stages is no more religious than a ban on infanticide.

  252. I’m more in agreement with Sebastian than Hil here, though I would guess she would say: religious arguments against anti-poverty and anti-slavery laws are fine because there are also justified based on secular reasons, whereas for abortion–I guess she thinks that if you don’t make it about nervous activity, the only basis for thinking the fetus is a person is belief in an incorporeal soul.
    I think “extreme caution about mistakenly deeming people to be non-people and allowing them to be killed” works pretty well as a secular purpose under the Lemon test.
    I’d be appalled if the Court used the establishment clause to say that abortion is constitutionally protected. I know we talk about “rational basis” but I don’t think it means that if your views don’t pass muster with brilliant Kantian philosophy professors, then the Court can simply overrule them. I mean, there are relativist philosophers who argue that all moral beliefs are ultimately “irrational”, consequentialist types who would say it’s irrational to believe the ends don’t justify the means….there is a need for humility here. Supreme court justices are not immune to irrationality.
    And if it is that clear that abortion before brain activity is fine, then you don’t need the 1st amendment, because you’re in essentially the same situation as Eisenstadt v. Baird and Griswold v. Connecticut.
    I guess con law is the one area where hil and I disagree all over the place.
    OT (or back to the original topic): Newsweek has an interesting new article about the internal politics in the administration about the torture memos, etc.
    Here was the most interesting sentence:
    “Addington and Gonzales had both wanted to make [John] Yoo head of the OLC when Bybee went off to take a federal judgeship in March 2003, but Attorney General John Ashcroft balked.”
    !!!!!

  253. LJ:
    I’m just pointing to the most logical way of passing a ban if you wanted to justify it in the strongest way possible, given the actual language of the Constitution, as opposed to the “bootstrapping from stuff we made up less than ten years ago” method that Roe used to protect abortion rights. As it happens, I still think that it would be open to attack–on far stronger grounds than Roe‘s orginal reasoning–but at least it would be structured around something that everyone agrees is there in the Constitution. It’s mostly a case all around of my preferring that constitutional law be constructed competently–I’m pro-choice, but would still like to see the other side put their laws and legal doctrines together competently–as I have long been wishing for regarding the pro-choice side, only to be disappointed.

  254. CharleyCarp: And how do you continue to maintain the criminal prohibition on third party killing a non-viable fetus (mugger — or abusive boyfriend — pushes pregnant woman down stairs, brings on miscarriage)?
    Harm to the woman. Do you really suppose that in a country where a woman’s right to choose to terminate her pregnancy was legally supported from 0 to 40 weeks, that this would mean it would be perfectly legal for someone to hit a pregnant woman hard enough – or push her downstairs – so as to induce a miscarriage?

  255. “!!!!!”
    Indeed. Thanks, as usual, for the pointer.
    M. Scott: “I’m pro-choice, but would still like to see the other side put their laws and legal doctrines together competently….”
    Without stipulating to anything else, and without getting into the obvious practical difficulties, nor conceding that there isn’t a right to privacy presently to be found in the Constitution, I do find the argument that we might consider simply going ahead and passing an explicit one as an amendment to have a certain abstract interest.
    If I could snap my fingers and have it passed and there, I’d certainly do so. However, this seems faintly beyond my power as an option.

  256. We have a law to regulate abortions. That law is limited by another, seperate, law that says that killing a fetus that might be expected to live outside of the body of the mother is equal to killing someone else or a baby just before/after birth.
    That’s about where I am personally, as far as would would be a “fair” abortion law. Once we’re into the third trimester, the only things that should justify an abortion are a genuine threat to the life of the mother or a threat to the physical health of the mother significantly greater than that presented by childbirth or cesarean section surgery itself–or a fatal birth defect that would prevent live birth in any case. The justification should be exhaustively documented by photographic and laboratory evidence and supported by affidavits executed by all involved in the procedure,allowing review and for consequences should the grounds be found to be lacking by a disinterested party.

  257. Without stipulating to anything else, and without getting into the obvious practical difficulties, nor conceding that there isn’t a right to privacy presently to be found in the Constitution, I do find the argument that we might consider simply going ahead and passing an explicit one as an amendment to have a certain abstract interest.
    Well:
    –I’m saying that an amendment shouldn’t logically be required, particularly from the pro-choice side, and arguably from the pro-life side, unless one believes that the Fourteenth Amendment’s right to “life” *can’t* logically be applied to fetuses, whether viable or pre-viable. An amendment would be the most final way to resolve these issues, certainly.
    –Whether an overarching right of privacy can reasonably argued to exist under the Constitution–and whether it does or not, Douglas’ Griswold opinion remains a bunch of addled nonsense that can be only loved by those in sympathy with its result–that construct was always a pathetically inadequate ground for protecting abortion rights. If that weren’t the case, it wouldn’t have been necessary to throw in the inflammatory language about fetuses not being people under the Fourteenth Amendment.
    –as for practical difficulties, all roads lead to them. I’m just proposing the best plan for creating law that most people will regard as legitimate in origin even if they disagree with it–that would be significantly better than the situation we have now.

  258. “Once we’re into the third trimester, the only things that should justify an abortion are a genuine threat to the life of the mother or a threat to the physical health of the mother significantly greater than that presented by childbirth or cesarean section surgery itself–or a fatal birth defect that would prevent live birth in any case. The justification should be exhaustively documented by photographic and laboratory evidence and supported by affidavits executed by all involved in the procedure,allowing review and for consequences should the grounds be found to be lacking by a disinterested party.”
    Amen to that (in a generally secular sense of ‘Amen’ merely showing very strong agreement).
    I think the key phrase for me is: “greater than that presented by childbirth or cesarean section surgery itself”. One of the problems I have with the life of the mother exception in the third trimester is that the late-term abortion often has the same physical trauma characteristics of childbirth or cesarean section. Killing the fetus doesn’t reduce the risk to the mother at that point.

  259. K: my basic view on this works via an analogy, which is silly because it’s meant to make things obvious, NOT because I think that e.g. abortion is no more serious than this.
    It is possible to think that, say, a given statue (or for that matter a table or a pencil) is a living, feeling being. To anyone who asks why (for instance) the statue gives no sign of noticing what’s going on, you can just say: well, it doesn’t feel like moving now. Or even: in general, it prefers not to move, for millennia at a stretch.
    To the objection: but it has no nervous system, no anything that enables us to see how it notices what’s going on around it, or thinks, or whatever, one can always respond: well, who says we understand all the possible ways to be conscious? So it doesn’t have a nervous system: what does that show, if you don’t take our finite understanding to be the be-all and end-all of everything? I mean: why not suppose that Diet Coke cans are laughing at me, or that my computer is secretly wishing I would leave it alone, or that pebbles mind being kicked down the road?
    The answer, I think, is that any of these things might in principle be the case, but we have absolutely no positive reason to think that they are. — Ah, but someone might say: I do. I have had a revelation, in which I learned that Diet Coke cans are conscious, and must be appeased! I have founded a Diet Coke can religion, and I want to write this into law! That, I take it, gets struck down on first amendment grounds.
    What happens if we subtract the bit about the revelation, and have the person say: I want to write this law, which is based on the hypothesis that Diet Coke cans are conscious, but I’m not telling you why I think so. (There should be a question mark here somewhere, but my grammatical faculties have deserted me.) Then, as — was it Sebastian? — said, we’re left guessing at his intent, on one reading of ‘establishing religion’. I propose instead the idea that if there is no earthly reason to think that some proposition P is true, other than something like revelation, or some other form of non-shareable access to the truth, (even if P cannot be proven false), and someone believes that P, and wants to write it into law, they be taken to have a religious basis. (You can add that P should have some connection to recognized religions, if you want.)

  260. “I’m more in agreement with Sebastian than Hil here, though I would guess she would say: religious arguments against anti-poverty and anti-slavery laws are fine because there are also justified based on secular reasons…”
    One thing to note about this concept is that anti-slavery laws look secular to us now, but just before the civil war most anti-slavery political activity was deeply enmeshed with religion.
    And now, time for beach volleyball.

  261. I completely understood that hilzoy & basically agree–that’s what I was trying to get across to Sebastian. That’s why I agree with the cases on “creation science” & intelligent design.
    What I was disputing is the application to abortion.

  262. Ohh, just caught your comment hilzoy, so before I go play volleyball I want to throw something out there about:
    “I propose instead the idea that if there is no earthly reason to think that some proposition P is true, other than something like revelation, or some other form of non-shareable access to the truth, (even if P cannot be proven false), and someone believes that P, and wants to write it into law, they be taken to have a religious basis. (You can add that P should have some connection to recognized religions, if you want.)”
    The problem for me with this kind of formulation is that it doesn’t work well with morality–which is a huge part of what laws end up being based on. If I were a Congressman I could vote against CEO pay exceeding 1000x the janitor’s pay if I wanted to because I just felt it was wrong. I don’t have to prove it to anyone except to get their votes. The utilitarian argument for the US signing on to an anti-genocide treaty is pretty low and is probably very close to non-existant (the US isn’t going to be subject to genocide any time in the near future and the people being killed in the Sudan aren’t really effecting us). Nevertheless if a Congressman wanted to appropriate money to help stop the genocide, I don’t think he is obliged to say any more than: “It is just horribly, awfully, morally wrong to commit genocide”. I think it would be very difficult to prove that it is horribly, awfully, morally wrong without assuming a basic sanctity of human life premise–which is really just an appeal to moral intuition/revelation. And him saying “my religion teaches that genocide is horribly, awfully, morally wrong” is no better or worse than saying “my personal moral intuition is that genocide is horribly, awfully, morally wrong”. (In fact for many though not all people I suspect the two statements are functionally equivalent).
    Applying some sort of rational basis test to the first amendment seems to put personal moral intuition in an undeservedly special place over religiously informed moral intuition.
    On that note over-serious note, now I’m really going to play volleyball.

  264. “(There should be a question mark here somewhere, but my grammatical faculties have deserted me.)”
    Try:

    What happens if we subtract the bit about the revelation, and have the person say: “I want to write this law, which is based on the hypothesis that Diet Coke cans are conscious, but I’m not telling you why I think so”?

    There’s a reason we often use quotation marks. One is to be able to work outside of them.

