Balkinization: What Liberal Constitutionalism Has Going For It

Comments:

In your view of constitutional interpretation, could there be such a thing as a rights-enhancing mistake by the Supreme Court?

Suppose that the Supreme Court were to find that fetuses possess certain constitutionally protected rights. What course of action would you recommend for "liberals" on the Court?

# posted by

pinkerd : 9:29 AM

I not only believe that courts can make rights-enhancing mistakes, I've seen it done.

If the Supreme Court makes a terrible decision, liberals on the Court should do what they have done in the past: dissent, call attention to the Court's mistakes and keep protesting. That is what conservatives on the Court have done too.

But the duty does not rest merely with liberals "on the Court," as you suggest, but with the American people outside the courts to stand up for what they believe the Constitution means.

There is no guarantee that courts will always get things right, and that is true whether the judges are liberals or conservatives. That is why the constitutional system has multiple ways to shape what courts do over time. The history of doctrinal development is the history of constitutional doctrine responding to sustained mobilization on behalf of rights.

# posted by

JB : 9:39 AM

Professor Balkin:

There are three things liberal constitutionalism has going for it, three reasons why it is superior to the snake oil that Justice Scalia has recently been selling in public.

First, liberal constitutionalism is committed to protecting people's rights-- rights that most Americans have come to take for granted, including freedom of speech and equality for blacks and for women.

No, leftist* constitutionalism is about protecting those groups and rights which are part of the liberal political coalition. In reality, liberal constitutionalism represents a net loss of freedom in religious expression on the public square, commercial speech, political speech by parties and disfavored PACs, the right to keep and bear arms, property rights and all areas of life regulated by non-democratic bureaucracies and courts. Of course, this does not count the freedom lost to those 50 million killed in abortions since Roe and by those not favored by government racial and gender preferences.

*Once again, there is nothing liberal about modern leftism. Classical liberalism is based on liberty from the government, while modern leftism is all about expanding the power of government over the People. Thus, I will be using the term leftism or leftist.

Second, Scalia's story about America is deeply pessimistic [while leftist constitutionalism is optimistic].

I think not.

Scalia's original meaning of the Constitution was classically liberal - the limitation of government power and the positive protection of individual rights. This is a fundamentally optimistic view which trusts the citizenry with liberty.

In stark contrast, leftist constitutionalism is all about dismantling the limits on government power and placing vast new powers in unelected and largely unaccountable bureaucracies and courts. Leftism is another word for paternalism or the view that people cannot be trusted to run their own affairs and need the guidance of unelected bureaucratic experts and judges.

Third, Orin is right that Americans believe strongly in democracy. What most Americans may not realize, however, is that a commitment to original expected application, taken seriously, limits democracy because it drastically restricts the power of national majorities to protect citizens and prevent abuses and injustices.

Scalia's model of original expected application casts into doubt many of the democratic achievements that Americans have come to expect and are proud of. If you apply the constitution the way the framers expected, the Civil Rights Act of 1964 is unconstitutional. So too would be national environmental laws, federal consumer protection laws, federal protections against sweatshops and employer abuses, even Social Security.

That is a fascinating concession that the heart of modern leftism is unlawful under the Constitution as written. However, even this classical liberal would not go that far.

There are ways the bureaucracies can be made constitutional as advisory bodies to Congress, who should enact the regulations as statutes, and Article III specialty courts, who should be ruling on cases arising from the regulations.

Any law which regulates truly interstate commerce is perfectly constitutional.

You have a good point that the Civil Rights Act is very likely unconstitutional so far as it regulates intrastate commerce. However, one can achieve the same end by requiring states to pass the same laws as the price for federal aid.

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times.

The first point contradicts the second. One has to generalize the principles which underlie the text to such an extent that they become nearly meaningless in order to fit much of leftist constitutionalism within the Constitution.

# posted by

Bart DePalma : 9:54 AM

"Originalism" per Scalia is to "strict constructionism" as "intelligent design" is to "creationism" -- it's the same Kool Aid in an intellectualized container.

The Burger Court used "Our Federalism" and the standing and abstention doctrines to cut back on the power of federal courts to cut back on the enforcability of civil rights without a mention of originalism. Scalia wrote US v. Whren without a mention of originalism. Certainly the "automobile exception to the Fourth Amendment" has no roots in originalism.

