Newt The Nullifier

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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147 Responses

  1. Proposed: A candidate who promises to defy the laws his oath of office would require him to uphold and enforce, has in so doing disqualified himself from sober consideration for that office.

    …but in the process has assured that he will make millions selling fourth-rate history books.Report

  2. Kyle Cupp says:

    So Mr. Gingrich appears to be grandstanding rather than offering something of substance, at least in the cases described here.

    A politician grandstanding on the abortion issue?  No way. That never happens.Report

  3. BlaiseP says:

    Newt knows the rules of publicity.   All he has to do is say Something Outrageous and the swarming herds of Libruls will rise up, farting indignantly, to oppose him.

    That’s exactly what Newt wants.   Why are we playing his little game?Report

  4. Jaybird says:

    If you see a Supreme Court ruling the same way you see a marriage vow before God, there is no reason that you should *NOT* be able to do whatever the hell you want to do because you feel strongly about it.Report

  5. Michelle says:

    Newt is an expert at throwing out red meat to the base. His take-down of the courts (and vow not to uphold any ruling he decrees to be incorrect) plays to all those conservatives (like my parents) who think that the courts have played far too large a role in making policy. Likewise, his call to bring “activist” (aka liberal) judges before Congress to explain their rulings. The base eats this stuff up.

    It’s no wonder he’s rising in the polls after his performance in the last debate. A lot of the base sees his take down of Juan Williams as masterful (I just had a conversation with my parents to this effect–they thought Williams was baiting Newt). These people know a dog whistle when they hear one and a lot of them believe that the poor (especially minority poor) are lazy and don’t want to work. Newt knows to what audience he plays–he initially  rose to power by playing on resentment and hate and outlined a lot of the language used to vilify liberals and Democrats. It will be interesting (in a sociological kind of way) to see how far he’s able to go with it this go round, given his baggage and Romney’s inability to rally the evangelical base.Report

    • Rufus F. in reply to Michelle says:

      I think this is right. I was surprised to hear he’s rising in the polls currently. If he gets the nomination, how could he dial back this stuff sufficiently to get elected?Report

      • Michelle in reply to Rufus F. says:

        I don’t know that he can. At some point, it will become evident that Newt thinks Obama is an uppity black man who lacks his intellectual chops–he is, after all, “an historian,” albeit one who couldn’t get tenure at a third-rate college. Obama merely graduated from Harvard Law school. Newt will condescend to the president the same way he condescended to Juan Williams (he didn’t call Williams “boy” but the tone of voice and body language told you that’s what he was thinking).

        I hope the NAACP takes him up on his offer to tell its members how they should demand pay checks as opposed to food stamps, as well as his offer to teach the poor how to get and keep jobs. That’s a show I’d even pay to see.Report

      • Patrick Cahalan in reply to Rufus F. says:

        I thought Hillary had a lot of 90s baggage during the 2008 election that was going to hurt her if she made it to the general election.  Like, a couple duffel bags worth.

        I think Newt has, by comparison, the four steamer trunks from Joe vs. the Volcano.  Filled only with the iron filing dust of his previous public comments, instead of awesome stuff that saves the day.Report

      • Plinko in reply to Rufus F. says:

        I’m not entirely certain the base wants him to be elected as much as they want him to say these sorts of things right to Obama’s face on national teevee.

        Every time I listen the the talk radios, it is clear that a significant part of the base is desperate for someone who will give voice to their greivances. You can hear it in what the hosts and callers keep saying – how they can’t wait for the debates because Newt (before that Cain, before that Perry, probably someone else before that), will stand up there and expose Obama for who he is.Report

  6. Al says:

    I think Roe was a terrible decision although also that what Newt is proposing here is unacceptable. Still, any method of judicial reasoning other than originalism seems like a usurpation of authority to me, and that the meaning of laws or constitutions should evolve with time seems a way to avoid acknowledging our past. I wonder if a simple solution exists to this problem in general. Ideally I would like some directive, maybe a constitutional amendment, pushing the Supreme Court to consider the Constitution only on its meaning as would have been understood when the respective amendments were passed.Report

    • Burt Likko in reply to Al says:

      If your proposed amendment were to be enacted, would the equal protection clause apply to women?Report

    • Chris in reply to Al says:

      Understood by whom?Report

      • Al in reply to Chris says:

        Here’s the Wikipedia article for originalism on “original meaning,” which to me seems the best way:

        The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is with this view that most originalists, such as Justice Scalia, are associated.


        • Chris in reply to Al says:

          “Reasonable persons?” That clears everything up.Report

          • James Hanley in reply to Chris says:

            Not that Chris is wrong about “reasonable person” not actually clearing anything up (especially when we 21st centuriers are trying to discern what a reasonble 19th centurier would have thought), but it’s worth noting that “reasonable person” is a fairly well established term of art in law, so as a concept it does have some reasonable, albeit broad and vague, boundaries.Report

            • Chris in reply to James Hanley says:

              I didn’t really think about that, but now that you mention it, I’ve heard the concept before. Now imputing the thoughts of a “reasonable person” of 230 years ago, that’s an adventure that’s more likely to take you further from your goal than closer.Report

    • James Hanley in reply to Al says:

      I’m wondering how such an amendment would be enforced?

      Appellant: “Your honor, your court failed to rule on originalist grounds in Dipsy v. Poe.”

      Appelle: “We did not!”

      Ruling: “We did not!”

      Kinda self-referential, no?Report

      • Al in reply to James Hanley says:

        You could make the same argument for any other amendment. But constitutional amendments do have consequences!Report

        • James Hanley in reply to Al says:

          Of course, but no other constitutional amendments tell those interpreting it what to do.  It’s quite the principal-agent problem when the principal tells the agent, “Do X,” and the agent is the one who actually has the authority to determine if he’s doing X or not.  No matter how right the principal is when telling the agent, “that’s not X,” he’s wrong, because it’s the agent who ultimately determines what X is!

          It might be a good law class exercise, though.Report

    • DensityDuck in reply to Al says:

      Good luck with convincing everyone that the Second Amendment covers only muzzle-loading flintlock muskets!Report

      • Al in reply to DensityDuck says:

        Yeah. And that kind of thing is a real problem. I guess what I’m hoping exists is some way of stating things that is both meaningful but also vague enough to allow for “common sense” interpretations. What if we just passed a one-sentence amendment specifying that the court should interpret based on originalism as defined by Wikipedia above? Let the court figure the details.


        • James Hanley in reply to Al says:

          What if the founders didn’t believe in originalism?  That’d be quite the conundrum, eh?  So any originalist position first has to establish that the founders intended us to use their, and only their, understandings to interpret.  I think that might be a difficult thing to establish with real certainty.Report

          • Michael Drew in reply to James Hanley says:

            What indeed.  It’s a problem, but not just one for the notion of this proposed amendment.Report

            • True.  In fact an amendment specifying originalism–which in its very character as an amendment to the Constitution is itself not originalist–might be the only proper way to enshrine originalism as “the” proper way to interpret the Constitution.