  265. Please forgive me for this. It’s just the pain, the pain!
    “(the US isn’t going to be subject to genocide any time in the near future and the people being killed in the Sudan aren’t really effecting us).”
    Affecting. Affecting us.
    Thanks. Enjoy the beach (we still have some snow on the ground here, as has been the case for a few weeks now, although it’s also been clear and sunny most of the past couple of weeks, and surprisingly warm some days for a January).

    Nevertheless if a Congressman wanted to appropriate money to help stop the genocide, I don’t think he is obliged to say any more than: “It is just horribly, awfully, morally wrong to commit genocide”.

    It would be different for a female Congressional representative?
    Sorry, couldn’t resist. It seemed odd to address only men, but perhaps you believe “Congressman” includes women.

  266. Do you really suppose that in a country where a woman’s right to choose to terminate her pregnancy was legally supported from 0 to 40 weeks, that this would mean it would be perfectly legal for someone to hit a pregnant woman hard enough – or push her downstairs – so as to induce a miscarriage?
    Of course not. The question is whether the charge is a simple assault, or attempted murder. Suppose the sole motive is termination of the pregnancy: iirc, this is chargeable as murder in a great many places in the US today, and I think that’s just fine. Hil’s postulate that there’s no ‘personhood’ other than as a religious construct — necessary to ground a right to abort on the First Amendment — seems to me to put such laws into serious question.

  267. Charley: The question is whether the charge is a simple assault, or attempted murder.
    If you hit a woman hard enough to induce a miscarriage, there’s no reason not to make that assault attempted murder of the woman. It is perfectly possible for a woman to die of a violently-induced miscarriage, and the idea that her assailant should be able to get away with a charge of simple assault if he “only” meant to induce a miscarriage is slightly absurd.
    Unless the point is to trivialize the woman as a mere container for a fetus, that is.

  268. (er, the “you” in the above comment – “If you hit a woman” is an impersonal, indefinite you, not by any means directed as Charley, and I apologize for any unintended implication. Should have rephrased as “If someone hits a woman”…)

  269. “Hil’s postulate that there’s no ‘personhood’ other than as a religious construct — necessary to ground a right to abort on the First Amendment — seems to me to put such laws into serious question.”
    It’s not clear to me why a legislature might not be free to statutorily make clear that a woman has a Constitutional right to terminate her pregnancy (“kill the baby,” if some prefer), but certainly no one else does. (Obviously I mean the woman has the legal right to authorize and delegate the conducting of the procedure (“murder,” as some would have it).

  270. If you hit a woman hard enough to induce a miscarriage, there’s no reason not to make that assault attempted murder of the woman.
    Incorrect–attempted murder requires the finder of fact (the jury, or the judge if a bench trial is involved) to find beyond a reasonable doubt that the defendant had a specific intent to kill the victim with his attack–extreme recklessness–akin to, say, firing a gun through the window of an occupied house without concern for the consequences–is not enough, though it is enough to support a second-degree murder charge if the victim dies.
    You seem to be arguing that society has no right to impose a criminal penalty for the killing of a fetus that the woman actually wanted to carry to term and give birth to (please feel to correct me if I am misreading you). If I am correct in that reading, on what basis are you making that claim? How does the right of a woman not to carry a pregnancy to term logically make it improper for society to punish someone for the act of preventing that same woman from exercising her choice to become a mother by committing an act of illegal violence upon her person?

  271. It’s rather amazing to me that anyone could think that the only reason(s) to be against abortion are religious. Many pro-lifers are religious, of course, but not all. Are you really contending that there is no such thing as an atheist pro-lifer? If there is such a person (and there most certainly is), what might he/she be thinking?
    Proposition 1: No innocent post-birth human being should be killed at will.
    Proposition 2: No innocent entity that is a human being at the early stages of development and that has a lifetime of sentience ahead of it should be killed at will.
    Who says that Proposition 2 is any more religious than Proposition 1?

  272. It’s funny, I wanted to say something about the Alito filibuster attempt, and was thinking: “hmm, too bad, there’s no thread for it.”
    I can’t decide whether to be annoyed at Kerry for not doing this like someone who’s at all serious about it, or at Obama for his impressive display of Not Getting It today on ABC:

    “We need to recognize, because Judge Alito will be confirmed, that, if we’re going to oppose a nominee that we’ve got to persuade the American people that, in fact, their values are at stake,” Obama said….
    “There’s one way to guarantee that the judges who are appointed to the Supreme Court are judges that reflect our values. And that’s to win elections,” Obama said….
    “There is an over-reliance on the part of Democrats for procedural maneuvers,” he told ABC’s “This Week.”

    What on earth is he thinking, repeating this “we lost, we should shut up” stuff? I agree that the Democrats should make the case about Alito not reflecting American values, but here he is, with a golden opportunity to just that, and this is what he comes up with.
    People only pay attention to the Democrats’ making the case if the press does. The press only pays attention if there’s some chance of Alito not being confirmed. The only way to do that is to filibuster. And that would be true no matter how much the Democrats did to convince Americans that their values were at stake–you could have 60% opposing the nomination in opinion polls and it would still take a filibuster to stop it.
    And, “we need to win elections” is not actually a platform that explains why anyone should bother voting for you.
    Argh. I guess I’m more annoyed at Obama. I expected more of him than Kerry.
    I mean seriously, is there something in the water in D.C.?

  273. also:
    compare the NY Times editorial on the NSA wiretapping to Obama’s stirring response.
    Obama didn’t talk like this in the primaries. Gore doesn’t sound like it now. But when they are actually running general election campaigns, or in office….Liberal senate democrats should not be making the editorial page of a newspaper nicknamed “the old gray lady” sound like a bunch of uncomprising radicals. These NSA hearings are going to be dismal.

  274. Sebastian Holsclaw: One thing to note about this concept is that anti-slavery laws look secular to us now, but just before the civil war most anti-slavery political activity was deeply enmeshed with religion.
    Perhaps, but I doubt that most anti-slavery sentiment was based primarily in religion. The people who had the greatest active interest in ending slavery felt the way they did for overwhelmingly secular reasons (regardless of whether they found support for their point of view in religion), they just didn’t have access to the political process.

  275. Katherine: I can’t decide whether to be annoyed at Kerry for not doing this like someone who’s at all serious about it, or at Obama for his impressive display of Not Getting It today on ABC:
    This whole episode is driving me up the wall. This Digby post and comment thread covers pretty much everything that is wrong with the modern Democratic party in my view.

  276. “Perhaps, but I doubt that most anti-slavery sentiment was based primarily in religion.”
    Do you have a cite on that? It’s pretty well-grounded in historical fact and research as to how significant and large was the religiously Christian element in the abolitionist movement.
    “The people who had the greatest active interest in ending slavery felt the way they did for overwhelmingly secular reasons (regardless of whether they found support for their point of view in religion), they just didn’t have access to the political process.”
    I’m not 100% sure if you’re referring to slaves, but certainly there was a large degree of Christianity amongst them, as well.

  277. So Niels responds to a request that he stop being so condescending, and stop posting strawmen . . . by being condescending and posting strawmen. Ok . . .
    Don’t send me a million dollars, Niels. I’d be very angry if you did that.

  278. I really haven’t researched it since high school, but frankly I would have sworn remembering that the abolitionist movement was deeply Christian.

  280. “There were deeply Christian people on both sides of the abolition debate, Sebastian.”
    That doesn’t really speak to the issue. The abolitionist movement was deeply Christian in character and justified itself in religious terms. It didn’t just happen to have religious people in it.

  281. SH and GF are right. There’s a reason that abolitionist organizations had names like the “American Missionary Association.”

  282. So where are Slart and Edward, anyway?

    Speaking strictly for myself: celbrating my thirteenth wedding anniversary, plus trying to figure out how I can get my job plus a couple of other full-time jobs done, given that I’ve got to train a couple of guys to even get started on the other two. Or three, maybe, depending on who wants what, when.
    And celebrating Chinese New Year; can’t forget about that.

  284. Bringing up the abolitionists gives me an excuse to plug my favorite biography–“All on Fire”, which is about William Lloyd Garrison. There’s another book out which I haven’t read by Adam Hoschild (sp?) about the British abolition of slavery. Anyway, SH is right–in both countries the motivation for abolishing slavery was very much Christian.
    It’s also correct that many Christians were on the other side, of course, but there’s never any great mystery as to why people would support a system that they see as beneficial to themselves–what’s unusual are people who devote their lives to overcoming some injustice which doesn’t necessarily effect them personally.

  285. Bringing up the abolitionists gives me an excuse to plug my favorite biography–“All on Fire”, which is about William Lloyd Garrison. There’s another book out which I haven’t read by Adam Hoschild (sp?) about the British abolition of slavery. Anyway, SH is right–in both countries the motivation for abolishing slavery was very much Christian.
    It’s also correct that many Christians were on the other side, of course, but there’s never any great mystery as to why people would support a system that they see as beneficial to themselves–what’s unusual are people who devote their lives to overcoming some injustice which doesn’t necessarily effect them personally.

  286. Sorry about the double post. Going further back, the earliest human rights movement that I know of was the one launched by Bartolome Las Casas to end Indian slavery in the Spanish colonies. Later in his life he also turned against black slavery as well (though not initially). Christian motives too.

  288. Gary Farber: Do you have a cite on that? It’s pretty well-grounded in historical fact and research as to how significant and large was the religiously Christian element in the abolitionist movement.
    There was more to anti-slavery sentiment than the abolitionist movement. I’m talking about the slaves themselves, who numbered nearly four million in 1860 according to the census. For some reason survey data is hard to find, and maybe I’m being presumptuous, but I think it’s fair to say that a good number of the slaves had a pretty negative opinion of the practice, institutional dependency notwithstanding. And however strong in faith they might have been, their inspiration didn’t come, first and foremost, from the Bible.

  289. And none of this is to denigrate the contribution of Christianity to abolitionism. Just to point out that there were some completely secular motives for wishing to outlaw the practice of holding people in bondage, namely first-hand knowledge of just what a cruel and miserable practice slavery is.