Scalia's "originalism" is linked to "textualism" in a manner meant to overcome appeals to intent. He doesn't use legislative history, he doesn't believe in congresssional intent, he denies any role to purpose or aspiration. Instead, he uses legal maxims and formalisms in a result-oriented manner.

It is ridiculous that hundreds of people have spent thousands of hours trying to determine the meaning of "bear arms" in 1787 to decide whether gun control laws are permissible in today's society. It is pure obscurantism.

# posted by

Anonymous : 10:15 AM

"First, liberal constitutionalism is committed to protecting people's rights"

Only in the tautological sense that liberal constitutionalism recognizes, and ONLY recognizes, the existence of those rights it is interested in protecting, regardless of what rights might actually be found in the text of the written constitution.

Liberal constitutionalism has at times a rather tenuous relation to the written constitution.

# posted by

Brett : 12:31 PM

No, leftist*

Bart, leftism means socialism or communism. If you don't want to call us "liberals", at least use a term that isn't a form of McCarthyite redbaiting.

# posted by

Dilan : 12:54 PM

Certainly the "automobile exception to the Fourth Amendment" has no roots in originalism.

The origins of this was Carroll v. United States. It is interesting the dissent was written by the conservative McReynolds (who also wrote Meyer v. Nebraska, an early privacy precedent). He appealed to common law rules to strike down the prosecution as well as exclusionary rule precedents.

This was in 1925! The "exception" was not a complete one, it should be noted ... it watered down the probable cause requirement (in a way familar to those who know current rules on street searches and the like) and in fact the majority DID appeal to originalism/history.

Tellingly, it cited a federal law passed before the 4A was ratified. Thus, its use of history ... as is often the case on both sides ... is open to question.

# posted by

Joe : 1:24 PM

at least use a term that isn't a form of McCarthyite redbaiting.

Baghdad Bart is a big fan of McCarthy.

# posted by

Bartbuster : 1:26 PM

dilan said...

Bart, leftism means socialism or communism. If you don't want to call us "liberals", at least use a term that isn't a form of McCarthyite redbaiting.

I did not call anyone here a "communist" ala McCarthy.

However, modern US "liberalism" and what I call leftism is a watered down version of European democratic socialism.

I am sorry, but I will not use the favored self identifier of "progressive" either. It is an inaccurate spin term. Expansion of government is not a progressive development for the citizenry. Rather, it is a return to pre classical liberal times.

# posted by

Bart DePalma : 1:44 PM

Justice Scalia's originalism can't account for many of these results except as mistakes made by previous judges that we are stuck with.

Suppose that the Supreme Court came up with a new constitutional right to single-payer health insurance. Suppose that this new program then becomes popular. At that point, do constitutional theorists then say, "Any good theory of constitutional interpretation has to account for how you find a right to single-payer health insurance in the 1789 document, and because the program is now so popular, we can't ever say that it was a mistake and should have been adopted more democratically"?

# posted by

Stuart Buck : 3:05 PM

Joe --
Carroll was not based on any horseback or fast boat exception to the Fourth Amendment known to the Founders, nor has Scalia noted the absence of such. And it is not until the Burger or Rehnquist Courts that exigent circumstances came to be assumed rather than having to be proved. Not until Roberts do we have the warrantless search of a recently occupied vehicle.

The "liberal" justices have gone right along -- which is what I fear about "liberal constitutionalism" -- it lacks fixed bounds even where the Constitution is explicit. The whole rotten business of 4th Amendment standing arose from a "liberal" decision that "the Fourth Amendment protects people not places" (when it could have said "papers" includes the spoken as well as the written word). Or what about a "right" of privacy that extends only so far as society is willing to recognize it?

# posted by

Anonymous : 4:12 PM

"[B]elief in basic rights as every bit as populist-- and deeply rooted in American traditions-- as belief in majority rule."

True, but belief in majority rule systematically defeats belief in basic rights because the latter is modulated by the subjective reconfiguration of the scope of those rights. (E.g., "I believe in the right to free speech. But obscenity like this isn't 'speech'!")

# posted by

"Q" the Enchanter : 4:12 PM

Who here thinks that creating people is a right? Does a Dr. Frankenstein have a right to create a person? Do the Raelians have a right to create people through cloning? Does an IVF lab have a right to genetically modify an embryo? Does a lab have a right to genetically modify a person's gametes? Does a same-sex couple have a right to conceive with stem-cell derived egg and sperm?