              Now that’s some tasty irony.Report

          • Tim Kowal in reply to James Hanley says:

            There’s no other understanding they reasonably could have intended, that I am aware of.Report

            • Jaybird in reply to Tim Kowal says:

              How long was it between the ratification of the 1st Amendment and the Alien and Sedition Acts?Report

            • James Hanley in reply to Tim Kowal says:

              There’s no other understanding they reasonably could have intended, that I am aware of.

              Why would it have been unreasonable for them to expect future generations to think about the broad purposes of the Constitution and then interpret the specifics as suitable to their own situations, which the Founders knew they couldn’t imagine? E.g., why would it have been unreasonable for them to expect us to think for ourselves?

              Heck, they clearly didn’t even expect that we, us here in 2012, would be interpreting their product.  There’s no evidence they expected it to last anywhere near this long.  They would have expected that we would totally rewritten it by now–they could hardly object to us actually keeping it instead of chucking it, and just using it a little differently than they did.

              Could they?  It seems to me that it would have been a bit unreasonable for them to think, “well, it’s ok if they throw the whole thing out the window and replace it with something entirely different, but by god they’d better not reinterpret the commerce clause or they’re political heretics!”  (Which isn’t to say I approve of that particular reinterpretation myself.)Report

              • Tim Kowal in reply to James Hanley says:

                Seems we could probably go about testing the idea by going clause by clause through the documentto see if it holds up.  “Unreasonable searches or seizures”?  I’ll give that one to you.  “Congress shall make no law”?  If they wanted to leave that one up for interpretation (i.e., that “Congress” might actually mean “states”), they could have been much less specific.  Same with “to regulate commerce … among the several states.”  Might be interesting to see that analysis.

                I think the Founders would think us quite silly for engaging in the linguistic contortions we do in “interpreting their product” instead of, since we apparently dislike like the constraints in their product so very much, just “totally rewriting” it.Report

              • James Hanley in reply to Tim Kowal says:


                Precisely one Supreme Court Justice said, “no law means no law,” and he was a liberal.  In fact none of us actually believe “no law means no law,” else slander and libel can’t be constrained, nor can death threats to the president.  Now I’m as close to an absolutist as they come on free speech, right there with Hugo Black, but still, absolute ain’t quite absolute.

                As to the word “unreasonable” in the search and seizure clause.  Thanks for giving it me me, but I want to still push it a bit more.  We all know the uncertainty of knowing what would be unreasonable in the eyes of the Founders, but what if we resurrected them and found out that as a consequence of the Warren Court we were interpreting it much more restrictively than they would have’?  Would they be peeved?  Is it possible that we might persuade them that we’ve actually improved upon their understanding of the value of this rule?

                Granted they might think us silly for engaging in linguistic contortion instead of just rewriting, but A) we could point to them and say it’s really their fault for making formal change so darn difficult, and B) thinking we’re silly isn’t the same as saying we’re wrong for doing so.  In fact I’d argue there’s a world of difference, and I wholeheartedly grant you the silly, but don’t think it gets us much further.Report

              • Tim Kowal in reply to James Hanley says:


                Congress can abridge speech, it just can “make no law” respecting the freedom of speech.  Sounds evasive, probably, but I’m sure you’re familiar with the argument, whether or not you accept it.

                I don’t have much objection to the rest, and I join in your complaint (A).  But you’ve got me thinking about originalism in light of all the problems and varieties of judicial and political philosophy and in light of the 220 years since the Constitution was enacted.  The originalist claim is that there is no other reasonable way to interpret the Constitution other than through the eyes of those who ratified it.  To the objection that too many circumstances have changed and that such a cramped view would render the Constitution meaningless, the originalist rejoinder is, Amendment!!  If it’s really important, it should be no complaint that amendment is difficult!  And generally, I’d say that would be true, except along the way we realized there were cheaper ways to “amend” the Constitution, such as by “activist courts” (for lack of a more economical term) or “constitutional moments.”  So by 2012, the originalist has been robbed of his rejoinder, and is defenseless against his detractors.  The originalist is still right, but the rules changed underneath him.  He’s right but irrelevant.Report

              • James Hanley in reply to Tim Kowal says:

                As a Burkean, I’m actually quite sympathetic to this argument. My problem is that I see originalism as epistemologically flawed–both on the level of having much claim to being the only legitimate method and on the level of us actually being able to understand what the Founders meant, which itself is a twofold problem in that we are assuming a collective understanding that logically we can say almost certainly doesn’t exist and in that we inevitably interpret “their” understanding in light of “our” understanding and preferences–but that I see it as pragmatically valuable in that there does need to be some interpretive method that constrains if the Constitution is to actually to be constitutional, a constraint on majority whims.

                That is, I believe that in actual fact there is no there there, that the meanings of the Constitution inevitably–even by those who think they are doing differently–are constructed and reconstructed in each generation.  But I also believe in the crucial value of a constitution having enduring meaning, not just being reinterpreted on whims of the moment, else there is no purpose to one.

                What to do when facts and values collide?  The wish that they would not conflict has no bearing on the reality of whether they do conflict or not.

                But my rough resolution is to generally adopt Barnett’s approach.  I believe in originalism for the broad purposes of the Constitution–for which we surely can be more certain of approaching the Founders’ meaning than we can for specific applications–and allowing much more leeway in applying the specific elements to our situation, so long as that application fits within those broad purposes.

                In a case like Roe, a case that does in fact make me uncomfortable, I still come down on the side of choice because I see that broad purpose as being far more clearly directed toward preserving the individual’s liberty against state intrusion, and much less clearly directed toward creating a moral society.

                Would the Founders have allowed bans on abortion?  Probably so, but I argue–and I don’t think it’s a stretch, given, for example, the Alien and Sedition Acts–that the Founders didn’t always have the courage to fulfill their vision, and that their vision trumps their sometimes tentative and fearful application of it.

                In general I am adamantly opposed, on originalist grounds, to any interpretation that first asks, “is the right explicitly given to the individual?” rather than first asking “is the power explicitly given to the government?”Report

              • Tim Kowal in reply to Tim Kowal says:

                the point is, maybe originalism does not work if people lose access to the text. and they have. we might disagree whether hour intermediaries have done the text justice, but we have list something by being removed from our founding documents.Report

              • Nob Akimoto in reply to Tim Kowal says:

                I think the fundamental question of “who the hell do we mean by Founders” is often lost, too. The early constitutional questions were pretty explicitly between two of the most strident proponents of the constitution, with Madison lining up on legislative privilege on one side and Hamilton for executive on the other. If the authors of the Federalist Papers can’t even agree on what the Constitution actually means in practice, the concept of originalism itself is pretty moot unless we have some sort of Talmudic text that tells us what the principle authors of the document thought every single clause meant and included an annotation thereof.

                One might be able to glean what they meant based on a handful of treaties, laws and court decisions written while the framers were in power, but even then…Report

              • James Hanley in reply to Tim Kowal says:

                if people lose access to the text. and they have

                ?? I’m not sure I follow, and any response I make is likely to be based on a misunderstanding.  Is this an empirical claim or a normative claim?Report

              • Tim Kowal in reply to Tim Kowal says:

                What I mean is, think about how late 18th and early 19th century Americans might have  thought about the provisions in the Constitution.  (They probably didn’t think much about it given the relatively tiny role the federal government played in their lives, but go with it.)  There probably would have been a sense that ordinary people could access their meaning.  And they certainly had a sense of what it took to change it, having ratified the Articles, then the Constitution, then a bunch ofamendments.

