Monday, October 05, 2009

Two Articles by Peter Berkowitz

Catching up after being away so long, I have finally read to articles on my "to-do" list. Both are by Peter Berkowitz.

And both are worth reading. The first is "Conservatism and the Curriculum," from the WSJ. I might quibble with his omission of Duke's courses on "The History of Conservative Thought," and other courses in the Gerst/American Values curriculum, but basically he makes good points.

The second is "Constitutional Conservatism," in Policy Review. Some points he makes on the "way forward":

A constitutional conservatism provides a framework for developing a distinctive agenda for today’s challenges to which social conservatives and libertarian conservatives can both, in good conscience, subscribe. Leading that agenda should be:
• An economic program, health care and social security reform, energy policy, and protection for the environment grounded in fiscally sound, growth-oriented, market-based solutions.
• A national security policy that maintains American military preeminence because it is indispensable to the defense of freedom at home and to the discharge of global responsibilities abroad, and which, in its commitment to defending the nation against the new threats of megaterror, is as passionate about individual liberty as it is about security and is prepared, based on constitutional principles, to responsibly fashion the inevitable, painful tradeoffs.
• A foreign policy that builds on the Truman Doctrine, the Reagan Doctrine, and the Bush Doctrine by recognizing America’s vital national security interest in advancing liberty and democracy abroad while realistically calibrating undertakings — military, diplomatic, and developmental— to the nation’s limited knowledge and restricted resources.
• An orientation toward international relations that promotes free trade, respects international law and institutions while protecting the legitimate prerogatives of national sovereignty, and seeks alliances and opportunities to operate within multilateral frameworks but, particularly where vital national security interests are at stake, is prepared to act alone.
• A focus on reducing the number of abortions and increasing the number of adoptions.
• Efforts to keep the question of same-sex marriage out of the federal courts and subject to consideration by each state’s democratic process.
• Measures to combat illegal immigration that are emphatically pro-border security and pro-lawful immigrant.
• A case for school choice as an option that enhances individual freedom while giving low-income, inner-city parents opportunities to place their children in classrooms where they can obtain a decent education.
• A demand that public universities abolish speech codes and vigorously protect liberty of thought and discussion on campus.
• The appointment of judges who understand that their duty is to interpret the Constitution and not make policy, who bring to their task a presumption in favor of vindicating constitutional principles and protecting individual liberty, and who, where the Constitution is most vague, recognize the strongest obligation to defer to the results of the democratic process.


I should point out that these plausible proposals have NOT risen to the forefront of the Republican agenda. (Yes, even these proposals are pretty tepid, and would hardly satisfy a Libertarian, but I am thinking in directional terms here: The Rs are still going fast in the wrong direction!) And so I am still most definitely not a Republican. You folks who send emails proposing that I am "really" a Republican need to realize that the Repubs are "really" full of goose dung.

6 comments:

David said...

The last point about judicial duty to solely interpret is one that has bothered me for a long time. I dare you to strictly interpret the IXth ammendment in a way that doesn't give judges significant leeway to make judgments about what un-enunciated rights are retained by the people! Having just completed my first week at law school, it has been made abundantly clear to me that this position is born of serious ignorance about our legal history. Much of our law is common law, i.e. law that was created by the courts. Much of it has since been codified by legislatures, but much of it has not. How do you interpret something as vague as "reasonable search and seizure" without doing something like creating policy? People with a problem with that might prefer somewhere with a civil law system like France.

Mungowitz said...

Yeah, I agree there is a trade-off.

But that's the difference. Where economists see trade-offs, lawyers see contradictions.

All this says, to me, is that there is a presumption of humility.

But, you are right to point out the problem. When a city council votes to use eminent domain, then the deference to legislative will goes out the window, and Berkowitz (and I) want the court to protect us. The difference is that that right is already in the fifth amendmet.

The problem is when the judges "discover" new rights, against the will of the legislature.

David said...

I'm sort of surprised to see Mr. "Democracy = two wolves and a sheep voting on tonight's menu" defending the prerogative of the legislature to trammel any right that got left out of the bill of rights.

My guess is that we'd probably like to see judges do pretty similar things. My suggested tweak is just to say that there's not really much use calling it a "presumption of humility." I'd rather promote an "ethos of humility" in the public debate over judicial scope.

And though I'm seriously hoping to be an economically literate lawyer when I get out of law school, I think there really is a contradiction between the IXth amendment and the idea that judges can't discover new rights 'not already in' the constitution. The whole point of the amendment is that they were worried people would view the bill of rights as exhaustive. We might differ on this, but I see the judiciary as less bad at preserving a presumption of liberty than majorities in the legislature.

David said...

just to offer a (somewhat far fetched, but hopefully illustrative) example. Suppose that legislation is passed that specifically excludes the internet under what can be considered the press and then limits the things you can write on your blog. I'm sure the people who ratified the bill of rights didn't intend to protect electronic communications. I'm more than happy to endorse a view of judicial prerogative that allows the judiciary to "discover" my right to speech on the internet, even though it's certainly outside the scope of what anybody intended when they gave me the right to say what I want in paper pamphlets.

Tom said...

By coincidence(?), just ONE DAY after David wants to "suppose" the government would limit the things you can write on your own blog, the FTC has published an 18 page rule set. They want to fine bloggers up to $11K for failure to disclose stuff.

Please be careful what you suppose.

Tom said...

Oops, that was 81 pages (no gov. agency can write anything in 18 pages)