Return to the Latest on No Left Turns
|
Dowd’s Merit
I’ve suggested on this page before that Dowd has a little problem with racial stereotypes. She confirmed this anew in today’s column, in which she pulls out all the stops.
First, Dowd asserts that Thomas got into Yale Law School and picked for the Supreme Court thanks to his race. Yet what proof does she offer for this? Are all Black admittees to Yale Law School there because of their race? No. In fact, this is one of Thomas’s key points: that affirmative action leads to these kind of incorrect assumptions. Yet Dowd doesn’t entertain for a moment that Thomas could have been admitted for any reason other than skin color. Ah, more proof of the benefits of affirmative action.
Yet if anyone proved herself to be an "affirmative action baby" today, it was Dowd, who demonstrated that she couldn’t understand even the simplest argument in Thomas’s opinion. She states that "Justice Thomas scorns affirmative action as ’a faddish slogan of the cognoscenti.’" But anyone who read the opinion knows that Thomas wasn’t talking about affirmative action with that phrase. First, it is worth reading the phrase in context (I suppose I should be grateful that this time she chose to distort the quote in her own voice, rather than using ellipses). What Thomas actually said was: "The majority upholds the Law School’s race discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti." The slogan to which Thomas refers is not affirmative action, which is a popular political phrase for "benign discrimination," but rather "critical mass," the meaningless phrase invented by the cognoscenti and relied upon by the majority to justify its ruling. Such a poor reading by a New York Times columnist. Oh well, applying Dowd’s reasoning, we all know that she got her job at the Times strictly on the basis of merit.
Dowd then argues that "despite his racial blessings" Thomas comes across as "an angry, bitter, self-pitying victim." But is difficult to read Thomas’s opinion as Dowd does, unless you make the assumption that Thomas must support affirmative action because he is Black. Don’t you see, all Black people think alike, or at least they should for Ms. Dowd. If they don’t, why then they are angry, bitter, self-pitying victims. They should just feel grateful that White society has been gracious enough to help them, and they should continue the affirmative action tradition, because that is what they are supposed to do. To do otherwise is to commit the sin of ungratefulness. Doesn’t he know his place?
Finally, Dowd throws in a gratuitous slap at Bush’s status as a legacy admit. Again, she would have done well to have read Thomas’s opinion. You see, dear, the Fourteenth Amendment doesn’t prohibit universities from choosing on the basis of legacy status. Now read slowly, Ms. Dowd, so that you can follow this. We had this thing called a "Civil War"--perhaps you read about it. Anyway, after that War, we passed an amendment which prohibited government from discriminating based on race, but this wasn’t a "you can’t discriminate based on anything" amendment. So schools can still choose based on grades, or athletic ability, or even the less pleasant legacy status without running afoul of the Constitution. Oh well, Ms. Dowd, it was a simple mistake. I’m sure that any New York Times columnist who got their jobs based on their merit clearly could have made such a mistake.
Posted by Robert Alt | Link to this Entry | Comments [7] | 6/25/2003 10:20 AM
|
|
Whisky, sexy, and Italians
The Europeans are considering this absurdity: "Brussels is said to be preparing new legislation to monitor sex discrimination outside the workplace. The proposal could lead to a ban on programmes and advertisements that stereotype women or men.
Crucially the courts will be able to decide what constitutes sexual stereotyping and what constitutes ‘images of men and women affecting human dignity and decency’." Now, just think about this in light of constitution making, and in the light of, just as an example, what an Italian, man or woman, will think of it. If you’ve been there, you will know what I mean. God bless the Italians! (Thanks to Andrew Sullivan)
Posted by Peter Schramm | Link to this Entry | Comments [1] | 6/25/2003 9:51 AM
|
|
Europeans, ugly and otherwise
John Zvesper continues the conversation about the Europeans (and Americans) in a very thoughtful piece. He is trying to make peace between us and them by asking each side to understand the virtues of the other, and he calls for American magnanimity. He reflects, in part, on this Robert Kagan article. Allow me to remind you of this very thoughtful James W. Ceasar article I mentioned yesterday, and the less thoughtful one by me, called The Ugly European.
Posted by Peter Schramm | Link to this Entry | Comments [2] | 6/25/2003 9:40 AM
|
|
European Constitution Making
The Economist runs a critical piece on what is happening at the "European constitutional convention:" Not much, and they get everything important wrong. And here The Economist offers more of a description than a criticism. Both pieces are worth a read. But, as I am sitting here listening to Gordon Lloyd go through the American Constitutional Convention (he is in the second day of a week-long seminar for high school teachers which he is conducting with Christopher Flannery), it occurs to me that there cannot be a comparison, it is not possible. The American exercise in deliberation and choice is extraordinary, is serious, meaningful, and prudent. There are no Madisons or Hamiltons or Morrises or Dickinsons, never mind a Washington, in the European effort. Here is insight, erudition, and logic, from a senior European delegate: “It was the Bill of Rights that created American identity. They were Americans and so they had rights. It will be the same with Europeans.” Yup, you’re a smart guy, thanks. I remember back in 1982 having a conversation with the editor (not a subaltern) of one of the major London papers. He argued that the American Revolution was an imitation of the French, after all the French Revolution was not only the real revolution, but also the one that come first. I tried to talk him out of this silly opinion. I failed then, and I would fail now if I tried it. Too bad.
