American Process and Its “Occasional Services to Liberalism”


Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at

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106 Responses

  1. Avatar BlaiseP says:

    In other words, the Framers took every precaution to ensure that, though they could not eradicate that lawless Policy of slavery, it would at least find no support in the Processes established in the Constitution.

    The Constitution has the Fugitive Slave Clause in Article Four.

    I can’t decide whether I’m feeling merely disgusted or outright angered by your assertion that slavery would find no support in the Processes established in the Constitution. You might wish to explain yourself a bit upon this point.Report

    • Avatar Tim Kowal in reply to BlaiseP says:

      I cited that clause, and also Spooner’s work, which explains why the specific institution is not described by it unless you look beyond the four corners of the document. The Founders knew the four corners would be breached, of course, but this would be a separate problem not directly with the document itself.

      Lincoln said as much:

      neither the word “slave” nor “slavery” is to be found in the Constitution, nor the word “property” even, in any connection with language alluding to the things slave, or slavery; and that wherever in that instrument the slave is alluded to, he is called a “person;” – and wherever his master’s legal right in relation to him is alluded to, it is spoken of as “service or labor which may be due,” – as a debt payable in service or labor. Also, it would be open to show, by contemporaneous history, that this mode of alluding to slaves and slavery, instead of speaking of them, was employed on purpose to exclude from the Constitution the idea that there could be property in man.

      To show all this, is easy and certain.Report

      • Avatar BlaiseP in reply to Tim Kowal says:

        Yet it was upon the basis of the Fugitive Slave Clause that slave-hunters were allowed into all 50 states. Lysander Spooner was a lunatic and an anarchist crank in his own time. Every other legal scholar of his time and every politician of the age said slavery was enshrined in both property law and contract law from Section 4, notably Garrison:

        I cherish as strong a love for the land of my nativity as any man living. I am proud of her civil, political and religious institutions — of her high advancement in science, literature and the arts — of her general prosperity and grandeur. But I have some solemn accusations to bring against her. I accuse her of insulting the majesty of Heaven with the grossest mockery that was ever exhibited to man — inasmuch as, professing to be the land of the free and the asylum of the oppressed, she falsifies every profession, and shamelessly plays the tyrant.

        I accuse her, before all nations, of giving an open, deliberate and base denial to her boasted Declaration, that “all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.”

        I accuse her of disfranchising and proscribing nearly half a million free people of color, acknowledging them not as countrymen, and scarcely as rational beings, and seeking to drag them thousands of miles across the ocean on a plea of benevolence, when they ought to enjoy all the rights, privileges and immunities of American citizens.

        I accuse her of suffering a large portion of her population to be lacerated, starved and plundered, without law and without justification, at the will of petty tyrants.

        I accuse her of trafficking in the bodies and souls of men, in a domestic way, to an extent nearly equal to the foreign slave trade; which traffic is equally atrocious with the foreign, and almost as cruel in its operations.

        I accuse her of legalizing, on an enormous scale, licentiousness, fraud, cruelty and murder.Report

        • Avatar Tim Kowal in reply to BlaiseP says:


          You’re totally correct that slavery was authorized from something like a legal realist point of view, as opposed to legal formalism, which is the view associated with my focus on Process. I do not make any broader claim than Lincoln’s.Report

          • Avatar BlaiseP in reply to Tim Kowal says:

            That’s an excellent rejoinder. Serious scholars now understand what a goddamn waffler he was on the subject of slavery.

            Even a blind pig can find an acorn from time to time, ’tis said. For all the hagiography surrounding Lincoln the Great Emancipator, Lysander Spooner was entirely correct to damn Lincoln for fighting the war to preserve the Union and not the abolition of slavery.Report

            • Avatar Stillwater in reply to BlaiseP says:

              Well, preserving the union was a necessary condition on abolition. So it’s not a stretch to say that the primary purpose for engaging in the war was preservation of the union. And statements to that effect were made for political and practical effect rather than anything necessarily principled about slavery, one way or the other.

              Of course, Lincoln was a waffler, caught in a web politics, morality and the law. And his own confusion, no doubt. I’m always surprised at how seriously he took the idea of “colonization”, but maybe that’s a reflection of my living in different times.Report

              • Avatar BlaiseP in reply to Stillwater says:

                Read Lincoln’s First Inaugural Address. It’s a masterpiece of wishful thinking. Kowal wants to call this Legal Realism and I’m not going to quibble with his label. But Lincoln was always a man of half-measures, obtaining what he could and pushing his case forward, one pragmatic step at a time. But Realism this ain’t and never was.Report

    • Avatar MikeSchilling in reply to BlaiseP says:

      Several of the secession documents claim that the North’s failure to enforce this clause left them no choice but to secede, as the conditions under which they’d entered the Union had been broken.Report

    • Avatar George Turner in reply to BlaiseP says:

      I’m not really seeing anything about slavery in that clause. Certainly it means that one state can’t release someone from community service due in another state (over a conviction for drunkeness or some such), or someone skipping out on a labor contract after they’d been paid up front, but you could read it without having any idea what it was originally about, and that can’t be by accident. We didn’t even bother repealing it.

      More disturbingly, Article I, Section 8, Clause 8 says

      To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

      Commonly known as the “Replicant Clause”, it is the Constitutional sanction authorizing the creation and ownership of replicants, but only for a period of years, which is why they are designed to die before the expiration of the copyright.Report

      • Avatar BlaiseP in reply to George Turner says:

        Are you serious? I have to get that much clear, first, before I respond.Report

      • Avatar George Turner in reply to George Turner says:

        Not really, but it’s obvious the low life-expectancy and high childhood mortality rates back then were clear evidence that lots of people were Replicants, and that the Founders weren’t going to address the morality of such a system, or condone or condemn it, allowing Blade Runners like Sam Bowie to have free rein.

        My point is that they kept the Constitution largely free of the specifics of what people did and didn’t do, or what systems and traditions were commonly accepted in day-to-day life. Free Market Capitalism also doesn’t appear in the Constitution, nor does price gouging, real estate, or lots of other things they let pass without comment unless some specific federal power was required.

        In modern times, the right to own a slave would take up ten thousand pages of federal rules and regulations, giving legalistic definition of who is “African” and what is an “offspring”, and what an offspring is classified as in interstate commerce if paternal parentage can’t be ascertained, and on and on. It’s as if nobody in government wanted to touch the issue with a stick, so centuries later you couldn’t read their lawbooks and get a clear picture of what was going on. You’d have to go to court opinions, diatribes, pamphlets, and letters to realize that millions were in chains and people were screaming bloody murder.

        It’s kind of like the vast gulf between the reality and scope of illegal immigration and the few pen scratchings that Congress can bring itself to pass on the subject, and all the wink-wink nod-nod that goes on in the executive branch.Report

        • Avatar BlaiseP in reply to George Turner says:

          You’re quite the humorist, George. I’ve got Tim up there, saying much the same thing, about looking beyond the four corners of the document for any reference to the S Word, which you’ll note he cleverly avoids using himself.

          In Talmudic scholarship, this sort of obtuse and casuistic argument is called pilpul and is strongly discouraged in reputable circles.

          Oh, by the way, the wink-wink nod-nod about the mohados is mostly coming in the form of farmers’ boots applied to the culos of those GOP politicians. You see, down in the hinterlands of Georgia and Alabama, even up here in Wisconsin, where people actually run farms, those mohados are the only people who seem willing to shovel shit and pick strawberries and peaches and other sorts of produce. So when those GOP asshats scared off those May-Hee-Kanoes, leaving them with unpicked crops in the fields, the aforementioned farmers had some quiet and earnest conversations with those GOP politicians, involving shoe leather vigorously and repeatedly applied to the Seat of Learning. You will notice how quiet the GOP is these days upon this subject, rubbing their bruised buttocks, looking nervously at a gang of men wearing John Deere hats and overalls in the back of the assembly hall.Report

        • Avatar George Turner in reply to George Turner says:

          In Talmudic scholarship, this sort of obtuse and casuistic argument is called pilpul and is strongly discouraged in reputable circles.