Where in the common law or case law or the Constitution is the right to create people found. My contention: it is found only in marriages, and the marriage (not each spouse, but the marriage) has the right to conceive (nay - is the right to conceive).

So, same-sex marriage is not rights enhancing in this sense, it is merely noting that in this country, there is no law against same-sex conception (but there are laws against incestuous conception). But if Congress were to prohibit the use of stem-cell derived gametes, thereby limiting conception rights to natural conception of a man and a woman, it would certainly be "rights-enhancing" if the court were to declare that unconstitutional and allow labs to create people however they wanted to.

# posted by

John Howard : 4:21 PM

I am sorry, but I will not use the favored self identifier of "progressive" either. It is an inaccurate spin term. Expansion of government is not a progressive development for the citizenry. Rather, it is a return to pre classical liberal times.

I didn't tell you to use "progressive". Truth be told, I can't stand that one either.

But I think you are being deliberately dense here. Of course you know that when Americans here the term "leftist", it conjures up visions of the workers singing the "Internationale" on May Day and waiving red banners. That's why you like the term so much.

And you concede that American liberals are not Western European socialists (that's what "watered down" means, after all). I might add that Western European socialists aren't even very socialist (see, e.g., Zapatero, Tony Blair, etc.).

The point is, it is a time honored right-wing strategy to claim that American liberals are pink, if not red. And your use of the term "leftism" is a deliberate attempt to make American liberals sound closer to communists and socialists than they are. Barack Obama is not calling for state ownership of the means of production (the classic definition of socialism), for example.

So if you want people to treat you as a serious thinker rather than just a jerk, you shouldn't use language that shows you to be unserious and more interested in namecalling than actual debate.

# posted by

Dilan : 4:50 PM

JB said: "The history of doctrinal development is the history of constitutional doctrine responding to sustained mobilization on behalf of rights."

Unfortunately JB is entirely correct here.

Why unfortunately? Because to complete the picture we would also have to amend it slightly:

"..doctrine responding to sustained mobilization on behalf of rights and the counterpart sustained mobilization on behalf of commercial interests"

We see a historic expansion of individual rights, but also a simultaneous expansion of corporate immunities. (Federal preemption of state tort law comes to mind.)

And interestingly the very same Justices often vote for both expansions.

# posted by

Michael Sweney : 5:36 PM

Suppose that the Supreme Court came up with a new constitutional right to single-payer health insurance. Suppose that this new program then becomes popular. At that point, do constitutional theorists then say, "Any good theory of constitutional interpretation has to account for how you find a right to single-payer health insurance in the 1789 document, and because the program is now so popular, we can't ever say that it was a mistake and should have been adopted more democratically"?

Exactly. I've often heard Chemerinsky say in talks that any theory of constitutional interpretation has to be able to justify Brown, because Brown was the Court's finest moment ever. But if you assume that a good theory of interpretation has to be able to justify certain results which we all happen to like, you're already begging the question in favor of results-oriented, non-value-neutral theories of interpretation. I don't see what's wrong with saying that Brown was a mistake, and there's probably an historical argument to be made that desegregation of schools would've gone a lot faster and been seen as far more legitimate if it had been accomplished by an act of Congress. People forget the Earl Warren impeachment movement:

http://www.wired.com/news/images/full/7281123_f.jpg

# posted by

Asher : 6:30 PM

Only in the tautological sense that liberal constitutionalism recognizes, and ONLY recognizes, the existence of those rights it is interested in protecting, regardless of what rights might actually be found in the text of the written constitution.

What rights do you believe the conservative Court of the last 30 years or so has protected or developed?

# posted by

Mark Field : 7:27 PM

dilan said...

I didn't tell you to use "progressive". Truth be told, I can't stand that one either.

Good man. The term is a cop out.

But I think you are being deliberately dense here. Of course you know that when Americans here the term "leftist", it conjures up visions of the workers singing the "Internationale" on May Day and waiving red banners. That's why you like the term so much.

Not really. I just do not like the modern left using the venerable term liberal because the word has not fit them since the Progressive Age at the turn of the century.

