The Constitution and 'invented rights'

After this week's Scripps column in which I pooh-poohed "judicial activism," I received several responses from conservative readers suggesting it's actually very easy to spot.

Read the constitution and uphold it. Don't manufacture "rights" not mentioned in the constitution. What does the constitution say? Don't impose your opinion, or your own political philosphy. Judicial activism is manufacturing "rights" not enumerated in the constitution.

This, I think, is a fairly common conservative view. It is also--according to the Constitution itself!--dead wrong.

Here is the text of the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Founders were worried that by creating a Bill of Rights, they would legally imply that people didn't have other rights not named in the Constitution. This is how they covered their rights-loving butts. And yet people constantly commit the very error the Founders were trying to avoid. This is very odd for a movement supposedly so devoted to preserving the Founders' wishes and vision.

I'm not sure if this was the Founders' intent--and I don't actually think that matters--but what that amendment effectively means is that we have to continue to always be in conversation about what those rights are and what they mean. Some folks would suggest that Ninth Amendment rights are frozen at what the Founders would've understood to be rights--which is why Clarence Thomas does in-depth investigations into parenting practices of the 1780s and Antonin Scalia effectively disputes the idea that women are citizens. The rest of us understand that this is silly at best and pernicious at worst.

As those examples indicate, this kind of thinking replaces the "rule of law" with a kind of "tyrannical legalism" that dispenses entirely with common sense. Conservatives like to suggest that's a liberal problem, but I don't think it's limited to the left. One example: The authors of anti-torture laws explicitly didn't ban specific techniques because they didn't want to give the impression that other coercive, pain-inflicting methods were OK. They couldn't make an exhaustive list, so they didn't make a list at all, instead crafting laws to describe the effects of torture. The result is that we have Bush Administration conservatives tell us that waterboarding isn't actually torture.

What does all of this mean? Well, it probably means that rights evolve. And that our commitment to protecting them evolves as well. It's not something that should happen willy-nilly, and it doesn't: It's a combination of society, Congress, and (yes) the courts moving in a commonly accepted direction, and that process usually takes time. The results can sometimes be messy and controversial--not everybody is on board with the right to abortion, for example--but I'll take that messiness over the clean precision of Scalia's vision that denies women the benefits of citizenship. It doesn't mean that some rights are "invented," at least not in the sense that the rights are thus artificial. It just means that they weren't named in the Constitution. That's not as big a deal as some people think.

Small government, big banks?

One reason I've never really come around to being a small-government conservative is my belief that if we put a tight leash on the feds, that will allow other large institutions--mostly big businesses, but not limited to that--to dominate me instead. Conservatives deploy the language of liberty pretty effectively, but often it's in the service of a corporatist agenda that would wouldn't necessarily feel "free" to most of us. I'm not so much sure that "big government" is as much of a problem as is bigness itself: Outsized institutions of any sort, public or private, can have outsized impacts on our lives.

So I'm intrigued by the question raised by my friend (and occasional nemesis) Steve Hayward over at Power Line. If conservatives want small government, he asks, should they also be in favor of breaking up the big banks? 

So I think I could be persuaded that the big banks should be broken up, though this requires conservatives and pro-market libertarians to set aside their cognitive dissonance over the use of centralized political power to accomplish such an end. Discuss in the comment thread.

Me? I think it's "pro-market" to actually let the market work: When banks get too big to fail, they put taxpayers on the hook for their risk-taking. You obviously can go too far in regulating the markets, but (ahem) you can also go too far in deregulating them, as well. Markets work best when they have some boundaries.

All of which has been said--including by me--a million times before. And there are plenty of other reasons I probably still won't take up the mantle of small-government conservatism: The issues that animate me seem to be ignored by or scoffed at by my conservative friends; even if liberals don't always have the right answers, I feel more comfortable with them because they're actually trying to solve the problems that look like problems to me. But small-government conservatism will be much harder for me to argue against if it doesn't leave me "liberated" to live under the tyranny of Citibank.

The GOP version of the DREAM Act is better than nothing. Just barely.

At CNN, Ruben Navarette praises an up-and-coming GOP version of the DREAM Act. The original version, promoted by Democrats, would give sons and daughters of illegal immigrants a path to citizenship, provided they go to college or serve in the military. The GOP version apparently includes the college or military part--but not the citizenship.

But unlike the earlier version, it would not include a path to citizenship. Students could become citizens later. It's not like they'd be barred from the citizenship process. But they would have to take the initiative. It would be on them, as it should be.