                By now, the meaning of the Constitution must seem very distant to most Americans.  Most discussions about the Constitution do not even quote its text (to my great exasperation).  Though I’m an originalist, originalism makes the Constitution distant because it means people need a history lesson before they can understand the Constitution.  But living constitutionalism is no better, since it means people need to read shelves worth of reporters before they can understand it.

                And forget about amending the Constitution.  Even if the breathtaking amount of political will could be mustered, it can be bested or undone by a crack legal team and a carefully selected litigation strategy, or by a willful executive armed with a good crisis to forge a “constitutional moment” that changes our constitutional presumptions without any formal writing at all.

                So when I say that the people are removed from the text of the Constitution, I mean that they have little reason to feel they can understand it, and little reason to feel they have any meaningful role to play in changing it.Report

              • James Hanley in reply to Tim Kowal says:

                OK, a lot to chew on there.  Some elements of it I agree with immediately, but the whole requires contemplation rather than a quick response.Report

              • Michael Drew in reply to Tim Kowal says:

                TK &  JH –

                I’ve enjoyed this discussion a lot.  This is a topic I find fascinating, and I’ve tried to compose some thoughts for this exchange, but on this topic it seems I can never work back to uncover what I feel confident are really the crucial first-order questions, much less provide thoughts about an answer. To be honest, I don’t feel either of you do so either, but I’m happy to be able to sit back and see what two informed, thoughtful people have to say about it.  So, thanks!Report

              • James Hanley in reply to Tim Kowal says:

                it seems I can never work back to uncover what I feel confident are really the crucial first-order questions, much less provide thoughts about an answer. To be honest, I don’t feel either of you do so either,

                Speaking only for myself, I plead guilty as charged.  That’s one of the reasons I shifted away from studying constitutional law while in grad school–I came to see it as all socially constructed, including by those who would most vehemently deny that they’re engaged in social construction.  It was all just to post-modernist for me, and I really dislike post-modernism, being an empiricist at heart.  So the best I’m able to do is the try to point out the construction going on in facially no non-social construction approaches.

                For example, the very foundational element of Tim’s approach is the social construction of beliefs in natural law.  I don’t mean that as a jab, but as what I see as an empirical observation. In the absence of being able to construct an empirical demonstration of natural law, there is no option remaining to him except to create a social construction about it.  And believing firmly in its validity and value, he’d be remiss if he didn’t (which is why this isn’t intended as a jab).  Now I’m sure he doesn’t like po-mo crap any more than I do, and probably even less, but phrased in those terms I suspect he might not fully disagree, even though he would, I presume to venture, emphasize that there is a real thing at the core of his construction, and that thing is not itself constructed.  That’s where he and I would part ways, of course.

                And, Tim, If I’ve misrepresented you here, please correct me.  I’m not trying to claim definitively how you would respond, but just my best guess at your response.  But my best guesses about other people have a distressing tendency to be wrong.Report

              • Tim Kowal in reply to Tim Kowal says:

                James — I won’t take any of that as a “jab.”

                I’m not sure I like the label “social construction,” but it will serve for now.  I do place stock in John Adams’ observation about our political system being arranged for a religious and moral people.  We have to share some common values for a political organization to work.  We’ve now found that people don’t need to be “religious” in the classical sense.  As I keep alluding to, atheist Objectivists tend to align fairly closely on many of the important issues with religious conservatives.

                You’re right, I do believe there is something “real” at the core of the construction.  But that is a journey that leaves a lot of people behind, as you say.  And again, many atheists have stipulated to a lot of key principles about human values and morals that are part of the “social construct,” so it’s not an entirely necessary debate to have.

                So, you’re not far off here, James.  Be not distressed.Report

              • Michael Drew in reply to Tim Kowal says:

                To be clear, I was not saying that neither of you have been able to trace these matters to the first questions that explicate the issue for you, or hell, perhaps the objectively right ones for all I know.  You just haven’t gotten to the ones that do that for me.  But I’m really only starting to sort out the general vicinity of where those are even located for me, so I might not even recognize it if you had.Report

              • Michael Drew in reply to Tim Kowal says:

                Tim on the shared values thing, I think you are spot on.  The problem is, from some research I have done it seems quite possible that we simply can’t share with the Founders the values they actually thought the structure they were setting up rely upon.  I’m not going to get into more detail than that now, but I do feel like this could be a potential problem for arguments about the prescriptive force on law enforcers today of eighteenth and nineteenth century understandings of the meaning of the Constitution.Report

              • Tim Kowal in reply to James Hanley says:


                The “first-order questions” are closely related to the interpretive method part of the discussion, sure.  James and I had a pretty heated debate touching on some of those between our two blogs about a year and a half ago, touching on some of that.  After that, and after re-reading Willmore Kendall and George Carey’s The Basic Symbols of the American Political Tradition a little later, I gave myself a homework assignment to read more into the intellectual development of American political thought between the Mayflower Compact and the founding documents, in hopes of better understanding the “first-order questions.”  Still on my to do list, though, unfortunately.

                Leaving the answers aside, some of the questions themselves I think we can immediately agree on.  How to prevent the excesses of rule—even self-rule.  And yet how to effectively rule even within prescribed limits.  And often most relevant to today’s ears, what are rights, which of them should be protected against the will of the majority, and which of them in fact are in fact protected by our founding documents (the latter question being the subject of the above discussion between James and me).  This entails even deeper questions into the nature and origin of rights.  As mentioned above, even theists (like Kyle and me) can disagree on things like natural law and natural rights.  But then again, in large part, I find agreement with atheists like Tim Sandefur, whose Objectivism serves as a basis for natural rights.Report

              • Michael Drew in reply to Tim Kowal says:

                Time-constrained at the moment, Tim, but that sounds interesting.Report

          • Jeff in reply to James Hanley says:

            I think that it’s pretty certain that some (Jefferson among them) clearly did not.Report

  7. Tim Kowal says:

    So Mr. Gingrich appears to be grandstanding rather than offering something of substance, at least in the cases described here. But it demonstrates not merely the use of the courts as a political football and unpopular rulings as political whipping boys, but rather a willingness to defy the rule of law. If the President can ignore enforcing the ruling of a court at his pleasure, then why should we have courts at all?

    I’d agree that he is not offering a specific course of action, but that does not mean there is no substance here, or that he is using particular “unpopular rulings” as rhetorical devices.  While consensus has been elusive, let’s not forget the nature of conservatism’s claim with respect to law: law is objective, revealed through God and nature.  Man’s expressions of that objective, natural law through his political institutions — legislatures, executives, and courts — are mere approximations.  Nonetheless, we generally honor those approximations even where we happen to believe they fail to comport with the objective, natural law.  So long as they are enacted through due process, we generally agree to abide by them, because that’s about all we can do.  Were it otherwise, we could not have a system of laws in the first place.

