Answering Indian Cowboy

Indian Cowboy left a comment on a thread below and I'm moving it up here so it doesn't get lost. It was in response to some of the conservative catchphrases that I and others came up with for the refrigerator magnet game. In particular, he seems to be responding to two catchphrases I pointed out, "judicial activism" and "smaller government". Unfortunately, I think he's missing my point and jumping to false conclusions about my political views. In short, he thinks I'm PZ; I beg to differ.

I'm not sure I should even bother, considering my lovely reception at PZ's blog a couple weeks ago, but while there's a lot of good stuff here (especially the anti-theocracy and the anti-specifically-bush crap), there's a lot that I don't get.

Well, I'm not sure what reception you're referring to, but it would be a mistake to think that my political views are anything like PZ's. We both dislike Bush, to be sure, but that's pretty much where the similarity ends. Ironically, while you seem to be assuming that I'm a typical liberal, he thinks I'm a right wing nut. Thankfully, you're both wrong, as I think my answers to your questions will demonstrate.

What exactly is wrong with being a Constitutional Originalist?

This is a far more complex question than it seems, and that is one of the reasons why I listed it as a catchphrase. As the phrase "judicial activism" (or "constitutional originalist", for that matter) is used by most conservatives, it is simply a meaningless slogan. Justice Scalia is not an originalist, despite his fervent claims to being one, nor is Robert Bork, the poster boy for conservative originalism. You cannot be an originalist and read the 9th amendment out of the Constitution as both men do (not to mention the privileges and immunities clause).

They use originalism as a convenient weapon with which to beat those they oppose, but they simply do not mean it. When originalism leads to results they don't like, as it inevitably does, they abandon it quickly. For a longer and more detailed analysis of Scalia's faux originalism, go here. None of the various forms of conservative originalism (and there are different types, which I'll get to later in response to another part of your comments) can hold up to scrutiny, in my view. But I am an advocate of what Randy Barnett calls "liberal originalism" (liberal in the classical sense, not the modern political sense), an originalism informed by the broad set of natural rights principles upon which our entire system is based.

What's wrong with believing in a limited government and in the idea that liberty doesn't happen by taking rights away from everyone?

Absolutely nothing. I am an enthusiastic advocate of smaller government and an even more enthusiastic advocate of the absolute maximum freedom for the individual that still allows a functioning society. But I fear you're missing the point of listing "smaller government" as a conservative catchphrase - a political catchphrase is a phrase whose usage has made it essentially meaningless, even hypocritical, when used by particular people. When Republicans use the phrase "smaller government", what can one do but laugh? They do not mean it. With full control of the presidency and the legislature, they have pushed government to its largest and most intrusive levels this nation has ever seen. That's why it's listed as a catchphrase, and accurately so.

Do the ideas of FA Hayek, Mises, and other have so little merit that they can simply be summarily dismissed while all the failures of governments founded upon the principle of positive liberty can be simply paved over?

Absolutely not. I am an advocate of Hayek and Mises (in moderate form, at least) and I wish their ideas were taken more seriously. But this has nothing to do with the post you were responding to. There may be a few conservative intellectuals who think Hayek and Mises are wonderful, but they don't have anything to do with how conservatives actually govern when they have power.

You guys see the State in an enabling role. The founding fathers didn't, which is why phrases saying what the state is NOT allowed to do appear so many dang times. Pretty critical difference there. Granted, Republicans see it in an enabling role as well, which is why I decided not to join that party before the first election I was eligible for rolled around.

I certainly hope I'm not included in "you guys", but since I came up with the ones you're responding to, you must be including me in that. But this is mere assumption on your part, and it is a false assumption. Put me in power and the government shrinks enormously and becomes far closer to what the founders wanted than to what modern Democrats and Republicans have built over the last 150 years. The mistake you make is in assuming that because I criticize conservatives that I'm therefore a liberal. I am a liberal only in the classical sense, not the modern political sense. It actually sounds like you and I would agree on most of this; I'm just a bit baffled as to why you assumed otherwise based just on my criticism of conservative catchphrases.

Furthermore, I saw 'Think of the Children' up there. LOLOLOLOL. You guys do know what your anti-gunnies sound like right?

Again, a false assumption. I'm a strong supporter of the 2nd amendment. I don't have any "anti-gunnies" that I know about. Of course it's true that one could come up with this same game about liberals. Indeed, I plan to post the same question when it comes to liberal catchphrases. Ironically, they're often quite similar.

oh and what else do you call it but judicial activism when a Judge makes a decision that is clearly, blatantly out of line with the founders' intent?

