A liberal I know sent me this column by Dershowtiz, Telling the Truth about Chief Justice Rehnquist. Here’s an edited version of my reply to him:
Well. Rehnquist had his problems. But the problem is the standard liberal analysis of course is that their entire understanding of civil liberties and the Constitution is perverted, dishonest, distorted, and twisted, leaving them no coherent and honest basis to criticize conservatives. On balance I believe Rehnquist and his type–Scalia, Thomas, and on lower courts, people like Alex Kozinski–have a much more honest and sounder view of the Constitution and a judicial philosophy that is more protective of civil liberties than those of leftists such as Dershowitz.
Let me give you an example. Leftists like Dershowitz support the very notion of federal judicial review of state legislation, based on the Fourteenth Amendment, and based on an expansive reading of the Bill of Rights. Moreover they support a broad reading of federal power under the Interstate Commerce Clause.
In fact the IC clause was never meant to be so broad. And in fact the Fourteenth Amendment was never meant to incorporate the bill of rights and apply it against the states. And the extensions of “penumbras of emanations” of the rights in the 4th amendment etc. to yield a right to privacy which includes the right to abortion; and the idea that the death penalty is unconstitutional–are all utterly absurd and dishonest. The fact is that the only way for the federal government to get away with implementing the liberal revolution is to shred the Constitution. For example for the Congress to pass antitrust laws, minimum wage, wage and hour legislation, the Americans with Disabilities Act, etc.–all the darlings of the left–the Court must ignore the original federalist scheme of the Constitution which established a severely limited federal government of enumerated powers. The feds were never granted power to legislate in any of these areas (2); and the Bill of Rights–including the ninth amendment–was meant to emphasize this. So the liberals support the idea of what is effectively a judicial coup d’etat: the Court assuming (a) the sole power to construe the Constitution (which it was never meant to have); (b) exercising this power to disregard the original meaning of the Constitution and to construe the Interstate Commerce clause–basically meant to establish an internal free trade and free movement zone within the US–as a grant of authority to Congress to legislation on whatever it wished, even including telling a farmer he could not grow wheat in his own back yard (the infamous New Deal-era Wickard case) on the basis that if he were permitted to grow his own wheat, he would then not buy as much from other people, some of which would be out of state, thus “affecting” interstate commerce!; and (c) ignoring the limits placed on Congress in the ninth amendment that makes it clear Congress cannot pass such laws.
Of course, the biggest danger to our civil liberties is that of a tyrannical state. The entire Constitution was designed as a straightjacket on the federal government to guard against this. If you advocate judges just ignoring limits placed on them and the fed government, you are in favor of unlimited government. It is insane to endorse federal officials being able to choose which limits on their power they can ignore. But that is what liberals do. Who is the greater threat to civil liberties?
Moreover, in their zeal to abolish any racism at all, any differences between people or recognition thereof in furtherance of their irrational egalitarianism, combined with their yankee/intellectual hatred of the South, they have endorsed blatant misreadings of the Constitution and the Fourteenth Amendment to give federal judges the raw power to tell states what to do–to subject state laws to scrutiny under the bill of rights which was meant only as a limit on the feds. The liberals have turned it on its head: they regularly ignore the limits of the bill of rights when it comes to federal laws–for example they ignore the second amendment and the ninth amendment, which would limit federal firearm regulations and economic regulations such as wage and hour laws; and they have turned the Bill of Rights into a source of power for the feds: they use it for authority to impose busing and desegregation on the states, to strike down state death penalty and abortion and sodomy laws, even though these things are clearly not unconstitutional because the founding generation did not understand such laws (some of which are unlibertarian I grant) to be contrary to the basic rights established in the Constitution.
So here you have liberals who are self-proclaimed advocates of civil liberties supporting lawlessness: disregard by federal officials of the limits placed on them by the Constitution; supporting massing increases in federal power which of course leads to abuse; willingness to have the feds violate property rights; willingness to tolerate the chilling effect on free speech wrought by affirmative action and antidiscrimination laws; and denigrating “commercial free speech” (ads, etc.) and even political speech (PACs, campaign contributions) as not deserving constitutional protection! The liberals do not really care about rights: they do not care about preserving the carefully constructed constitutional system that places limits on the feds to prevent them from violating rights; they do not care about property and economic rights, which are essential to remaining free from government control and being able to exercise personal liberties; they do not care that their egalitarian-based affirmative action and anti-discrimination laws suppress free speech or violate property rights. They do not care if the Constitution “really” permits the feds to pass these laws or the federal judges to do what they want to the states: they only care about results, results in the service of egalitarianism and welfare-socialism. I am 100% serious about this. It is blatantly clear what they have been about for the last 70 or so years. And then they have the gall to call someone like Rehnquist a threat to civil liberties? It is obscene. Rehnquist–for all his faults; and I could tell you many, from my correct, sound, honest, libertarian legal-constitutional perspective–is 10 times better than these lefties are, in terms of supporting the true basis for protection of individual rights and liberties.