    However, certain expressions of these institutions deviate so violently from the objective, natural law that to call them “laws” merely because they were enacted through a particular procedure would work a great moral wrong.  This was so with Dred Scott, and, it is the claim, anyway, it is so with Roe.  And with some other cases, maybe, but nowhere as gravely as with Roe.

    So I must reject the notion that bashing Roe is mere pandering or whipping up the base or political football.  There is a real, substantive debate that the decision undermines our entire process of law, and thus to challenge its authority is quite the opposite of “defy[ing] the rule of law.”

    As to beating up on the courts generally, or as to their more trivial decisions, again I’d have to say that I am one of those who believes — and frequently on these pages argues — that the judiciary’s missteps are right at the heart of the modern mess in American government and politics.  Sure, Newt is not offering a specific plan to fix the problem aside from chiding the courts, but I can’t fault him for it, because I don’t think such a plan could possibly be offered.  Other than appointing judges who won’t “legislative from the bench,” if you’re not sick of that expression.Report

    • Al in reply to Tim Kowal says:

      Sure, Newt is not offering a specific plan to fix the problem aside from chiding the courts, but I can’t fault him for it, because I don’t think such a plan could possibly be offered.

      But why not?Report

      • Tim Kowal in reply to Al says:

        Hard to answer this.  Because in America’s relatively short history (or long history, depending on how you look at it), a number of political philosophies have taken hold at different times that influence the way Americans’ political officials, including judges, exercise their office.  Shall our judges be Marshall or a Story or an Iredell?  Or a Holmes?  Or a Brandeis, or a Warren?  Or a Thurgood Marshall, or a Rhenquist, or a Sotomayor?  Shall we be originalists, or pragmatists, or positivists, or realists, or living constitutionalists?  Should the Court change the way it interprets the Constitution in light of the second industrial revolution of the 19th and 20th centuries?  Or should it leave that to the people to effect through the amendment process?  Should the courts be a force for change, and if so, what kind of change is appropriate for the courts to effect?

        There is just too little consensus on all this in the legal academy.  We’ve got little bits and pieces of all of this simmering in a giant soup that is our court system.  How do you go about changing that?  If there’s an angle here, it’s inter-generational.  But how do you effect inter-generational change?  Through education.  And education’s broken for similarly vexing reasons.Report

    • Tim Kowal in reply to Tim Kowal says:

      To be clear, I’m not endorsing the more specific plan that Newt did suggest, i.e., having the President and Congress effectively “overrule” the Court’s decisions.  Newt says some worrisome things sometimes.  So yes, I share the concern about ignoring decisions that are “fundamentally wrong,” unless and until we have a discussion about what “fundamentally wrong” means.  I think the number of such decisions is probably limited to single digits.Report

      • James Hanley in reply to Tim Kowal says:

        I would add that the problem with Newt’s approach is that he is implicitly proposing that this discussion is resolved by a majority vote.  That would mean that ultimately a majority vote in favor of Obama would mean Roe is in fact good law.  We have a constitutional structure in place for having this debate about law, which is the amendment process.  This debate about Roe has been going on for 40 years now, and the amendment is not yet in sight.  That doesn’t mean Roe‘s opponents are wrong; it just means they can’t claim to have won the argument.  (And if we want to say that it’s unfair that they have to pass an amendment, while Roe‘s supporters only had to convince 5 judges, let’s not forget the numerous opportunities opponents have had to convince 5 judges, and failed to accomplish even that.)Report

    • Burt Likko in reply to Tim Kowal says:

      Ooh, this is delicious. Thank you, Tim.

      A quick one before I have to go back into my jury call — is it possible for an atheist to discern the natural law? If not, isn’t the very notion of law as a reflection or expression of God’s perfect morality an Establishment? Or does an atheist merely obey the positive law (or not) and never fully participate in the True Law?Report

      • Tim Kowal in reply to Burt Likko says:

        Ask an Objectivist!  They will tell you absolutely it is.  I especially enjoy Tim Sandefur on the subject.  Here’s his SSRN page:

        But funny you should mention this:  One of my long term projects is to craft an argument something to the effect that the DOI and Constitution are indeed something like an establishment of religion.  Based on some of our past discussions, you can probably see the angle I’m going for.Report

      • Kyle Cupp in reply to Burt Likko says:

        I’m a Catholic, but I’m not sure I can discern the natural law.  Maybe that makes me a bad Catholic or means I’m bad at this discernment, or perhaps what is called the natural law is little more than a construct created to make sense of and give order to the world.Report

        • Tim Kowal in reply to Kyle Cupp says:

          I’ve never understood why people wax ignorant about the natural law.  Does human life have intrinsic value?  Is human happiness an intrinsic good?  Is deceit intrinsically evil?  That gets the ball rolling on values.  For rules of logic, we need no institutional authority to tell us that the best theory is the one that explains the most data, that contradictions ought to be avoided, etc.  As for behavior, we have the golden rule, the silver rule, and so on.

          This stuff is obvious and pretty noncontroversial to the average person; no trip to the local law library necessary.Report

          • James Hanley in reply to Tim Kowal says:

            Does human life have intrinsic value? 

            To humans perhaps, subjectively.  Objectively?  To any non-human life that exists?  Who can say?

            Is human happiness an intrinsic good?

            Again, subjectively, to humans. Is human happiness an intrinsic good to orangutans?  I’m sure orangutan happiness is.  Is their happiness an intrinsic good to us?  Why or why not?

            Is deceit intrinsically evil? 

            “No, Liberal Gestapo PC Police, Mr. Kowal is not hiding in my basement.”

            “No, that dress does  not make you look fat.”

            “I apologize; it was my fault.”

            Good question; is deceit intrinsically evil?

            In all seriousness, those are the reasons I wax ignorant about natural law.Report

            • Michael Drew in reply to James Hanley says:

              James, I was thinking about this same thing.  And I very much am on the same page with you.  Intrinsic is a big claim.  But what about just equal value?

              I know I value my life and lack of chronic pain.  Is there a basis in that in why I oughtn’t to wish you not to retain those things for yourself (your copies thereof), inasmuch as I have no reason to think you value them less than I do?  Is there value in our valuing of things that we each have to acknowledge in the other, accepting that we acknowledge that we each exist and are basically similar beings, inasmuch as we value many of the same things, or in any case that our subjective pleasurable experiences of valuing things are basically of the same magnitude?

              Does have robust moral consequences, this realization that you are not unlike me in your ability to experience pleasure and pain? Or is it just as possibly illusory as the notion that we each have intrinsic value in our persons?  Or is it functionally the same thing?  And if so, is it true or not?


              • Michael Drew in reply to Michael Drew says:

                Or is it just as possibly illusory as the notion that we each have intrinsic value in our persons?

                What I mean here is, are the moral consequences of the realization of our similarity possibly illusory?  Is it the same claim as saying that all human life has value to say that because we have similar experiences of pain and pleasure, we shouldn’t wish for pain for others that we would desperately want to avoid for ourselves?  (Writing it out that way, I think it very much isn’t.)  But if so, is it all true?Report

              • Jeff in reply to Michael Drew says:

                we shouldn’t wish for pain for others that we would desperately want to avoid for ourselves?