  290. “There was more to anti-slavery sentiment than the abolitionist movement. I’m talking about the slaves themselves, who numbered nearly four million in 1860 according to the census. For some reason survey data is hard to find, and maybe I’m being presumptuous, but I think it’s fair to say that a good number of the slaves had a pretty negative opinion of the practice, institutional dependency notwithstanding. And however strong in faith they might have been, their inspiration didn’t come, first and foremost, from the Bible.”
    I honestly don’t understand your point here. Clearly slaves didn’t like slavery. They also didn’t get to vote, so their thoughts on the matter of what motivates a vote against slavery didn’t matter. But if the question is whether or not religiously motivated political views ought to be invalidated by the First Amendment, the religiously motivated portion of the abolitionist movement (which is to say most of it at the time) could be in serious trouble.
    “Just to point out that there were some completely secular motives for wishing to outlaw the practice of holding people in bondage, namely first-hand knowledge of just what a cruel and miserable practice slavery is.”
    Right, but ideas like ‘cruel and miserable’ are the kind of moral judgment that isn’t based on mere facts. It is basically a moral intuition. I see no reason whatsoever to give special privilege to people who claim that their moral intuition is not religiously based or to exclude the moral intuition of people who admit they have a religious grounding for it.

  291. I hate to take the thread further from stopping Alito, but as a supplement to Gromit’s point: In 1847 my great-great-great-grandfather Henry Ruffner made a noted speech against slavery for the ‘wrong’ reasons: a political, pragmatic, non-religious, non-moral perspective that had to do with the effect on the white labor force. He made a gradualist proposal to end it. Ruffner was a slaveholder himself, and as racist as any other white members of his community. Nonetheless, his speech was reprinted as a pamphlet and distributed widely by anti-slavery organizatons.

  292. The abolitionist movement was deeply Christian in character and justified itself in religious terms.

    Much of the support of slavery was deeply Christian in nature, as well, and also justified itself in religious terms. I’m just sayin’.

  293. Sebastian, Katherine’s wrote:
    “I’m more in agreement with Sebastian than Hil here, though I would guess she would say: religious arguments against anti-poverty and anti-slavery laws are fine because there are also justified based on secular reasons…”
    to which you replied:
    “One thing to note about this concept is that anti-slavery laws look secular to us now, but just before the civil war most anti-slavery political activity was deeply enmeshed with religion.”
    I’m pointing out that there are very deep-rooted secular reasons for banning slavery. Simply put, slavery is horrible for those who are enslaved. If it takes some religion to get people to stop ignoring this simple fact, then so be it. But that doesn’t make the impetus for such a law primarily religious. It just makes it a secular cause for which there are also religious arguments.

  294. Nell, cool personal history. I’m a bit envious of people whose ancestors had the foresight to live in stable countries where their names and deeds would make it down the stream of days to their descendents.

  295. “Katherine’s wrote”
    Blech. Make that “Katherine wrote”. I revised the wording of that sentence, but neglected to take off the possessive.

  296. “Much of the support of slavery was deeply Christian in nature, as well, and also justified itself in religious terms. I’m just sayin’.”
    Yes. And I’m just saying that the 1st Amendment to the US Constitution shouldn’t be read as discriminating against moral beliefs because they have religious origins or discriminating for moral beliefs because they don’t have religious origins.
    “I’m pointing out that there are very deep-rooted secular reasons for banning slavery. Simply put, slavery is horrible for those who are enslaved.”
    That is a moral judgment. In my view it is a correct moral judgment. You reach moral judgments like that through a variety of possible processes. None of those processes are really subject scientific proof. If you reach your moral judgments ‘independently’ (scare quotes intentional) you really aren’t in a much better position in terms of objective proof than someone who reaches his moral judgements from a religious background. The First Amendment doesn’t ask judges to sort people’s moral intuitions into “religious” and “non-religous” and then reject those whose moral intuitions are “religious”. Non-religiously informed moral intuitions aren’t more obviously grounded in independently verifiable truth than religiously informed moral intuitions.
    Now I am not a moral relativist. I think morality is subject to a dimension of truth. But I also suggest that it is really really difficult to sort through such things. As a procedural matter only(which is what we are talking about with respect to the First Amendment) I don’t think anybody’s moral intuitions as expressed by their votes ought to be put out of bounds. You say some people opposed slavery for secular reasons. Some for religious reasons. Some supported it for secular reasons. Some supported it for religious reasons. Fine. People ground their moral judgments in all sorts of different places. Grounding them in religion does not suddenly ban a person from acting (through government) on those judgments.
    And once again, the majority of the political opposition to slavery was religiously based. The fact that some people had secular objections doesn’t change that fact.

  297. I think the point boils down to the fact that the “secular reasons” are moral reasons. I don’t think you privilege formally non-religious moral reaosons over formally religious reasons based on the First Amendment. Nor do I think it would be wise to do so on any other basis because having someone determine the acceptable formal moral reasons is asking for disaster. Furthermore, once that were put into place people would disguise their real reasons, leading to a dangerous inquiry about the “real” reasons people believe things and vote the way they choose to vote.

  298. Sebastian Holsclaw: People ground their moral judgments in all sorts of different places. Grounding them in religion does not suddenly ban a person from acting (through government) on those judgments.
    I’m not sure that anyone is saying otherwise. Certainly I don’t think this what Hilzoy is proposing.
    People can base their political decisions on whatever floats their boats, for all I care. But for a law to pass muster it needs to serve a secular interest. We can’t require that all babies be baptized. We can’t outlaw taking the Lord’s name in vain. We can make it illegal to tell a falsehood under oath. We can also require that drivers keep to the right side of the road.
    There is a difference between the biblical prohibition against, for example, theft and the prohibition against, say, weaving cloth from two different kinds of thread. The first is, at its root, motivated by the fact that nobody wants their stuff taken, an idea that still resonates today, whether you are religious or not. The second might have once had a nonspiritual basis, but it is now, given the present cultural context, a wholly religious edict. If someone were to introduce a law tomorrow banning cotton/polyester garments, citing only their faith in support of the law, are you saying you wouldn’t object on First Amendment grounds?

  299. “Speaking strictly for myself: celbrating my thirteenth wedding anniversary, plus trying to figure out how I can get my job plus a couple of other full-time jobs done, given that I’ve got to train a couple of guys to even get started on the other two.”
    Excuses, excuses. Next you’ll be mentioning petty and lame reasons like “my arm was cut off” and “I was killed last week.” Pathetic!
    (I was not asking you to provide a note from your doctor, in fact; merely expressing the missing, and wondering.)
    Congrats on the anniversary!
    (You might or might not find anything of interest science fictional wise, or relating to some of your commenters’ bios, and a question you once asked me, on the “Vital Freedom Lost In Uzbekistan,” which wandered, or was aggressively wrested, into being something of an open thread on such matters, despite their lack of relevance to Uzbekistan, by the way.)
    “And celebrating Chinese New Year; can’t forget about that.”
    And Anarch chimed in “Kung Hei Fat Choi!”
    I paid my respects yesterday and welcomed the Year of the Dog.
    (Bunch of subsequent posts at that blog, several fresh today; I won’t itemize, just sayin’.)
    “Going further back, the earliest human rights movement that I know of was the one launched by Bartolome Las Casas to end Indian slavery in the Spanish colonies.”
    1540’s or so.
    Although about a century later, and so not offered in any disagreement whatever, I’d also point to, as a significant development in mass consciousness of human rights, George Light and the origins of the Society of Friends, better known as the “Quakers,” who were also largely abolitionists.
    Gromit: “I’m talking about the slaves themselves….”
    Yes, I wasn’t actually trying to speak in an obscure code when I wrote: “I’m not 100% sure if you’re referring to slaves, but certainly there was a large degree of Christianity amongst them, as well.”
    “And however strong in faith they might have been, their inspiration didn’t come, first and foremost, from the Bible.”
    Not originally in most cases, no.
    Nell: “…a noted speech against slavery for the ‘wrong’ reasons: a political, pragmatic, non-religious, non-moral perspective that had to do with the effect on the white labor force. He made a gradualist proposal to end it.”
    I could actually relate this to Alito and the filibuster, but I’m keeping my mouth shut on that topic for now.
    “It just makes it a secular cause for which there are also religious arguments.”
    Y’know, I’m a completely secular person, and always have been, despite the Sunday Hebrew school I was sent to until I was 13, at which time I informed my parents that I’d done my bar mitphah, and now I was done.
    But one might say with equal accuracy that “It just makes it a religious cause for which there are also secular arguments.”
    I find the idea of, apparently, feeling some need to diminish the considerably religious nature of the abolitionist movement a bit peculiar.
    Whatever we ourselves feel about religion, and its meaning and use today, it’s been one of the most powerful forces in human history; ignoring or denigrating that fact would lead to a less accurate understanding of history and human nature.

  300. And I’m just saying that the 1st Amendment to the US Constitution shouldn’t be read as discriminating against moral beliefs because they have religious origins or discriminating for moral beliefs because they don’t have religious origins.

    Setting aside the fact that this had no apparent relation to what I was talking to you about for the tme being, who, pray tell, are you arguing against with that statement?

  301. “Setting aside the fact that this had no apparent relation to what I was talking to you about for the tme being, who, pray tell, are you arguing against with that statement?”
    Hilzoy. Might try reading further back in the thread.
    I’m looking forward to Hilzoy’s response.

  302. If someone were to introduce a law tomorrow banning cotton/polyester garments, citing only their faith in support of the law, are you saying you wouldn’t object on First Amendment grounds?

    Personally, I certainly wouldn’t vote for it, but I don’t see why it would run afoul of the 1st Amendment. You’re saying that a law’s constitutionality should depend on the religious motivation of the legislators who passed it rather than on the facts of the bill itself? So if, say, Congress is controlled by ethical vegetarians, they can pass a bill outlawing the consumption of beef, but if it’s controlled by Hindus, they can’t?

  303. I am not afraid to stand up loud and proud for my belief that cotton and polyester should remain entirely separate, for polyester truly is an abomination.

