| Monday,
July 13, 2009 If you missed the weekend,
I had a short reaction to John Derbyshire's
lament for Apollo 11 as a magnificent folly. It's worth your attention.
The Sotomayor Hearings
Likewise,
"The
Seinfeld Hearings" by Randy Barnett in today's Wall Street Journal is
worth your time; the discussion on judicial activism is a start, at least,
and his suggestions on what ought to be asked in confirmation hearings make
sense.
My view of judicial activism is this: it is one thing for the courts to
uphold legislation that may or may not contradict the Constitution. This is
a matter of concern and debate, but that's not what I mean by judicial
activism. To me, judicial activism begins when the courts make rulings in
the absence of legislation. For example, one of the most bizarre activist
rulings of the Warren Court held that the upper houses of every state were
unconstitutional, and presumably had been from the moment the Constitution
was adopted. For centuries we had operated with unconstitutional state
legislatures. This in the total absence of any legislation.
In my judgment, Brown vs. Board came close to judicial activism. It's not
that "separate but equal" is a desirable doctrine; the question is, do the
courts have the constitutional authority to enforce equal protection of the
laws? Certainly Congress does: the power is explicitly given in the
Amendment. Brown vs. Board created a great deal of controversy and strife
and occupied a lot of court attention; but in fact the various Civil Rights
and Voting Rights Acts were what really ended segregation.
Roe vs. Wade is another case of judicial activism. If the Congress had
enacted some kind of abortion rights act and there had been a court
challenge of Congress' right to do so, it would not have been. I don't
believe that Congress has the authority to begin with, but that's quite a
different matter from whether there is some hidden right in the Constitution
that forbids the states from making abortion a crime. Discovery of that
hidden right was judicial activism; upholding Congress' right to regulate
abortion would not have been.
Judicial activism/judicial restraint in my judgment has to do with
separation of powers, not with liberal vs. conservative views.
Today, of course, we want to know that the courts will uphold good laws
and strike down bad laws. Good laws are those that reflect our political
reviews, bad laws are those we don't have the political muscle to repeal.
Barnett proposed that instead of asking about previous Court decisions,
the confirmation hearings emphasize discussion of various clauses in the
Constitution. What are the Privileges and Immunities addressed by the 14th
Amendment? (Barnett gives us a hint: they included the right to keep and
bear arms.) Are there limits to the Necessary and Proper clause? And so
forth.
I expect Sotomayor to be confirmed by an overwhelming majority whatever
happens in the confirmation hearings. I also believe that Barnett's approach
to what the hearings ought to be about is correct.
Just as I was ready to post this, I heard a Sotomayor sound bite on the
judiciary and the law. I could not agree more with what she said. Unless she
is flat lying, she certainly has the proper judicial attitude.
=================
Today's Wall Street Journal has an article by Andy
Grove, former CEO of Intel, entitled
"What
Detroit Can Learn from Silicon Valley." I don't know how much you'll
learn that you didn't already know: perhaps a lot, depending on how much
you've thought about bailouts and their near and long term effects, and how
much you know about China's investment strategies. I recommend it to your
attention.
============
And finally today's Wall Street Journal had the
lead headline "CIA Had Secret Al Qaeda Plan". When I saw that I told Roberta
"I hope to kiss a duck they did," to which she agreed. Good heavens, we
certainly needed plans to deal with Al Qaeda, and while some of those could
and should have been openly discussed, others by their very nature could not
be. As to whether those plans were presented to the Congress, wouldn't it
depend on how far the planning went? The law provides that CIA operations
need Congressional approval before implementation, but surely there's no
requirement that every operation being discussed needs to be broadcast to a
potentially leaky organization? The Congressional Intelligence committees
and staffs have been known to leak, sometimes badly. We could name members
who have been less than discreet, and some who have been known to let
politics influence their oversight decisions. While it's necessary to have
some Congressional oversight over covert operations, it's a delicate
question as to just how much there should be, and at what stage it ought to
begin.
=======================
Charles Brown, RIP
Charles N. Brown, 1937-2009 -
posted at 7/13/2009 09:46:00 AM <http://www.locusmag.com/News/2009/07/charles-n-brown-1937-2009.html>
PT Locus publisher, editor, and co-founder Charles N. Brown, 72, died
peacefully in his sleep July 12, 2009 on his way home from Readercon.
An old friend. I met him first in Chicago in 1962. Marsha had a badge
that said "Marsha Almost-Brown". We were never close, but we were
certainly friends, and for a long time. He'll be missed.
=====================
BEWARE
I saw this in the SFWA conference:
SFWA member Clifford Meth is in trouble.
He and his family have been robbed
while on vacation in London. They have lost their tickets home and are,
right
now, penniless in London. He contacted me via facebook.
I think the first priority is getting them some help in London, then maybe
we
can get the Hardship Fund to help with passage.
Details are forthcoming.
I don't know Clifford Meth, and but it doesn't matter: He's
not in London. This is a scam, and if you correspond with the facebook
supplied address you will end up talking to Nigeria. Apparently this sort of
scam happens often now.
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