There is a entire new generation in America that is not adapting to life. Addicted to phones, iPads, and other screens, young Americans are impaired when it comes to wrestling with their darker selves or going out into the world—both of which are necessary and humbling stages of the natural maturation of a human being. The result has been the kinds of mental and spiritual problems that we see manifest among the young: eating disorders, depression, social awkwardness. On college campuses students have meltdowns over visiting speakers, shriek hysterically over minor school policies they don’t like, and retreat into “safe spaces.”
Recently, I have been studying comparative constitutional law. It is a fascinating area, providing real world examples for the issues that constitutional theory explores. What is more, the practices of other constitutional judiciaries are often unexpected. I often find myself saying, “do they really do that?”
One example is the recent constitutional case, decided by the Supreme Court of India, finding that the Indian Constitution provides a nontextual right to privacy.
A cocktail party is an odd place, perhaps, to discuss the rule of law, but I have no small talk and neither had my interlocutor. Our views on this subject were, fortunately for the flow of conversation, somewhat at variance.
My interlocutor asked me whether I believed in redemption and forgiveness, that is to say the possibility that a prisoner incarcerated for a serious crime could redeem himself and be forgiven. I said that I did not, at least not in any sense that had any legal bearing. From the religious point of view, of course, it was different.
It would be hard to exaggerate the Left’s evasiveness, before the fall of the Soviet Union, about the evils of communism. In this centenary year of the Bolshevik Revolution, there are other anniversaries we could note. One is that, 35 years ago, Susan Sontag shocked and dismayed her fellow leftists with her famous declaration that “Communism is in itself a variant, the most successful variant, of fascism. Fascism with a human face.”
At an excellent colloquium on Tradition, Culture and Citizenship run by the Tradition Project of St. John’s Law School, a central question was what kind of politics allows traditions to flourish in the modern world. For me the clear answer is classical liberalism.
The classical liberal order leaves space for tradition in two ways. First, it justifies a state which has its object only providing the public goods that the family and the market cannot provide. As a result, the state has no business imposing wide ranging obligations that may burden traditional practices, so long as those practices do not interfere with these relatively few public goods, like the rule of the law, national defense and the regulation of substantial externalities, like pollution, that the state provides.
Second, classical liberalism recognizes that mediating institutions, like churches and mutual aid societies, are themselves important producers of public goods. It is these mediating institutions that are best at handing down traditions from generation to generation.
Readers of Law and Liberty have heard—and perhaps even used—the famous phrase about free speech that is often misattributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” One wonders, though, whether this formulation actually makes much sense.
The puzzle is why judges review the constitutionality of (some) laws deferentially. Last week I considered one of the most often provided reasons for deference, that the judges are “unelected,” and so, in a republican political system, should be careful when striking down the enactments of popularly elected legislators. Yet in the American constitutional system, national-level courts are fully republican institutions. They are immunized from direct electoral supervision to make them and the system more republican, not less republican. They are selected by the people’s representatives, and serve only during “good behavior.” This makes courts republican institutions according to the “rigid definition” that James Madison provides in Federalist No. 39. So, too, at the state level, many judges are elected directly, or at least undergo retention elections. It’s hard to maintain at either the state or national level that the judiciary is a non-republican branch of government.
Dudes and Pharisees. Mugwumps. Those were just some of the names that party regulars called the disaffected Republicans who refused to support James G. Blaine for President in 1884.
That contest, which pitted Blaine against Democrat Grover Cleveland, was one of the nastiest in American history. And it has much to teach us about Senator Jeff Flake’s indictment of American politics today.
At times members of the Supreme Court, including Justice Scalia, have said the words of the Constitution should be read in ordinary language. But recent majority opinions in the Confrontation Clause, like Crawford v. Washington and Giles v. California, written by none other than Justice Scalia, are more consistent with the view expressed by Mike Rappaport and me that the Constitution is written in the language of the law. That language includes ordinary language but also terms that have a distinctly legal meaning as well as legal interpretive rules.
The Confrontation Clause provides that “in criminal prosecutions, the accused shall have the right . . . to be confronted with witnesses against him.” In Crawford the state wanted to introduce a tape recorded statement made by the defendant’s wife to the police. The statement appeared reliable but the defendant had not been afforded the opportunity to cross examine the witness. The Court in an opinion by Justice Antonin Scalia recognized that the question of whether the clause applies only to witnesses at trial is not answered by the “Constitution’s text . . . alone.” Justice Scalia stated that “One could plausibly read “witnesses against” a defendant to mean those who actually testify at trial, those whose statements are offered at trial or something in-between.”
To resolve this uncertainty, Justice Scalia looked at the legal meaning of the constitutional provision.