  304. Gary Farber: Yes, I wasn’t actually trying to speak in an obscure code when I wrote: “I’m not 100% sure if you’re referring to slaves, but certainly there was a large degree of Christianity amongst them, as well.”
    Which sounded to my ears like an invitation to make myself 100% clear that I WAS talking about the slaves. Yeesh.
    But one might say with equal accuracy that “It just makes it a religious cause for which there are also secular arguments.”
    Sure. As opposed to a religious cause for which there are no compelling secular arguments. Such as, IMO, bans on sodomy, or blue laws.
    kenB: So if, say, Congress is controlled by ethical vegetarians, they can pass a bill outlawing the consumption of beef, but if it’s controlled by Hindus, they can’t?
    I’m not a lawyer, I should note, but I would think that the Hindus simply need to articulate a compelling reason for doing so beyond the fact that the consumption of beef violates their religious principles. I don’t see what is so onerous about this. If writing religious principles into law for no other reason than to force nonbelievers to behave as if they were pious doesn’t run afoul of the establishment clause, then what does?
    I find the idea of, apparently, feeling some need to diminish the considerably religious nature of the abolitionist movement a bit peculiar.
    Were I the snarky type, this would be the point where I would write something like:

    I wasn’t actually trying to speak in an obscure code when I wrote: “And none of this is to denigrate the contribution of Christianity to abolitionism. “

    Thankfully, I’m the snarky and passive-aggressive type.

  305. Jackmormon: I am not afraid to stand up loud and proud for my belief that cotton and polyester should remain entirely separate, for polyester truly is an abomination.
    Even microfiber?

  308. I would think that the Hindus simply need to articulate a compelling reason for doing so beyond the fact that the consumption of beef violates their religious principles
    And if they fail to, then the law is unconstitutional? Or is it up to a judge to determine if there’s a non-religious justification for the law, regardless of whether the legislators articulated one?
    Anyway, why should the moral sense of the Hindu congress be more suspect than the moral sense of the ethical vegetarian congress?

  309. “Setting aside the fact that this had no apparent relation to what I was talking to you about for the tme being, who, pray tell, are you arguing against with that statement?”
    I was discussing the idea that Hilzoy raised (Jan 29 at 11:06 am and 3:13 pm). You came into the middle of that conversation and I assumed you were adding to it. If you were making a point about the religious origins or non-origins of the abolitionist movement purely outside that context I apologize for putting your words in the wrong context.
    “If someone were to introduce a law tomorrow banning cotton/polyester garments, citing only their faith in support of the law, are you saying you wouldn’t object on First Amendment grounds?”
    No. I would say it is a really stupid law and ask my representatives to vote against it. The Constitution doesn’t protect against all forms of stupidity. The First Amendment isn’t about not letting religious people have a democratic say on things.
    Ken’s response and hypothetical encapsulates my thoughts precisely:

    You’re saying that a law’s constitutionality should depend on the religious motivation of the legislators who passed it rather than on the facts of the bill itself? So if, say, Congress is controlled by ethical vegetarians, they can pass a bill outlawing the consumption of beef, but if it’s controlled by Hindus, they can’t?

    People obtain their moral understanding lots of different ways. I believe that there is a correct morality. I’m not a moral relativist and I doubt very many people really are. But the tricky part is that we don’t all agree on the exact contours of correct morality. Procedurally the Constitution allows for people to get their differing views of morality from all sorts of places and try to enact them with votes in the legislatures of the nation. Trying to second guess that on the basis that some people are getting their moral values from the wrong source (religion) is likely to be very dangerous in a multicultural society.
    That is where the slavery issue came up. It may very well be that abolishing slavery looks like a “secular purpose” to us in retrospective. For most people at the time it tended to be a religious purpose. Historically some of the big and important changes have come from an explicitly religious context.
    I also resist the idea that “secular purpose” vs. “religious purpose” is a particularly good sorting mechanism for laws with moral purposes (which is to say quite a few of them). It is proper to pass laws with a moral purpose. People get their ideas on moral purposes from lots of places–a huge percentage of them religious. The First Amendment isn’t meant to exclude the moral ideas of people who get their moral ideas from religion.

  310. Let’s look at a secular purpose law. For simplicity I’m going to oversimplify the actual law:
    Children under the age of 15 shall not work.
    I presume we can all agree that this is a law with a secular purpose. What is it?
    That it is wrong for children to work? Where do you get that idea of wrong?
    That it would be better for the nation if children enjoyed their childhood? Where do you get the idea “better for nation” and how do you judge it? Why are valuing childhood?
    That it would be better for the nation if children could focus on studying in school? Why are we valuing studying? Good parents will make their children study, and those with bad parents will be part of the underclass. On what basis do you say that is a bad thing? What is “better for the nation”? Perhaps better for the nation would include an underclass to do scut work.
    Who said that utilitarian arguments were the right way to analyze things anyway?
    The problem is that even ‘secular’ laws have a moral purpose which is grounded at a level which is not easily explained to those who don’t share it. I see no good reason to automatically exclude the moral purposes grounded in religion. I’ll argue against them. I might say they are bad (appealing to some other more ‘basic’ understanding of morality). I might say they don’t maximize happiness (appealing to a utilitarian ethic). I might say all sorts of things because I really do believe in an objective morality. But procedurally I don’t think it is right to exclude religious understandings of morality from the discussion. Lots of law come down to: “That is just wrong and we should do something about”. The “that is just wrong” part is generally no more defensible (in a purely logical sense) when made by non-religious people than it is by religious people.
    My moral intuition says certain things. Other people’s moral intuition says other things. I’m convinced I’m right. So are they. Procedurally our government lets all of us speak and vote. That doesn’t disprove the idea of right and wrong. It merely recognizes that in the current human world there are disagreements about it. In a democratic country you have to be convincing–but the Constitution doesn’t say that you can’t be convincing by appealing to religion. And I’m pretty sure that the Constitution shouldn’t say that.

  311. After re-reading Gromit’s last response, this jumped out at me:
    If writing religious principles into law for no other reason than to force nonbelievers to behave as if they were pious doesn’t run afoul of the establishment clause, then what does?
    Perhaps if it could really be shown that a given law had *no other purpose* than forcing non-believers to act more like believers, there could be a 1st amendment issue. But My sense is that believers generally interpret these religious principles you mention as independent moral values, rather than only as part of a package that serves the goal of greater piety. The fundamentalist who wants to outlaw birth control is quite possibly not thinking to himself, “while the use of birth control in and of itself doesn’t much matter to me, passing this law is another step on the road to making everyone better Christians”; I’d suspect the thought is more like “using birth control is wrong”.

  312. It happens so rarely I thought I’d say it–I’m in whole-hearted agreement with Sebastian. In particular, his 5:58 post.
    I was thinking of typing something along similar lines, but he did it better and so I’m free to use the elliptical machine instead.

  313. Sebastian Holsclaw: I see no good reason to automatically exclude the moral purposes grounded in religion.
    …
    The First Amendment isn’t meant to exclude the moral ideas of people who get their moral ideas from religion.

    Who is arguing for this position?
    I presume we can all agree that this is a law with a secular purpose.
    You could have stopped there. If it has a compelling secular purpose, it doesn’t run afoul of the establishment clause in my book, regardless of the motivation of its supporters. What do I care about their motivations?
    Contrast this with blue laws. What compelling purpose do they have beyond attempting to force people who would choose otherwise to observe the sabbath?

  314. Sorry to be absent; today was the first day of school, and all that that entails.
    If I had to clarify my view (which is tentative, and I take the fact that when last heard from I was disagreeing with Katherine to show that I am out of my depth), I’d say:
    I did, in fact, mean that laws with no plausible justification outside religion are an establishment of religion. It’s not about the actual religious beliefs of those laws’ supporters; it’s about the availability of a plausible non-religious justification. I take one to exist for laws banning slavery, but not for laws banning early abortions. As long as such a justification does exist, then (according to me) it’s OK, if it passes the legislature. It’s not, as far as I’m concerned, as if the existence of a religious prohibition on murder, in many religions, makes laws against murder suspect.
    (Thus, to Niels: No, I do not think all people who are pro-life are religious. Just those with plausible justifications for their views.)
    About utilitarianism: I am not myself a utilitarian. I tend to the view that while any moral theory worth anything will take consequences into account in some ways (and the idea that Kant’s does not is a damnable calumny, albeit one that Kant himself could have done more to counter), utilitarianism as a personal moral philosophy is wrong, and even somewhat perverse. (Don’t ask why.)
    However, I’m a lot less troubled by the idea of using utilitarian (or, more generally, consequentialist) considerations as a basis for public policy. Public policy is not about deciding what values I will place at the heart of my life. It’s about trying to come up with policies that allow us all to live better lives.
    Some parts of ‘living better lives’ are not, according to me, consequentialist. But these are (often) just the parts that the law wouldn’t govern anyways. (Some concern my character construed too narrowly for the law to govern — e.g., whether I am conscientious, or courageous, or whatever), and some concern the use I make of the freedom I have, which it is (according to me) one of the functions of law and policy both to safeguard and to maximize (in general) (where that means: law and policy should aim to set up a system in which people will, generally, have as much freedom as possible, and will never be subjected to certain sorts of injustice, it being understood that law and policy are not well-suited to the godlike work of making this work out in every instance; just to putting the best framework in place.)
    If you get the division of labor right — society ought to work to ensure that citizens have, other things equal, as much freedom as possible (and what this means is a whole other topic in itself) — then within certain limits (e.g., no slavery), law and policy should be designed on the (consequentialist) grounds that they actually achieve those results, while what each of us decides to make of his or her freedom is a question best left to each of us, and need not be answered in a consequentialist way.
    That said, this is just my stab at a plausible justification of some policies. All my original argument said was: where no such justification for a law can be found outside a given religion, then that law should be regarded as essentially religious.
    (I could be convinced to add: at least, this is true when that law deprives someone of some significant good, e.g. liberty. As is the case with laws prohibiting early abortions.) (This would, of course, rely on the separate claim that there is no non-religious reason to take early (pre-sentient, pre-conscious) human embryos to be “someone”, for these purposes.)
    Note: I think this point about ‘human life’ is worth some serious consideration: it is not true that we do not, in any sense, kill innocent human beings outside war. Consider organ donors: they are brain dead, and (legally) have to be. However, their bodies are kept “alive”, so that their organs can be harvested without having first started to decay.
    I have no problem with this: I think that when I am brain dead, there is no more “me” around. My body is still there, but I am gone. By the same token, though, I have no problem with aborting pre-sentient, pre-conscious, pre-any-mental-anything embryos. If organ donors are brain-dead, then they are ‘not yet brain-alive’.
    Why people who are pro-life accept organ donation (in cases in which the — person? body? — is kept alive artificially — e.g., it is oxygenated, its blood is kept flowing, etc. — I don’t know. After all, they would seem to be committed to the claim that “human life” does not depend on the existence of any sort of functioning brain, so why accept brain death? Why isn’t it the case that when you keep the body alive and then harvest its organs, you are carving up (and thus directly killing) a living human being?
    (I don’t think consent is a good answer here: we don’t normally think that someone has a right to kill someone else even with that person’s consent, and if doctors regularly killed willing non-brain-dead people for e.g. experimental purposes, we would rightly be appalled.)
    Sebastian’s question is good (though not, I think, unanswerable), but I’ll save it for later, after I eat something 😉

  315. “Thus, to Niels: No, I do not think all people who are pro-life are religious. Just those with plausible justifications for their views.)”
    Here I assume you mean “conception-at-birth” pro-lifers. I think I can imagine secular pre-viability arguments for more onerous abortion restrictions than the current framework allows, and certainly secular arguments post-viability. [E.g., Let’s not kill the sick violinist on the “two-crimes-don’t-make-a-right” principle, so a viable fetus should be 100% human, so a just-pre-viable fetus should be 90% human requiring a strict weighing of rights, etc., sorites paradox, blah blah blah.]

