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Tuesday, November 15, 2005
 
How Conservative is Alito?

The Agenda Gap has an excellent post by guest-blogger David Herman on Alito's very conservative beliefs. All the recent controversy stems from Alito's 1985 job application to be assistant attorney general under Reagan. Stephen Bainbridge, law professor, cheers Alito on in a post entitled "Alito on Abortion: Vindication for the Anti-Miers Crowd.

In particular this quote of Alito jumps out at me:
[Alito wrote that he believes in:] "very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement and the legitimacy of a government role in protecting traditional values." [Alito also noted:] In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.

There are several claims that I wish to bring forward to the reader's attention. Alito envisions a government that is (1) limited, (2) federal, and is (3) under the general guidance of the "elected branches." To move from the euphemistic to the concrete, I shall unpack each term very briefly.

(1) A limited government is a government that restricts its size and influence to such a degree that the basic enforcement of free and equal rights for all is forsaken. Under a perfectly limited government, the political and legal institutions codify and legitimate the current holdings and social positions of the actors in that society; this has the net effect of transforming questions about the care of the least well off and the most vulnerable into question for power politics between the strongest economic and political actors of that society outside the institutions of representative, liberal government. Some situations require the government's presence to ensure the right to have rights. Gay marriage and a definition of freedom for the emancipiated slaves, I have argued, are good examples of this.

(2) The word "federal" means a strong theory of state's rights qua themselves. I have argued in the past that the Constitution was never designed to protect the rights of states as an end in itself, but only as means to ensuring republican liberty for individuals.
Madison provides what he considers to be an easy rhetorical question for his readers: "...was the precious blood of thousands spilt, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?" I added to the emphasis to highlight that Madison juxtaposes state's rights as ends in themselves to state's rights for the purpose of guaranteeing rights. As I wrote earlier state's rights suffered a huge blow during Reconstruction and then again during the New Deal when it became plainly evident that the states were not protecting individual liberties. Madison's radicalism did not diminish once the Declaration was written; indeed he offered that the motivating principles behind the constitution were more important than the historical forms by which these principles manifested: "It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object." The teleology of government is the protection of the people; its power the people's consent.

Madison would not endorse the ultimate thrust of late Chief Justice's quixotic and reactionary opening to United States v. Lopez (1995): "We start with first principles. The Constitution creates a Federal Government of enumerated powers" which he subsequently expanded on in United States v. Morrison (2000). "The Constitution requires a distinction between what is truly national and what is truly local. . . . Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims." Rehnquist is incorrect; the framers of the various amendments of the Constitution distinguished between the national and the local only if the local was promoting the aims of the American government: individual rights. In fact, their fear was that when the states were protecting the inalienable rights of properties men, the Federal government's intervention into the matter would threaten rather than enhance the rights of the persons involved.

I shall address (3) in refuting Brainbrige's defense of Alito's exclusionist jurisprudence. In particular, Some bloggers, in commenting on Alito's response, have gone so far as to conclude that he is "against democracy." Bainbridge responds that to infer such a thing is an awfully "thin read" of Alito's response, which, he argues must be taken in context. As Bainbridge reads it, Alito
is not objecting to reapportionment qua reapportionment, but rather to the overall mindset of which the reapportionment cases were a part.

... in another reapportionment case, Harlan complained, “these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional ‘principle,’ and that this Court should ‘take the lead’ in promoting reform when other branches of government fail to act” (Reynolds v. Sims 1964, 624).

I would disagree with the claim that Alito is against democracy per se. He clearly believes in states, the Congress, and the Executive. My claim is that Alito's restrictive view of the judiciary confines and extirpates one of the corrective institutions of our federal government. When political maneuvering and bigotry leave some citizens--like gays in relationships who wish to start families or emancipated blacks after the Civil War--vulnerable to the ideological machinations of uncaring titans, the judiciary, as the protector of the Constitutional principles animating our liberal democratic regime, may be the last recourse for those who need federal action. Without the judiciary, those human beings being tortured at Guantanamo and those persons whose relationships have become stigmatized due to the bigotry of a few and the indifference of many would be condemned to have their dignity and humanity denied.

The United States posses a federal government composed of three co-equal branches. I have written in the past that "institutional and precedent conservatives are also unwilling by disposition to create new precedents to better defend and protect non-privileged persons. The Supreme Court of the United States, and its lower courts that operate under it, share a co-equal burden in the governance of America. Precedent conservatives...should respond to the challenge and govern co-equal." The judiciary is an important check on the Executive and legislative branches; if any branch does not uphold its task of ensuring liberty for all, the other branches of government have powerful mechanism to prevent its partners from doing bad things and potent capabilities to set the government back onto the right track. Bainbridge would criticize my ideal court as activist. In response I would offer that only when the other two branches have (1) failed to act or (2) are acting in a manner incommensurate with their duties to protect the most vulnerable and the least well-off should the judicial branch "take the lead." At all other times, it should operate co-equally with the other branches, being neither overbearing nor deferential.

In a few cases, like Reconstruction, the Executive and the legislative led the way to freedom. In many cases the judiciary is that light. No branch of our federated governmental structure is going to be the best moral actor all the time; however, if any one the branches relieves itself from the duty of protecting its citizens, the likelihood of justice being deferred radically increases.

Alito, then, is too conservative if he is unwilling the bear the responsibility for being the head of one of the branches of the United States government is role no less or more important than any senator, representative, or member of the Executive staff.