363. We deserve better

A long, long article in last Sundays Times Magazine began: “Every generation gets the Constitution that it deserves.”  That, I guess, explains Plessy v. Ferguson and the whole legal structure of Jim Crow.  

The article, entitled “When Judges Make Foreign Policy,” continues with the following helpful summary of attitudes about international law:

One view, closely associated with the Bush administration, begins with the observation that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people. From this standpoint, the Constitution is seen as facing inward, toward the Americans who made it, toward their rights and their security. For the most part, that is, the rights the Constitution provides are for citizens and provided only within the borders of the country. …

A competing view, championed mostly by liberals, defines the rule of law differently: law is conceived not as a quintessentially national phenomenon but rather as a global ideal. The liberal position readily concedes that the Constitution specifies the law for the United States but stresses that a fuller, more complete conception of law demands that American law be pictured alongside international law and other (legitimate) national constitutions. The U.S. Constitution, on this cosmopolitan view, faces outward. It is a paradigm of the rule of law: rights similar to those it confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order. What is most important about our Constitution, liberals stress, is not that it provides rights for us but that its vision of freedom ought to apply universally.

So where do you belong, with the “inward-looking conservatives and outward-looking liberals”?  Or are you one of those wiseacres who will point out that just a couple paragraphs earlier the writer said the Constitution was facing inward or outward, rather than the liberals or conservatives?

Its hard to imagine a clearer illustration of the total disconnect between the way the words “liberal” and “conservative” are used in the legal world and the way in which theyre used in the world of electoral politics.  Nothing in the foregoing paragraphs has anything to do with either liberalism or conservatism, as we use those words when talking about, say, candidates for President.

The article goes on to identify the source of conflict: which should govern, democracy or “the rule of law”?  Democracy is identified with the conservative position, although the author (Professor Noah Feldman) points out that “the constitutional principle here is actually one that most liberals also fully embrace: namely, the principle of democracy.”

Um, thats actually a political principle, Professor.  Anyway, “the rule of law” – of course – means whatever judges say it means.  The “liberal” position, therefore, is that nations should be ruled by wise people trained in the Scholastic mysteries of the law, ideally old men who enjoy dressing in black robes.  You know, the Iranian model (though the beards are optional).

This “liberal” approach worked so well in domestic affairs, after all.  We concentrated power in the Supreme Court and that court has ever after busied itself implementing the liberal agenda.  For example, what could be more liberal than enforcing the rule of law by inventing a single-use equal protection doctrine to throw the presidential election to ones favored candidate?  Talk about putting democracy in its place!

As for giving two Reagan and four Bush appointees veto power over legislation passed by the next Congress? – very, very liberal indeed.  One might even say outward looking.  Cosmopolitan, even.

Im afraid that if liberals make themselves believe this kind of thing, they really will get the Constitution they deserve.

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