  316. “Which sounded to my ears like an invitation to make myself 100% clear that I WAS talking about the slaves.”
    Okay. Since you didn’t say that, I couldn’t know that.

  317. “And the filibuster goes down in flames, with only 25 votes against cloture.”
    Since it’s over, maybe I can now say some things, without being in danger of discouraging anyone and being a killjoy Hurting The Cause.
    How anyone could possibly have expected otherwise, I can’t begin to imagine. I can only conclude that they either have no grasp of how to count votes, or live in a land where wishes and ponies are granted to all.
    My actually opinions can be found hidden in the off-topic comments here. Warning: they are quite harsh towards pro-filibuster supporters. Sorry; it’s what I think.
    “And if they fail to, then the law is unconstitutional? Or is it up to a judge to determine if there’s a non-religious justification for the law, regardless of whether the legislators articulated one?”
    That’s my understanding of how the First Amendment works. Congress shall make no law respecting an establishment of religion. Definitionally, if a law has no secular purpose….

  318. “Thankfully, I’m the snarky and passive-aggressive type.”
    For the record, incidentally, see, I see what you said as amusing and utterly inoffensive.
    My calibration on snark is, I’m afraid — and I learned this decades ago, and still haven’t been able to do nearly as much about it as I’d like, although believe me, I’ve done a lot about it over the past couple of decades — considerably different and higher than that of most people. It’s unfortunate; really. It’s a problem for me. (Maybe I should form Snark Anonymous, or Sarcasm Anonymous.)
    I blame my family upbringing and imprinting, and I mean that with the utmost seriousness. All I can say is that I’m a lot better than I used to be.
    “As opposed to a religious cause for which there are no compelling secular arguments. Such as, IMO, bans on sodomy, or blue laws.”
    It should be obvious from my other comment that I entirely agree. But just agreeing to be agreeable.
    I don’t see this as in the least contradictory with anything Sebastian has said, none of which I’ve yet noted anything I disagree with, although he may have a different view.

  319. Call me crazy, but reading the recent comments, it seems to me that there’s an alarming convergence of agreement all around.
    Clearly we must put a stop to this at once.
    New topic: Is the Intel Macintosh a heresy against God?

  320. I take the secular purpose test to mean: you need something other than a sheer appeal to authority. Something more than “God says so”. If there’s a secular purpose, even if your motives are religious you ought to be able to explain your moral beliefs in some terms other than “God says so” or “the pope says so” or “it’s in the bible” or “the flying spaghetti monster says so.” I’m with hilzoy as far as that goes.
    But I think opposition to abortion passes this test–not quite with the flying colors that opposition to slavery does, but I think it passes it nonetheless. I don’t think it’s especially close. I don’t think judges should evaluate the rationality of Congress’ laws like they’re philosophy professors graduating the work that freshmen turn in. This is a democracy. Even the very best Justices are fallible, and we have plenty who aren’t very good at all. There needs to be a certain amount of humility.

  323. Gary Farber: My calibration on snark is, I’m afraid — and I learned this decades ago, and still haven’t been able to do nearly as much about it as I’d like, although believe me, I’ve done a lot about it over the past couple of decades — considerably different and higher than that of most people. It’s unfortunate; really. It’s a problem for me. (Maybe I should form Snark Anonymous, or Sarcasm Anonymous.)
    Sign me up, Gary.
    New topic: Is the Intel Macintosh a heresy against God?
    Five years ago it would have been. Today, I welcome it with open arms. Or I will when the towers are released, hopefully later this year. Though I am still very glad the new machines don’t sport the “Intel Inside” logo.

  326. “As opposed to a religious cause for which there are no compelling secular arguments. Such as, IMO, bans on sodomy, or blue laws.”
    But what is “no compelling secular argument”?
    Preface for those who haven’t followed forever: I’m gay. My next comment about sodomy IN NO WAY REFLECTS MY ACTUAL THOUGHTS ON THE MATTER.
    A person who believed that homosexuality was wrong could argue for a law against sodomy. He could do stump speeches about it. He could be elected solely on his opposition to it. He could throw in something like: sodomy greatly increases the risk for transmission of many horrible diseases and besides it is really gross. The law would probably be unconstitutional in lots of potential ways: not interstate commerce, perhaps a violation of some privacy right, maybe something else. I don’t think it would be a violation of the first amendment. The secular purpose is really stupid. Even if I accept that a law with absolutely zero secular purpose would be unconstitutional, in the reality of the US, any proposed law is going to have some tenuous secular purpose. But if we let judges try to second guess the real reason behind people’s moral intuitions and beliefs we are really causing a troublesome area of litigation. The nearest similar concept might be impermissable racial discrimination on laws that are race-neutral on the face. Every now and then courts are willing to rule against such a law if there is direct evidence of racially discriminatory intention behind the law. But they are very hesitant to go into that kind of second guessing–rightly so.
    I think you could argue a secular purpose for almost any law–including blue laws (people need rest from work and if we don’t mandate a day that everything is closed some people might get two jobs and work schedules such that they never get any full day of rest). Lots of the secular purposes will be stupid, but I don’t think judges should get involved in that.
    And that is only if you accept the “secular purpose” concept at all. I’m not convinced that moral intuitions apart from religion ought to be valued above moral intuitions from religion. (Note that is NOT to say that they are of lesser value). Both intersect deeply with personal experience and understanding. Trying to divorce it from that seems impossible to me. (The funny thing is that I really do believe that there are ‘right’ answers to moral questions. I just believe that our objective understanding of that real morality is so confused and imprecise that privileging all non-religious intuitions over all religious intuitions doesn’t make sense.)

  327. They’ve actually upheld Sunday closing laws. IIRC what they’ve struck down is “creation science”. Sebastian, are you not okay with that one?

  328. I have a question, partly a leading question but partly a genuine legal/constitutional question: if Congress passed a law that had no discernable purpose whatsoever, would that be constitutional? What about a law that was tied to a congressional majority’s eccentric opinion but wasn’t connected to any religion [e.g. the ethical vegetarian congress’s anti-beef legislation]? What about a law that, however coincidently, exactly matched a religious stricture even though none of the congresspeople have any conceivable ties to that religion?

  329. “I’m not convinced that moral intuitions apart from religion ought to be valued above moral intuitions from religion.”
    But that’s not the question at all. It’s simply a matter of whether it passes First Amendment scrutiny, and that’s all.
    IANAL, but I’m reasonably sure that the need to demonstrate a “secular purpose” is a longstanding SCOTUS precedent, Sebastian. The “Lemon Test,” as I recall.

  332. “if Congress passed a law that had no discernable purpose whatsoever, would that be constitutional?”
    Why not? Well, if someone attempted to “enforce” it, I suppose it could be struck down for being unconstitutionally vague. But I suspect a question so hypothetical isn’t a useful question.
    “What about a law that was tied to a congressional majority’s eccentric opinion but wasn’t connected to any religion [e.g. the ethical vegetarian congress’s anti-beef legislation]?”
    To be unconstitutional, it would have to demonstratably violate some precedential understanding of the Constitution. IANAL, but I think that kinda covers it, though we really want to hear from one of our lawyers here, not me.
    “What about a law that, however coincidently, exactly matched a religious stricture even though none of the congresspeople have any conceivable ties to that religion?”
    See above Lemon. Gotta demonstrate that secular purpose, and the modified three prongs.

  333. if someone attempted to “enforce” it, I suppose it could be struck down for being unconstitutionally vague. But I suspect a question so hypothetical isn’t a useful question.
    Wouldn’t have to be vague, just unmotivated.
    But my real question is, assuming that, in fact, laws with a solely religious purpose are unconstitutional while laws with a non-religious but idiosyncratic purpose, or no purpose at all, are constitutional: is this a desirable state of affairs? Is there a principled defense for the deprecation of religious purpose below all others?
    I’m often struck by the special place that religion is afforded, or relegated to, in our society. People can have plenty of strong non-religious beliefs that are no more rationally based than many religious views. Why does the belief all of a sudden lose legitimacy, or gain protection, just because it gets attached to a divinity?

  334. Change that “why does” in my last sentence to “why should” — I know that the pragmatic reason is the establishment clause.

  336. Interesting thread. Though going back to one of the first grains of sand around which the pearl was formed, arguing from the notion that the cause of abolition was deeply Christian is a bit of an assymetry. As Prodigal notes, the South’s cause was also deeply Christian and a huge amount of effort went into justifying slavery as bibically based. In fact, given that the notion of a geographic Bible Belt is not linked to the states that historically supported abolition, one could argue over which states were more ‘Christian’. Also, the Christianity of the abolition movement was very much a log/mote conundrum. For example, I believe that many of the non slave holding states had the notion of ‘black codes’ which appear to be anti-immigrationist, but were really created to prevent black freemen from settling in their states. And the abolition fervor of the English was also curiously timed to the point where the slave trade was no longer as profitable as it had been because slaves had become a large enough population to not need new slaves brought in.
    Now, it is possible to adduce a range of reasons from either secular or religious motivation for some given piece of legislation. However, religious reasoning has a dangerous trump card, which is claiming that it is because God said this. Thus, when kenb asks
    Why does the belief all of a sudden lose legitimacy, or gain protection, just because it gets attached to a divinity?
    The reason is that for some, because God said so is much more powerful than any other reason, and for others, it is a red flag that suggests that the opposing side no longer can argue the case. I do think there is an important aspect to bringing moral ideas into legislation, cf. the recent attempts to deal with Alabama’s tax system, and that they can be framed by Christian ideals is important. However, there are far too many unscrupulous people using Christian ideals as a vehicle to get their view supported rather than examining how Christian ideals are, if taken seriously, often very corrosive to the ideals of the status quo.