          That’s probably because most Talmudic scholars have students who are one step away from landing a network sitcom. 😀

          The illegals are stuck in limbo, because all courses of action will cause disruption somewhere. What we have now is a sem-functional (or dysfunctional) symbiosis with odd and far-reaching effects. For one, by absorbing millions of Mexico’s prime working-age people and letting them send money back, we’re providing a convenient outlet for their dissatisfied and disaffected workers, their most highly-motivated young people, to go where life is easier rather than fighting the problems with their own system, one that obviouly isn’t providing worthwhile jobs for all those millions of Mexicans who jump the fence. We’re the safety valve for their country’s ruling elites, delaying needed reforms and prolonging a system that doesn’t serve their common people well at all. At the same time, the illegals here send money home, which helps prop up a system that should totter and collapse.

          Oh, and if Hollywood can make a ton of money having Lincoln fighting vampires, surely we could hit big with George Washington hunting down replicants during the French and Indian War.Report

  2. Avatar Patrick Cahalan says:

    If two countries, A and B, have basically the same Policies, but A is a liberal democracy and B is a dictatorship, no one would say that A and B are similar to one another. Governments are defined primarily by how they operate, not the stuff they provide. It is Process, then, not contingent Policies, that define a nation’s core values.

    I don’t think this is correct. Or rather, it’s not a useful generalization… although it does illuminate the difference between you and Conor (and to a lesser extent, you and me).

    I don’t think a nation’s core values are entirely embedded in either its process or its policies. One could have a stable, popular benevolent dictatorship that provided the milk of human kindness, and another could have a representative democracy that had pernicious racism, and in both cases you can say that looking at either process or policy is not going to give you the full picture of the nation’s values.

    I think values are a bit bigger than either processes or policy, they are only reflected in both, not displayed entire.Report

    • Patrick — fair point. I may have used too broad a brush there. Values are something different (overlapping, but still different). So maybe I’d revise to say that Process is more closely tied to national identity than Policy. But all three — Process, Policy, and values, and perhaps other stuff — are all part of the mix. Also, I’m just prioritizing here, not counting things out entirely.Report

    • Avatar Murali in reply to Patrick Cahalan says:

      How do we justify processes except in relation to the goodness of the policies they tend to produce?

      I get that having a stable, transparent and rule like set of processes is very important (because that facillitates socially useful coordination). But shouldn’t it be the case that one set of stable, transparent and rule like set of processes is preferrable to another stable, transparent and rule like set of processes in virtue of the policies they tend to generate?Report

  3. Avatar Dan Miller says:

    This distinction between process and policy breaks down on any close inspection. It would be easy, for instance, to change the “policy” of limits on lead pollution (e.g.) to the “process” of not allowing businesses to impose their externalities on everyone who lives close to a power plant. Ultimately, the way you resolve this is by saying that “things Tim likes are process-based, things Tim doesn’t like are ad hoc justifications for policy”. (Slavery: process violation! Pollution controls: policy!) It’s not exactly generalizable.

    As a separate point, your argument would be stronger if you linked to a progressive who was writing more recently than 85 years ago. You seem to take it as a given that all modern day progressives would agree with Frankfurter; it seems to me that it’s on you to justify that statement, since it’s likely to be controversial.Report

    • Avatar Tim Kowal in reply to Dan Miller says:

      Dan, I don’t think that’s entirely fair. I made the effort to advance an argument that slavery is actually a violation of Process. If the argument doesn’t work, you can say so. I don’t think it’s right to assume that I trumped up the argument to make my theory work, or that I would do that with any other issue you might propose.

      A while ago, I made entreaties for the best arguments anyone had to offer for the basis of “positive rights,” e.g., to health care.

      My take-away from that discussion was that a negative rights system (like the one the DoI and Constitution establish) is hard to square with positive rights. So I just don’t think it is plausible that any old Policy can be grounded in the Constitution. But again, we can only know that if some Progressive around here made a go of it.Report

      • Avatar BlaiseP in reply to Tim Kowal says:

        Do you think it’s fair to treat the Declaration of Independence as law? I don’t. How did Lincoln put it in the Gettysburg Address?

        Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

        Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war.

        It was not the Declaration which gave us “all men are created equal” but the Fourteenth Amendment, which only emerged from victory in war, as our independence had been established by the arts of war. You simply cannot tell us the Declaration of Independence established anything but a proposition. It must be pruned from any discussion of rights in law, either positive or negative.Report

      • Avatar Dan Miller in reply to Tim Kowal says:

        The entry you link to argues that there’s no guarantee of universal health care in the constitution. But just because something isn’t guaranteed in the Constitution doesn’t mean it’s forbidden. Hell, the Roberts court has explicitly ruled that Obamacare is permissible (not required). I don’t think there needs to be a positive Constitutional right to something for it to exist.Report

  4. Avatar Ethan Gach says:

    “In other words: Liberty can fend for itself. Progressives want control, and adherence to Process—such as courts paying ‘occasional services to liberalism’—only gets in the way.”

    I understand the relation of process to liberty, but subverting process doesn’t necessarily result in a subversio of liberty…So while it could be the case that a lack of strict adherence to procedure ends up undermining liberty, to advocate doing so doesn’t mean one must necessarily advocate for abandoning liberty.

    “The project of liberty, of American values, is based on the idea that we play by a set of rules, that we follow a ‘Process.’ Progressivism, in contrast, is based on the idea that rules generally ought to give way to the righteousness of particular ‘Policies.'”

    Again, I’m not sure why liberty results from procedure (is secondary to?) rather than simply being ultimately protected by (i.e. due process).

    Also, you mention that equality and voting are fundamental to democratic liberalism, and yet the Constitution in the 3/5s clause that you mention would be necessarily opposed to those principles in that case.

    Finally, are you suggesting that progressives would prefer to codify policy through inappropriate action on the part of the Courts and Presidency, rather than through the process of the legislature (unlike, for instance, conservatives, who all thought they would enforce their values, would do so through the proper channels)?

    Is there something about the legal process that is necessarily less legitimate than the legislative one, either according to basic principles, or the values inherent in liberal democratic institutions? Why should a series of court rulings necessarily be less legitimate than a series of Congressional acts?Report

    • Avatar Tim Kowal in reply to Ethan Gach says:

      Is there something about the legal process that is necessarily less legitimate than the legislative one, either according to basic principles, or the values inherent in liberal democratic institutions? Why should a series of court rulings necessarily be less legitimate than a series of Congressional acts?

      That’s the right question to ask. The answer is that there are some things that are matters of judgment for the courts and others that are a matters of observation and values for legislatures. There is legitimate debate to be had at the margins, but there is some general agreement on the broad strokes.

      This is the context in which I’ve always understood the term “judicial activism.” Political activists agitate for policy change in the public, with their neighbors, and to their representatives. Judicial activists agitate for policy change in the courts, and this, generally speaking, is the wrong place for it.Report

  5. Avatar Stillwater says:

    I think the suggestion that conservatives oppose liberals because they in fact value process over policies is just laughable. Or to temper that some: it’s laughable as far as a political analysis goes. Most conservatives couldn’t even articulate the distinction between process and policy the way you’re suggesting. Rather, it’s entirely true that conservatives do tend to look at policy outcomes and the specific practices they disagree with and work backwards from that opposition to the conclusion that the process leading up to that outcome was/has been corrupted. By liberals, of course. Never conservatives. And that determination of blame is true even if the now-rejected policy was widely supported by conservatives of an earlier generation or at an earlier time. That’s why conservatism cannot fail: because following the right conservative rules and the right conservative processes cannot – logically cannot! – lead to outcomes which conservatives would oppose.

