Apropos to our recent discussion of Justice Stephen Breyer and his judicial philosophy, I am pleased to offer a sneak preview of this review, which will appear in the upcoming Winter issue of Modern Age.
Judicial Immodesty
by Cory L. Andrews
Active Liberty: Interpreting our Democratic Constitution, by Stephen Breyer. Alfred A. Knopf, 161 pages, $21.00.
Resulting from Harvard Law School’s distinguished Tanner Lectures on Human Values, Justice Stephen Breyer’s Active Liberty: Interpreting our Democratic Constitution is a remarkably unprincipled book. In its pages, Breyer proposes the substitution of judicial for legislative initiative as the primum mobile of national government, advances the primacy of a formless but catchy abstraction (the giddy but elastic nostrum “active liberty”) over the particulars of constitution and statute, and promotes a presumably democratic ideal (his own ethereal one, of course) over the rigors of public deliberation and consensus. In Breyer’s eager hands, the Constitution is transformed from a foundational document of enduring fixed principles into the breezy platitude that “democracy is good,” thereby granting judges a roving commission to do “democratic” things as they see fit. (Never mind that the architects of the Constitution actually sought to mute popular democracy rather than accentuate it.)
Judicial Immodesty
by Cory L. Andrews
Active Liberty: Interpreting our Democratic Constitution, by Stephen Breyer. Alfred A. Knopf, 161 pages, $21.00.
Resulting from Harvard Law School’s distinguished Tanner Lectures on Human Values, Justice Stephen Breyer’s Active Liberty: Interpreting our Democratic Constitution is a remarkably unprincipled book. In its pages, Breyer proposes the substitution of judicial for legislative initiative as the primum mobile of national government, advances the primacy of a formless but catchy abstraction (the giddy but elastic nostrum “active liberty”) over the particulars of constitution and statute, and promotes a presumably democratic ideal (his own ethereal one, of course) over the rigors of public deliberation and consensus. In Breyer’s eager hands, the Constitution is transformed from a foundational document of enduring fixed principles into the breezy platitude that “democracy is good,” thereby granting judges a roving commission to do “democratic” things as they see fit. (Never mind that the architects of the Constitution actually sought to mute popular democracy rather than accentuate it.)
Category: American Culture
Posted by: an okie gardener
In an earlier post I wrote:
I'm a white guy who speaks English as my native language. Living in the US I have not had much experience at being a member of any minority group. (Though the city of Cincinnati does prohibit discrimination against people of Appalachian ancestry. My people, however, left Appalachia about 140 years ago.) Now I find myself a member of a minority--married folks. And, I suppose I'm in a shrinking demographic--married nearly 28 years and never divorced. A member of a minority group, how did that happen?
The following are the unscientific thoughts of this one 50-year old, not based on sociology, just close observation of the latter half of the twentieth-century. One more fact before I begin, the average age of first marriage now has risen into the late twenties. (more below)
I'm a white guy who speaks English as my native language. Living in the US I have not had much experience at being a member of any minority group. (Though the city of Cincinnati does prohibit discrimination against people of Appalachian ancestry. My people, however, left Appalachia about 140 years ago.) Now I find myself a member of a minority--married folks. And, I suppose I'm in a shrinking demographic--married nearly 28 years and never divorced. A member of a minority group, how did that happen?
The following are the unscientific thoughts of this one 50-year old, not based on sociology, just close observation of the latter half of the twentieth-century. One more fact before I begin, the average age of first marriage now has risen into the late twenties. (more below)
Wizbang has this post arguing the affirmative. Seriously? We link, you decide.
Category: Media and Politics
Posted by: A Waco Farmer
My favorite new show of the season is Studio 60 on the Sunset Strip. It is crisp, rich, clever, and smart. Aaron Sorkin is a brilliant writer and producer who always tells compelling stories and presents multi-dimensional magnetic characters.
However, Sorkin is an artist with a political edge. In the midst of his artistry is always the message. Message is okay. Art is the product of creative people communicating messages to wider audiences. But sometimes the message overpowers the art.