                What if the “others” desire that pain (masochists, for example).  To every rule, there is an exception, and that, to me, invalidates any “natural law”.Report

              • Michael Drew in reply to Jeff says:

                “that we would desperately want to avoid for ourselves”

                I’m not arguing for Natural Law, I’m just wondering if there are implications of these subjective observations.Report

              • Michael,

                My thoughts run along a similar route, but I don’t think I’ve derived the answers yet. Let me know if you persuade yourself of the answers, then you can try to persuade me.Report

              • Michael Drew in reply to James Hanley says:


            • Tim Kowal in reply to James Hanley says:

              I am talking about humans, or more accurately, moral beings.

              As for conflicts in deceit over loss of human life, another aspect of the natural law is hierarchy of value. Just as it should be intuitive to say that life and honesty both have intrinsic value, it should be intuitive to say that life has more intrinsic value than honesty; that while generally these values stand on their own, when they are put into conflict, the lesser should yield to the greater.  This gives us the answer to the hypotheticals:  yes, it is moral to lie to the Gestapo, to liberals, our spouses, etc.

              Ok, maybe I got a little excited there at the end.Report

              • Jaybird in reply to Tim Kowal says:

                Unless I’m mistaken, I see a very effective explanation that people who disagree with you in practice are not, in fact, moral beings.

                Is that explanation hiding anywhere?Report

              • Tim Kowal in reply to Jaybird says:

                That’s the “break glass in case of emergency” explanation.Report

              • Jaybird in reply to Tim Kowal says:

                Then you’re begging the question.Report

              • James Hanley in reply to Tim Kowal says:


                OK, I’ll accept the “value of life trumps value of honesty” claim.  I, too, believe in such hierarchical structures, to some greater or lesser extent that I can’t always specify.

                But the ranking depends on those things being intrinsic values, and of course doesn’t itself demonstrate that these values are intrinsic, and not constructed.  And I think we are, or at least I still am, on that question. To wit;

                I am talking about humans, or more accurately, moral beings.

                What I say next I don’t say just to argue, but as my sincerely held position.  I’m not saying I’m right and you ought to accept it, but I hope you can ponder it well enough to get where I’m coming from even though you don’t agree.

                First, I don’t think humans are necessarily the only moral beings.  I think the field and zoo studies of chimpanzees, which include some very clever experiments, demonstrates that they are in fact a moral species by human standards. See, for example, here.  If we’re going to accept these claims of intrinsic value on the basis of humans being a moral animal, recent findings persuade me that we can’t avoid also making claims for the intrinsic value of–at the least, and not necessarily limited to–chimpanzee life, unless we resort to some very uncomfortable ad hoc distinctions.

                Second, I have doubts about the intrinsic moral value of life itself.  I know that’s a fairly radical claim (and I’m not a nihilist), but we’re now finding out that multi-cellular life just might not be that extraordinary at all.  Tack us on as one of many possible long-term (or perhaps just mid-range?) outcomes of the process of natural selection, and the specialness with which we see ourselves might be nothing more than the product of having evolved the capacity to think in meta form about ourselves.Report

              • Tim Kowal in reply to James Hanley says:


                I suspected something along the lines of the first point.  That’s why I walked back the definition a bit to say “moral beings.”  I won’t take a position on chimps, but I’ll go as far as to say I don’t think you’re crazy!

                We part ways on the second point, but that’s to be expected given our respective precommitments.Report

              • James Hanley in reply to Tim Kowal says:

                We part ways on the second point, but that’s to be expected given our respective precommitments.

                Yes, I don’t think there’s really any bridging of that gap.  All I can ask is that you see it as an honest position, and you seem to be giving me that, for which I am appreciative.  And for what it’s worth, I get your position, and when I held similar precommitments I surely would have made similar arguments (had I been sophisticated enough at that time to make such arguments).Report

              • Tim Kowal in reply to James Hanley says:

                Absolutely.  I’ve never had reason to doubt your sincerity.Report

          • Kyle Cupp in reply to Tim Kowal says:

            The average person assumes these, to an extent, but things get messier when we inquire into how and why people come to accept these.  Natural law theorists make the case that, all things being equal, anyone can discern that there’s a natural law that underlies these values and principles, and this law is why people have a general agreement about at least some values and principles.  Lewis, if I recall, made this case.  And there’s clearly some agreement.  But what is this natural law?  It is said that, at its core, it means doing good and avoiding evil.  But what makes something good?  Well, a number of natural law theorists answer that good is that which is in accord with nature.  And that answer, I dare say, is controversial.  What do we mean by nature?  Why is nature, in the sense of natural law, ethically normative?Report

            • Tim Kowal in reply to Kyle Cupp says:

              Well, yes, of course these things always get dicey when you’re into the onion that deep.  I’ve read some of Ayn Rand’s objectivist epistemology.  Not very satisfying.  Positivism is famously problematic when you start asking it similar tough questions.  When you’re discussing values, you’re just not going to get very far unless you stipulate to some of the fundamentals.  You don’t get to prove the fundamentals from the particulars, which is what the empirical-driven modern approach loves to do.  You have to assume the fundamentals, as I’ve discussed with Burt around these parts a couple of times.

              So yes, Kyle, I guess I am a bit confused that you as a Catholic seem antagonistic to the natural law.  I don’t expect to share some of the fundamentals with atheists, but you, Kyle?  You broke my heart.Report

          • Jaybird in reply to Tim Kowal says:

            Can we use Natural Law to explain how we can tell the difference between a matter of morality that we have jurisdiction over in the lives of others and a matter of taste that others have no jurisdiction over in our own lives?Report

            • Kyle Cupp in reply to Jaybird says:

              Proponents of Natural Law would say “Yes.”  Look no further than the attempts to prevent same-sex couples from marrying on the grounds that 1) homosexuality is contrary to nature and 2) marriage has an essential meaning based on the natural complementarity of the two sexes.Report

              • Jaybird in reply to Kyle Cupp says:

                My problem with their “yes” is that it presents identically to “Natural Law means that I have the right to tell you how to live and you don’t have the right to tell me how to live”.

                It’s like watching a Baptist and a Presbyterian argue over the difference between immersion and sprinkling except they’re talking about passing laws with real jail terms as potential punishments for disagreeing.Report

              • Liberty60 in reply to Jaybird says:

                But aren’t all laws essentially based on some moral postulate somewhere?

                “All men are created equal” is pretty much the founding creed of our civic culture, yet its really just a statement of faith.

                If not  a set of laws based on moral codes, what would you propose in their place?Report

              • Jaybird in reply to Liberty60 says:

                Oh, I’m 100% down with laws based on “moral codes”.

                My problem is that I want these moral codes to present somewhat differently than “I have the right to tell you how to live and you don’t have the right to tell me how to live”.

                “Moral codes” can bring about all of the following:

                • “Women are not the equals of men and ought not be treated as such.”
                • “People who break any of the following laws (examples) deserve the death penalty.”
                • “Civilized slavery is preferable to uncivilized savagery.”