    So it follows thatReport

    • Avatar Chris in reply to Stillwater says:

      Every time a conservative anonymously blocks a Democratic president’s appointments, it’s because of their love of process.Report

    • Avatar Stillwater in reply to Stillwater says:

      So it follows thatReport

    • Avatar Tim Kowal in reply to Stillwater says:


      I’d give you that conservatives aren’t actively thinking in the terms I’ve laid out here. What I’ve sketched is a theory that may be helpful in categorizing “conservatives” and “progressives.” At this stage, I could see about working up a list of various issues, compare conservatives’ and progressives’ position on them with respect to Policy and Process, and see if the theory pans out. I’ll think about it. Seems pretty imprecise and subjective, though, so maybe it wouldn’t actually be very helpful.Report

      • Avatar Chris in reply to Tim Kowal says:

        I wonder, if it turns out to be imprecise and subjective, what that says about the overarching theory?Report

        • Avatar Tim Kowal in reply to Chris says:

          It means I don’t think I can prove it in a single chart.Report

          • Avatar Chris in reply to Tim Kowal says:

            How would you go about proving it, then? It’s an extremely abstract distinction, one that is difficult to prove or disprove, and one that, as a result, seems to be being asserted rather than argued. I’d love to see a real argument for the distinction as it applies to the contemporary American political spectrum.Report

            • Avatar Tim Kowal in reply to Chris says:

              Could be demonstrated on a case-by-case basis. I’ve directly applied the argument to the dispute over public sector unions, for example.


              But probably best demonstrated by whether very many people find it helpful in organizing ideas about these issues. I suppose only time and further attempts on my part to advance the theory would reveal that.Report

              • Avatar Chris in reply to Tim Kowal says:

                Yeah, I remember the public sector union bit. I found it unconvincing in large part because you have no idea why people justify the existence of unions in general (as I noted at the time). If you did, you’d know that it was, in large part (though not entirely, of course), a matter of process.

                As long as you think unions are about a minimum standard, and not about fairness in bargaining, you’re going to completely misunderstand why the left favors both private and public sector unions (though much of the American center-left seems to have turned on public sector unions and public sector employees themselves).

                Anyway, I think some of us would be much more inclined to take your dichotomy seriously if you argued for it instead of asserting it. And arguing for it is going to require some examples. And those examples should, at the very least, provide explanations consistent with those given by the proponents (so, for example, you’re might want to look at actual arguments for the existence of unions, and public sector unions).Report

              • Avatar Tim Kowal in reply to Chris says:

                Chris — I was thinking about giving some more examples, and might do that in a follow up post. This is a piecemeal endeavor due to both limits of the medium and limits of time.Report

              • Avatar trizzlor in reply to Tim Kowal says:

                Tim, I think it would be illuminating to, for example, take the two party platforms (GOP and Dem) and break them down into process vs. policy. Skimming the GOP platform, while much of it is framed in language about process, the following passages caught my eye as explicitly favoring policy outcomes over process (emphasis mine):

                A serious threat to our country’s constitutional order, perhaps even more dangerous than presidential malfeasance, is an activist judiciary, in which some judges usurp the powers reserved to other branches of government. A blatant example has been the court-ordered redefinition of marriage in several States. This is more than a matter of warring legal concepts and ideals. It is an assault on the foundations of our society, challenging the institution which, for thousands of years in virtually every civilization, has been entrusted with the rearing of children and the transmission of cultural values.

                The policy outcome that homosexuals shouldn’t rear children outweighs judicial protection of individual rights and equal protection under the law.

                We oppose the National Popular Vote Interstate Compact or any other scheme to abolish or distort the procedures of the Electoral College. We recognize that an unconstitutional effort to impose “national popular vote” would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency.

                The policy outcome of electoral appropriation of votes outweighs federalism and limited government.

                We call on State legislatures to moot the impact of the Kelo decision in their States by appropriate legislation or constitutional amendments … This includes the taking of property … by environmental regulations that destroy its value.

                The policy outcome of environmental deregulation outweighs the rule of law (the idea that environmental regulations breach the Takings Clause is clearly not strict constructionist).

                We oppose using public revenues to promote or perform abortion or fund organizations which perform or advocate it and will not fund or subsidize health care which includes abortion coverage … We call for legislation to ban sex-selective abortions – gender discrimination in its most lethal form

                The policy outcome of limited abortions outweighs judicial protection of individual rights, checks and balances (i.e. effectively subverting a Supreme Court decision without Constitutional amendment), and individual rights (banning a legal procedure based on the individual’s intent/thoughts).

                By whatever legislative method is most feasible, Old Glory should be given legal protection against desecration. We condemn decisions by activist judges to deny children the opportunity to say the Pledge of Allegiance in its entirety, including “Under God,” in public schools and encourage States to promote the pledge.

                “By whatever legislative method is most feasible” sort of gives the game away here. There’s certainly a lot of language in there about process but there’s just as much “ends justify the means” thinking.Report

              • Avatar Stillwater in reply to trizzlor says:

                I like this comment. Nicely done, trizz.Report

              • Avatar Tom Van Dyke in reply to trizzlor says:

                The consistent complaint is that “activist judges” have violated the “true” Constitution via a perversion of the text.

                A similar complaint could have been made against Plessy v. Ferguson [1896], which upheld “separate but equal.” The “conservative” argument—like Lincoln’s Cooper Union argument—is that the 14th Amendment clearly barred a sophistry like “separate but equal.”

                Finally, in 1954, in Brown v. Board, the Supreme Court got it right. Thus, even today among conservatives and originalists, when the original decision is a perversion of the text, stare decisis [a slavish adherence to precedent] is for suckas. Brown is correct; Plessy was a perversion and never valid law.

                Mr, Trizz, thx for your thoroughness in advancing your case against the GOP. I hope I’ve at least explained the “conservative” underpinnings of the objection to the cases you mention. Kelo is bad precedent and will someday be overturned.

                A serious threat to our country’s constitutional order, perhaps even more dangerous than presidential malfeasance, is an activist judiciary, in which some judges usurp the powers reserved to other branches of government.

                Resisting the legislative process would be something different, then, hence, when NY instituted gay marriage via the legislature, the only proper course is to attempt to un-legislate it.

                Which I do not foresee. So too, if Roe were overturned tomorrow, iirc, the State of New York had already liberalized its abortion laws by 1973, so rolling back Roe to status quo ante would not affect that.Report

              • Avatar trizzlor in reply to trizzlor says:

                TVD, I think yours is a perfectly reasonable defense and I didn’t mean to imply that any disagreement with a SCOTUS decision is, per se, anti-process. However, the process-minded party would want these decisions to be overturned or restricted by a new generation of wiser justices, as in the de-segregation examples you cited. Instead, the GOP platform puts forth language that consistently supports a legislative end run around unfavorable SCOTUS decisions (“to moot the impact”). This is precisely the kind of tactic Tim accuses policy-oriented progressives of supporting in the main post.Report

              • Avatar Tom Van Dyke in reply to trizzlor says:

                Mr. Trizz, lovely to have my argument stated accurately. To business:

                The problems of judicial overreach and of the administrative state [rule by the Environmental Protection Agency or the Secretary of HHS ordering the Catholic Church to pay for contraceptives] are legitimate and principled objections.

                Does Tim Kowal’s model of “conservative” fit 100% to the Republican Party platform? Of course not. Where human-type people are involved, there is inconsistency, indeed hypocrisy.

                For instance, I can’t tell you how many “arguments” against originalism have been based on a gotcha on Antonin Scalia, as if that proves anything except that he was perhaps inconsistent in applying his principles. Abraham Lincoln, fer crissakes. That method of argument is fishing nauseating, and reduces to no more than ad hom.Report

              • Avatar Stillwater in reply to trizzlor says:

                lovely to have my argument stated accurately.

                Tom, I find it interesting that you praise trizzlor for stating your argument accurately, but overlook the part where he still rejects Tim’s thesis.Report

              • Avatar trizzlor in reply to trizzlor says:

                TVD, I’m happy enough that we can see eye to eye and leave it at that. My thrust was that the GOP is not immune to policy-motivated positions; figuring out how much of that deviation is inconsistency, hypocrisy, or the norm isn’t really my bag because I’ll probably have a thumb on the scale.

                Really, one could probably blow up any highfalutin argument about lib/con purity with those two little links to the party platforms.Report

              • Avatar Tom Van Dyke in reply to trizzlor says:

                Cheers, Trizz. And conceded that Bush v. Gore blows a hole in the process argument. But they were well aware of that—if you read the decision they explicitly state that B v. G is NOT to be used as precedent.