My beef with Sorkin in the past has been that he perverts the facts to make a better case for his political points. For example, in aid of his mission to defend Bill Clinton, he and Rob Reiner made a movie entitled The American President. Incensed that mean-spirited Republicans criticized President Clinton's sex-life as a way to attack his politics, Sorkin created a fictional Democratic president, Andrew Shepherd, a widowed dad morally upright in every way. President Shepherd falls in love with a beautiful idealistic liberal lobbyist. When they start dating, the despicable Republicans pounce on them for having sex out of wedlock and other harmless revelations from her distant past. Oooooohhhhhh! Why are Republicans so mean?
My objection then: if you are going to defend Bill Clinton, then do it honestly. Make the fictional President a philanderer. Figure out how to make the betrayed wife unsympathetic and the tryst with the intern in the Oval Office an honorable encounter.
I stayed away from the West Wing (aka the Left Wing) for similar qualms.
But Studio 60 has been surprisingly subtle in the message department thus far and pleasantly packed full of great entertainment. But then tonight happened. Sorkin created a ridiculous storyline to shame the FCC for their crackdown on profane speech. Instead of featuring a rock star who shouts the f-word on live TV or two rock stars who stage a sexual assault during the halftime show at the Super Bowl, Sorkin created an incident in which a soldier in Afghanistan under attack ejaculates the f-word on a live news broadcast. The reaction of the FCC? A heartless multi-million dollar fine and the threat of extinction.
Oooooohhhhhh! Why are Republicans so mean?
However, Sorkin is an artist with a political edge. In the midst of his artistry is always the message. Message is okay. Art is the product of creative people communicating messages to wider audiences. But sometimes the message overpowers the art.
My beef with Sorkin in the past has been that he perverts the facts to make a better case for his political points. For example, in aid of his mission to defend Bill Clinton, he and Rob Reiner made a movie entitled The American President. Incensed that mean-spirited Republicans criticized President Clinton's sex-life as a way to attack his politics, Sorkin created a fictional Democratic president, Andrew Shepherd, a widowed dad morally upright in every way. President Shepherd falls in love with a beautiful idealistic liberal lobbyist. When they start dating, the despicable Republicans pounce on them for having sex out of wedlock and other harmless revelations from her distant past. Oooooohhhhhh! Why are Republicans so mean?
My objection then: if you are going to defend Bill Clinton, then do it honestly. Make the fictional President a philanderer. Figure out how to make the betrayed wife unsympathetic and the tryst with the intern in the Oval Office an honorable encounter.
I stayed away from the West Wing (aka the Left Wing) for similar qualms.
But Studio 60 has been surprisingly subtle in the message department thus far and pleasantly packed full of great entertainment. But then tonight happened. Sorkin created a ridiculous storyline to shame the FCC for their crackdown on profane speech. Instead of featuring a rock star who shouts the f-word on live TV or two rock stars who stage a sexual assault during the halftime show at the Super Bowl, Sorkin created an incident in which a soldier in Afghanistan under attack ejaculates the f-word on a live news broadcast. The reaction of the FCC? A heartless multi-million dollar fine and the threat of extinction.
Oooooohhhhhh! Why are Republicans so mean?
I am grieved by the news today that partisanship and petulance forced the resignation of John Bolton as UN Ambassador. I fear that all the talk of a new tone in Washington is altogether disingenuous. The opposition to Bolton purportedly centered around alleged past incidents of incivility and similar breaches of decorum, which raised doubts about his ability to perform in the sensitive diplomatic post. However, his sixteen-month tenure at the UN seemingly trumps any of those speculative worries. Notwithstanding, no one seemed very interested in a review of his job performance and/or a public discussion of the question. Today's events confirm that that the accusations of ill temperment were merely a facade for mindlessly destructive partisan politics.
I agree with President Bush:
"I am deeply disappointed that a handful of United States Senators prevented Ambassador Bolton from receiving the up or down vote he deserved in the Senate," Bush added. "They chose to obstruct his confirmation, even though he enjoys majority support in the Senate, and even though their tactics will disrupt our diplomatic work at a sensitive and important time. This stubborn obstructionism ill serves our country, and discourages men and women of talent from serving their nation."