As I understand it, then, all the GOP version really does is tell the sons and daughters of illegal immigrants that they won't be deported.  "We'd like to send you to Afghanistan, and if you're not killed or mutilated, maybe we'll think about making our relationship permanent." My concern is that this legislation essentially creates a permanent class of legal sub-citizens--folks who are welcome to do our dirty work and pay taxes, so long as they don't do something extreme like vote. Navarette says the only reason to oppose this is "ugly partisan politics," but one can actually object in principle to this policy.

And yet, given the immigrant-unfriendly politics of the GOP, this may be the only way to actually resolve the status of millions of young people who A) didn't come here under their own power but B) may not necessarily fit in their own home countries: Many are already, in a very real cultural sense, Americans. Removing the unlikely but still real threat of deportation would help them get scholarships, train for jobs, and contribute to our communities in ways that are denied them at the moment. If they really are eligible for citizenship after attaining legal status, then this legislation would achieve a very real good. It's not as good as the original DREAM Act. But it's better than nothing.

I, for one, would like to know much, much more about Gene Marks' private life

Gene Marks--remember him?--says employers are within their rights to ask job candidates for their Facebook info:

I don’t want your “password.” I don’t want to be able to go onto Facebook and be you. I don’t even want to monitor your activities on Facebook once you’re hired. All I want is to be “friended” for a short period of time while I’m evaluating you as a prospective employee.

He needs this, you see, because as an employer he has to feel really, really comfortable that he knows enough about you. Well screw that.

Listen: Employers have the right to know everything that's publicly knowable about you. If you have a felony record, for example, or if you've appeared in the local newspapers advocating for the Nazi Party. I've got no problem with that. But they don't have a right to your private life.

And for me, Facebook is relatively private. Not totally: I have a few hundred "friends," so I can't fool myself that the walls of privacy are high and impenetrable. Nonetheless, the people who are allowed inside those walls are carefully chosen, and my privacy settings arranged so that you can't look inside without my permission.

Gene Marks is welcome to drive by my house and see if I'm flying a freak flag from the front porch. He is not welcome to barge inside and start rummaging through my bathroom closets, trying to decide if I'm a good fit for his company. How I conduct myself in public will have a bearing on his business; what I do behind virtual or real closed doors is, simply put, none of his goddamned business.

In fact, there's one set of circumstances under which I might be tempted to let Marks in to view my Facebook page and take a look at my photo albums, status updates, notes, and the rest: If he lets me do the same with him.

Because some bosses are jerks. Some have unreasonable expectations, or are comfortable with harassing environments. Some are just no good. I, as an employee, have every right to evaluate Marks to see if I accept him as a boss. My livelihood and overall well-being are on the line.

Marks approaches this topic as though the employee owes an employer more of his or her life than the employer should reciprocate. Not so.

We've made it a few thousand years of civilization without employers entering the bedrooms of prospective employees. Despite Marks' desires, capitalism and small businesses will probably survive if he's denied entry now.

Bill Donohue and the Catholic League don't like my advice to Archbishop Chaput

Well, I guess I didn't expect this:

There's a database connection problem at the site, currently, but luckily the Catholic League e-mailed me a press release chastising ... me.

ARCHBISHOP CHAPUT WILL NOT BE SILENCED

Catholic League president Bill Donohue comments on an article that appears today as a post on the Philadelphia magazine blog site by Joel Mathis:

Joel Mathis isn’t Catholic, but that doesn’t stop him from giving some heady advice to Philadelphia Archbishop Charles Chaput: just tend to the problems in the archdiocese and drop your criticisms of the Obama administration. Mathis is angry that Chaput has a new e-book coming out tomorrow, A Heart on Fire: Catholic Witness and the Next America, that addresses recent attacks on religious liberty. Mathis counsels Chaput to “concentrate on fixing the Catholic Church in Philadelphia,” adding that the archbishop’s alleged “anti-Obama crusade” amounts to “a distraction.”

Catholics like to lecture the outspoken archbishop as well. Last September, no sooner had Archbishop Chaput taken over in Philly when Catholic attorney Nicholas Cafardi offered his instructions. Noting that Chaput likes to comment on the big issues of the day, he said, “Chaput would be well-advised to leave politics aside.”

But Archbishop Chaput will have none of it: he will not be silenced. Indeed, he is delightfully insubordinate—nothing will stop him from opining on anything he wants, and nothing will stop him from faithfully serving his archdiocese. That’s precisely why the Catholic League loves him—he’s a man of steely determination and incredible fortitude.

This, of course, being a response to my column today at The Philly Post. I suggested that Chaput's priorities—which seem to come down mostly to "making war" on Obama—probably weren't doing much to fix a diocese afflicted with pedophile scandals and lawsuits, massively declining enrollment in the parochial schools, and declining attendance at mass. That still seems true to me.