                The country was at a process impasse. Had they played out the legislative, judicial, and constitutional process, you’d have seen the GOP-majority House of Representatives award FLA’s electoral votes to Geo. Dubya, perhaps after the scheduled inauguration day of January 20.

                So there’s that. 😉Report

              • Avatar Stillwater in reply to Tim Kowal says:

                One thing that makes it difficult, it seems to me, is teasing out the causal and conceptual arrows in any particular conservative argument for or against a specific policy. For your theory to hold, you’d have to demonstrate the following: that for every policy or outcome P which conservatives in fact oppose that opposition derives both conceptually and causally from a prior opposition to a specific rule or procedural violation.

                Personally, I don’t think that can be done. In fact, I think if you undertook that exercise you’d discover that conservative political opposition to liberal policies is not caused by liberal’s violating rules and procedures, and is in fact only justified by a post hoc appeal to those rules and procedures.

                That is, conservative oppose certain policies and outcomes, then attempt to justify that opposition on procedural grounds, and not the other way around.

                But it’d be a fun exercise, I think. We might even find out which one of our views is more accurate.Report

              • Avatar Tim Kowal in reply to Stillwater says:

                We might need a more formal structure: two interlocutors taking contrary views in 2-3 rounds of posts, rather than trying to sort it all out in the comments.Report

              • Avatar Stillwater in reply to Tim Kowal says:

                Yes. Indeed. And I think there is something to the thesis that conservatives and liberals can be distinguished by the role process plays in their views of policy and outcomes. I’m just not sure that conservatism as it actually exists can be defined as a system of thought which prioritizes process over outcomes.

                Of course, I’m talking about conservatism in practice and not about a broader theory of conservatism, which was the topic of your post. At the theoretical level, or normative level of what conservatism ought to be, I’d probably be willing to concede that conservatives prioritize process over policy and outcomes.Report

              • Avatar Chris in reply to Stillwater says:

                What’s more, it implies, for example, that conservatives actually want gays to be able to marry, they just want gays to get the right to marry through the proper process! That’s something akin to silliness, though more dangerous than actual silliness.Report

              • Avatar Stillwater in reply to Chris says:

                Well, TVD has made arguments to the effect that abortion policy is unjustified because it didn’t become the law of the land via the correct procedure.

                Of course, Tom is opposed to the liberality of abortion under Roe, so it’s difficult to distinguish whether he opposes current abortion policy on procedural grounds, or opposes it in any event and justifies that opposition post hoc by appealing to procedural violations.

                One thing tho: I’ve never heard anyone say they agree actually agree with abortion rights as they’re defined by Roe, but oppose abortion policy and practicebecause it is procedurally illegitimate. The argument always goes the other way.Report

              • Roe is bad law, sez Ginsburg, Tribe, Dershowitz, Sunstein, etc.

                Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000.

                “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

                “The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).

                Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court

                “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

                North Carolina Law Review, 1985

                Edward Lazarus — Former clerk to Harry Blackmun.

                “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.”

                “What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent – at least, it does not if those sources are fairly described and reasonably faithfully followed.”

                “The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, Oct. 3, 2002

                “[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”

                “Liberals, Don’t Make Her an Icon” Washington Post July 10, 2003.

                William Saletan — Slate columnist who left the GOP 2004 because it was too pro-life.

                “Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.”

                “Unbecoming Justice Blackmun,” Legal Affairs, May/June 2005.

                John Hart Ely — Yale Law School, Harvard Law School, Stanford Law School

                Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”

                “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”

                “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973).

                Benjamin Wittes — Washington Post

                Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.”

                “Letting Go of Roe,” The Atlantic Monthly, Jan/Feb 2005.

                Richard Cohen — Washington Post

                “[T]he very basis of the Roe v. Wade decision — the one that grounds abortion rights in the Constitution — strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.”

                “As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.

                “If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers.

                Roe “is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.”

                “Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well.”

                “Support Choice, Not Roe” Washington Post, October 19, 2005.

                Alan Dershowitz — Harvard Law School

                Roe v. Wade and Bush v. Gore “represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes…. Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)…. [C]lear governing constitutional principles … are not present in either case.”

                Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford) 2001, p. 194.

                Cass Sunstein — University of Chicago and a Democratic adviser on judicial nominations

                “In the Court’s first confrontation with the abortion issue, it laid down a set of rules for legislatures to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.”

                “The Supreme Court 1995 Term: FOREWORD: LEAVING THINGS UNDECIDED,” 110 Harvard Law Review 6, 20 (1996).

                “What I think is that it just doesn’t have the stable status of Brown or Miranda because it’s been under internal and external assault pretty much from the beginning…. As a constitutional matter, I think Roe was way overreached. I wouldn’t vote to overturn it myself, but that’s because I think it’s good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled.”

                Quoted in: Brian McGuire, “Roe v. Wade an Issue Ahead of Alito Hearing,” New York Sun November 15, 2005

                Jeffrey Rosen — Legal Affairs Editor, The New Republic

                “In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.

                “Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”

                “Worst Choice” The New Republic February 24, 2003

                Michael Kinsley

                “Against all odds (and, I’m afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court.

                “…a freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami.”

                “Bad Choice” The New Republic, June 13, 1994.

                “Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision….

                “Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway.”

                “The Right’s Kind of Activism,” Washington Post, November 14, 2004.

                Kermit Roosevelt — University of Pennsylvania Law School

                “[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.

                “This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entited to the protection of the 14th Amendment.

                “By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.”

                “Shaky Basis for a Constitutional ‘Right’,” Washington Post, January 22, 2003.

                Archibald Cox — JFK’s Solicitor General, Harvard Law School

                “The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution”

                The Role of the Supreme Court in American Government, pp. 113-114 (1976)


              • Avatar Stillwater in reply to Stillwater says:

                Sure, Tom. I agree. But let’s say that I only hypothetically agree in order to make the following distinction:

                Even if I agree that Roe is bad law, I do agree with the rights enshrined by the decision. As such, I’m not inclined to re-litigate it since I agree with the policies and practices it permits.

                This is type of reasoning is presumably distinct from a conservative (or a type of conservative) who opposes not only the spectrum of abortion rights established by Roe, but also the means by which those rights were established. The conservative argues that Roe ought to be re-litigated, correctly this time, where a correct determination would be to deny that the constitution accords any abortion rights to a woman. (Except self-defense.) As such, if abortion is to be a legitimate practice, it must go thru the legislative process.

                Here’s the suggestion I made above in response to Tim: the only reason this type of conservative argues for re-litigation and legislative procedures is because they hold a conceptually prior belief that women as a matter of fact don’t have the set of abortion rights attributed to them under Roe. If so, then the argument from process is post hoc, and used to justify an already-existing opposition to abortion rights rather than provide an account for why that practice or policy is opposed.Report

              • Proving Kowal’s point that for the “progressive,” the end trumps the means, which is the totality of his argument here.Report

              • Avatar Chris in reply to Stillwater says:

                Because Stillwater, one dude, isn’t all that worried about re-litigating Roe because he’s fine with the outcome of that decision, but stipulates for the sake of argument that the legal reasoning might not be perfect, Kowal’s point is proven. I plan on using this standard in the future.Report

              • Avatar Jaybird in reply to Stillwater says:

                Does that mean that we do have to re-litigate Bush v. Gore or that we don’t?Report

              • Avatar Stillwater in reply to Stillwater says:

                It is weird, Chris. I made an argument about conservative’s use of procedural concerns are used to justify opposition to liberal policies, pretty much refudiating what Tim wrote. Strange that my argument is viewed by Tom as proving Tim’s point.


              • Avatar Stillwater in reply to Stillwater says:

                Is Jaybird capable of making declarative statements, or isn’t he?Report

              • Avatar Stillwater in reply to Stillwater says:

                Proving Kowal’s point that for the “progressive,” the end trumps the means, which is the totality of his argument here.

                Tom, I’ll spell out the argument for you more clearly. The argument I’m making is that conservatives invoke process arguments as means to attaining their own ends. That is, they oppose certain policies and outcomes, and justify their already existing opposition to those outcomes by appeal to process.Report

              • Even if I agree that Roe is bad law, I do agree with the rights enshrined by the decision. As such, I’m not inclined to re-litigate it since I agree with the policies and practices it permits.