                And I haven’t even left American History yet. There are all kinds of really interesting “moral codes” out there.

                I’d enjoy reading arguments about why and how *THIS* one is better than *THAT* one that don’t strike me as begging the question the second they leave the starting gate.Report

              • Liberty60 in reply to Jaybird says:

                I wouldn’t even try!

                “Women are equal to men” is another moral postulate; Same with “Gay orientation is equally deserving of dignity and acceptance”.

                Moral codes can’t be proven, only asserted and either accepted or rejected.

                If it sounds flawed, it is. I just don’t know of a better alternative.Report

    • Kyle Cupp in reply to Tim Kowal says:

      So I must reject the notion that bashing Roe is mere pandering or whipping up the base or political football.  There is a real, substantive debate that the decision undermines our entire process of law…

      There’s substantive debate to be made, but I don’t look for such debate to come from most politicians or the GOP establishment.  For all the talk about how horrible Roe and U.S. abortion policy are, they’ve never made changing them a priority.  Frankly, I don’t believe they really care about the issue that much, and I suspect it’s more important to them as a vote-getter than as a matter of principle.Report

      • Will Truman in reply to Kyle Cupp says:

        How would you propose that they try to change them? They can try to change the court, which they do. Otherwise, they are bound by the court and often passing what laws they can. It seems to me, anyway.Report

        • Kyle Cupp in reply to Will Truman says:

          Before all else, they have to build a consensus among the public that abortion should be prohibited by law.  Until then, any and all policy victories will be fleeting.  They can overturn Roe, but something like will return unless the vast majority of the public oppose any such thing.

          How do they build that consensus?  They won’t, not unless they prove to have the stronger argument and have acceptable solutions to the moral concerns voiced by pro-choicers.  Really, the only way they can win is if the country ceases to have an effective pro-choice movement, but I don’t see that happening, especially when most pro-lifers make no consideration that pro-choicers actually have serious, legitimate moral concerns.Report

          • Will Truman in reply to Kyle Cupp says:

            Where I think I disagree is that they are trying to change minds. I think that they are working both ends. It just so happens that both have obstacles.Report

            • Kyle Cupp in reply to Will Truman says:

              Oh, sure, they are trying.  Some of them, anyway.  The politicians? Not so much.  Consider this: when Bush wanted to build support for the invasion of Iraq, he and his administration made the case again and again and again.  Forming opinion was a huge priority for him.  We haven’t seen that same kind of coordinated campaign of persuasion from the GOP in defense of pro-life principles.Report

              • Will Truman in reply to Kyle Cupp says:

                Yes, but GWB was building support for a war that was possible. You’re placing it on the pro-life folks to make the case over and over again for something that cannot be done democratically. What can be done democratically, they often are making the case for. Late-term, ultrasound requirements, and Personhood (which is reckless precisely because it is not inconsequential – at least in the short term until the courts sort out what exactly it means).

                (Also, an oddity: I was budged from my once extreme pro-choice position by none other than Rick Santorum. He was making the case against late-term. His words stuck and I was sold on it. Believing that even some abortions were barbaric was something of a watershed for me. It put the camel’s nose in the tent, so to speak. Ultimately, I do fall on the side of legal access to abortion, but he changed my perspective. I had no idea who he was at the time. But it probably does stand as a reason I do think that politicians are trying to sell what they can.)Report

              • Kyle Cupp in reply to Will Truman says:

                Santorum’s a voice crying out in the wilderness.  He’s one of the few Republican politicians that seems to give a damn about pro-life principles.  On the whole, though, the GOP doesn’t make the abortion issues much of a priority.  In a way, outlawing abortion would be against their interests.Report

    • Burt Likko in reply to Tim Kowal says:

      In light of this concept, as cogent an articulation of the philosophy of natural law as I’ve read in months if not years:

      …certain expressions of these institutions deviate so violently from the objective, natural law that to call them “laws” merely because they were enacted through a particular procedure would work a great moral wrong. This was so with Dred Scott, and, it is the claim, anyway, it is so with Roe. And with some other cases, maybe, but nowhere as gravely as with Roe.

      If the legal tolerance of abortion is a great moral wrong of such a magnitude that we must not call it law at all, then it matters not at all whether abortion became legally sanctioned by way of a judicial decision or an act of the legislature or a ballot initiative. The procedural mechanism used to reach that goal is really irrelevant.

      So aren’t you now adoptiong the concept of substantive due process?Report

      • Tim Kowal in reply to Burt Likko says:

        At times over the years, I may have engaged flirted with arguments, in the vein of Scalia or Bork, that substantive due process is a bit of nonsense.  Or that the rights it would protect are more properly covered by the privileges or immunities clause.  At bottom, though, I adhere to my training under John Eastman, that due process of law is part of a larger tradition that contemplates a meaning of “law” that enshrines more than merely “being enacted by sworn officials according to prescribed procedural rules.”

        Of course, anyone who adopts the notion of substantive due process makes a lot of work for himself to be able to articulate what that “substance” is, and what it is not.  See below: None of this stuff is ever easy, is it?  And that’s a problem in itself because, as I’ve argued, the people need to feel they can understand their government and their laws.  And yet here we are, a bunch of smart guys spending a lot of their free time to discussing this stuff, and we often never get much past hashing out our opening statements.  It’s all very frustrating.Report

        • Kim in reply to Tim Kowal says:

          speaking of legal questions… what governs whether a civil trial is “trial by judge” or “trial by jury”? I know Widows and Orphans court is always trial by judge, and so are reassessments, at least around here,…Report

        • Burt Likko in reply to Tim Kowal says:

          Indeed. And the big objection to substantive due process (articulated well by Scalia, Thomas, and Alito) is that it does leave the door open to writing individual value judgments by the judiciary into the law. The test for substantive due process rests heavily on the test restated in one of the Jack Kevorkian cases, Washington v. Glucksberg (1997) 521 U.S. 702: first, is the claimed liberty interest “deeply rooted in this Nation’s history and tradition,” and second, it must be susceptible of being carefully defined and described.

          At the philosophical level, if we’re going to formally write natural law in to the Constitution by way of substantive due process, that obliges us to make a deep inquiry into both abstract principles of morality with the goal of rendering them very concrete, and then framing those now-congealed concepts within a broad analysis of our national history. Even the most enthusiastic member of the “living Constitution” school would, or at least ought to, blanch at the subjectivity inherent in such a project.

          For my part, I think we can’t ever get completely away from the idea that judges are within bounds finding unarticulated rights in the Constitution. Maybe by SDP, maybe by the P&I clause, maybe by the 9th and 10th, maybe (as I’ll start tackling over the weekend) by a structural analysis of Article I, sections 8 and 9. At the same time, rooting the limitations on the powers of government, and thus the extent of individual liberties, in a framework of affirmative claims about moral duties of individuals strikes me as incongruous with the idea that the Constitution exists to describe a government with limited powers.Report

  8. Jeff says:

    Some time back, I made a comment on this here blog that the Tea Party was inherently racist.  The general response was that the racists were just a few outliers.  In view of how the TP is responding, not to dog whistles, but pretty much air raid sirens, saying (in Mr Atwater’s famous words) “N*, N*, N*”, I wonder if I would still get that response…Report

    • Burt Likko in reply to Jeff says:

      Stay tuned. I’ve got another thought on Gingrich’s recent antics sure to upset everyone.Report

    • Mark Thompson in reply to Jeff says:

      A few possible responses I could see (I am neither endorsing nor dismissing 1 or 3 here, FWIW; 2, however, I think is clearly wrong):

      1. Tea Partiers are reflective in part of their local culture.  South Carolina’s local culture has a strong racialist component that might not exist in other regions of the country to nearly that extent.