When you speak of a liberal economy you are talking of free markets, not greater government regulation.

When you speak of liberal government, you are talking about a democratic government of limited powers, not a bureaucratic state.

The Euro left has it right. When they refer to our free wheeling economy and comparatively limited government, the Euro left sneeringly calls us liberals. Obviously, this does not apply to the American left, which wishes above all to emulate the Euro left.

The point is, it is a time honored right-wing strategy to claim that American liberals are pink, if not red.

I dunno. What shade would you use to describe proposals to socialize health care (14% of the economy) and then regulate the activities of every single emitter of CO2? The American left is pink rather than red because they want to control the means of production through regulation and punitive taxation rather than outright ownership.

Find me a term for the American left which is more accurate than "leftist" and I will be glad to consider it. However, do not suggest liberal because the term does not fit.

# posted by

Bart DePalma : 7:33 PM

you guys are missing the chance to discuss something that's actually relevant. It's like its 1953 and you guys are still discussing Plessy instead of discussing the issue of "separate but equal" education.

Well, now it is time to discuss conception rights. Or are you guys not capable of talking about relevant issues that we have to decide in the future?

# posted by

John Howard : 8:40 PM

Well, now it is time to discuss conception rights. Or are you guys not capable of talking about relevant issues that we have to decide in the future?

# posted by John Howard : 8:40 PM

Relevant? You have already acknowledged/asserted that same-sex conception is unlikely to succeed and is much too expensive. That pretty much ends the discussion.

# posted by

Bartbuster : 9:05 PM

"What rights do you believe the conservative Court of the last 30 years or so has protected or developed?"

Leaving aside the fact that I don't think the Court of the last 30 years has been all that "conservative", (Almost unrelentingly statist, maybe, but that's not the same thing.) does having a poor opinion of 'liberal' constitutionalism mandate me having a good opinion of "conservative" constitutionalism? I don't think so.

# posted by

Brett : 9:13 PM

That's a asinine attitude. Someone is going to try it soon, be it germline genetic engineering or same-sex conception. Other countries have banned it but in this country people are asserting a right to try it.

It isn't possible to know if it will be successful or not. The point is that we need to decide if there is a right to attempt it or not.

# posted by

John Howard : 9:16 PM

we need to decide if there is a right to attempt it or not.

# posted by John Howard : 9:16 PM

Judging by the deafening silence every time you post, you are the only person who feels that way.

# posted by

Bartbuster : 9:51 PM

does having a poor opinion of 'liberal' constitutionalism mandate me having a good opinion of "conservative" constitutionalism? I don't think so.

Not necessarily, but I read your earlier post saying that liberals only protected some rights as implying that conservatives protected others. I was just curious what those might be.

If your view is that the courts have failed to protect rights over the last 30 years or so, is that because

a) they've been too "statist"?

or

b) it's not the job of the court to protect rights?

# posted by

Mark Field : 10:59 PM

Carroll was not based on any horseback or fast boat exception to the Fourth Amendment known to the Founders, nor has Scalia noted the absence of such

The Carroll Court did compare (in part using a 1789 law as I noted; the opinion in part was statutory in nature so this was important for more than one reason) ships and other conveyances with the more private and intimate home for purposes of Fourth Amendment analysis.

It also did speak of how the one involved a vehicle that could be moved before a warrant is obtained. Ships as well as cars have that quality, especially in the days when it would take longer to obtain a warrant.

The ruling again did not say the police had carte blanche. The use of 'exception' is somewhat misleading. They had to have some sort of reasonable suspicion ... as they do now (if even by pretext) .. but given the nature of the thing searched it was not 'unreasonable' if a warrant was not obtained.

[Cf., e.g., the carte blanche border search]

Likewise, the automobile rule was accepted as a rule -- it did not have to be "proved" that a certain automobile wasn't as private as a home or as transitory.

Liberals opposed various applications of the rule, especially as it was stretched too far, but yes, outside of Brennan and Marshall, others accepted too much of it. Esp. the Whren case.

