Friday, April 01, 2005

Odds and Ends: From Days Offline

A situation interesting to any democratic idealist, such as myself, is the US’s continued alliances with autocratic states. Not only do projects like Iraq and Afghanistan appear hypocritical and opportunistic when foreigners look at our closeness and fond language used over Saudi Arabia, Russia, and Pakistan… but helping supposedly friendly dictators is a key part of what led to the recent mess in Iraq and Afghanistan that we had to step in after great cost. So I find Juan Cole’s defense of our alliance with Pakistan very useful and reassuring. (Juan is favorite type of guy when it comes to critics of our foreign policy. He’s definitely a realist… but not a wishful realist, and it’s clear he advocates against heavy-handed foreign policy because it’s a bad idea, and not out of defensiveness>)

This still leaves open the perennial question of what the hell we should do in the Mid-East; democracies that openly hate us and risk turning into theocracies, or autocracies that work with us for now, but continually egg their populace anti-US on just so we will continue to support the dictator, and might turn on us anyway. I really don’t know a third option.

(Although I do have to praise the Bush Administration for recently stepping up its rhetoric against Russia and the degree to which Putin is becoming an autocrat. I don’t know what can be done there either.)

And shout out to my only Pakistani reader, at the Project for Middle East Democracy.

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Left2Right has a conclusion to their ongoing discussion of originalism and judicial interpretation of the Constitution.

Suppose courts were in the business of worrying about benefits and burdens. … It's not just that such courts will be awfully busy — it's child's play to comb through the statute books and find all kinds of benefits and burdens. (I suppose that states' decisions on road layout and maintenance, or tort awards driving up malpractice insurance premiums, can make it harder for women to procure abortions. No one in her right mind should think any of that should trigger an enquiry into "undue burden," the legal standard floating around in that terrain. But some might.) What must courts do when they hear such challenges? They have to "balance" the importance of the government interest against the importance of the individual exercise of right.

But balancing is messy. The considerations in the scales look incommensurable, and courts shouldn't have to puzzle over questions of the form, "is red bigger than p?"



Courts can, though, decide when a law takes illicit aim at a protected right. That task requires no invidious balancing. If the state acts for a constitutionally forbidden reason, strike down the law — unless "compelling state interest," that joker in the constitutional deck, rears its ugly head. The categorical nature of this enquiry lends itself to principled reasoning, just what we properly demand of courts.

An interesting and defensible separation definitely. And it makes the key point that far too many political activists tend to forget, it’s not that we don’t believe in their political goals, it’s that the legislature is the correct place for reaching those goals.

First I’d like to note that while this is an interesting argument for judicially protected constitutionalism in general… it’s not one that applies to our Constitution. Specifically, our legislature is limited in what it is allowed to do many practical terms, and therefore isn’t a direct representation of the will of the people. Does this mean judges need a bigger role? Not necessarily… just that “balancing burdens” is not something the legislature can always do correctly (and “forbidden reasons” isn’t the only thing our judges are called to protect against).

But I feel that this solution encourages too much gaming of the system, a la the smirks and winks that brought about literacy tests and grandfather clauses during the Reconstruction, and also instead of asking only “what did the founders mean when they wrote the Constitution”, now wants judges to always know what those who passed laws meant, the pundits who dominated the airwaves. Do we interview the staffers who wrote the rules, the pollsters who advised their Congressmen how to vote, only the specific language of the law, what? This isn’t just academic, already Ohio and Michigan are facing sticky areas around civil unions and common law marriages because of the recent Constitutional amendments passed in this past election, such as arguments about what the amendment didn’t affect before the vote, now being rejected. No, we’re still in a very messy area.

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Inspired by this interesting discussion of the libertarian argument on secession, both now and then, at LFA is remebering one thing that always intrigues me about the Civil War and the writing of the Constitution. What did the founders say about secession? Why does it not say in the Constitution whether you specifically can or can not ever leave the Union? If it was left out intentionally, how much discussion about this aspect came up at the convention or in the run up to ratification? Can any of my readers give me some references to look at?

1 Comments:

At 3:20 PM, Anonymous gypsy@mit.edu said...

i think the texas constitution specified revolt against the gov't as constitutional (back when texas was a country, anyway)...

 

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