  337. When I was in Germany, people there were debating their version of blue laws, which are much more annoying and stringent than anywhere I’ve ever been in the US: pretty much everywhere but restaurants and the train stations are shut down (it’s not about alcohol there). It was largely the communitarian socialists who were defending the practice–and always on non-religious grounds. Or, perhaps, not explicitly religious grounds, or grounds not clearly tied to any specific religious platform. I do appreciate Sebastian’s point about how moral convictions (like “young children shouldn’t have to work”) can occupy a gray zone between tenet, value, and whatever arises in the triangulation of harms, justice, and social order in more utilitarian logic.

  338. You came into the middle of that conversation and I assumed you were adding to it.

    I was. Your arguments seemed to imply that being deeply Christian would equate to being opposed to slavery, and I was arguing that this is not the case, based on those in the South whose own deeply Christian beliefs led them to find justifications for slavery in scripture.
    If that wasn’t what you meant, I spologise for my inference. But either way, the reply you posted after the text you quoted from me bore no direct relation to it that I could find.

  339. “Is there a principled defense for the deprecation of religious purpose below all others?”
    Yes. It’s called “the establishment clause” of the First Amendment. If you try googling a bit, there’s no shortage of information about it on the web you can use to educate yourself.
    “Change that ‘why does’ in my last sentence to “why should” — I know that the pragmatic reason is the establishment clause.”
    And “Why does the belief all of a sudden lose legitimacy, or gain protection, just because it gets attached to a divinity?”
    Ah. I’m afraid that I’d still go with the above answer. The First Amendment is as much idealistic as it is pragmatic. It’s a floor wax and a desert topic.
    This is because religion was historically of great importance to many of of the founders of various colonies which in many cases were founded purely as an exercise in religous exile, in some cases rather involuntarily, in others more or less quite voluntarily. Religion, of course, was of widespread, although hardly universal, importance to many in the 16th, 17th, and 18th Centuries, although the Enlightenment also produced a great flowering of different views.
    I’m stating stuff that is rather third-grade obvious, but I’m afraid I’m not understanding your question as, well, calling for a different answer. This may simply be a failure of my own understanding of what it is you are asking or saying, in which case I apologize in advance.

  340. LJ, for what it’s worth, from my reading churches didn’t really actively engage in defending slavery until around 1840 or so, when the abolitionist movement had really started to gain steam. There’s a shameful history of making do with the political reality before then, of course, and a few fanatical outliers will always be found, but from what little I’ve read on the subject, Northern churches were much more consistently political on slavery, and Southern churches became so rather late and in reaction. (Caveat: not my field.)

  341. Katherine: even if your motives are religious you ought to be able to explain your moral beliefs in some terms other than “God says so” or “the pope says so” or “it’s in the bible” or “the flying spaghetti monster says so.” I’m with hilzoy as far as that goes.
    Sheesh, that one’s easy. “I’m with hilzoy as far as that goes” obviously trumps God, the pope, the bible, and even the flying spaghetti monster as moral justification. This is The Congregation Of Obsidian Wings, you know!
    ………….
    My only other comment on this fascinating thread, in the spirit of comity and paradox, is that I find myself almost entirely in agreement with Sebastian H! I’m not sure whether to regard this as a lucky fluke, or to consider it an auspicious sign for the new year (Year of the Dog, though that’s not me – I’m a Sheep/Ram/Goat [the Chinese being not into making sharp ovine/caprine distinctions]). At any rate, it’s rare enough to be worth notice, I felt.

  342. JM, that’s a good point, but certainly it speaks to the problems of discussing a ‘religious’ component to legislation. Not my field as well, but I think there has been a consistent thread of ‘pre adamite’ argumentation which began as contra to Christianity during the Enlightenment, but then was repurposed to justify the different treatment of races within the bible. Also, the ‘curse of Ham’ was also taken to provide earlier justifications for slavery and servitude. As for timing, certainly the early opposition to slavery by Quakers, and English Baptists and Methodists was important, but it came in two waves, the first was to outlaw slave trading (in the late 1700’s) and the second to outlaw slave-holding that began in the 1830’s. Outlawing slave-trading did not demand a theological response, but outlawing slave holding did, I think.
    I’d also note that the Southern Baptist Convention, which split from the national body in 1845 precisely because of the question of slavery, in 1995 offered an apology. One could argue that this is not ‘Christian’, but it seems to me that the Baptist faith would stand as a basic definition of what is invoked when ‘Christian’ is mentioned in the context of current US politics.
    Also interesting (and a bit frightening) is this link which discusses the notion that the Civil war was a theological war.

  343. “desert topic”
    dunno. in deserts the topic usually revolves around water.
    i’m seeing the next remake of that Jimmy Stewart movie about the plane crash in the desert where, instead of rebuilding the plane the passengers, who all happen to be con. law professors, debate the use of the Establishment Clause as a fuel additive until they all die of thirst.
    sorry gary, couldn’t help myself.

  345. “…sorry gary, couldn’t help myself.”
    I’m used to communities where everyone makes word-play out of a typo or misspelling or grammatical error. That’s my native culture. So no need to apologize to me. Rather, I applaud.

  346. “IANAL, but I’m reasonably sure that the need to demonstrate a “secular purpose” is a longstanding SCOTUS precedent, Sebastian. The “Lemon Test,” as I recall.”
    Gary, I’m not at all sure that Lemon applies easily to laws passed with a moral purpose grounded in religion. I guess it isn’t obvious to me that passing a law on some moral basis which you derived from your religious beliefs counts as “respecting an establishment of religion”. (Remember to use ‘establishment’ in the 18th century meaning. It is probably more like “an establishment of drinking” than we would normally use it.)
    Lemon and most of its progeny tend to be about actual financial support to a religious institution.
    dr_ngo, Happy New Year. I’ll try not to make a habit of saying things you agree with. It can be disturbing. 😉

  347. Oops, sorry Katherine, I thought about your question, but that isn’t the same as writing an answer. I don’t have a problem with the recent creation science cases. They basically involve teaching religion, which is more under the rubric of “respecting an establishment of religion” than a lot of the stuff we have been talking about here.

  348. I find myself yet again agreeing with Sebastian ;-).
    Though I normally disagree about many many points I do always believe in Sebastians integrity and these comments illustrate that IMHO.
    I am a secular humanist and believe in moral values that are not based on divine revelations.

  349. Still stuck on divine command theory and Euthyphro – is it actually logically possible to base a value system on a religious text, except insofar as it’s not religious? Far as that’s concerned, I still don’t think there’s a rational way to construct a value system.
    Off to write an app that will automatically interject the above comment (with variation) into these sorts of discussion.

  350. Off to write an app that will automatically interject the above comment (with variation) into these sorts of discussion
    Funny, I thought you already had. 🙂
    Gary:
    but I’m afraid I’m not understanding your question as, well, calling for a different answer
    I was thinking as I wrote it that I probably wasn’t making my question clear. I wasn’t asking for a legal answer or a historical explanation — I guess one way to put it is, if we had to sit down today and design a Constitution for our country, is this a feature that we would want to include? Can someone defend the concept that a law with only a religious purpose should be forbidden whereas a law that was written Mad-Lib style, or one that codifies a peculiar non-religious belief should be allowed?

  351. I guess one way to put it is, if we had to sit down today and design a Constitution for our country, is this a feature that we would want to include?
    As someone on my friends-list on livejournal once remarked, the problem with democracy in the US is that you’re stuck with the beta version.
    The Founders came from a country with an Established Church, where the head of state is also the head of the church: their concerns about freedom of religion were expressed in terms of an established church. It seems reasonable to me to argue that this Amendment is in principle an argument for freedom of religion.
    Conversely, in the UK, where the presence of an established church is taken for granted, and Christianity is (still) legally privileged over other religions, the discussion is whether to legally disprivilege Christianity / remove the special status of the Church of England, or to attempt to provide other faiths with equivalent privileges, and representatives of other faiths with the privileges that C of E bishops and archbishops have. To my mind, the former solution, being simplest, is best: but the matter is still not resolved, and I can’t say when it will be.
    On the other hand, Douglas Adams noted in an interview with an atheist society in the US, it seems that being irreligious – atheist, agnostic, or MYOB – is more tolerated in the UK than in the US.

  352. is that you’re stuck with the beta version.
    It’s not so much that we’re stuck with it as that we’re generally afraid to upgrade, even though that option exists in the support contract.

  353. kenB: Can someone defend the concept that a law with only a religious purpose should be forbidden whereas a law that was written Mad-Lib style, or one that codifies a peculiar non-religious belief should be allowed?
    Does the Mad-Lib in question threaten those who don’t heed its will with eternal damnation or possibly earthly suffering? Do the people look to this Mad-Lib to bless the nation with good fortune, victory over its enemies, or even just rain for the crops this year? Is the Mad-Lib seen as infallible, or infinitely wise in its judgment?

  354. Gromit, I don’t understand your response. If the mad-lib law happened to prevent you from wearing clothes with mixed fabrics, you wouldn’t have a problem with that, but if that rule is instead based on a bible passage, it becomes horribly objectionable?

  355. Sebastian Holsclaw: I don’t have a problem with the recent creation science cases. They basically involve teaching religion, which is more under the rubric of “respecting an establishment of religion” than a lot of the stuff we have been talking about here.
    Why is this not deprecating religious moral intuition? Isn’t religious instruction a moral duty according to the faith in question?

