Thursday, June 25, 2009

Minimally Minimalist

Ramesh Ponnuru has an op-ed in the NYT blasting his fellow conservatives for abandoning originalism and judicial restraint when the topic of race comes up. And he's right to do so -- in cases like Parents United and Ricci the right suddenly wants to strike down democratically enacted policies like drunken school boys because they dislike the policy.

But over at Southern Appeal, Owen Courrèges counters by making the usual stock response: Judicial review means sometimes laws are unconstitutional, so it is hardly anything problematic if conservatives sometimes find themselves striking down laws. There might be a bit of cognitive dissonance given that conservatives are significantly more likely to strike down federal laws, but in general, Courreges' point is quite reasonable.

Except that it proves too much. For anyone this side of Jeremy Waldron who does believe in judicial review, the division between laws which we uphold and laws which we strike down is always going to be at the line where those laws violate (our interpretation of) the constitution. Who does Courreges think he's distinguishing himself from? If conservatives shouldn't feel bad about striking down the law at issue in Parents United, it is precisely because they -- just like every liberal on the Court -- have a theory of the constitution which sometimes requires that laws be struck down. The term "activist" here has become totally impoverished because it translates into "decision I disagree with".

There is, of course, the separate problem about whether the conservative doctrine of originalism is faithfully applied to race cases. Justice Thomas' pathetic attempt to justify the Parents United decision on originalist grounds strongly indicates that it is not. There is not a scintilla of evidence indicating that the Reconstruction Amendments were intended, meant, or understood to create a color-blind society. And there is at least some evidence indicating they were intended to be consistent with race-conscious remedial practices. I've seen efforts to impeach the latter, with varying degrees of success. But what I've yet to see is any evidence indicating the former -- which should be a must for originalists if they're going to justify judicial supremacy on the matter.

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