Conservatives Repudiate Liberty

[[Originally posted 11/8/2005; bumped for potential relevance following the Hamdan ruling (which I haven't read yet).]]

Kathy@IsItJustMe? (crossposted at Stop the ACLU) argues against the living Constitution:
[ . . . ] the Constitution when viewed as a "living document" becomes the political perversion tool to undo democracy in our country. A tool, which the ACLU and liberals use to promote civil liberties from a socialistic (not democratic) point of view [ . . . ]
The piece cites an article on Scalia's view of the Constitution, a citation expanded below:
Calling his view of the Constitution an "originalist" view, Scalia conceded it often places him in a position of supporting laws that do not seem to make sense.

"It may well be stupid, but if it's stupid, pass a law!" he said. "Don't think the originalist interpretation constrains you. To the contrary. My Constitution is a very flexible Constitution. You want a right to abortion? Create it the way all rights are created in a democracy, pass a law. The death penalty? Pass a law. That's flexibility."

Scalia suggested that supporters of the "living Constitution" view, allowing for flexible interpretations molded to meet the changing times, really wanted "rigidity."

"They want the whole country to do it their way from coast to coast. They want to drive one issue after another off the stage of political debate … Every time you insert into the Constitution - by speculation - new rights that aren't really there you are impoverishing democracy. You are pushing one issue after another off the democratic stage."
The essence of this argument appears to be that the Constitution was nothing more than a laundry list -- that the framers had no intent more far-reaching than to remedy their particular grievances with government. This view inherently rejects the notion that the Constitution is in any sense a document of principles, which are to be applied to cases as they arise.

As Chris@ADR puts it:
Scalia cannot comprehend that the law today would allow something that the law would not allow one hundred years ago. He thinks that the word liberty means now what it meant when it was written; some label for a list of allowable acts. I believe that liberty defines the lot of acts and thoughts that people engage in at any time.

Put more simply, Scalia thinks that the word 'liberty' means "convention." I think liberty means freedom from government interference. I also think this distinction is at the root of the split between social conservatives and social liberals.
There is an irony to the polarity between these two views. On examination, one finds that it is Cronin and the "living Constitution" proponents -- ostensibly liberals -- who are arguing for the traditionally conservative position of limited government, while Scalia's "originalism" is quite explicitly advocating a government without boundaries: "Don't think the originalist interpretation constrains you. To the contrary. My Constitution is a very flexible Constitution."

The "rigidity" Scalia rails against can be identified as the principle that there are certain areas of life in which the government has no right to meddle. This is the fundamental tenet of limited government, and the basic principle of the Constitution. When the founding fathers inserted language in the Constitution stating that no person shall "be deprived of life, liberty, or property, without due process of law" they had no specific idea that one day an administration would create secret prisons around the world for the detention of enemies, but they understood that governments were prone to this sort of behavior, and so they articulated a broad principle which forbade it.

In the pursuit of their own political agenda, "conservatives" now find themselves arguing against the concept of limited government. They reject the notion that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" in favor of the idea that anything not explicitly forbidden in the Constitution is fair game. They reject the notion that human beings have a natural right to privacy, on the grounds that the founding fathers failed to anticipate that the government would one day stoop to involving itself in the sexual relations of its citizens, or intruding upon the confidence shared by a doctor and a patient, or declaring a plant illegal, or regulating the covenant of marriage.

By insisting on what they refer to as an "originalist" or "strict-constructionist" philosophy, conservatives are actually rejecting those principles which the framers took for granted. More importantly, they are rejecting the idea that rights by default reside in the people, not the government, which is implied in the primary definition of a word often invoked by conservatives . . .
liberty: immunity from arbitrary exercise of authority: political independence

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