It is hard to find a single clear case of an area in which the conservatives are genuinely bad, that the liberals are not just as bad. For instance: drugs and war–I don’t see the liberals advocating drug decriminalization. And I don’t see them being anti-war in a principled way–and the worst wars in US history were started by democrats–Lincoln’s bloody civil war (I count him as a democrat since the democrats embrace him), Wilson and WWI, FDR and WWII, JFK/LBJ in Vietnam. Name one single area the democrats are better than the Republicans? Abortion is just about the only one, and even here, it’s not clear, since even for libertarians abortion is debatable (and liberals adopt dishonest, Constitution-shredding decisions like Roe v. Wade to get their way; and the extreme liberals are not even opposed to grisly, inhumane, late-term abortion). And there are many areas the conservatives are much better than the liberals: economic liberties; decentralization; constitutional theory (original understanding rather than a “living document”); even
personal liberties such as free speech–Rehnquist (and O’Connor) voted against laws against flag burning, while allegedly pro-free-speech liberals like Brennan, Thurgood Marshall, and Blackmun voted to uphold laws jailing people who burned the flag (Texas v. Johnson); and they support commercial free speech, which liberals do not; and they oppose, to some degree, affirmative action, antidiscrimination, and speech codes which undoubtedly give rise to substantial chilling effects and thus infringements of free speech.
I really believe the libertarians are off somewhat when they say conservatives are better on economic liberties, and liberals better on personal liberties. My view is that conservatives are significantly better than liberals on both axes; and libertarians are better still, on both axes. The spectrum I see stretches from principled advocacy of human liberty (libertarianism); next would be principled conservatism, which has flaws; next would be welfarism/liberalism/soft socialism, which is worse than conservatism in almost every way; and next, outright tyranny and totalitarianism.I am sick of the smug, totally out of place self-righteousness of liberals–their disdain for law and for the realities of human nature, their monomaniacal pursuit of the irrational goal of egalitarianism coupled with their utter ignorance of economics and Luddite hatred of industrialism and capitalism–their endorsing communism and socialist regimes which have literally murdered and led to the deaths and impoverishment of quite literally hundreds of millions of innocent people in the 20th century alone–their pretense that they are the sensitive, caring types, when in reality they are dishonest and willing to condone mass suffering and even death in the pursuit of their naive, impossible, faux-utopian dreams. See Thomas Sowell, The Vision of the Anointed: Self-Congratulation As a Basis for Social Policy. What about their belief in religious liberty? How to explain their attack on trivial stuff like a statue of the ten commandments in a courtroom courtyard when they usually turn a blind eye to the overt religious establishments of most other states–e.g., their darling Israel, which, as Charley Reese point out, “In any other country, settlements in which only Jews are allowed to live, connected by roads that non-Jews are forbidden to use, would be cited as an example of discrimination, if not racism. Israel, however, is the grand exception to America’s morality and ethics.”
The conservatives, while not perfect, are better than the liberals in almost every way. Being an evil criminal minded person, as activist liberals are, is one thing; not being aware of this is arguably worse; but advocating criminal ideas while pretending to be holier than thou is adding insult to injury. At least a normal robber does not pretend to be anything other than he is; there is a certain degree of honor and honesty in what he does: he takes risks himself–his victim might shoot him; he does not pretend to be helping his victim; and after he mugs him, he generally flees and leaves him alone (see the similar comments about the highwayman by Lysander Spooner, in No Treason No. VI: The Constitution of No Authority, Section III). The liberal establishes a systematic, ongoing, pernicious type of theft and regulation of others lives; he does not go away; he pretends to be helping his victim; he adopts a self-righteous pose about it; and worse, he wants not only to force people like you and me to be coopted into his system, to obey their laws and regulations, to turn over control of our businesses and even our homes to their decrees, to pay their outrageous, confiscatory taxes–but not even to be able to complain about this, without being accused of racism or bigotry or extremism. Ever heard of Chutzpah?
BTW for a pretty balanced and fascinating account of the Court’s battles, including Rehnquist, the book Closed Chambers by Edward Lazurus–a liberal and former Blackmun clerk–is very good. Lazurus is able, unlike most liberals, to present the conservative/liberal debates on the court from each others’ perspectives–and to show that one interpretation of the Rehnquist revolution was that it was an understandable backlash against decades of extremist liberal judicial activism that itself undermined and distorted the original Constitutional system.
Sorry for venting, but I’ve about had it with self-righteous liberals.