                Kowal:“Yet Conor affirmed that Frankfurter’s sentiment was alive and well when he said “The ends of democracy are the key” for Progressives.”Report

              • Avatar Stillwater in reply to Stillwater says:

                Tom, I find can’t say I’m surprised that you – the guy who claimed to understand what everyone writes here at the league – are not only unwilling to try to understand the argument presented, but would publicly display your lack of understanding so blatantly.

                I mean, you have a reputation around here.Report

              • Avatar Jaybird in reply to Stillwater says:

                I’m pretty sure that I’d need more information before I can say… could I get back to you?Report

              • Jaybird, lbh unir n erchgngvba nebhaq urer sbe uvqvat gur gehgu va cynva fvtug.Report

              • Avatar Jaybird in reply to Stillwater says:

                If they think you’re stupid, you can say things that they’d never let a smart person get away with.Report

              • Avatar Brandon Berg in reply to Stillwater says:

                One thing tho: I’ve never heard anyone say they agree actually agree with abortion rights as they’re defined by Roe, but oppose abortion policy and practicebecause it is procedurally illegitimate.

                I’d like to see the courts go back to enforcing the Constitution correctly, and I’m willing to take the bad (overturning Roe) with the good. I wouldn’t support overturning Roe in isolation, though.Report

              • Avatar Stillwater in reply to Stillwater says:

                Unfortunately, JB, no one thinks you’re stupid. At least I don’t, anyway.

                Does knowing that change anything?Report

              • Avatar Jaybird in reply to Stillwater says:

                Oh crap! Um… Da’ Bears!Report

              • Avatar Stillwater in reply to Stillwater says:

                BB, just to be clear: you’re suggesting that the right of women to receive abortion services ought to be rescinded until those rights are justified by the legislative process, even tho you agree that women ought to be accorded a legal right to receive those services?

                I’m not disputing, just asking for clarification.Report

              • Avatar Brandon Berg in reply to Stillwater says:

                I’m saying that it would be better on net if the courts actually enforced the Constitution. This would mean overturning Roe, yes, but it would also mean rolling back the war on drugs, federal entitlements, and the gross abuse of the commerce clause.

                Process is important because it’s how we limit the power of government. If any part of the Constitution can be compromised, then every part can.

                (Obligatory link to the clip from A Man for All Seasons)Report

              • Avatar Brandon Berg in reply to Stillwater says:

                To clarify that a bit more, yes, I would like to see an amendment forbidding the government from prohibiting abortion. I also realize that this is not something that would likely happen in the event of Roe being overturned. However, while the Constitution does not prohibit states from restricting abortion, it does prohibit the federal government from doing so*, so in most of the coastal states I think the status quo would remain in effect.

                I do imagine that some states would pass amendments guaranteeing the right to abortion, but these would be largely symbolic, since any state with enough of a consensus to pass such an amendment would be unlikely ever to pass laws restricting abortion.

                *I do admit that I would probably get a bit of schadenfreude at seeing leftists hoisted by their own petard if a federal ban on abortions were upheld as a valid exercise of federal power under the commerce clause, but I wouldn’t actually be happy about such a decision.Report

              • Avatar Stillwater in reply to Stillwater says:

                I’m saying that it would be better on net if the courts actually enforced the Constitution.

                Process is important because it’s how we limit the power of government.

                Taken together, these two statements imply that limiting the power of government is on net better than otherwise. I’d imagine that lots of people who currently benefit from the current power of government might dispute that.

                Serious question: What are the criteria by which we determine when government is too big, and by which we decide what constitutes “better”?Report

  6. Avatar Ethan Gach says:

    There’s probably a good point about being committed to the process at a given time, but also wanting to reform the process, and being devoted to the process till the end of days.

    For instance, I think the First Amendment pretty plainly doesn’t protect expression, it protects speech. But rather than saying that’s end of things, I’d rather go the extra step and reform the Constitution.

    I don’t want Congress to ignore the filibuster, I want them to reform it.Report

    • Avatar Tim Kowal in reply to Ethan Gach says:

      There’s probably a good point about being committed to the process at a given time, but also wanting to reform the process, and being devoted to the process till the end of days.

      Yes, there is. I’ve tried to express amidst my more direct points that I am not setting out Process and Policy as engaged in a death match and that one must be the decisive winner in every bout. My argument is about presumptions — should we presume that we have to stick with established Processes, or should we presume that they are malleable? I propose that conservatives generally find Process rules to be firmer than Progressives do; I do not propose that conservatives find them to be absolutely fixed (or even that they always observe them at all), or that Progressives find them to be totally meaningless.Report

      • Avatar BlaiseP in reply to Tim Kowal says:

        The Established Process folks, viz. the Conservatives, fail to observe how little was accomplished thereby. They’re very upset by Activist Judges whom they damn as Unconstitutional, even more so by Activist Legislators, whom they call Liberal.

        It’s perfectly obvious why they behave this way: too embarrassed by the march of time to admit they approved of former injustice, they now complain about how all such progress was made. It’s all so much sublimation and self-delusion: all-too-aware the clock can’t be turned back (though they clearly wish it could) they refer us to the Sainted Founders. It is all so much bad theology.Report

      • Avatar Tom Van Dyke in reply to Tim Kowal says:

        “Rule of Law” is a conservative argument. “On the side of the angels” the progressive one. When on is on the side of the angels, the rules don’t apply.

        This not always a bad thing, mind you. The Underground Railroad being the most obvious example of angelic lawbreaking.

        #Occupy and its liberal enablers in government, not so much.

        Greenway asks Menino to oust Occupy Boston

        By Natalie Sherman
        Friday, November 18, 2011 –

        The nonprofit that runs the Greenway, where Occupy Boston protesters have camped out since September, is pressuring the mayor to kick them out, citing “disturbing incidents of drug dealing” and the economic hit to farmers markets thanks to “noise, odors, and interference.”

        “We must request that you enforce our regulations and remove the occupiers from the Greenway,” Georgia Murray , chairwoman of the Rose Kennedy Greenway Conservancy, writes in a Nov. 8 letter. “The current use by Occupy Boston is not compatible with our obligation to ensure that everyone may enjoy the Greenway.”

        So far, Mayor Thomas M. Menino has not clamped down on the occupiers, despite moves by mayors in at least nine other cities to oust the encampments. A march to the Charlestown Bridge dispersed peacefully yesterday, in sharp contrast to New York, where the mayor evicted the group and police arrested hundreds of marchers yesterday.

        “I’m not ready to break up the encampment right now,” Menino told reporters this week. “Every city is different, how we deal with this issue.”

        The protesters have “literally taken over” and are preventing other people from enjoying the park, Murray says in the letter. Their presence has hurt businesses and violates rules that outlaw overnight sleeping and require permits to set up on the strip of green near South Station.

        “It’s continued presence creates a very dangerous precedent for future groups that the Board – as stewards of the Greenway – cannot support,” Murray writes.Report

  7. Avatar BrianM says:

    I don’t think your slavery example works. You write “Process has to do with how institutions work. Some of these Processes are codified in the Constitution, but by no means all.” Yet your argument that Lincoln was a conservative hinges on arguments that refer to the Constitution as if it was the only sure judge of Process[*]. In your terms, the secessionists could simply argue that slavery was, like equality, “implicit in the very nature of” the United States.

    [*] Although it seems to me that’s more of an argument about Policy. One side says that slavery is a valid policy for the US to follow, because there are rules about it right there in the Constitution (3/5th, etc.). Another side says that, despite the rules and historical evidence, the Constitution says that slavery is a bad policy (by failing to explicitly say it’s a good one).Report

    • Avatar Tim Kowal in reply to BrianM says:


      I didn’t raise the natural law arguments against slavery here, but I thought it uncontroversial that emancipation is the clear winner in any event. The argument that slavery comports with natural law, a la Fitzhugh and Calhoun, is pretty thoroughly repudiated by now. But yes, they did argue the point, and they lost in every way possible. Bad ideas are usually shown for what they are, given enough time.Report

  8. Avatar MikeSchilling says:

    So, having the Supreme Court choose to president in order to ensure the correct decision, rather than counting the damned votes, reflects a belief in process?Report

    • Avatar George Turner in reply to MikeSchilling says:

      No, a 7-2 Supreme Court decision finding that the Florida supreme court’s ruling violated the US and Florida state constitutions, including the Equal Protection Clause by having differing standards for counting ballots from different areas. They also ruled that the Florida Supreme Court’s ruling violated Article II of the Constitution which gives state legislators the power of deciding how electors are selected, not the state’s courts.

