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by Prometheus 6
August 20, 2003 - 7:25pm.
on Old Site Archive

Watch where you step

Reading the right is interesting when you have a good guide to steer you around the deeper piles of poop.

When Adam Cohen ragged on the radical court nominees put forth by the radical Bush administration the other day I was like, "Okay." It was all rhetoric, but in support of a position I agree with (that these radicals should be denied the appointments).

Today, via the Volokh Conspiracy I saw an interesting response to the article.

The response has five parts:
1-A complaint that it's rhetoric rather than reason…that it implies this and that by the juxtaposition of certain statements. When I read such implications by right-leaning pundits, I disregard them and root out the meat of the piece. One can choose to get all hot and bothers about it if one wishes, I suppose.
2-A defense of Michael McConnell's argument that the Supreme Court was wrong to rule that the equal protection clause required legislative districts with roughly equal numbers of people that enumerates the prime reasons for that argument.
3-A defense of Jay Bybee's argument that the 17th Amendment should be repealed, which defense amounted to, "I'm not familiar with the argument but he might be right because the Founding Fathers might have had a reason for not considering it."
4-A defense of William Pryor's suggestion to Congress to repeal part of the Voting Rights Act, which defense amounted to 'I know nothing about the Voting Rights Act but someone I trust agrees with Pryor."
5-A defense of Uncle Clarence's argument that the First Amendment may not apply to states under certain circumstances, which defense I will not summarize just yet.

I'm not interested in points 1, 3 and 4 because no argument was presented.

Point 2, though…

Cohen then attempts to tie it all together by providing a laundry list of the most offensive positions taken by Bush nominees:
One Bush choice for the courts, Michael McConnell, now a federal appeals court judge, has argued that the Supreme Court was wrong to rule that the equal protection clause required legislative districts with roughly equal numbers of people.
Yes, he has, in his article, The Redistricting Cases: Original Mistakes And Current Consequences, 24 Harv. J.L. & Pub. Pol'y 103 (2000). And he produced a host of reasons for this conclusion: First, there is no evidence that the Equal Protection Clause was intended to apply to voting rights at all.

Several other points were raised that I actually have no issue with. But if we're working with original intent, I want it applied to all cases where the Equal Protection Clause was the deciding factor. That would be every decision that gave corporations their astounding level of privilege in this nation and society. And it would be every "reverse discrimination" case from Bakke forward, because the original intent of the amendment and its constituent clauses was to protect the rights of newly freed slaves and their descendants from the tyranny of the majority. Any decision for any other group based on this amendment should be reversed.

IF we're talking original intent, that is (a point a commenter implied as well).

And point 5:

Pryor did suggest in congressional testimony in 1997 that Section 5 of the Voting Rights Act should be amended or repealed. This is the section that requires DOJ "preclearance" whenever certain states do anything that might affect voting rights. I know little to nothing about the Voting Rights Act, so I'll refrain from speculating about whether Pryor's statement here was defensible. Still, I'd bet there's more to the story than Cohen lets on. (FYI: The Committee for Justice defends Pryor's testimony on pages 7-9 of this report.)
President Bush has said he wants to appoint judges like Clarence Thomas and Justice Scalia, both embarked on campaigns to undo years of constitutional progress. Justice Scalia advocates tying Americans' rights today to the prevailing wisdom of the 18th century. In a petulant dissent in the recent sodomy decision, he argued that gay sex can be criminalized now because it was a crime in the 13 original states. Justice Thomas offered the dangerous argument in last year's school voucher case that states should be less bound by the Bill of Rights than the federal government.
Wrong. Thomas's concurrence in Zelman v. Simmons-Harris argued that the Establishment Clause -- not the "Bill of Rights" as a whole -- "may well" have less application to state government activities that do not in themselves infringe on anyone's liberty (after all, the Fourteenth Amendment speaks of protecting "liberty"). Thomas's argument is a sophisticated one, and indeed quite a few legal scholars* have noted the conceptual difficulties in applying the Establishment Clause to the states, given that one of the original purposes of the Clause was precisely to protect state governments from federal interference. In any event, Cohen is flat-out misrepresenting Thomas's opinion.

Here I can only express an opinion.

Once one decides a single clause can be ignored by the states that opens the door to consider which others can be ignored. I don't care if you have a conservative or liberal court, that would be foolish. And again, IF we're talking original intent, bringing up a later amendment as justification for one's judgement of the meaning of an earlier one is a bit hypocritical. As for Uncle Clarence's argument being a sophisticated one, I'm reminded of a mathematical maxim: "An argument reaches it's point of maximum eloquence at its point of minimum clarity." In any event, if Uncle Clarence's argument held sway, I'm sure Utah would have an official state religion in about two and a half weeks.

posted by Prometheus 6 at 8/20/2003 07:25:27 PM |

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