Civil liberties: Top down versus Bottom up
(posted by Angelica)
In his recent op-ed in the New York Times, Jeffrey Rosen argues that Barack Obama would be a stronger defender of civil liberties than Hillary Clinton, although he also adds that Clinton would still be much, much better compared to Bush. Not controversial as far as it goes.
What’s interesting is the way Rosen went after Clinton for being a “top down”civil libertarian as opposed to Obama, whom I guess that would make a “bottom up” civil libertarian by contrast. Here’s the heart of Rosen’s argument:
Mr. Obama, by contrast, is not a knee-jerk believer in the old-fashioned liberal view that courts should unilaterally impose civil liberties protections on unwilling majorities. His formative experiences have involved arguing for civil liberties in the legislatures rather than courts, and winning over skeptics on both sides of the political spectrum, as he won over the police and prosecutors in Chicago.
My emphasis. I have always been conflicted on this issue. On the one hand, it seems an enlightened court have given us many civil rights advances that would have not come as quickly as they did through the legislature. Surely the constitution and the court’s powers in interpreting it is a bulwark against the tyranny of the majority. On the other hand, there is something that seems very undemocratic about the way that progressive result is achieved through the sometimes-tenuous interpretation old documents whose writers never intended that interpretation to be valid.
Maybe this post is too philosophical for an election year. We should have more post about Hillary’s 3a.m. ad or something.
March 2nd, 2008 at 7:16 pm
“On the one hand, it seems an enlightened court have given us many civil rights advances that would have not come as quickly as they did through the legislature.”
I often feel some conflict on this issue as well. Take the Bowers v. Hardwick case from ‘86 when SCOTUS declined to strike anti-sodomy laws used against homosexuals. I HATED that result, but try as I might, could not come up with a rationale for another result.
But then in the more recent Lawrence case that reversed Bowers, Texas sought to apply anti-sodomy laws ONLY against gays, not heterosexuals. If, in Bowers, I were on the bench and it had been argued that the anti-sodomy law was virtually always used only against gays, I could have hinged a finding against it on the Equal Protection Clause of the 14th. I think.
I’d want to.
But the Hayek influence also reminds me that organic social evolution is more peaceful, even if slower. There is enormous value to reduced “culture wars.” Hence, my frequent conflict on “judicial activism.”
March 5th, 2008 at 1:31 am
In the article, Rosen also put Clinton’s “top-down” approach to civil liberties in the general context of her affinity for “professionalism” and “expertise.”
To me this managerialism is what defines her as an establishment liberal, whereas Obama has just a tiny hint of genuine leftism. I’m not surprised Clinton tried to hide her paper on Saul Alinsky: it was totally out of character for her.
March 7th, 2008 at 10:58 pm
I discuss “judicial restraint” (among other things) here.
March 11th, 2008 at 7:25 pm
Glad to see this post. (Long-time admirer of this blog; first-time [and untimely] commenter.) Glad because the courts-or-legislature issue is an important and complicated one, and many libertarian-minded folk give a too-simple answer. (I have in mind, for example, something like this: http://www.reason.com/news/show/32306.html )
We should care about not only the content of the laws in effect against us, but also about the processes by which they come about. First, we should care because processes are important in themselves. All things equal, I’d rather have a policy of good content be the result of genuinely democratic decision rather than judicial decision; my peers, rather than the judiciary. Second, we should care because the processes matter in terms of consequences. Bad legislation is easier to fix than bad Supreme Court precedent on fundamental issues. (The latter is only fixable by constitutional amendment.) Etc. Also, if as libertarians we focus on legislative rather than (merely) judicial action, that means our focus is on persuading our fellow citizens rather than officials in robes, which means more lasting change.
I think the law in action should match as much as possible popular (actually held) morality with respect to government, even if that morality is odious; and our job should be to convince our fellow citizens that the prevailing morality is odious and in need of change.
But my thoughts on this might be different tomororw.
P.S. Not sure what if anything this adds or takes away from what I just wrote: I like the idea of having a former constitutional law professor (Obama) in the White House. And I think more of him for his statement during one of the debates that he regrets acting as he did with respect to the Schiavo affair because as a former constitutional law professor he “should’ve known better” (paraphrase).