      Their opinion was that you have to pick the process for counting and then count the votes, not count the votes and sue for rule changes until you can get the counting method you think might win.

      Of course had the court allowed the counts to procede, Bush would’ve won anyway because Al Gore’s lawyer was an idiot.Report

      • Avatar MikeSchilling in reply to George Turner says:

        And, after that, then voted 5-4 to pick their favorite, which is, obviously, the vote I was referring to. Even the Court new it was an illegitimate power grab, which is why they insisted it was a one-time-only deal, not to be used again if the other side got a majority.

        All the conservatives to whom process is ore important than result were horrified. Really. Both of them.Report

      • Not one person in 100 knows about the 7-2 part in Bush v. Gore. And yes, Bush would have won Florida’s electoral votes and thereby the presidency regardless of how you sliced it.

        Did the Supreme Court’s 5-4 vote pre-empt the process? Yes, even though the result would have come out the same. In this respect, the Democrat complaint is valid.Report

  9. Avatar Robert Greer says:

    I’m not convinced, Tim, because this penchant for bending the rules can also be characterized as a conservative feature. Legal “squishiness” allows the governing apparatus to absorb the blow of momentous cultural events while maintaining authority. For example, if the Warren Court weren’t so keen to revise criminal procedure jurisprudence during the Civil Rights Era, the police system would have been viewed as less legitimate, and this would have compounded the tensions of the era in a way that I doubt would be viewed positively by people like you.Report

    • I don’t agree, but you’re in the zone, RG. In fact, Strauss’ complaint about “natural law” is that it’s inflexible and doesn’t allow for “wisdom,” which is the philosopher’s ideal.

      I don’t agree with Strauss’ formulation either because wisdom must choose between 2 competing goods [or least of evils*], but his is a coherent objection.

      *See Aquinas on prostitution, for example.

    • Avatar Tim Kowal in reply to Robert Greer says:


      Interesting point. But don’t the police have an interest in ensuring their authority is viewed as legitimate in their beats? I sit on the Human Relations Commission in Orange County, and city police departments seek out the Commission’s services to help ameliorate tensions between the departments and the public. They know their effectiveness depends on maintaining constructive relationships with the community based on mutual trust. Thus, PDs actively seek out ways to supplement their policies to achieve this.

      There’s the argument that, during the Civil Rights Era, the nation was still overcoming a much greater level of racial tensions, and thus bending rules of Process was justified. I’m just saying, the justification has to be offered. Maybe circumstances rise to the level of bending the rules. Indeed, racial discrimination does harm to rules of Process by itself, so it might well be justified to bend lesser rules to save the greater ones, e.g., Lincoln suspending habeas corpus in waging a war to save the Union and ultimately emancipate the slaves.

      Wisdom is encouraged in such matters.Report

      • Avatar BlaiseP in reply to Tim Kowal says:

        How was the Civil Rights struggle a bending of the rules of process? When the NAACP started its chess game, it understood the rules of the game: it would have to bring cases before SCOTUS to win. All previous attempts to bring about the end of segregation through the Executive and Congress had failed.

        Racial discrimination had been enacted into the very fibre of Process. Frederick Douglass:

        What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.Report

        • Avatar Tim Kowal in reply to BlaiseP says:

          It’s not an attack. Robert Greer said “if the Warren Court weren’t so keen to revise criminal procedure jurisprudence during the Civil Rights Era….” I was just assuming the premise in order to give him an answer.Report

          • Avatar BlaiseP in reply to Tim Kowal says:

            Indeed, racial discrimination does harm to rules of Process by itself, so it might well be justified to bend lesser rules to save the greater ones, e.g., Lincoln suspending habeas corpus

            Now it’s interesting you should bring up Lincoln and habeas corpus. Here’s what he had to say in his proclamation:

            Whereas, it has become necessary to call into service not only volunteers but also portions of the militia of the States by draft in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection;

            If ever there was a cabal of Disloyal Persons who were not adequately restrained by the ordinary processes of law, it would be the Jim Crow state police and the local police departments who had no need to bend rules: there simply weren’t any in the aforementioned Ordinary Processes of Law. It was the Warren Court in Gideon v. Wainwright and Miranda who gave us something vaguely resembling Due Process. I do not, for the life of me, see how any rules were bent.Report

      • Avatar Robert Greer in reply to Tim Kowal says:

        Tim, I don’t think it’s very ideologically ecumenical of you to just assume racial discrimination is incompatible with rules of process. This a major source of disagreement between you and probably most American liberals, so it’s odd that you’d just wave it away.

        You share with liberals the belief that equality is desirable and that similarly-situated individuals should be treated similarly. But liberals think that even rules of process that are neutral on their face can be discriminatory in effect, and that therefore rules of process should not be viewed as a complete prescription for ending injustice. Grandfather clauses are an extreme example, but they’re a good-enough defeater for your position that “racial discrimination does harm to rules of Process by itself,” and they point to the possibility of a whole spectrum of less-obviously-discriminatory-yet-still-problematic laws that are facially neutral. For example, I think there’s something morally dubious about the fact that black kids are more likely to lack health coverage in a nation where health coverage is linked to present income, present income is linked to prior generations’ income, and prior income was linked to race. I think most liberals would see your process-oriented abstractions as a politically-convenient downplaying of history. I haven’t seen where you grapple with this.Report

        • Avatar Tim Kowal in reply to Robert Greer says:

          Robert — I do not “assume racial discrimination is incompatible with rules of process.” I may have misunderstood you: I thought when you said that the Warren Court “revise[d] criminal procedure jurisprudence during the Civil Rights Era” you were suggesting the rules needed to be more malleable. Understanding that to be your meaning, I gave a response. If I misunderstood, I apologize.

          I also don’t understand how grandfather clauses are a “defeater for [my] position that ‘racial discrimination does harm to rules of Process by itself.'”

          Here’s my issue with all this: If we’re going to have rules, we have to follow them. If you believe that following the rules leaves just too many wrongs un-righted, then what would you propose? One would have to either propose no rules at all, or at least offer a good reason for breaking a rule.

          What’s a good reason? That’s the question. At one end of the spectrum, there’s “we need internal consistency with reason and moral logic, and we most certainly need to prevent the collapse of the Union and free the slaves.” At the other end, there’s “if the cause is just and we can get away with it, then it may be done.” I find more clarity in the former. In my experience, the closer one moves to the more lenient end—the end that does not require much critical thinking and giving of reasons—I predictably receive little in the way of critical thinking and giving of reasons in support of that view. Those with little patience for Process in government tend to have little patience for Process in argumentation.Report

          • Avatar Tim Kowal in reply to Tim Kowal says:

            By the way, that last bit not directed at Robert, or anyone else in particular, for that matter.Report

          • Avatar Robert Greer in reply to Tim Kowal says:

            Tim, grandfather clauses are a defeater for your position because they are not inherently harmful to the rules of process — they theoretically could have been applied equally — but were nevertheless discriminatory because they were applied to people in very different situations. When you say “No Xs are Ys,” showing something that’s both an X and a Y is a defeater for your proposition.

            “If we’re going to have rules, we have to follow them.” Of course. But I don’t think you appreciate just how much play there is in these rules, and how often hewing to particular interpretations of them is a choice, not a requirement. I agree with you that the Constitution is best thought of as a set of ground rules that knit the country together when it can’t agree on more specific provisions, and that these ground rules are necessary to protect the rights of minorities. But the social authority of these rules comes from the common understanding of the rules, not from their text alone. You seem to believe words and phrases have some immutable Platonic form, but modern philosophers of language nearly invariably dispute this — they make incredibly strong arguments that the understanding of language changes over time, is highly (if not definitionally!) contextual, and takes on vastly different meanings in different circumstances. (Perhaps this is why the principal architect of the Constitution recommended we draft a new one every twenty years.) This is not to say that the original or traditional understanding of laws should not figure largely in legal interpretation, only that it is not the sole determinant.