I also agree with Sen. George Voinovich of Ohio, who opposed the Bolton appointment sixteen months ago and had this to say today:
"John Bolton has risen to the occasion and done a good job under the harshest of circumstances," Voinovich said in a statement. "I'm extremely concerned with him leaving since he's been so deeply involved with the situations in Iran, Syria, Lebanon and North Korea and has been working in concert with fellow ambassadors toward true U.N. reform."
Shame on Senate Democrats and outgoing Republican Senator Lincoln Chafee.
The above quotes come from the Washington Post story (linked here).
I agree with President Bush:
"I am deeply disappointed that a handful of United States Senators prevented Ambassador Bolton from receiving the up or down vote he deserved in the Senate," Bush added. "They chose to obstruct his confirmation, even though he enjoys majority support in the Senate, and even though their tactics will disrupt our diplomatic work at a sensitive and important time. This stubborn obstructionism ill serves our country, and discourages men and women of talent from serving their nation."
I also agree with Sen. George Voinovich of Ohio, who opposed the Bolton appointment sixteen months ago and had this to say today:
"John Bolton has risen to the occasion and done a good job under the harshest of circumstances," Voinovich said in a statement. "I'm extremely concerned with him leaving since he's been so deeply involved with the situations in Iran, Syria, Lebanon and North Korea and has been working in concert with fellow ambassadors toward true U.N. reform."
Shame on Senate Democrats and outgoing Republican Senator Lincoln Chafee.
The above quotes come from the Washington Post story (linked here).
Category: Frivolity
Posted by: an okie gardener
For the judicially inclined among us. This post from Balkanization on matching the SJs to rockers with similar aesthetics. Hat tip Instapundit.
Category: America and the World
Posted by: an okie gardener
This report on Niger from Jihadwatch. The Islam in this African nation formerly was of the syncretistic variety, easy-going toward non-Muslims. In the last few years Saudi money has been supplying hard-line imams who are transforming the religion/culture of Niger.
When you drive alone, you drive with the sheiks. SUV Drivers for Wahhabism. Freeway Speeders for Radical Islam. Accountants Driving Big Pickups for Terrism.
In the words of Pogo, "We have met the enemy, and he is us."
When you drive alone, you drive with the sheiks. SUV Drivers for Wahhabism. Freeway Speeders for Radical Islam. Accountants Driving Big Pickups for Terrism.
In the words of Pogo, "We have met the enemy, and he is us."
04/12: Advent Meditation
“I saw the light I saw the light
no more darkness no more night
Now I’m so happy no sorrow in sight
Praise the Lord I saw the light.”
~Hank Williams
no more darkness no more night
Now I’m so happy no sorrow in sight
Praise the Lord I saw the light.”
~Hank Williams
We are waiting in a world that often appears barren and devoid of light. In the anguish of our emptiness, we hunger for justice and peace. Awash in our imperfection, we cry out for forgiveness and healing. In the depths of our abject loneliness, we await God. Where are you beloved Savior? Emanuel?
We are not alone. We have seen the light, yet darkness and sorrow have not passed away. We are anticipating a more joyous time, but we are no longer expecting only bright glorious days in the Garden. We have been chastened by the black and lifeless night of the Cross. Nevertheless, we are assured that there is “a light that keeps shining in the darkness.” Even as the earth experiences nighttime, we understand that the sun continues to keep us in precise cosmic order and warm our world. God is with us during our long night.
Welcome darkness. In the coldness and darkness of life is truth. The dark of winter is a reminder of our limits and our need. The delicious hunger in our souls during the long night confirms our dependence on God. We are the created. We need not search for God. Even as we wait for God, we know that God is here. God has come already, and He has not abandoned us. God is with us in the midst of our sorrows.
Life is beautiful and rich and multi-layered, but we will not easily and painlessly solve the puzzles of our existence. Spring will come again; we will laugh again—but not tonight. Tonight we wait in the stillness. The promise of victory is real and assuring, but darkness is our present reality.
Welcome darkness. Winter is upon us. But welcome also a candle in the night (and another; and another). In the midst of the darkness, light and meaning are in us even as God was in the Christ. “We are truly blessed. The Lord is with us.”
