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| Americans and Literacy | Strictly Ballroom At Senate Dance Hall |
Supreme Court Hearings: Law vs. Rights
by Christopher Chantrill
January 08, 2006 at 9:10 am
HERE WE GO again, as the Senate prepares to advise and consent upon the nomination of Samuel A. Alito for a seat on the United States Supreme Court. Four months ago John Roberts testified to the United States Senate Judiciary Committee about his understanding of the role of the judge. He said:
If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.
Every conservative heart fluttered in admiration. But it was already clear that the Democratic senators on the committee had a radically different idea of the role of the judge. What about rights, they asked? What about women’s rights, workers’ rights, minority rights? On which side would Roberts come down: employers or workers?
Senator Kennedy was worried about “the removal of existing barriers to full and fair lives for women, minorities and the disabled.” Senator Schumer insisted that “You should be prepared to explain your views of the First Amendment and civil rights and environmental rights, religious liberty, privacy, workers’ rights, women’s rights and a host of other issues relevant to the most powerful lifetime post in the nation.”
On the one hand we have the notion of the judge as dispassionate arbiter, evenhandedly making decisions based on the facts and the law, and on the other hand we have the notion of the high court as a champion of the oppressed and the marginalized, guaranteeing their rights against a world of power.
It is clear that Sam Alito is a judge from the same school as Roberts. In Planned Parenthood v. Casey, Alito dissented against a 3rd Circuit decision striking down a Pennsylvania law requiring women seeking abortions to notify their spouses. He proposed applying Justice O’Connor’s tests for an “undue burden” on a woman seeking an abortion. In Bray vs. Marriott Hotels, he dissented “against pro-employee summary judgment standards that allowed claims to survive when a plaintiff could show minor inconsistencies or discrepancies in an employer’s adherence to internal procedures.” In both cases Alito argued for respecting existing precedent.
In other words, Alito follows the conservative notion that judges should judge according to the law and the facts against the Democrats’ “rights” argument that people are helpless victims that judges should protect from powerful authority.
What is going on here? Why are Republicans so hot on the rule of law and Democrats so hot on “rights?” We need a psychology to illuminate this problem.
But let us not use the developmental psychology of Erikson or Maslow. They are problematic for conservatives since they assume that the highest and best form of human is the “integrated” liberal. Instead let us apply the ideas of Clare Graves and his students Don Beck and Christopher Cowan. The core of their developmental psychology is four levels or stages. First there are “red” victims who experience life as pure impulsive egos, helplessly beset by powerful forces. Then there are purposeful “blues” who live a disciplined, optimistic life in accordance with One Truth or the rule of law. There are also “orange” creatives, businessmen and artists who believe that you can change the rules of life-as-a-game, the business game or the arts game. Then there are communitarian “greens” who believe in sharing and caring, and who believe that violence never solves anything.
No wonder the Democratic senators talk about rights. A green leadership cadre leading a party of angry, helpless red victims, they know their job: protecting their clients from the malevolent power of the Man.
There is, of course, a limit to the Democrats’ rights jurisprudence; it ends when it starts to benefit Republicans. Imagine that you ran a business reboring gun barrels, and wanted to expand your machine shop into an area of your property that had been classified as a wetland because it occasionally became inundated during winter rains. Imagine the U.S. Court of Appeals applying “summary judgment standards” because the state EPA had not adhered fully to its internal procedures in the permitting process. What should unelected judges care about the rights of Republicans, optimistic God-fearing “Honey, I’m home!” Pleasantville homeowners that go to work, follow the rules, obey the law, and raise their families?
When Democratic senators insist that Supreme Court nominees agree to defend our “rights”, they are really talking about defending the legacy of a century of progressive legislation. Imagine how they feel, these well-born Kennedys and Kerrys, as they watch their beloved federal government ruined by Republican movie actors, drunken frat boys, instructors from non-selective colleges, high-school wrestling coaches, and even pest exterminators.
Only the Supreme Court remains to hold back the tide of these rude Republican parvenus.