            Once the spell of rigid originalism is broken, your position that “We need to follow the rules or live under chaos” loses its force. One may rightly wonder whether talk of “the rules” is merely an attempt to delegitimize other reasonable interpretations of the text, given its situation in history and the way it is understood by the modern polity. So liberals aren’t necessarily throwing Process out the window: In fact, many of us say that the conservative legal perspective is wrong because it doesn’t fully explain how Process creates the law, thereby consigning itself to a wanly literalistic and brittle view.Report

            • Avatar Tim Kowal in reply to Robert Greer says:


              I think there is much we agree on here, actually, though I sense you continue take my view to be more rigid than I have expressed. I do not say that “We need to follow the rules or live under chaos.” In my most recent comment, I said if we are going to deviate from a rule, we have to offer a good reason. I set out to illustrate what the offering of good reasons might look like when it comes to the slavery question: although I believe slavery is really a violation of Process, even if you reject that, there were the strongest of reasons for violating the rules to end that institution.

              So my approach is two-step, not just one. (1) Follow the rules. (2) If one proposes not to follow a rule, one must give a justification therefor. What counts as a “rule,” what counts as a “justification,” these are questions for much further debate. But I do not want to be misunderstood as advancing the first step only.Report

              • Avatar Robert Greer in reply to Tim Kowal says:

                That’s heartening to hear, Tim. I hope you about my apologies for misrepresenting your position. I wonder, though, how you’d distinguish your flexible conservatism from liberalism. It seems you have to assume liberals don’t offer justifications for their rule-bending.Report

              • Avatar Tim Kowal in reply to Robert Greer says:

                I do believe that the justifications offered by the left are less sturdy. See TVD’s comment above collecting references to the broad-based condemnation of the justifications offered in Roe:


                A full answer deserves much more than this, but at its root, I think it comes down to the kind of justifications offered. Our founding documents are based in natural law principles. This is not to say there is no basis to object to the natural law, or that other sorts of principles or systems of reasoning are not also available. But I think the Constitution is ill-suited to be rendered other than by natural law principles. An analogy might be: Computer programmers can debate what programming language is best, but if you’ve got an application programmed in C++, you’ve got to stick with it — you can’t just start adding JavaScript in there or the compiler’s going to send you all sorts of error messages.

                This is inelegantly stated, but I explain a bit more here:

              • Avatar Stillwater in reply to Tim Kowal says:

                This is not to say there is no basis to object to the natural law, or that other sorts of principles or systems of reasoning are not also available. But I think the Constitution is ill-suited to be rendered other than by natural law principles.

                TVD has made that same argument: that the Constitution was based on the premise of “unalienable rights”, so we, as citizens governed by that document’s principles, need (or must, or ought to) accept that premise.

                I’m not sure how clearly I would need to articulate a refudiation of that view. Like, really clearly? Or, you can figure it out on your own? Or…?

                Of course, the determination that the Constitution was founded on natural law principles is one that people could object to (which is a meta level objection, of course). ANd I think that is sufficient to establish that a stipulation that one (preferred) understanding of the document is unjustified.

                Why ought we, as a society!, be constrained by a unitary reading of provisions that can’t be justified to begin with?Report

              • Avatar Tim Kowal in reply to Stillwater says:


                I don’t hold my cards close to the vest. I just wanted to come right out and say where I came out on the issue, even though I can’t give a full-throated discussion about how I get there. I wasn’t presuming we would all just stipulate to it.

                But I think you put your finger on the big issues to overcome. One should establish that the Constitution is a natural law document. I tend to think that’s not so much of a challenge, but so be it. Next we have to grapple with your question of why should we be “constrained by a unitary reading” of the Constitution? The answer, I might argue, is that only a unitary reading would lead to cogent, legible results. I see two basic rejoinders to this: (1) No, we can render a natural law document through non-natural law principles and still come out with cogent, legible results, or (2) we don’t care about cogent, legible results. I have argued that the latter is more or less the Progressive view.Report

              • Avatar Tim Kowal in reply to Stillwater says:

                Moreover, if we didn’t care about cogent, legible results, we wouldn’t be having the discussion in the first place, so that’s out.Report

              • Avatar Robert Greer in reply to Tim Kowal says:

                Tim, I don’t see how TVD’s collection can be evidence for liberals being bad at justification, unless you submit that the reasoning in Roe is emblematic of all liberal justifications, but this is inconsistent with the many liberal critiques of Roe referenced in that very post. I’m not sure what your point is here, unless it’s that liberals don’t have as much justificatory solidarity as conservatives do with their Prime Movers. But liberals would see that as a feature and not a bug, and so you have to say more about the harm in liberals’ ecumenicism before you claim victory on behalf of the right.

                I also have to say I wasn’t convinced by your earlier post. You’re just kind of rehashing the standard undergraduate political philosophy curriculum (mostly Locke) without really engaging any of its criticisms. I think it’s kind of weird for you to thwack liberals for a goofy epistemology when your post doesn’t seem to be versed in any of the developments in that field since the turn of the century. You dismiss epistemic holism (e.g. Mill or Quine) out of hand even though it’s very popular among the most distinguished thinkers.

                With all that said, I think your analogy of the Constitution to path-dependent source code is fairly apt — I agree that it’s usually unwise to tinker unnecessarily with the system’s foundations. But I think liberals could say that the hardware running the constitutional program has changed — we’ve gone from an agrarian rural Anglo-Saxon society to a largely-urban and cosmopolitan retail-and-manufacturing society — and that a truly great programmer should consider introducing a more nimble mid-level programming language to smooth out that constitution-society interface.Report

              • Avatar Tim Kowal in reply to Robert Greer says:

                Robert, again, I’m just telling you where I come out to help provide clarity. I’m not saying that much more doesn’t need to be said. Still, I do appreciate the thoughtful rejoinders and will take them under consideration.

                Also, if we’re to have a trial by experts, I’m entitled to the names of your witnesses. 😉Report

              • FTR, I would entertain the Constitution being a social contract about—among other things like federalism—the political process of respecting and safeguarding natural, i.e., unalienable rights as located in the D of I as God-endowed. “The right to have rights” as pre-political.

                As for a lib-left-prog repudiation of natural rights

                a) we never ratified that
                b) we would be replacing a coherent and univocal scheme [natural law] with a jumble that the lib-left-progs can’t even agree upon.

                It seems to me that Kowal must be correct then, that if lib-left-progs can agree upon anything, it can only be the ends—not so much a “right” to abortion, but simply legal abortion, coherent justifications being a formality easily dispensed with*.

                *e.g., Lawrence Tribe: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”



              • Avatar Stillwater in reply to Robert Greer says:

                As for a lib-left-prog repudiation of natural rights

                a) we never ratified that
                b) we would be replacing a coherent and univocal scheme [natural law] with a jumble that the lib-left-progs can’t even agree upon.

                It seems to me that Kowal must be correct then, that if lib-left-progs can agree upon anything, it can only be the ends—not so much a “right” to abortion, but simply legal abortion, coherent justifications being a formality easily dispensed with*.

                Tom, this is truly incoherent (which is an epistemological term, and OPRE, remember?).

                Re: a): who gives a rats ass what was ratified? Also, you never ratified anything, did you? I know I didn’t. (How old are you, anyway, dude?)

                Re: b): we wouldn’t be replacing a coherent scheme with a jumble, we’d be replacing an incoherent scheme with a more coherent one.

                I mean, as usual in these types of discussions, you’re just arguing backwards from an already accepted conclusion to a rationalization for it, begging the question along the way, and confusing that with a justification.

                If anything, you’re argument here is a pragmatic one, and that requires showing (not asserting!) that outcomes consistent with strict constitutional originalism are better than others.