Posted by Peter Schramm | Link to this Entry | Comments [1] | 6/24/2003 5:39 PM
|
|
Strauss Fourth of July picnic
This has been a wonderful gathering over the years. I haven’t been in several years, and maybe the attendance has dwindled to 60, but I think it has been closer to 100, at least on occasion.
I could give you a flavor of what goes on by describing some of my athletic prowess-- throwing Walter Berns out at first base after grabbing a hard-hit ball, chasing a Gary Schmitt line drive that went into another picnic area, narrowly avoiding a hard-sliding Jim Williams, etc. I think I once caught a pop fly hit by Irving Kristol, but those who know me will scoff that I’ve never caught a fly ball in my life, and that I am beginning to spin myths. But I did see Diana Schaub play a flawless game at first base, that I’m sure of.
I need to stop before I turn this into a "Battle of the Books."
I can’t recall any speeches, however.
Posted by Ken Masugi | Link to this Entry | Comments [5] | 6/24/2003 4:16 PM
|
|
Carol Swain contra the Court
Carol Swain, professor of law and political science at Vanderbilt University, weighs in with a sensible critique of the Court’s support for affirmative action in Grutter. Her essay,
"The Survival of Racial Preferences: Missing the Mark," echoes Justice Thomas’s criticism that the Court’s endorsement of affirmative action actually enables institutions to pursue their own objectives through alleged racial balancing--i.e., merely looking like they do not discriminate by offering for public display the "right" numbers of particular minorities--rather than helping those admitted under the race-preferential policies. Swain’s main argument, previously made in her book, The New White Nationalism in America: Its Threat to Integration, is that "racial double standards" facilitated by affirmative action will embolden white backlash and further divide the country along racial lines. While it is debatable the extent to which race extremists will increase their numbers because of the Court’s support for affirmative action, Swain does well to remind us of the urgent necessity to "save America" by the inculcation of "common principles and common values that include the betterment of all of society." The president’s recent statement, which "applaud[ed] the Supreme Court for recognizing the value of diversity," only concedes the rhetorical high ground to affirmative activists, who have hijacked the concept of diversity to permit--nay, require--government action to guarantee proportional, racial representation in American society. Swain is right to conclude that neither major party in the U.S. has offered leadership on the divisive issue of racial preferences. All the more reason to keep individual rights and equal treatment under the law before the American people until they regain their legitimate place in the public mind.
Posted by Lucas Morel | Link to this Entry | Comments [3] | 6/24/2003 3:57 PM
|
|
The Declaration and Justice Thomas’s Jurisprudence
I can’t add any detail to what has already been said. I would observe that Justice Thomas’s jurisprudence owes to the Declaration a commitment to real original intent-- by which I mean a zeal to return our mode of governance to limited government, as the Founders wanted it. That is the core meaning of having a jurisprudence of natural rights.
The "Constitution" we have today does not correspond with the document that the Founders gave us. To have natural rights in mind when one interprets the Constitution is to take the objects of such government with utmost seriousness-- limited government, the rule of law, the separation of powers, among other principles. Hence Thomas’s controversial (even among conservative fans of his) federalism opinons.
Posted by Ken Masugi | Link to this Entry | Comments [1] | 6/24/2003 4:04 PM
|
|
Philosophers and Kings and Picnics
The Economist runs an unsigned editorial on the Straussians in DC. This is better than most attempts to make something of Strauss because, one, it doesn’t take the Lyndon LaRouche conspiracy crap seriously and, two, because it is more modest in what it tries to do. But note the too-upbeat conclusion about how the Americans are going to a European (Strauss), while the Europeans are looking to an American (Madison) for their attempt to unify; therefore why can’t both sides of the pond just get along, etc. Well, just a small point on this matter: For practical (political) purposes one of the great effects of Strauss’ teaching was to reopen and/or reinvigorate the study of things American, which means a study of both freedom and virtue, which means a renewal of the study of constitutions, that is, of regimes. Wish the picnic in Washington had more than sixty people attending, right Ken?