# posted by

Joe : 11:26 PM

The deafening silence: you are all afraid to bring this issue to prominence in the debate, because you know it is totally unnecessary and unethical and in opposition to all your other purported values. Thinking about it makes your heads explode. But there is a simple way out: you could simply acknowledge that everyone should have the right to use their own genes to conceive children, and no one should have a right to use modified genes. Then, you could apply that acknowledgment to the marriage debate, and concede that only a man and a woman should have the right to conceive children, and that this right shoudl be the exclusive and essential right of marriage. Then, Civil Unions could be achieved for same-sex couples in every state with full federal recognition as they are in England. Instead of insisting on equal conception rights, like complete fucking idiots, you could achieve full equal protections in all other areas and truly achieve something good.

Balkin this means you and the rest of you bloggers. Why do you put conception rights as the goal, instead of eschewing them and achieving equal protections.

Don't run away from this question. You're professionals, you're knowledgeable, you ought to be able to explain to a layman like me why conception rights are more important than equal protections via civil unions. Start now.

# posted by

John Howard : 1:27 AM

Mark, it most assuredly IS the Court's job to protect rights, where they're explicitly mentioned in the Constitution the Court is charged with upholding, or sufficiently traditional to fall under the 9th amendment's protection of existing unenumerated rights. (It wasn't a license for the courts to invent new rights.)

No, I don't think the conservatives on the court have been terribly effective at protecting rights the liberals were eager to abolish. Or visa versa. Maybe that will change when the Heller case comes out, but I'm not holding my breath.

# posted by

Brett : 6:27 AM

you ought to be able to explain to a layman like me why conception rights are more important than equal protections via civil unions. Start now.

# posted by John Howard : 1:27 AM

Yes, one would think so. And yet, here we are...

That is one of my favorite Homer Simpsonisms...

Anywho, I think what you really need is someone who can explain to you why your "choice" between "conception rights" and "civil unions" is a phony load of homophobic crap. You seem like a dullard, so it isn't going to be easy. Good luck!

# posted by

Bartbuster : 10:39 AM

Nope, it's a real proposal, it exists and has been put on the table for both sides to stop hurting families and wasting resources and agree to already.

The objection to Civil Unions is that they are "stepping stones to marriage", they are "marriage in all but name." So what is needed is a permanent distinction that preserves the uniqueness of marriage. Establishing that CU's do not grant conception rights is perfect, since it would not take away anything from a what same-sex couple can do today anyhow. It would give all the rights that you have been asking for, and fully protect the relationship, but would also leave for marriage the essential and universal right of marriage, respecting the uniqueness of a male-female relationship.

This deal would be viable, it would work, it would pass through Congress and be signed by this President. All it needs is people to swallow their pride and choose it, rather than holding out for conception rights.

# posted by

John Howard : 11:10 AM

All it needs is people to swallow their pride and choose it, rather than holding out for conception rights.

# posted by John Howard : 11:10 AM

I tell you what. How about if you perform some self-conception experiments (ie. go fuck yourself), and let us know when you manage to conceive something. If you have success, I will support the passage of your bill.

# posted by

Bartbuster : 11:36 AM

You are telling same-sex couples across the country that you know better than they do what is good for them. They are families with children, they don't want or need a right to try ridiculous hetero-emulating experiments to have bio-related kids together, they need state and federal recognition and equal protections of their relationship.

# posted by

John Howard : 11:44 AM

You are telling same-sex couples across the country that you know better than they do what is good for them.
# posted by John Howard : 11:44 AM

No, I'm just telling you to go fuck yourself on their behalf.

# posted by

Bartbuster : 11:47 AM

You are causing their suffering. I have come up with a plan to get them equal protections right now, but you are opposed to it because it prohibits same-sex conception.

Where are the serious people? Dear Professors, if you spread this idea through your network of law professors, it would have gravitas and legitimacy, and we could get equal protections to same-sex couples across the country and preserve everyone's conception rights.

# posted by

John Howard : 12:23 PM

You are causing their suffering. I have come up with a plan to get them equal protections right now, but you are opposed to it because it prohibits same-sex conception.

I'm doing nothing of the kind. You are just a homophobic scumbag with a "solution" in search of a problem.

# posted by

Bartbuster : 12:36 PM

No, actually, I'm not.

# posted by

John Howard : 12:46 PM

No, actually, I'm not.

# posted by John Howard : 12:46 PM

Apparently you are also a liar.