                But at that point, the argument is over evidence and pragmatics and not principles. Something you’re reluctant to delve into, it seems to me.Report

  10. Avatar scott apidistra says:

    I always forget: Were Process and Policy in Plato’s Republic, like the Forms of the True and the Good and the Beautiful?Report

  11. Avatar Stillwater says:

    Tim, down here.

    I want to take up this topic from another angle. For one, I think you’re absolutely right that the Constitution was written the framework of natural law theory. I don’t think that’s disputable, really. (The impatient part of me wants to say to that: so what? The more patient part of me will slow things down a bit.)

    Let’s adopt that premise then, and work through some of my concerns. First, I’ve made arguments that natural law theory, at least a strong version of natural law theory, is incoherent. But rather than rehash those arguments, the take away is this: there is nothing self-evident or a priori knowable or immutable (etc etc) to me about the principle ostensibly identified with strong natural law theory. Given that, it seems to me that stipulating strong natural law (SNL) theory as the grounding of constitutional principles begs the question on justificatory level, and insofar as SNL provides the only grounding for constitutional principles, then I’d say that those principles aren’t justified.

    Contrast SNL with weak natural law. WNL theory would be that there are multiple sets of principles upon which to construct social life, and one particular set of principles will be revealed by practice and a posteriori reasoning to be better at promoting the goals and desires of individuals. Is that set necessary? Well, there’s a confusion in that question, I’d say. While it’s true that some set of principles or other (even the principle to not adopt any principles) will be necessary, the specific set of principles adopted will be contingent and based on what members of that society (or a sovereign, or a collection of wise fatherly types, or whatever) view as leading to better outcomes.

    So, two things follow from this, it seems to me. One is that the set of principles isn’t immutable, even if adopted, since those principles are adopted instrumentally to achieve other values, and if an alteration of one or more of those principles would lead to better outcomes (by the same criteria for determing “better” of course), then doing so would be justified. So the principles themselves aren’t immutable.

    The second thing is that the set of principles adopted at any moment in time and justified by WNL will be potentially incomplete or in error, since determining the set of principles leading to “best outcomes” (determined by an independent value scheme) is the process of discovery. So, no particular principle contained within the set will be necessary (say, logically necessary) and the set of principles is not necessarily complete.

    Now, what does this mean wrt the constitution and the conservative argument from process? Insofar as the conservative argues that best outcomes are determined by strict adherence to the stipulations of a set of principle codified in the constitution as justified by WNL, there theory is just that: stipulative. On the one hand, WNL does not determine a set of a necessarily complete set of individually necessary and immutable principles, but rather an evolving set of principles justified by providing better outcomes in practice. On the other, insofar as the constitution codifies principles that are intended to be immutable, necessary and (logically) complete, the constitution is inconsistent with WNL theory, which holds that the optimal set of principles is mutable, contingent and not (logically) complete.

    Two interesting things follow from this, I think, wrt contemporary politics and the discussions you and I (and TVD) have been having. The first is this: is the right of a woman to an abortion a principle which could be justified by WNL theory? It seems to me there’s no way to answer this without begging the question to some degree, but I’d suggest that at least at a first pass the answer would be yes: prima facie, a woman have a WNL right to terminate a pregnancy by her own choosing. Personally, I don’t see how a WNL theorist could conclude otherwise since denying that she does on a priori grounds is inconsistent with WNL theory (which determines rights and principles via a posteriori reasoning).

    Here’s the second thing: any particular conservative of the type we’re discussing will hold that either a woman does have a WNL right to terminate pregnancies, or she doesn’t. If that person believes that a woman doesn’t have that right, then the legislative process logically could not grant or accord her that right, since doing so would be inconsistent with WNL, and the process by which the civil right would be “accorded” would be necessarily illegitimate (because it violates WNL). On the other hand, if she already possesses that WNL right, then the process by which that right is accorded and codified seems to me to be irrelevant, since the justification for codifying any regime of rights under WNL is that it leads to better outcomes as determined by WNL theory itself.

    So what does all this mean? It seems to me that even a WNL theorist cannot stipulate a priori what constitutes the correct and limited “regime of rights” (for example, as codified in the Constitution), or that violating process necessary leads to worse outcomes. And it seems to me that for the WNL theorist, process has only instrumental value insofar as adhering to process leads to better outcomes consistently with WNL law.Report

    • Avatar Stillwater in reply to Stillwater says:

      I should add here that the way I phrased the argument re: a woman’s right an abortion is a bit jumbled. Given that the parameters of the discussion are circumscribed by WNL theory, the WNL advocate could not (it seems to me) conclude a priori that a woman does not have, or ought not have, that right, since a priori determinations of rights are inconsistent with WNL. The conservative could, of course, argue that practice has revealed that women do not have a right to terminate pregnancies by their own choosing because it leads to worse outcomes.

      Frankly, I’m not sure how that argument could be sustained against a liberal, since the value measures by which the conservative and the liberal are measuring “worse outcomes” are incompatible. But more importantly, I think, the WNL advocate could not make an a priori appeal to the rights of the fetus (or the trumping rights) in any event, since doing so – again – would be inconsistent with WNL theory.

      At best (of course, I could be wrong about this) I think the conservative at this point is squarely on the liberal’s ground here and would have to argue that the fetus and the mother have competing rights. And resolving that conflict in favor of the zygote is no easy task, it seems to me.Report

    • Avatar Tim Kowal in reply to Stillwater says:


      You’re willing to stipulate that “the Constitution was written the framework of natural law theory.” However, you then say that if the Constitution’s principles depend on what you call “strong natural law (SNL) theory,” then “those principles aren’t justified.” It’s not clear that you contend “those principles aren’t justified” because you disagree with “strong” natural law, or because you believe the Constitution was not based on something other than a “strong natural law” theory.

      When you talk in terms of “sets of values,” what I think of is breaking up the Processes I listed in the OP into sub-categories. On the one hand, we have Processes that protect primary values, i.e., values that are ends in themselves. The very notions of self-government, representative democracy, and equal protection of the law derive from the recognition that all men are created equal, the necessary implication of which is that no man is fit to rule another without his consent. Certain limits on government that leave room for individual liberty would be examples. On the other side, federalism is based on particular historical, geographical, and political circumstances. The particular checks and balances and manner of lawmaking are also more of the contingent variety: while important, it is conceivable that institutional ethics and arms’-length political dealing could be achieved by other methods.

      In other words, some Processes are primary and fixed, as they directly bear on our values and natural law principles. Others are secondary and contingent and thus conceivably could be replaced with other proposals that might provide “better outcomes in practice,” as you put it.

      In still other words, I think what you are proposing is to distinguish our Processes into those that cannot be changed without rendering the “American” political theory unintelligible (i.e., because they would become inconsistent with the natural law origins of that theory), and those that can. If that’s what you’re proposing, I would agree.

      I don’t know how to respond to the abortion hypothetical without understanding a bit more about your “weak natural law” theory. I cannot imagine any theory of natural law, no matter how “weak,” that does not fiercely assert the principles of moral equality and intrinsic value of humans regardless of intelligence or stage of development. Rejection of these principles, which is necessary to recognize a “right” to abortion, would render our set of political principles unintelligible. And if I am right about that (i.e., I doubt you would agree), then it would follow that even a “weak” natural law theory cannot support a “right” to abortion.Report

      • Avatar Stillwater in reply to Tim Kowal says:

        Tim, thanks for this. Personally, I think this is a fascinating discussion, and I very much appreciate your response. Unfortunately (or fortunately, yaknow?!) I need to think about things a bit more before I respond. I see some important distinctions emerging in what you wrote, ones that I think I’m inclined to agree with, and I want to let them percolate a bit before I write more on the NL/Constitutional principles side of the argument.

        As for the abortion issue, I need to think about that a bit as well before giving you a clearer picture of what mean in that argument. For one thing, NL, even WNL, isn’t my preferred way of understanding these things, so I think it’s incumbent on me to get a little clearer on what I mean by that term (WNL) before delving deeper into your worries and criticisms of my view.

        I’ll get back to, tho, so, please, check back tomorrow.Report