      2.  The air raid sirens/dog whistles were absolutely no such thing and were justifiable on purely race-neutral grounds.

      3. You have to distinguish between the Tea Party and conservatism.  The Tea Party started as a fairly smallish libertarian movement but quickly attracted hordes of angry conservatives (this much is indisputably true, I think, by the way).  Not all conservatives are TP’ers, and not all TP’ers are conservatives, and not all TPers are racists, nor are all conservatives racists, but those conservatives who are TP’ers seem to be disproportionately likely to be racist.  As a result, there may be a number of racists in the TP, but the TP is not itself inherently racist in a manner different from the notion that conservatism or libertarianism is inherently racist.Report

      • Robert Cheeks in reply to Mark Thompson says:

        Here I thought the Democrats were the ‘racists,’ ’cause MLK was a registered Republican? It’s the libruls who are fixated on ‘race.’Report

      • David in reply to Mark Thompson says:

        I am amazed by the amount of hair-splitting that your argument seems to require to reach the desired point. As I understand it, your Tea Party movement contains at least one campaign platform involving the collecting and mass deportation of a group of people in your country based on their common characteristics of racial appearance and primary language spoken of Spanish rather than your rather bastardized version of the Queen’s English. They have already been instrumental in the passage of laws tailored to this desired effect in several of your states. I fail to see how this can be described as other than racist.

        In the larger context, it seems from my admitted outsider perspective that you Yanks are as a general rule uneducated in the content of your constitutional document and quite willing to ignore it whenever the mood suits you. That you have a presidential candidate willing to do so is most unsurprising to me.Report

        • Mark Thompson in reply to David says:

          I don’t think the Tea Party really has a platform beyond “cut government,” at least not officially. There is no one formal organization called the “Tea Party” that speaks for them all or even for most. That said, it is undeniable that most TPers would support the provisions of which you speak. As a functional matter, most TPers seem to now be movement conservatives who were and are particularly angry. The question is “angry at what”?

          Officially, it is just “angry at spending,” which is clearly the unifying theme for all TPers. But it seems clear that for the majority, though by no means all, that anger extends to a lot of other things. The SC debate and reaction to it suggests at least one of those things is “angry at minorities.”

          It strikes me as significant that the folks of whom “angry at minorities” is an accurate description are basically just movement conservatives operating under a new label. That may or may not mean the TP is inherently racist- again I offer no opinion on that- but it strikes me as an important question for libertarians and conservatives both, even if neither are themselves inherently racist, to wit: why do those two sets of messages seem to be attracting so many with such deep racial resentments?Report

          • Michael Drew in reply to Mark Thompson says:

            Ignore is unfair. People charged with enforcing wrestle with the meaning of the document publicly, and make their reasons known.  We have an open judiciary, and we have a free and open process of intellectual debate on legal interpretation.  Major pieces of legislation get full constitutional vetting under these institutions. The ‘ignore’ charge is totally bogus.Report

            • Michael Drew in reply to Michael Drew says:

              Whoa, responded to the totally wrong comment. Meant as an entry in James’ and David’s discussion.Report

              • Michael,

                Good argument.  I was taking David’s comment as a critique of the masses and the statements of politicians who are pandering to them.  But you’re right about the larger process of our system.  And thank god for that, given our masses and our panderers.Report

              • Michael Drew in reply to James Hanley says:

                The best argument for the proposition is from executive overreach (assassinations, starting wars without authorization, etc.).  But to me, there is ample evidence that the Constitution is not ignored; it is either interpreted wrongly or interpreted wrongly willfully.  You can say that’s functionally the same thing, but you really cant go to the trouble of concocting a bogus argument for why the Constitution allows what you’ve done or want to do (which was done on Awlaki by the OLC and on Libya by the State Department’s Legal Adviser) while also ignoring it.  So it’s really just not the case that the Constitution is ignored.  The argument ought to be that its actual requirements are disregarded.Report

              • David in reply to Michael Drew says:

                I do believe you’re more than willing to ignore your document when it suits you. It takes your courts a relatively long time to decide when facile violations of certain clauses have occurred, and often even your courts display nothing resembling common sense in following what is a relatively short and plainly written document. I have read quite a bit on the disgusting and corrupt manner in which ex post facto changes to your patent and copyright systems have been passed. Your anti-homosexual laws would appear to be violations of the basic principles of the equal protection statutes of your constitutional document, yet passed overwhelmingly and are still in effect. Your right to free expression is regularly curtailed for private citizens while expanded for fictitious entities. Your conservative party is constantly trying to use government funding to create displays of a religious nature and religious allegiance, despite a clear order for separation in your constitutional document. A brief wikipedia check indicates that at least eight of of your states still require a religious test in order to hold office, and you regularly require your citizenry to swear an oath to a deity in your allegiance pledge and oaths of office. Your Congress is supposed to be the body to declare war, and yet you have invested so many emergency powers in the President to wage wars that this seems meaningless. I believe the last actual declared war you were involved in was that little fracas in Vietnam, and yet you have had troops in active combat ever since?

                To say that your constitutional document is not ignored, but that its actual requirements are merely disregarded, would be a hair-splitting attempt to say the same thing in a different manner. The document is proven to be effectively meaningless in either case.Report

              • Nob Akimoto in reply to David says:

                This is actually going a bit too far…but before we go further, can we have an idea of what legal system you yourself base your experience on?Report

              • Michael Drew in reply to David says:

                You use facile where I think you mean facial.  I’d like to reclaim the former if I could.Report

              • Michael Drew in reply to David says:

                …But yeah, you restate my explicitly made distinction between ignoring and refusing to be bound by something well.  You don’t have to care about it, but I’m going to insist that it is correct.Report

              • David in reply to David says:

                So you can say you ignored the document itself, or you ignored what the document says, and it is possible to believe that there is an effective difference between the two statements?

                If you claimed your constitutional document did not exist, that would be mad. If you claim that you are ignoring the document’s existence, then by definition you are also ignoring what it says. If you claim to be merely ignoring what it says, then the existence of the document is rendered meaningless, since it does not matter what waste of ink you Yanks got up to placing the words on parchment in the first place.

                I do believe that after trying to comprehend the point you are defending, I am rendered in need of a stiff drink!Report

          • MFarmer in reply to Mark Thompson says:

            I think we need some evidence that TPers are “angry at minorities” before we assume this to be fact. What I heard at the debate was anger at a system which claims to help the poor, but actually hurts the poor.Report

        • James Hanley in reply to David says:

          it seems from my admitted outsider perspective that you Yanks are as a general rule uneducated in the content of your constitutional document and quite willing to ignore it whenever the mood suits you

          How about that?  Your outsider perspective precisely matches my insider perspective!Report

      • Kim in reply to Mark Thompson says:

        You should see Detroit. Or Hanover. There’s plenty of racism most any place you go. It just don’t always show.