# posted by

Bartbuster : 12:54 PM

The Ninth Amendment speaks of protecting rights that are unenumerated. This is translated by some to mean:

"sufficiently traditional to fall under the 9th amendment's protection of existing unenumerated rights"

The 9A most probably includes various "natural rights," or at least the Framers figured as such. Natural rights are those rights that humans by means of their reason determine, in part by the breadth of human experience.

Such is not set in stone, but develops. Some, however, thinks it is set in stone. This also applies to the "liberty" secured by due process. Traditionally, due process of law had a common law flavor, such law again developing based on developing reasoning and experience.

This is how it was understood. Again, we see how selective appeals to "tradition" can be. Or words like "invent" to mean "applications of amendments that I don't agree with" or some such thing.

This set in stone flavor doesn't really seem to be what John Marshall had in mind when he said "this is a Constitution we are expounding" ... but heck, he was only a ratifier of the Constitution. Or, what Madison thought when he decided time and experience settled the bank issue, even if he once opposed it.

# posted by

Joe : 1:44 PM

The idea that asexual conception won't happen because currently it is impossible is like thinking in the 1930s that in vitro fertilization is impossible.

It also is not just a matter of homosexuals wanting children. For genetic reasons, single parents wanting children, and probably other reasons, the matter is conceived as a good idea by some.

I'm not sure why one should discuss it here in particular though. Any number of issues that actually are not theoretical could be put in its place, for or against liberal cons.

# posted by

Joe : 1:52 PM

You know that old addage that to a man with a hammer, everything looks like a nail? Well John Howard has a "hammer," i.e., an obsession with reproduction by two same-sex gammetes, and everything looks to him like a "nail," i.e., an opportunity for that to happen. Until his fears become a realistic prospect, it is best to ignore him.

# posted by

Essayist-Laywer : 2:23 PM

Society needs to start asking if there is a right to create people by other methods than a man and a woman combining their gametes. Other countries have dealt with this issue already and most have passed laws against germline genetic engineering and cloning and things like that. But there are also eugenicists and transhumanists and post-genderists who want to move beyond natural conception and start "improving" children or "empowering" adults to have children with people of their same sex.

There aren't really any other rights issues that are comparable, or as pressing, or as interesting. If you can think of one, by all means bring it up too.

Previously the right to conceive a person was synonymous with marriage, and I think it should continue to be thought of as a right of the marriage (not the husband or the wife, but the marriage). Certainly it should not be stripped from marriage, or married couples could find themselves prohibited from conceiving together for eugenic fitness reasons. It should not be seen as an individual right, or a right of a scientist or a company, since it creates people who have rights, and society has an obligation to protect the rights of people who are powerless to stand up for their own interests. All people should be created equal, as children of two progenitors who chose each other to reproduce with, using their actual genes. No one should be designed or created with modified gametes.

# posted by

John Howard : 2:32 PM

"You know that old addage that to a man with a hammer, everything looks like a nail?"

Often heard is the male-to-male boast about nailing a particular chick, doll, broad, etc. Is there a female counter boast (a) of being so nailed or (b) of her doing the nailing of some stud? Does this take us back to original sin? There is an old joke about Eve being the first carpenter that I recall from my visits to the Old Howard in the late 1940s, early 1950s featuring, in addition to Rose LaRose, comedian Mike Sachs.

Now what made me think of this? Usually when I hear of the hammer I think of that Republican ex-congressman from Texas who tried to bring his exterminator skills to Congress but ended up getting hammered himself.

# posted by

Shag from Brookline : 3:32 PM

I've been following a bit the progress in related biotechnologies, and I'd guess that same sex conception will be technically feasible, with a low success rate and terrifyingly high rate of birth defects, within five years, ten at the outside. So it's not as though it's an issue that's never going to arise. But it's going to be a tough sell to equate it constitutionally with normal reproduction after those first couple of partial successes.

# posted by

Brett : 5:08 PM

Is it possible that through evolution (in, say, gazillions of fruit fly or human years) same sex conception might take place? How might originalism address that?

# posted by

Shag from Brookline : 5:40 PM

Please ignore "John Howard". He's just nutz (and he actually got deleted from Balkinization by the sysadmin once; something that is quite rare indeed). Let the proprietors take care of it.

He's far worse than our usual thread-jackers, with just one single sterling 'thought' to the entirety his psyche, and that repeated ad nauseam. There is no point to responding, period.