Posted by Peter Schramm | Link to this Entry | Comments [1] | 6/24/2003 3:21 PM
|
|
The Declaration and Constitutional Interpretation
To me, John & Rob’s argument sounds like a "less filling, taste great" argument. Scalia might very well want to avoid both the black-history and the Declarational parts of Thomas’s opinion. That said, some of the commentary I’ve read on NLT and The Remedy raises a really important question that deserves discussion -- In what respects should the Declaration have authority in constitutional interpretation?
I haven’t thought this through enough, but let me suggest that the issues are more complicated than the NLT and Remedy commentary have suggested over the last day or two. At one extreme, Justice Scalia is right -- and the commentary wrong -- on this point: The Declaration does not have positive-law authority of its own, except for the proposition that the United States are independent of Great Britain. The bulk of the Declaration sets a standard Americans should apply to judge the governments they institute to secure the Declaration’s natural rights, but the Declaration doesn’t serve as a source of controlling legal authority.
Now, at the other extreme, Scalia is clearly wrong, and the criticisms I’ve read here and on the Remedy are clearly right, in a different respect. Scalia is frustratingly stubborn in refusing to consider whether the Declaration might go a long way in informing how lawyers ought to read the positive-law guarantees in the Constitution. For instance, Scalia reads the Free Speech Clause way too broadly, close close to guaranteeing that "no law" may restrict "speech." If one understands the Founders’ conception of natural rights and natural law, the clause reads very differently. Congress may pass no law "abridging" the "freedom" of speech. "Freedom" bounds "speech" by the moral rights and duties of the natural law. "Abridging," in the Founders’ understanding, quietly distinguishes between laws that "regulate" speech and laws that "abridge." Defamation, blasphemy, and time-and-manner laws all "regulate" because they keep speech within the natural-law "freedom of speech"; laws "abridge" the "freedom of speech" if they restrain speech for no similar purpose. Here and elsewhere, Scalia is too positivist to be a good originalist when original meaning relies heavily on the natural law.
But Adarand, Troxel, and yesterday’s affirmative-action cases raise a different problem: Should one interpret the Constitution to require what the Declaration prescribes even if the constitutional terms in question have a narrower ordinary legal meaning?
On affirmative action, it’s been shown pretty convincingly that the original meaning of the Equal Protection Clause was not a open-ended license for Congress and courts to fix any state action that ran afoul of the principle that "all men are created equal." The original meaning guaranteed equal PROTECTION. If Congress found that state law-enforcement officers enforced the criminal-battery laws for white victims but not black victims, Congress could intervene to fix the law enforcement patterns. If original meaning controls, Adarand and yesterday’s cases should have been thrown out because the EP Clause was not relevant.
Same goes for Troxel, a Due Process case. The original meaning of both Due Process Clauses was to ensure that no one lost life, liberty, or property except by "the law of the land," except pursuant to a valid statute or common-law precedent already on the books, and pursuant to preexisting procedures for punishment. On that gloss, Troxel is easy: The state can deprive a relative of visitation rights to a child as long as the legislature strips those rights clearly by general law. No need whatsoever to ask why the legislature did so as long as it does so by general legislation.
Now, it could well be that the original meaning of the Privileges and Immunities Clause reduces some of the tension I’m highlighting between original and a "Declarational" readings of the Due Process and Equal Protection Clauses. But no one really knows yet what the Privileges and Immunities Clause originally meant. Until its meaning is recovered, any resort to the P&I Clause is a cop-out.
In the meantime, NLT and Claremont readers need to think long and hard about what kind of constitutional-interpretation principles best accord with Declaration natural-law principles. May sound strange, but I’m not convinced that Thomas’s reliance on the Declaration in Adarand, Troxel, or yesterday’s cases comport with the kind of legal interpretation Declaration-style government requires of its lawyers. I’m not sure though; I’m curious what others have to say.
Posted by Eric Claeys | Link to this Entry | Comments [248] | 6/24/2003 2:45 PM
|
|
More on Scalia and the Declaration
Eastman makes a strong argument regarding Scalia and the Declaration, but there is still room for discussion. First, John mentions the fact that Scalia did not join Thomas’s opinion in Adarand. But Thomas’s fine concurrence in Adarand looks suspiciously like the portion of Thomas’s Grutter opinion in question. That is, while Thomas once again speaks in Adarand of the Declaration, he also speaks about black achievement. Specifically, Thomas in Adarand disputes what he refers to as the racial paternalism exception to Equal Protection. Without saying that you have to be a particular race to offer the arguments made by Thomas in quoting Frederick Douglas in Grutter, or speaking of racial paternalism in Adarand, it is nonetheless understandable why Scalia would choose not to join those sections on the basis of melanin deficiency, and to allow Thomas to speak powerfully on his own.