        In WV, you may still meet folks who don’t want their daughter marrying a black man, and are like to admit it. They’re a mite bit more honest than most cityfolk, I think.Report

    • MFarmer in reply to Jeff says:

      The TP is not inherently racist. They are no more or less racist than the general population. Most of the time, when someone has no good ideas to promote in response to a political movement they oppose, the person resorts to smear campaigns and demonization. I don’t know if you are doing this here, but it sure looks like it.Report

  9. Jeff says:

    1) South Carolina’s local culture has a strong racialist component that might not exist in other regions of the country to nearly that extent.

    That might fly if there was outrage in any other part of the country.  That there is not undermines that thesis.  From the outset, Perry, Paul and Santorum would get the audience cheering with some really awful remarks, and we liberals would be told, “It’s only one or two people cheering”.   The caucus and the primary have shown that the voting GOP has gone oft he rails.

    2) is pretty indefensible on its face.

    3) The Tea Party started as a fairly smallish libertarian movement but quickly attracted hordes of angry conservatives (this much is indisputably true, I think, by the way).  

    I would rather say that the Tea Party was coopted by Fox et al as a haven for the “angry conservatives”   Libertarians hated to cede this fact, but I think by now they’ve gotten the message — this is not your group anymore.Report

    • Mark Thompson in reply to Jeff says:

      As I said, I was neither endorsing nor dismissing those arguments – and yes, 2 is definitely indefensible from my POV, even though it’s obviously the response that will most often be given.  I think 3 has some interesting implications though, if true (and I’m not at all certain that it is).Report

      • Stillwater in reply to Mark Thompson says:

        Personally, if the question is what motivates movement conservatives (and even conservatives more generally!), framing it around two competing perspectives is helpful. One presupposes not only a racial bias but a racial motivation as the fundamental basis for policy choices and activism since -say – 1964; the other doesn’t. I think you’d be surprised at how the answers fall out. And which hypothesis provides the most concise, consistent answers.Report

        • Still – there are few things that would surprise me, but I’d love to see your analysis.Report

          • Stillwater in reply to Mark Thompson says:

            Oh … the analysis. The HARD part. I’m not sure I’ve seen a single analysis that comprehensively covers all the ground, so I can’t refer you to anything specific (tho Corey Robin discusses a lot of these issues in chapter 6 (I think) of The Reactionary Mind, as does Perlstein in Nixonland).  First, the perspective I’m coming from is purely political: what motivates movement conservatives to support the policies they do and vote the way they do? So I’m inherently talking about something beyond the normal burden of evidence since we’re talking about internal states that don’t admit direct analysis. So correlations and the origins of certain rhetorical patterns and the surrounding issues that language is describing are about all I can provide. Could I make a decisive argument supporting the above thesis? I don’t think so. Yet, I’m convinced it’s largely accurate.

            Second, what I’m thinking of is how the CRA and civil rights progress made around that time led directly to racial backlash that materialized in (at the time very overt expressions of) racially motivated policy positions: forced desegregation of schools that directly led to the wedge issue of public school funding (and the conservative attack on ‘education’); desegregation in schools as a direct cause of the rise of Christian activism within movement conservatism (and the resulting rise of Christian Conservatives as a force in politics – think Viguere here); the rhetorical tool of promoting states rights as a way to roll-back equality measures; Reagan’s and many others overt use of racism and dog-whistles for which pander to an already existing racism within a large segment of the population.

            There are certainly other issues that movement conservatives are interested in – gay rights, abortion rights, women’s rights generally, some others – but they’re of a piece with racial issues, at least rhetorically and wrt the role those issues play in motivating the base. But the ‘small government’ theme, as well as the ‘limited federal power’ theme expressed by contemporary conservative rhetoric is overwhelmingly – in my view – determined by racial concerns. Some person other than myself might not call it racist. I would.

            I’ll see if I can put something more comprehensive together and send it to you.Report

            • I’m not sure I’ve seen a single analysis that comprehensively covers all the ground, so I can’t refer you to anything specific

              Ahem, I think that’s why Mark is asking you to do it.  Note the “your” analysis phrasing rather than “the” analysis.  Now hop to it and submit your guest post to him.Report

              • Stillwater in reply to James Hanley says:

                Oh, but James, it isn’t my analysis. It’s just a generally accepted fact amongst lots and lots of people – and ably shown by the history of race and politics in the US. The dog-whistles are evidence enough. So is the Southern Strategy, so is the race-baiting language Reagan used as well as lots and lots of other conservative politicians.

                From my pov, the question of whether the TP or any other conservative ‘movement’ is racially motivated isn’t even open. Race has been a central feature of conservative rhetoric at least since Nixon. And I’d have a hard time demonstrating that in a comprehensive way short of a book-length treatise to someone who might not have been paying attention to conservative rhetoric since, say, Nixon.

                So now I’m unsure what topic I’m supposed to write on even is. Is it a demonstration that race is a central feature of political rhetoric and hence a central force behind movement conservatism? I thought that was entirely obvious and that I was simply getting Mark caught up to speed on an otherwise uncontroversial issue.

                Help me out here.



              • Pull all the threads together and write an essay persuading us of the thesis.  If you think it’s uncontroversial, just look to the racial code thread.Report

              • Stillwater in reply to James Hanley says:

                Heh. Yeah. I think I’ll have to pass. If someone denies that the Southern Strategy (or any number of other things) was an appeal to racism, I don’t think any I could say will persuade him. I mean, if a simple recitation of campaign strategies and political language isn’t enough to demonstrate the point, then we’re reduced to a ‘you have your facts, I have mine’ type of argument, where nothing constitutes a fact.


              • You don’t need to address that particular guy, and surely you’re correct that you’re not going to persuade anyone who’s not already leaning your way (and FWIW, I do lean your way on that).  Regardless, persuasion happens not overnight, but as the result of sustained engagement.  At the very least, a well-written piece, even of just 1000-1500 words, can narrow the issues enough that you can get a good chunk of those you’re hoping to persuade to start talking about the same things you’re discussing.Report

              • Still,

                Don’t focus on the southern strategy.  Show that racism has been a consistent theme since 1964, up to the present day.  Like Mark, I’m already leaning your way on this,but a nice overview essay arguing the point would be valuableReport

              • Jaybird in reply to Stillwater says:

                My first-hand experiences with Republicans have all involved Rocky Mountain Republicanism (which is very dissimilar from both NorthEastern Republicanism and Southern Republicanism).

                When Republicans tend to talk about minorities out here, they’re talking about Hispanic issues rather than African-American issues.Report

        • Kim in reply to Stillwater says:

          Someone’s keeping the Robert E Lee Fanclub around…

          And that same someone’s still flogging his Old War Horse.

          (fifty more years, then the money runs out!)Report