Thanks in advance,

# posted by

Arne Langsetmo : 6:13 PM

So it's not as though it's an issue that's never going to arise. But it's going to be a tough sell to equate it constitutionally with normal reproduction after those first couple of partial successes.

Thank you Brett, your assessment jibes with most experts, though some experts like Dr. Richard Scott in New Jersey predicted three to five years three years ago, so it might be a lot sooner, and he didn't seem worried too much about birth defects. And they would probably keep early miscarriages private, and wait to announce the first smiling success. Currently the people who insist on there being a right to try it (or other germline genetic modifications) someday are very adamant that a ban would be unconstitutional, because as long as the parents are informed and not coerced or duressed or lied to, they should have the right to.

And also currently, kids are growing up thinking that it will be possible when they are adults, money is being wasted on research instead of health care, same-sex couples are without equal protections, and lots of unease and ill-will is created by the festering marriage debate.

Waiting until the first babies are born with defects is not thinking forward, we are smarter than that. We can and should prohibit use of modified gametes right now and establish federal recognition for civil unions that don't give conception rights, and protect marriage's conception rights, all at the same time.

# posted by

John Howard : 6:31 PM

Find me a term for the American left which is more accurate than "leftist" and I will be glad to consider it. However, do not suggest liberal because the term does not fit.

Well, "liberal" happens to be the term everyone uses. It's the same reason I use "pro-life" even though I don't think much of the claim that pro-lifers actually care more about life than pro-choicers do.

But if you can't bring yourself to use "liberal", how about "left-liberal" or "modern liberal", to distinguish from the classical liberals whom you claim are the true liberals? Either one is better than "leftist", which, as I said, conjures up revolutionaries and reds.

# posted by

Dilan : 2:37 AM

Yeah, but it's pretty darned obvious why anyone who thinks 'liberals' aren't is going to object to any variant on 'liberal'. And I think the objection is fair; The modern use of "liberal" is a result of the same kind of "I can't beat you, so I'm going to take your name for my own!" ploy Balkin is trying to pull off on originalism. I personally think it's a bit late to do anything about it in the former case, the 'brand' is irrevocably tainted, but I can see why somebody would resist validating the theft of the name even long after.

# posted by

Brett : 6:07 AM

I personally think it's a bit late to do anything about it in the former case, the 'brand' is irrevocably tainted, but I can see why somebody would resist validating the theft of the name even long after.

But that's partly the point, Brett. At some point, the self-description becomes the accepted term. And from that point on, it sounds ridiculous not to use it.

Moreover, what you are ignoring is that I don't think the use of the term "leftist" is solely about not using the term "liberal" because of its libertarian history. Rather, calling liberals "leftists" is a deliberate political strategy to associate liberals with unpopular (in America) groups that are farther to the left. It is a form of red-baiting.

Finally, I would note one other thing. Conservatives love calling the Democratic presidential candidate every four years a "liberal". (E.g., Michael Dukakis in 1988.) I'd give 50-1 odds that Bart has done that in the past. So "liberal" is OK to conservatives when used as an epithet, but is not OK when used to honestly describe the dominant left-of-center ideology in the US. That's untenable.

# posted by

Dilan : 1:28 PM

Indeed, here are a couple of highlights from Bart's blog (http://citizen-pamphleteer.blogspot.com/):

"In contrast, we conservatives view McCain as a centrist who flirts with liberals far more than we would like."

"Even ultra-liberal Harvard Law School Professor Alan Dershowitz agrees, as he wrote recently in the Wall Street Journal."

You see, Bart has no objection to the term "liberal" to describe left-of-center Americans, so long as it is used as an insult.

I'll leave it to readers here to determine how big a hypocrite Bart is being here.

# posted by

Dilan : 1:32 PM

"...the 'brand' is irrevocably tainted..."

Hardly.

# posted by

Michael Sweney : 5:32 PM

Dilan wrote: Either one is better than "leftist", which, as I said, conjures up revolutionaries and reds.

Bart isn't debating here, he is casting aspersions. If you go back to his first post on the thread it shows an utter inability to meet the arguments JB makes. Bart merely lapses into boilerplate attacks on liberal politics. Indeed, his opening gambit of insisting on changing the label from the accepted and perfectly useful 'liberal' to 'leftist' illustrates perfectly the shallowness of his 'thinking.'