  356. kenB: Gromit, I don’t understand your response. If the mad-lib law happened to prevent you from wearing clothes with mixed fabrics, you wouldn’t have a problem with that, but if that rule is instead based on a bible passage, it becomes horribly objectionable?
    I thought you were equating the Mad-Lib law with the nonsense law, sorry. Absent a secular purpose, the law you describe above would still only serve a religious purpose, would it not?

  357. “…if we had to sit down today and design a Constitution for our country, is this a feature that we would want to include?”
    Ah, well, that’s a much more interesting question, indeed.
    (And, incidentally, I concluded shortly after posting the comment I posted that this is a reply to that it was not of the better comments I’d ever made, and wished I could withdraw it for a rewrite, as well, but that’s not an option, of course; instead, I write this little note. :-))
    Don’t have an off-hand answer to your good question, though. May ponder a bit, although frankly I have a lot of other stuff on my plate, so I’ll read the responses of others with interest.

  358. I dunno — can it be held to serve a religious purpose even when there’s no reason to conclude from the drafting process that the legislature had such a purpose in mind? Perhaps.
    Anyway, that’s not my main question — it’s more like, given that there are all sorts of silly or anti-democratic or anti-libertarian reasons for legislators to pass laws, why do we want to carve out one particular set of reasons as especially forbidden? I was getting the sense that some commenters were operating with an analogy along the lines of “secular is to religious as rational is to irrational”, and I don’t think that’s accurate.

  359. “Why is this not deprecating religious moral intuition? Isn’t religious instruction a moral duty according to the faith in question?”
    Sure but religious instruction is a moral duty that is also an establishment of religion. In fact religious instruction for a particular sect may very well be the most classic case of establishment of religion.
    My point is not that all possible moral intuitions derived from religion are constitutional. Many of them might conflict with the Constitution. If you had a religiously derived moral belief that the President should be a twenty-five year-old, you would be out of luck. The Constitution sets the minimum age for the President at 35 years. If you have a religiously derived moral belief that the government should build and maintain your church you are out of luck. The Constitution doesn’t allow the government to do that. If you have a religiously derived moral intuition that the government should teach your doctrine youI are out of luck. The Constitution doesn’t allow you to do that. But if you have a religiously derived moral intuition that the death penalty is wrong you can try to get your religiously derived moral intuition enacted into law. The Constitution doesn’t bar laws against the death penalty. It doesn’t care if your moral intuition against the death penalty comes from religion.

  360. Isn’t religious instruction a moral duty according to the faith in question?

    There’s a line that (IMHO) religious instruction ought not cross: that one can use faith to understand how the physical universe works, or even invalidate what others have learned using…other methods. Lately we have no sciendific recorded evidence of gravity, for example, giving the faithful a little leeway. If God were inclined to publicly, visibly play fast and loose with the laws of nature, just think of what He might accomplish for those who are ill, deformed, or just needing to lose a few pounds.
    Sooner or later one’s faith is going to bang up hard against reality, and if one elects to place one’s bets on faith instead of reality, well, it’s best to bid one’s money a fond farewell early on. In fact, just send it on to me for safekeeping.

  361. what He might accomplish for those who are …just needing to lose a few pounds
    If I were (insert pronoun here), I would probably end up just messing with the local gravity conditions occasionally, so as to make the person stand on the scales and be lighter, only to cruelly dash their hopes when standing on the scales when their spouse was there to verify. In fact, that precise situation makes me think there may be a God and he really doesn’t like me…

  362. kenB: “why do we want to carve out one particular set of reasons as especially forbidden? I was getting the sense that some commenters were operating with an analogy along the lines of “secular is to religious as rational is to irrational”, and I don’t think that’s accurate.”
    Although many non-religious people do view religious as being irrational, many do not. And as a religious person who also believes himself to be rational (most of the time), I agree with you.
    But, in terms of why one set of reasons is considered forbidden, they key issue would be if that is the only reason for a law to be enacted. It is not a question of moral intuition, the type that Sebastian refers to above. It would be a belief that a particular religion attempts to have enacted.
    By enacting a law based upon a belief that is intrinsic to a religion, it is a form of establishment of that religion. There can be a law enacted that shares the same basis as a religion. The death penalty, for example, can be looked at both ways from a religious basis. However, there are also non-religious rationales for both sides of that issue.
    There may be some moral truths that span all religions, and, in fact, many laws are based on those. But they also are, to some degree, based upon a concept of morality that extends beyond the realm of religion.
    There are, however, some beliefs that may be intrinsic to a specific religion, i.e. the ban against adultery. But trying to pass a law against adultery based solely on the concept it is wrong from a religious base would not be appropriate.
    BTW, I agree that some of the convoluted thinking behind some laws can cause one to scratch one’s head.
    Sebastian, I am glad to see a conservative that is willing to say publicly that one can be non-religious and still have values. After the 2004 election I was tired of all the talk about “values” and Republicans having a monopoly on them because they were more apt to go to church.

  363. Hey Slart, could you take a gander at Benjamin Schwarz’s “The Perils of Primacy” in the current Atlantic? First paragraphs only, unfortunately. (For the general audience: Schwarz argues that the US is on course to nuclear hegemony – we will be able to reliably take out the Russian and Chinese nukes in a first strike, and this fact will lead to less stability.) It’s about three pages, you could scan it in a minute next time you’re in a bookstore.

  364. Slarti: actually, I think God can play a bit fast and loose with the laws of nature, by making miracles. (Walking on water, for instance.) I also think there’s no problem in principle with having a religion that tells you, among other things, how the world works. It’s just that if the evidence comes out differently, and there’s no obvious error in the science that produced that evidence, any religion that does this has to accept one of two consequences:
    (a) it is wrong (at least about the part that conflicts with science), or
    (b) that when we use our intellects to try to understand how the world works, we fail. This has implications for our view of God and/or ourselves. Is God just fabricating misleading evidence on the fly? Then it’s hard to see how he’s not deceiving us. Is it that our intellects are somehow corrupt, and incapable not just of figuring out problems that are just beyond our capacities, but even of getting the right answer when we follow all the rules and do everything right. (If this were math, I’d say: it’s not just that some math problems are insoluble by us; it’s that even when we construct a completely valid proof, it’s sometimes wrong.) Then, again, it’s hard to see how God did not create us with really flawed powers of reasoning, in which case, again, he looks a lot like a deceiver.
    If revelation told us how the world worked, and it was always right, then good for revelation. But by telling us things that science can check, it’s placing either its own credibility or the morality of its God on the line, hostage to scientific investigation.

  365. Others are clearly doing a better job of saying what I’m trying to say.
    Sebastian Holsclaw: But if you have a religiously derived moral intuition that the death penalty is wrong you can try to get your religiously derived moral intuition enacted into law. The Constitution doesn’t bar laws against the death penalty. It doesn’t care if your moral intuition against the death penalty comes from religion.
    Neither do I care. Opposition to the death penalty is not a solely religious cause. It is a cause that finds support among some people of faith, but which serves purposes, rational or not, that do not depend on divine authority. If a person’s faith inspires her to support such a ban, what do I care? It is only when faith provides the ONLY reasonably discernible purpose for a law that it raises the Establishment Clause flag in my mind.

  366. Slart: “or even invalidate what others have learned using…other methods.”
    I’ve only seen the last Star Wars movie (of the recent batch), but I flashed on the Emperor when I read the above.
    “The Dark Side of the Force is a pathway to many theories that some consider to be … natural.”

  367. “I’ve only seen the last Star Wars movie (of the recent batch),”
    Just my opinion, but I’d say that it’s the best of the three; they got better as they went along, and didn’t have Jake Lloyd, and less and less Jar-Jar. Not to distract from everyone ignoring the Lemon test and restating it without acknowledging it.

  368. “Opposition to the death penalty is not a solely religious cause. It is a cause that finds support among some people of faith, but which serves purposes, rational or not, that do not depend on divine authority. If a person’s faith inspires her to support such a ban, what do I care? It is only when faith provides the ONLY reasonably discernible purpose for a law that it raises the Establishment Clause flag in my mind.”
    Right. But if we let judges play the game of “only reasonably discernible purpose for a law” I think we are asking for trouble.
    The example which sparked the discussion is abortion–in which hilzoy suggested that there is no non-religious reason to ban early abortion. In her comment she suggests that opposition to early abortions is religious because it treats the case of a fetus who does not exhibit certain types of brain activity differently from a brain dead person who does not exhibit certain types of brain activity. I don’t think it is inherently irrational to treat a human who is growing into his brain under a slightly different moral understanding for ending his life than a person who is dying and exhibits brain death. In the first instance if we do not intervene with medical treatment we will tend to end up with someone whom pretty much everyone recognizes as a human being fully deserving of human rights. In the second instance if we do not intervene with medical treatment we will tend to end up with someone whom pretty much everyone recognizes is dead. Drawing the two cases differently even if they both exhibit similar amounts of brain activity at a given moment is not inherently religious. It is inherently a moral judgment. It might be a moral judgment informed by religion for some. It might be a moral judgment informed by personal reflection for others. It might be a moral judgment informed by a desire not to look bad in front of your more caring friends for still others. The First Amendment doesn’t denigrate the first kind of judgment and privilege the second and third kind of judgments.

  369. “But if we let judges play the game of “only reasonably discernible purpose for a law” I think we are asking for trouble.”
    It’s been thirty-five years since Lemon v. Kurtzman. Which trouble can you point to?
    Over to Justice Burger’s majority opinion:

    Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); [p613] finally, the statute must not foster “an excessive government entanglement with religion.” Walz, supra, at 674.
    Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion.
    On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As in Allen, we find nothing here that undermines the stated legislative intent; it must therefore be accorded appropriate deference.
    […]
    We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion [p614] Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.

    I don’t understand why everyone keeps talking as if we’re on a parallel world then the one we live in, where this is our (American, not meaning to imply we’re all American here, of course) history and law and has been for decades. It’s not a hypothetical in which “if we let”; we’ve let. For decades. What have been the bad results, specifically?