Note: I originally wrote this meditation last Advent season for an internal publication at my church. My inclusion of Hank Williams's famous praise hymn to God struck many learned readers as a curious coupling with Advent. Undoubtedly, they were right. Blame my curiously organized mind. Here is what I was going for: Hank Williams, I suspect, was articulating a "holiness" theology, a tradition prominent in some denominations of Christianity in the American South. The holiness tradition teaches that Christians may reach a level of righteousness at which they are almost immune to sin or distress. Traditional Advent thinking, obviously, denies such a belief. Instead, the lesson of Advent is "light in the midst of darkness" as opposed to "no more darkness."
Earlier this week, Chris Wallace interviewed Justice Stephen Breyer. The exchange aired this morning on Fox News Sunday (full transcript here, scroll down for Justice Breyer).
When queried about his 2003 vote to uphold the McCain-Feingold campaign finance reform law, Justice Breyer responded:
"I think what I said was, when you get a case like that, you start to look to slogans to decide the case. It won't work.
"The First Amendment itself, "the freedom of speech," doesn't tell you the answer. Nor does a slogan.
"If you want to use the slogan, "Money is at stake, not speech," that seems to work. That means they can regulate anything. But if you think about it for two minutes, you realize that money is very important to speech, because no one can run for office and have his message heard without money. So the First Amendment is involved.
"Then if you think the opposite, "Well, wait a minute, these campaign finance limits, what they're doing is they are telling the person who wants to give $20 million that he can't finance all the speech he wants. Doesn't that violate the First Amendment?" I'd say that's a slogan. Why? Because think about that First Amendment. It was done, enacted, passed, to help our country of now 300 million citizens run fair and free elections.
"The very point of speech in an election is to get a message across. And that may mean, in part, that you don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money. If you accept that at all, you've suddenly bought in to the proposition that there are First Amendment interests on both sides of this equation [empahsis added].
"And once you're there, you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely."
"I used that word, "purpose," to help me in a case where the language isn't clear, where the history isn't clear, where the tradition isn't clear, where the precedents aren't clear, that we have to decide how in that realm of ambiguity to apply the value that's permanent and always there, free speech, to a modern, difficult situation."
When queried about his 2003 vote to uphold the McCain-Feingold campaign finance reform law, Justice Breyer responded:
"I think what I said was, when you get a case like that, you start to look to slogans to decide the case. It won't work.
"The First Amendment itself, "the freedom of speech," doesn't tell you the answer. Nor does a slogan.
"If you want to use the slogan, "Money is at stake, not speech," that seems to work. That means they can regulate anything. But if you think about it for two minutes, you realize that money is very important to speech, because no one can run for office and have his message heard without money. So the First Amendment is involved.
"Then if you think the opposite, "Well, wait a minute, these campaign finance limits, what they're doing is they are telling the person who wants to give $20 million that he can't finance all the speech he wants. Doesn't that violate the First Amendment?" I'd say that's a slogan. Why? Because think about that First Amendment. It was done, enacted, passed, to help our country of now 300 million citizens run fair and free elections.
"The very point of speech in an election is to get a message across. And that may mean, in part, that you don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money. If you accept that at all, you've suddenly bought in to the proposition that there are First Amendment interests on both sides of this equation [empahsis added].
"And once you're there, you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely."
"I used that word, "purpose," to help me in a case where the language isn't clear, where the history isn't clear, where the tradition isn't clear, where the precedents aren't clear, that we have to decide how in that realm of ambiguity to apply the value that's permanent and always there, free speech, to a modern, difficult situation."
03/12: Irreconcilable Differences
Category: America and the World
Posted by: an okie gardener
I am not sure if this article reporting on an interfaith dialogue represents sloppy reporting on the Christian theologian, or sloppy thinking on his part. Whichever the case, between his comments and those of the Muslim leader what is obvious is that Christianity and Islam in their traditional and historic forms are mutually incompatible. Moreover, they are necessarily competitors because they each make universal claims that are mutually exclusive. Each claims a revelation that supercedes all others.