Again, this is a far more complicated question than it appears to be, but I think you're still making the same mistake of misunderstanding what makes something a catchphrase. There is a genuine meaning to the phrase "judicial activism", but it has little to do with whether a decision is "out of line with the framers' intent". But as the phrase is used by conservatives, it means nothing more than "court rulings I don't like". But I think your question here betrays a serious misunderstanding of originalism itself.

Most of those who fancy themselves orignalists abandoned "original intent" over a decade ago, instead arguing that it is the "origianl public meaning" that is binding. Both Scalia and Bork moved to this position quite some time ago and most originalists (a term I don't think applies to them at all) followed them. For this interpretive principle, it's not the original intent of the framers that matters (who could discern their intent anyway, particularly when so many of them had conflicting intents?), but the original public meaning - what the citizens thought they were voting for when they ratified the constitution. I would argue this is even more problematic in terms of workability than a focus on the framers' intent. After all, the framers left us volumes of commentary on the subject; how on earth are we to know what the public, 99% of whom left nothing of their views behind, thought in 1787?

No, the only coherent originalism, in my view, is one that incorporates the broad principles of the Declaration and applies them logically and consistently, rather than by looking at how the founders themselves, beset by political difficulties and the need to compromise, applied them. If you're not familiar with this view, I strongly recommend that you look at some of the work of Randy Barnett and Scott Gerber.

I'm pretty sure if there were any doubts that Marbury v. Madison clearly delineated the role of the Supreme Court what? 200 years ago?

I'm not sure what the point of this is. Marbury v Madison cleared up the issue of judicial review, but where was anyone here doubting the outcome of that case? Indeed, the only arguments I hear against Marbury are from the right today. Their anti-judicial rhetoric comes very close to wanting to overturn the notion of judicial review entirely. Indeed, they are proposing a bill right now that would strip the court's jurisdiction to hear certain types of cases, a very, very dangerous idea.

As people much more eloquent and smarter than me have stated, the law loses its meaning when the intent of its originators ceases to be followed. Yet that is what a lot of these so-called judges do.

Again, I don't think anyone really takes this position anymore, preferring original public meaning to original intent. But even so, I don't think it's really a meaningful statement. Much of the constitution and the Bill of Rights is written in very broad language that demands interpretation. Are we really to be locked in to the manner in which the founding generation saw fit to apply those provisions? Even Scalia, for example, says that he would not uphold a law that prescribed flogging as punishment for a crime, yet flogging was a normal punishment in the 18th century. Clearly, the framers did not believe that the 8th amendment prevented flogging as a cruel or unusual punishment, but even the loudest originalist today would not vote based on the framer's intent on that question (ironically, after saying so, Scalia still excoriated his fellow justices for not being originalist enough in Roper even when they applied the exact same reasoning he did).

The first thing you need to understand is that the founders, while a very brilliant group, were still men, and politicians at that. Are we really to be locked in to how they would have applied the principles they elucidated so eloquently, forever? Let me give you one quick example of why this sort of interpretive principle is impossible to hold to consistently. Let's look just at the first amendment, which the average person probably thinks we have a good solid grasp on in terms of meaning.

Not long (1798) after the first amendment was ratified along with the rest of the Bill of Rights, a bill was passed called the Sedition Act. Under this law, it was a crime to criticize the President (but not the Vice President, ironically - Adams was president, and supported the Act, while Jefferson was VP and opposed it). Over 2 dozen people, most of them newspaper editors but also including one Congressman, were arrested (including Ben Franklin's grandson). Now, if you're going to look at the original intent only, how do you decide based on such evidence what the original intent of "the framers" was? It was passed by a Congress that still included many of the men who wrote the Bill of Rights and signed by John Adams, one of the leading framers himself. But it was opposed by Jefferson and Madison, and after Jefferson was elected to office in 1800, the Act was abolished and the men punished under it were pardoned.

So which of these two perspectives must we view as the "framer's intent" of the first amendment? Did the free speech and free press clauses only prevent prior restraint, as Adams argued? Or did it forbid punishing someone for speaking their mind when the government didn't like the message? I hope we can all agree that the latter is the correct interpretation. But why? Not because the notion of "original intent" tells us so, but because a coherent application of the founding principles tells us so. Adams' Act was an exercise in political maneuvering clearly in conflict with the first amendment, but if we are stuck with how the framers themselves would have applied those principles rather than how they logically must be applied, then we may well be stuck with such contradictory interpretations.