  370. Lemon was about giving money to support religious education–a clear establishment question. Religious education is quite possibly the single most obvious establishment question past actually setting up a state religion. It wasn’t about priviliging the moral intuitions of non-religious people in non-establishment contexts–like abortion, or the death penalty, or child labor laws, or even what we now call blue laws. Furthermore, Lemon didn’t even turn on the secular purpose question. It turned on an “excessive entanglement” question. The judges just assumed that it was for a secular purpose. I think Lemon is a poorly decided decision, but even Lemon doesn’t throw out a law on the secular purpose ground. My point to hilzoy, and I apologize if it wasn’t clear, is that the throwing out laws if someone judges that they don’t have a secular purpose is a dangerous idea for jurisprudence because trying to figure out secular vs. wholly non-secular is a ridiculously difficult problem when lots of people have their moral intuitions influenced by religion.
    Asking me to point to the problem I have with that despite 35 years since the Lemon case is to miss my point. Lemon didn’t throw out a law because it was non-secular. It threw out a law because Burger believed that giving support to a private religious school and trying to go through contortions to make sure they didn’t spend the money on religious purposes created an excessive entanglement between church and state. He specifically says that he isn’t overruling the law based on a lack of secular purpose.
    Lemon doesn’t stand for the proposition that hilzoy seems to be making.

  371. For the general audience: Schwarz argues that the US is on course to nuclear hegemony – we will be able to reliably take out the Russian and Chinese nukes in a first strike, and this fact will lead to less stability.

    This kind of thinking scares me. Fortunately, I really doubt we’d do a first-strike on India, for instance, unless they directly threatened us. Somehow. Haven’t thought it through. If India, for instance, arbitrarily nuked one of our aircraft carriers, perhaps, or North Korea launched one on Honolulu. Again, I haven’t thought about this all that much, but basically not much has changed in the balance of arms in the last decade. Aside from perceptions, maybe: we’re still the clear frontrunner where it comes to any decent gauge of offensive weapons, and at least holding our own in defensive weapons. I can’t see us doing a preemptive strike on mainland China unless they start going all hey-that’s-a-nice-hemisphere-you’ve-got-it’d-be-a-shame-if-anything-happened-to-it on us.

    Slarti: actually, I think God can play a bit fast and loose with the laws of nature, by making miracles.

    Sure, just not where there are scientists waiting to record them. There could be miracles happening all the time, in a place and time that no one happens to be observing. And if one defines miracles as something like “that which we do not understand”, certainly they’re happening constantly. Not discounting actual miracles, mind you, but Jesus hasn’t showed up to do any in a couple of millenia.

    But by telling us things that science can check, it’s placing either its own credibility or the morality of its God on the line, hostage to scientific investigation.

    There’s more than one reference in the Bible to the notion that God doesn’t always speak to us in a way that’s immediately understandable, which is either Mystery or a convenient way for the Bible to avoid the casual fact-check. I go with Mystery, myself.

  372. There are secular people (Randians, for instance) who have moral intuitions at least as strong as those of any fundamentalist and they claim their opinions are based on reason. They claim it rather vehemently, in fact. But I don’t find their intuitions any more plausible than those of fundamentalists. Even if you try to be perfectly logical in your arguments you’ve got to ground your moral reasoning in some set of axioms. Unfortunately people don’t seem to agree on them.
    To me, secular liberals, religious believers of every political stripe, and Randians are all in the same boat–we’ve all got to deal with people who clearly aren’t thinking straight.

  374. Donald speaks for me — I wish I could’ve summed my thoughts up so clearly.
    Anarch, I see you’re an originalist when it comes to deciding what the topic of a thread is. Clearly, the current topic in this thread is the relationship among religion, morality, and the law, regardless of the intent of the founding poster.

  380. slarti: please remember that mass is different from weight. tinkering with the gravitional constant will do nothing to reduce your mass.
    the miracle you need is a kind of reverse loaves-and-fishes. you eat all you want and lose mass.

  381. slarti: please remember that mass is different from weight. tinkering with the gravitional constant will do nothing to reduce your mass.

    Groovy. This is, however, something I have never forgotten. Getting God into the weight-reduction business would, IMO, require a miracle or two, not least of which would be the parsing of “weight reduction” into “getting rid of excess fat”.

    the miracle you need is a kind of reverse loaves-and-fishes. you eat all you want and lose mass.

    Being a former Catholic, I’ve lost all the Mass I wanted to. The kind of miracle you described, though…well, it presumes a stopping point somewhere well to this side of Death.

  382. “If God were inclined to publicly, visibly play fast and loose with the laws of nature, just think of what He might accomplish for those who are ill, deformed, or just needing to lose a few pounds.”
    People have invented devices to do that, too. Isn’t that what weapons of mass destruction are for?

  383. Huh. I’m not used to all this agreement. What have all you people done with the regulars I normally read, joyfully tearing each other apart? I should maybe go visit the Hamas thread and reacquaint myself with the way things normally are around here. Though come to think of it, personality conflicts aside, there was an uncharacteristic amount of agreement over there too.
    But re-reading my post I wanted to add something, because it could have been taken as a kind of moral relativism. But, like Sebastian, I’m not a moral relativist. I agree with C. S. Lewis in “The Abolition of Man”, where he argues that most people in most cultures agree on most points of morality. And where they disagree it’s often on which moral principle takes precedence in a given situation. Like in the abortion debate. About which I have absolutely nothing to say. It’s pleasant being agreed with and I don’t want to spoil it and besides, I really don’t have anything to say.

  384. I suspect his contention is that we all think that we ourselves think straight.
    Exodus International got to you too, huh?

  385. I suspect his contention is that we all think that we ourselves think straight.
    Exodus International got to you too, huh?

  387. “But, like Sebastian, I’m not a moral relativist.”
    Hey, me neither!
    Though mine also isn’t religiously based, and I likely would rapidly be forced to admit that once reduced to some axioms, I’d be justifying a lot of it with “because that’s what I believe because that’s the world I desire to live in,” because I have no formal philosophical education whatever, and no particularly in-depth self-education in that area. That is, what little I have is quite patchy, and fairly shallow.
    I’m happy to let locals customs be local customs. Up to a point. But then I get all “no, I believe that’s wrong,” when it comes to, say, cliterectomy. (I’d just as soon not reopen the issue of male circumcision, but I can’t stop anyone.)

  391. Don’t think the HatingOn staff have posting rules…
    We do, we just don’t tell anyone what they are. I would be on Gary like white on rice if he put circumcision and reopen in the same sentence like he did here, but hey, that’s fine for ObWi 😉
    I’m also worried that if this thread gets any more comments, it will turn into a black hole and pull the rest of the blogosphere into it.

  392. What about a SOTU open thread? Was the Dems’ backhanded cheer at the line “Congress failed to enact Social Security reform” the highlight of the evening? Or was it Bush opining that America is addicted to oil? (Well, the first step IS admitting you have a problem…)

  394. This one line post cheered me up.
    I was curious about which Republicans didn’t stand up and cheer about the NSA thing, but the network I was watching didn’t see fit to show us.
    This is the same commander in chief argument as the torture memo. The use of force resolution repeals, or the President is free to secretly violate, all meddlesome statutes. Or, he isn’t.
    Well, Russ Feingold’s on the case at least.

  395. “Gary misspelling clitoridectomy: ah, the puns I must forswear…”
    Well, I know what to do with one, even if I can’t spell it without checking, and that’s what’s important.

  396. “Gary misspelling clitoridectomy: ah, the puns I must forswear…”
    Well, I know what to do with one, even if I can’t spell it without checking, and that’s what’s important.
    Er, you know what I meant. Too hasty….

  399. I could comment on a bunch of other stuff, but this has to be the greatest biggest fattest, most utterly blatant straight out lie: “put men like bin Laden and Zarqawi in charge of a strategic country …”
    Yeah, right. No chance. Not a threat. Never going to happen. Lie, lie, lie, lie.

  400. Here’s an article on moral relativism by Kenneth Taylor of PhilosophyTalk fame — might be an interesting read for those who think that “moral relativism” necessarily equals “I can’t dictate my (or my society’s) morals to anyone else”.

  402. I don’t think it is inherently irrational to treat a human who is growing into his brain under a slightly different moral understanding for ending his life than a person who is dying and exhibits brain death.
    aaarrgghh…. I seem to agree with Sebastian more than with Hilzoy, how do I handle this new universe I live in 🙂 ?
    I think that “killing humans is wrong” is a moral value that is shared quite universally. For me it is more a ‘human’ value that religions picked up on than one that comes from religion. But there are both rational argumenst that have an impact (when is something alive) and other moral values (are you entitled to decide about your own body).
    As I said in the abortion thread: I think that with abortion most people can find common ground about what is acceptable for them, even if it is not ideal, because they recognize the other persons moral values. The discussion is usually about when the child is “alive enough’ to be an entity with own rights and when those rights take precedent over the right of the mother to decide about her own life and body.
    Euthanasia is another item where several moral values clash and one has to decide which ones take precedent. Some of those are religiously inspired (people who believe that god gave them life and thus that they cannot decide about it themselves). You can discuss the limits and interpretation of that value (what’s a gift, who owns what, etc.). But it clashes with the value others have when they feel that they can decide about their lifes because they can decide about their body. Except for people who feel that the ownership lies with the living human no matter from which source life originates. How do you decide about how normative (obligatory?) those values can be?
    In the Netherlands we feel that the right of self-determination is very important. We also (in general of course, not everybody holds the exact same belief) beliefe that society has to protect it’s members – even against themselves. So euthanasia is accepted, but we have to be reasonably sure that you really want it (if you have an agreement with your doctor but you cannot clearly communicate your desires AT THE MOMENT of euthanisation, it cannot happen) and we have to agree that living on is worse than dying for the deciding person.
    In the Netherlands about 80% of the population is happy with our euthanatia rules, in the USA there is much less support though our societies share the two basic values about self-determination and society protecting it’s own members. Is the religious component stronger? Are you more normative? Is my observation that the US has a more distrustfull society correct and has that an impact? Is the weight of the self-determination value stronger in our society than in yours?

  403. Alito and the “Coup D’état From Within”

    What if Bush’s real reason for badly wanting Sam Alito on the Supreme Court had little do with Roe v. Wade — what if that was just the base-baiting window dressing? Through his systematic use of signing statements, Bush has

  404. Alito and the “Coup D’état From Within”

    What if Bush’s real reason for badly wanting Sam Alito on the Supreme Court had little to do with Roe v. Wade — what if that was just the base-baiting window dressing? Through his systematic use of signing statements, Bush

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