VOLOKH at law.ucla.edu
Fri Oct 28 09:35:37 PDT 2005
Actually, on some of the social issues -- for instance, likely
including some but not all abortion restrictions -- conservatives are a
*majority* that lacks the power to amend the constitution, because such
an amendment would require a supermajority. On other issues, they are a
minority on a nationwide basis but a majority in certain states, which
they believe should be enough, under our federalist scheme, to allow
them to implement their views in those states.
Moreover, many conservatives *have* complained about the Bush
administration's spending habits, and many (though often a different
set) have disagreed with the Administration on Iraq. I realize that
this is continuing an off-topic tangent, but I wanted to correct the
record on this.
Finally, a broader point: I wonder whether broad
generalizations about what conservatives are, want, or object to are
terribly helpful here, or particularly likely to be accurate. Such
generalizations may well be on-topic, if they touch on constitutional
law; I just doubt that they're likely to produce any real enlightenment.
Miguel Schor writes:
> I think the interesting aspect of Miers's resignation is not
> who will be
> named next (even if that undoubtedly will be the topic of
> this list serv
> for quite some time) but what it says about the modern conservative
> movement. Conservatives once stood for a smaller government,
> a balanced
> budget, and a distrust of expensive foreign entanglements
> that involved
> exporting democracy. George Bush has stood all these principles on
> their head and no conservative has complained (unless taking
> money from
> the poor to pay for Katrina relief efforts counts as principled
> conservatism which I suspect it does). What really matters to
> conservatives is quite obviously a litmus test for judicial
> because they are a minority that lacks the power to amend the
> constitution or for that matter to convince the nation to adopt their
> views on key social issues in a more reasoned fashion.
> Assuming that Bush names a more ideologically pure nominee
> for the high
> court, the interesting question will be whether the Court in the
> "exercise of raw judicial power" will seek to do what the
> movement cannot do using the democratic processes. I rather
> doubt (and
> certainly hope) that it does not. Miguel
> Rick Duncan wrote:
> > I think /Roe/ *is* on my list, Marci. /Roe/ is a SDP decision of the
> > first order, an "exercise of raw judicial power."
> > I don't think it is being a "true conservative" to refuse to enforce
> > the Free Exercise Clause against laws (including generally
> > laws) which do indeed prohibit and restrict the free exercise of
> > religion. But if this makes me and Mike (and ADF's Alan Sears and
> > ACLJ's Jay Sekulow) liberals, than I am a proud liberal, a proud
> > defender of the First Freedom. But please tell the MSM to
> stop calling
> > us the "far right."
> > By the way, if the 14th Amendment provided "nor shall any state
> > prohibit abortion prior to fetal viability," I would be
> working for a
> > Human Life Amendment to the Constitution, but I would not
> argue that
> > the Court should refrain from protecting the explicit liberty of
> > abortion. A judicial activist is a judge who substitutes his
> > preferences for those of the written Constitution. Both the /Roe
> > /Court and the /Smith/ Court practiced judicial activism.
> > Rick Duncan
> > */Hamilton02 at aol.com/* wrote:
> > It's interesting McConnell is not being defended here on
> > federalism principles, which is as it should be. His public
> > stance against Roe v. Wade is also not in this list, which is
> > interesting.
> > "Most social conservatives," when they come to
> understand that is
> > meant by the likes of RFRA and Brennan's approach to
> free exercise
> > issues, do not think Smith is wrong. Conservatives, in general,
> > have a strong regard for (1) the rule of law and (2)
> the capacity
> > of the legislative process to set social policy, like
> > If you ask a conservative if he or she thinks that religious
> > organizations or individuals should have to obey neutrally,
> > generally applicable laws, the invariable answer is "yes."
> > Scalia, Rehnquist, and Kennedy are the true conservatives on the
> > Free Exercise Clause. On these issues, McConnell is joining
> > Brennan, O'Connor, Breyer, and the liberal con law professors.
> > That is why so many jumped at the opportunity to support him for
> > the court of appeals. His instincts are liberal.
> > How does one square RFRA with a view that judges should not set
> > social policy from the bench? It's okay in the
> religion context,
> > but it's not okay in the privacy context?
> > Marci
> > In a message dated 10/28/2005 10:27:52 A.M. Eastern
> Standard Time,
> > nebraskalawprof at yahoo.com writes:
> > 1. He is no friend of Substantive Due Process,
> whether of the
> > /Lochner/ or the /Lawrence/ strain. He will not
> impose his own
> > list of "fundamental" liberties to strike down laws duly
> > enacted by state legislatures. He knows that the Due Process
> > Clause codifies neither Mr. Herbert Spencer's Social Statics
> > nor the Kama Sutra.
> > 2. Scalia's views about free exercise (he thinks it doesn't
> > exist) are not the views of most social
> conservatives. /Smith/
> > is wrong and Michael knows it is wrong.
> > 3. Michael is also a strong supporter of the Free Speech
> > Clause, including the right to equal funding
> (/Rosenberger and
> > /Davey) and to expressive association (/Dale/).
> > Rick Duncan
> > Welpton Professor of Law
> > University of Nebraska College of Law
> > Lincoln, NE 68583-0902
> > "When the Round Table is broken every man must follow either Galahad
> > or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
> > "I will not be pushed, filed, stamped, indexed, briefed,
> debriefed, or
> > numbered." --The Prisoner
> > --
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