When liberals are conservatives and other reality checks

by lestro

Once again, the New York Times seems to have forgotten what “liberal” and “conservative” mean.

This time, it comes in an article about the make-up of the Supreme Court in which the writer looks at the possibility of President Obama replacing a handful of “liberal” justices who are approaching the end of their terms (read: death).

But the problem is not in its portrayal of the court, per se, but the fact that they are confusing liberalism and conservatism with right and left ideological party positions.

For example:

“It is fair to say that the Supreme Court both now and historically has been to the left of the American public,” said Nathaniel Persily, a law professor at Columbia and an editor of “Public Opinion and Constitutional Controversy” (Oxford, 2008).

“On school prayer, for instance, the Supreme Court is far to the left of the American public,” Professor Persily said, referring to decisions saying that officials may not organize, lead or endorse prayer or devotional Bible reading in the public schools.

“On racial issues, it’s pretty clear from the Michigan cases that the Supreme Court is out of step with the American public,” Professor Persily said of the pair of 2003 decisions allowing public universities to consider race in admissions decisions. (In a 2007 decision, the Roberts court leaned the other way, forbidding public school systems from explicitly taking race into account to achieve or maintain integration.)

Other areas in which the court is to the left of popular opinion, Professor Persily said, are criminal procedure and free speech. Decisions protecting flag burning under the First Amendment, for instance, were quite unpopular.

The fact is that the decisions reached by the court on most of, if not all of those issues, may have pleased the party of liberals and people who consider themselves liberals, but the decisions themselves were actually quite conservative.

At their base form the words “liberal” and “conservative” in this context mean looser and stricter views on government power, not on social mores or issues. “Liberal” means open to wide interpretation while “conservative” means strict constructionist, letter and spirit of the document.

So therefore, a “conservative” reading of the Constitution is one that limits the powers of the government to those specifically listed in the document, while a “liberal” one grants more leeway.

For example, the Miranda decision is a “liberal” one because the court found that despite the document not saying so, the Constitution entitles you told be told your rights (instead of you being responsible for having to know them). Roe v. Wade was “liberal” because the right to privacy, although an obvious thread throughout the document, is not specifically listed.

At the same time, the decision about prayer in school is actually a “conservative” decision. Sure, traditionally those who support prayer in schools are social conservatives who tend to vote Republican, but in the historical, judicial sense, the Constitution allows no laws respecting the establishment of a religion or prohibiting the free expression thereof and therefore schools – publicly funded entities – cannot lead any sort of devotional readings as it would be respecting one religion over another.

Therefore, it is a very conservative – strict, letter-of-the-law – reading of the Constitution that says the government (with the school district as its arm) cannot do that. Same with burning the flag. That’s a free speech/protest issue and the Constitution allows no limits on freedom of speech. A strict reading of the constitution would have no choice but to show say that though some may find it distasteful and rude, burning a flag must be allowed, like listening to Nickel Back or voting Republican.

Only a liberal reading would find that the government has the right to stop that form of protest.

It is the same mistake that is always made when it was a “liberal” decision about taking “under God” out of the pledge of allegiance.  That was actually a very conservative decision.  The Constitution says Congress shall make no law regarding the establishment of a religion.  In the 1954 Congress, during the McCarthy era witch hunts and communism fears, passed a law adding “under God” to the pledge, which was 50-some years old at that point.

The court’s decision was actually a very conservative reading of the document that just happened to appeal to the political left.

The closest the article gets to discussing this is here:

In another sense, though, the terms “conservative” and “liberal” do not always track the conventional political ones when they are applied to judicial decision making.

One kind of conservative judge, for instance, defers to the democratic process and views decisions to strike down laws enacted by Congress as “judicial activism.” This kind of conservative judge might say that legislatures rather than courts should decide whether to protect abortion rights.

Another kind of conservative judge is perfectly willing to strike down laws on constitutional grounds when they may be said to violate the original understanding of the meaning of the Constitution. This kind of conservative judge might vote to strike down a law allowing eminent domain as a violation of the Constitution’s takings clause.

It is the latter definition that is important.  A “conservative” judge should limit the power of government, as that was the purpose of the Constitution.  Conservatives should not approve of programs like warrantless wiretapping, extraordinary rendition or any other new and improved powers that, like Superman’s reconstruct-the-great-wall-of-China-vision from Superman IV, function as a deus ex machina for those in power.

(it’s about 3 mins in…)

The problem is that the “conservative” justices appointed from about Antonin Scalia on are not necessarily “conservative” thinkers, they are party ideologues, intentionally confusing “social conservatism” with a conservative judicial philosophy and allowing party affiliation to trump judicial interpretation.

Ironically, so far it seems that the new president has a much more conservative view on the power of the presidency than his Republican predecessor, whose administration – with the approval of both Congress and the judicial branch – essentially invented new powers for the executive whenever they didn’t like the way things were.

But I suppose we’ll see what that means for the judiciary, should he get a chance to make an appointment or two to the bench…

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