The Troxel example offered by John does not fit into this pattern however, and raises a more formidable question. As John noted, in Troxel, Scalia argues that "[t]he Declaration of Independence, however, is not a legal prescription conferring powers upon the courts." By doing so, however, Scalia makes the rather unremarkable statement that, absent Constitutional authority, a judge does not have the authority to strike down a law for violating the principles of the Declaration. Scalia’s statement here does not suggest that a judge may not appeal to the principles of the Declaration in interpreting or applying the Constitution--which is what Thomas does in Grutter. As I read Troxel, Scalia appears to be taking aim at those who would seek to appeal to the Declaration not to inform their understanding of the Constitution, but to supercede or add to the Constitution. Accordingly, Scalia could have written and meant what he said in Troxel, and yet have had no problem in joining Thomas’s Declaration statement in Grutter.
My defense is half-hearted, for I don’t believe that Scalia has demonstrated an understanding of the relationship between the Declaration, the Natural Law and the Constitution which compares to Thomas, but at the same point, I don’t think that his failure to sign on to Grutter or Adarand, or his statement in Troxel are sufficient to suggest that he is openly hostile to the Declaration.
Posted by Robert Alt | Link to this Entry | Comments [1] | 6/24/2003 2:30 PM
|
|
Majority back use of force in Iran
A Washington Post-ABC News Poll says something to both our friends and enemies: Despite the anti-war elites’ propaganda in the US (never mind the Europeans), Americans retain their common sense and their character is, once again, revealed. The WaPo reports: "By 56 percent to 38 percent, the public endorsed the use of the military to block Iran from developing nuclear arms." While I do not argue in favor of going into Iran, this poll is another very good indication of the clear thinking of American citizens, post 9/11. There should be no immediate concern about squishiness, quagmires, and so on. The people seem to have a very clear understanding that there is serious mischief abroad, and we may, from time to time, have to act in ways that matter. Let me paraphrase Hamlet: Though we are not splenative and rash, yet we have in us something dangerous. And it is good that this is known.
Posted by Peter Schramm | Link to this Entry | Comments [1] | 6/24/2003 11:18 AM
|
|
America as katestrophenhaft
James Ceasar writes a long and very good article entitled, "A genealogy of anti-Americanism," in the current issue of The Public Interest. This is a serious piece, worth consideration and much reflection. Ceasar says: "Anti-Americanism rests on the singular idea that something associated with the United States, something at the core of American life, is deeply wrong and threatening to the rest of the world." He then traces five major layers or strata regarding the concept of America, including, degeneracy and monstrocity, rationalistic illusions, racial impurity, technology, soullessnss and rampant consumerism.
Just a point: Heidegger says Americanism is "the still unfolding and not yet full or completed essence of the emerging monmstrousness of modern times." America is katestrophenhaft, the site of catastrophe. Read it all and weep for what used to be called the West, and now must be called America. Yet, Ceasar is not without hope. 
Posted by Peter Schramm | Link to this Entry | Comments [3] | 6/24/2003 10:24 AM
|
|
Justice Scalia and the Declaration
I’m not sure I agree with Robert Alt’s more charitable take, below, on Justice Scalia’s joining only parts I-VII of Justice Thomas’s opinion in Grutter. Justice Scalia penned a pretty strong opposition to reliance on the Declaration of Indepedence in Troxel v. Granville two years ago: The Declaration "is not a legal prescription conferring powers upon the courts." And he did not join Justice Thomas’s opinion in Adarand, in which Justice Thomas argued that racial set asides violate the equality principle that infuses the Constition, a proposition for which he cited the Declaration of Independence. I think it pretty likely, therefore, that the asteriks were added to make a concluding section separate from Part VII, so neither it nor the introduction were joined by Justice Scalia.
Posted by John C. Eastman | Link to this Entry | Comments [255] | 6/23/2003 11:16 PM
|
|
Scalia and the Declaration
In answer to Dr. Pestritto’s question, I don’t think that Scalia is avoiding endorsing the Declaration. It appears more likely that Scalia is bowing out of joining Justice Thomas’s comments which precede Section I. It is here that Thomas quotes extensively from Frederick Douglas, and speaks with passion about how he "believe[s] blacks can achieve in every avenue of American life without the meddling of university administrators." My sense is that Scalia thought that these words were uniquely Justice Thomas’s, and that they stand on their own.
It is also worth noting that Thomas’s last paragraph, in which he mentions without quoting the Declaration and quotes from Justice Harlan’s ringing dissent in Plessy v. Ferguson, bears striking resemblance to Scalia’s concurrence in Adarand v. Pena, in which he states, "[i]n the eyes of government, we are just one race here. It is American." Given this similarity, I don’t think it is out of disagreement that Scalia joins only I-VII, but out of respect for Thomas’s desire to speak about the capacity for black achievement.
Posted by Robert Alt | Link to this Entry | Comments [249] | 6/23/2003 7:51 PM
|
|