His principle technique is emotion-based. And he is pretty good at pissing people off. He sure gets my goat!

And he has a proven track record of quietly disappearing when he has been soundly spanked.

# posted by

mattski : 8:58 PM

Dilan:

Finally, I would note one other thing. Conservatives love calling the Democratic presidential candidate every four years a "liberal". (E.g., Michael Dukakis in 1988.) I'd give 50-1 odds that Bart has done that in the past. So "liberal" is OK to conservatives when used as an epithet, but is not OK when used to honestly describe the dominant left-of-center ideology in the US. That's untenable.

I'd note that (IIRC) "Bart" has -- mirabile dictu -- self-described himself as a "classical liberal" (or such) at least a couple times in the recent past.

Just a very perverse manifestation of the IOKIYAR phoenomenon....

I'd also note that such "word games" and anal retentiveness on "definitions", when taken seriously, threaten to extinguish any effective communication in sober discussion. Why not let people use the terms they prefer as long as we understand what they mean when they say them. And if we don't understand what they mean, that would be their problem in choosing their language, wouldn't it? This last fact would do much to cure abuses by those that really want to engage in fruitful discourse.

Cheers,

# posted by

Arne Langsetmo : 9:10 PM

"Why not let people use the terms they prefer as long as we understand what they mean when they say them. And if we don't understand what they mean, that would be their problem in choosing their language, wouldn't it?"

Not when people have chosen terms with the aim of being misunderstood by others in a specific way. It would be different if "liberal" weren't an established word with a meaning outside of politics, but it isn't. *I* may understand that the use of "liberal" by the people today using it unmodified has nothing to do with the root word "liberty", but the misuse of the term isn't aimed at people who are aware of that, it's a propaganda ploy.

Or started out that way, anyway; I doubt the people calling themselves liberals today think much on it, they just assume that they're entitled to be called by the name of their long ago opponents. But why should anybody who doesn't think 'liberals' ARE "liberal" go along with the gag?

# posted by

Brett : 6:41 AM

dilan said...

Indeed, here are a couple of highlights from Bart's blog (http://citizen-pamphleteer.blogspot.com/):

"In contrast, we conservatives view McCain as a centrist who flirts with liberals far more than we would like."

"Even ultra-liberal Harvard Law School Professor Alan Dershowitz agrees, as he wrote recently in the Wall Street Journal."

You see, Bart has no objection to the term "liberal" to describe left-of-center Americans, so long as it is used as an insult.

My blog has a general audience so I use the general terms conservative and liberal.

This blog caters to a specialized legal audience who use language more precisely. Here, I can ride my semantic hobbyhorses without confusing anyone.

Many of you are awfully sensitive.

You admit to being left of center, but fear the term leftist. As a point of comparison, a derogative term for being left of center, would be something like "commie" or "pinko."

Someone here got all upset when I called homosexuals, well homosexuals, instead of the unwieldy "gays and lesbians." As a point of comparison, a derogative term for homosexuals would be something like "homo" or "fag."

Grow a thicker skin.

# posted by

Bart DePalma : 8:35 AM

On who gets to define "liberal": Why, Brett and Bart, should the rest of us allow 20 percent (or less) of those present to define the terms as they like (and change them whenever they find it convenient, as Bart does)?

As for "classical liberal" -- it's meaningless. It's been meaningless for decades, and people only trot it out for rhetorical points. For my money, Bart, you are a monarchist, defined as someone who is "liberal in defense of the ruler's dispossession of other people's rights" -- now, that's the sense in which you are a "classical liberal."

# posted by

C2H50H : 10:23 AM

"You admit to being left of center, but fear the term leftist." -Bart

Bart, I don't think its fear except that of mislabeling and a concern for the traditional use of terms.

In American political discourse of the first three quarters of the20th century, the terms "liberal" and "leftist" were generally intended to describe different populations: the former being affiliated with the general system but seeking reforms, the latter with disaffection from the system and desiring of its replacement with an alternative, be it socialist or communist.

Reagan-era wordsmiths successfully conflated the two terms. This need not be a permanent confusion, but until we see a resurgence of the proper referents: the socialists and communists in this country, the word "leftist" will, for lack of a referent, be used incorrectly to describe liberals.

# posted by

Michael Sweney : 3:06 PM