I wasn't really trying to silence the archbishop—I doubt, in fact, that I have any ability to do so. That said: "Delightfully insubordinate?" To whom is Chaput actually subordinate and cheeky? Is he sassing the pope? No? Maybe Donohue's comments are a bit outlandish.

Then again, it's Bill Donohue, last seen in the New York Times urging bishops to treat the victims of priest sex abuse as enemies of the Catholic Church. “The church has been too quick to write a check, and I think they’ve realized it would be a lot less expensive in the long run if we fought them one by one,” Mr. Donohue said. That's a Christ-like ethic, no? If I've irritated Bill Donohue, then it's frankly a happy day.

About the Constitution, divinity, and Mennonites

The latest edition of The Ben and Joel Podcast is, well, kind of weird. In it, we interview Larry Arnn about his new book, "The Founders' Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It." Arnn's main point is that the Declaration and the Constitution don't have opposing philosophical foundations—despite what some scholars say—but I got hung up on the "divine and natural part" and you can hear so in the podcast.

The word "God" appears in Arnn's text 64 times. He references the Declaration's appeal to "the laws of nature and of nature's God" 21 times. And so, for me, the book reads much like a theological declaration as much—or more—as it is a work of history or political science. Is there room for a secular-minded person in a "divine" understanding of government? What's wrong with believing the Founders were a group of smart men—but also human and imperfect, people whose work was great but still leaves room for improvement? You can hear Arnn's answers in the podcast.

You can also hear him, jokingly, refer to me as a "defector" from the principles of my alma mater, Tabor College. And, well, guilty as charged. Tabor is a largely conservative, evangelical Christian college. I fit none of those descriptions anymore.

But after we finished recording, as I continued to digest Arnn's work and the podcast, I realized I'd still find his constant invocation of the divine troubling, even if I were not a "defector."

The Mennonites I grew up around had an interesting history. They were pacifists, believing that the example of Jesus precluded them from taking up arms. Because of that theology, the fled as a group from Germany, their original home, to Russia. And then from Russia, in the late 1800s, to Kansas, where I grew up.

The mix of theology and experience—recent enough that churches in my hometown were still worshipping in a Russian-inflected version of German into the 1950s—led many of the Mennonites to be skeptical of nationalism, in particular, but certainly any brand of patriotism that seemed to claim God on its side. As Christians, the felt duty-bound to be respectful of the authority of government--but I'm dubious they'd spend much time reflecting on the "divine" foundations of man-made government. Even when that argument is made, as Arnn does, in the service of limited government.

The problem with invoking "divinity" as the source of a form of government is that it really ends the discussion. You can't argue with God, usually. But there are plenty of arguments to be had, as evidenced by our discussion. Arnn seems like a good and pleasant man; I've no wish to quarrel with him! And he's right that the Founders referenced God quite a bit in their discussions; what that proves is that ... they referenced God quite a bit in their discussions. It doesn't mean the Constitution is marked with divinity.

John McCain never wants to leave Afghanistan

I feel like most of today’s McCain-Lieberman-Graham op-ed about the need to stay the course in Afghanistan could’ve been written four or five or six years ago. But I really want to focus on this particular paragraph:

At the strategic level, our effort continues to be undermined by the perception that the United States will again abandon Afghanistan. This suspicion makes everything our troops are trying to achieve significantly harder. It creates perverse incentives for the Taliban to keep fighting, for the Pakistani army to hedge its bets by providing support to the Taliban, and for our Afghan allies to make counterproductive decisions based on fears of a post-American future.

But here’s the thing: Eventually the United States will leave Afghanistan. The Afghans will remain, and Pakistan will be next door. Everybody knows this.

Now, I don’t know how long it will be before that exit takes place. It might be next year, 10 years from now, or even another 100 years. But history seems to suggest that America will not occupy another country halfway around the world from its own soil infinitely into the future. At some point we will withdraw.

The wisest thing to do is to figure out the best way to withdraw, a manner that best mitigates the possibility of future attacks on America originating from Afghanistan. To hope that we can guarantee 100 percent safety is futile—but there’s a cost-benefit ratio to these things, and if a cash-strapped America has decided that ratio is out of whack after nearly 11 years, well, that’s not unreasonable.

McCain, in particular, would have more credibility if he’d ever demonstrate that there was a war he didn’t want, or want more of. But he’s always urging more, more, more. I get frustrated with President Obama often, but McCain does his best to remind me that we avoided a much worse president, one with a propensity to over-commit American troops to never-ending action.