Christopher Chantrill blogs at www.roadtothemiddleclass.com. His Road to the Middle Class is forthcoming.
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Civil Society
“Civil Society”—a complex welter of intermediate institutions, including businesses, voluntary associations, educational institutions, clubs, unions, media, charities, and churches—builds, in turn, on the family, the primary instrument by which people are socialized into their culture and given the skills that allow them to live in broader society and through which the values and knowledge of that society are transmitted across the generations.
Francis Fukuyama, Trust
What Liberals Think About Conservatives
[W]hen I asked a liberal longtime editor I know with a mainstream [publishing] house for a candid, shorthand version of the assumptions she and her colleagues make about conservatives, she didn't hesitate. “Racist, sexist, homophobic, anti-choice fascists,” she offered, smiling but meaning it.
Harry Stein, I Can't Believe I'm Sitting Next to a Republican
Liberal Coercion
[T]he Liberal, and still more the subspecies Radical... more than any other in these latter days seems under the impression that so long as he has a good end in view he is warranted in exercising over men all the coercion he is able[.]
Herbert Spencer, The Man Versus the State
Moral Imperatives of Modern Culture
These emerge out of long-standing moral notions of freedom, benevolence, and the affirmation of ordinary life... I have been sketching a schematic map... [of] the moral sources [of these notions]... the original theistic grounding for these standards... a naturalism of disengaged reason, which in our day takes scientistic forms, and a third family of views which finds its sources in Romantic expressivism, or in one of the modernist successor visions.
Charles Taylor, Sources of the Self
US Life in 1842
Families helped each other putting up homes and barns. Together, they built churches, schools, and common civic buildings. They collaborated to build roads and bridges. They took pride in being free persons, independent, and self-reliant; but the texture of their lives was cooperative and fraternal.
Michael Novak, The Spirit of Democratic Capitalism
Society and State
For [the left] there is only the state and the individual, nothing in between. No family to rely on, no friend to depend on, no community to call on. No neighbourhood to grow in, no faith to share in, no charities to work in. No-one but the Minister, nowhere but Whitehall, no such thing as society - just them, and their laws, and their rules, and their arrogance.
David Cameron, Conference Speech 2008
Faith and Politics
As far as the Catholic Church is concerned, the principal focus of her interventions in the public arena is the protection and promotion of the dignity of the person, and she is thereby consciously drawing particular attention to principles which are not negotiable...
[1.] protection of life in all its stages, from the first moment of conception until natural death; [2.] recognition and promotion of the natural structure of the family... [3.] the protection of the right of parents to educate their children.
Pope Benedict XVI, Speech to European Peoples Party, 2006
Never Trust Experts
No lesson seems to be so deeply inculcated by the experience of life as that you should never trust experts. If you believe doctors, nothing is wholesome: if you believe the theologians, nothing is innocent: if you believe the soldiers, nothing is safe. They all require their strong wine diluted by a very large admixture of insipid common sense.
Lord Salisbury, “Letter to Lord Lytton”
Conservatism's Holy Grail
What distinguishes true Conservatism from the rest, and from the Blair project, is the belief in more personal freedom and more market freedom, along with less state intervention... The true Third Way is the Holy Grail of Tory politics today - compassion and community without compulsion.
Minette Marrin, The Daily Telegraph
Class War
In England there were always two sharply opposed middle classes, the academic middle class and the commercial middle class. In the nineteenth century, the academic middle class won the battle for power and status... Then came the triumph of Margaret Thatcher... The academics lost their power and prestige and... have been gloomy ever since.
Freeman Dyson, “The Scientist as Rebel”
Government Expenditure
The Union publishes an exact return of the amount of its taxes; I can get copies of the budgets of the four and twenty component states; but who can tell me what the citizens spend in the administration of county and township?
Alexis de Tocqueville, Democracy in America
Conservatism
Conservatism is the philosophy of society. Its ethic is fraternity and its characteristic is authority — the non-coercive social persuasion which operates in a family or a community. It says ‘we should...’.
Danny Kruger, On Fraternity
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