The Hammer Falls

After months of waiting, hoping, it has finally happened: Tom DeLay was indicted and forced to step down as House Majority Leader. It's hard to say what will ultimately happen, but one thing's for sure: the stench from this affair will be hard for the GOP to shake.

The indictment opens up a whole line of attack that only vaguely existed before for the Democrats. Instead of vague charges about escapades with Jack Abramoff, we now have explicit transgressions to work with: Tom DeLay is a money-laundering, gerrymandering, election cheater.

It may be cynical of me, but I'm pretty pleased. I've considered Tom DeLay to be an arch-villain of comic book proportions for some time now, and he'll finally get his day in court. Stay tuned.

First things first...

...go to www.hannity.com and check out the "Hannidate" feature. It is probably one of the funniest things I've ever seen. Is Sean Hannity really the person people should use as a hub to the dating world? Apparently his listeners think so.

Anyway, on to more serious matters: Am I more conservative than John Roberts? The prospect of a "yes" answer naturally frightens me. This is a man who worked in the Justice Department of Ronald Reagan, the figurehead of our current political realignment. He is George W. Bush's appointee to be Chief Justice of the United States Supreme Court. And he believes in a constitutional right to privacy.

This last issue is my sticking point. "Wait," you cry, "are you (gulp) anti-choice?" No, my legions of readers, I am not opposed to abortion. In fact, I'm a strong supporter of reproductive rights; I even believe in federal funding for abortions (why do we only force poor women to have unwanted children?). The problem is whether federal privacy law stands up to scrutiny, and I don't think it does.

Unfortunately, the American privacy caselaw is held together by duct tape. Even more unfortunately, it isn't particularly high-grade duct tape. The main problem is that the concept on which it is based, Substantive Due Process, is self-contradictory. Any ninth-grade English student fresh out of his lesson on Greek roots can tell you that distinguishing between "procedural" and "substantive" due process is a bit silly, because "procedural due process" is a reduncancy. You see, "procedural" is the adjective form of "procedure," which, in turn, shares the same root and basic meaning as "process." When you start talking about "substantive due process" (e.g. right to privacy, right to contract, etc.), you're no longer talking about "process" at all. At least in the abstract sense, it cannot exist.

Then where did this absurd doctrine come from? A good place to start is a single Supreme Court case, now recognized as one of the worst decisions in its history: Lochner v. New York. This 1905 case established the legally specious "right to contract," on the grounds that it was contained in the substantive component of the Due Process Clause of the 14th Amendment. The reaction of liberal legal scholars was a little similar to the reaction of conservative scholars to today's privacy caselaw: "There's no such thing as substantive due process!"

The same specious concept with the unfortunate name controls privacy law in the 21st Century. And thusly, I don't support the privacy caselaw.

Besides the simple intellectual dishonesty of SDP, it should be opposed to prevent pernicious effects in the future. The fact is, if it can prop up rights as disparate as privacy and contracts, it can prop up pretty much any right a crafty judge chooses to put under its umbrella. Or, worse yet, it could bring back Lochner-era rulings that gutted economic regulation for several decades: the right to contract resulted in maximum hour and minimum wage laws being struck down, which means there's a lot of contemporary stuff us liberals like that would disappear pretty quickly (such as Social Security, the Environmental Protection Act, and the Civil Rights Act). The political process will never allow conservatives to take these things away, so the Court is their only recourse.

So, we have to punt SDP. I think a constitutional amendment establishing the right to privacy is a fantastic idea, intellectually and (more importantly) politically (after all, how can anyone who claims to be conservative vote against privacy?). But, we shouldn't let it stand as an artificial construction. There's just too much at stake.

Oh, and for an alternative to traditional liberal judicial review theory, check out John Hart Ely's Democracy and Distrust. It's not perfect, but it's a pretty good start.

Hurricane Katrina and other thoughts

Sorry I haven't posted in quite some time. Too intellectually lazy during those last weeks of summer, I suppose. Regardless, I'm back and ought to be posting more regularly than ever now that school's back in session. And now to the point.

Red America has gone red in the face over post-Katrina criticism of the Bush administration and the GOP in general. They charge liberals with exploiting a national tragedy to make political points, and distorting facts in the process. David Frum at National Review, Oliver North at Human Events, and Pat Buchanan, also at Human Events, provide a good sampling of the talking points.

War Criminal Oliver North provides the most ridiculous indictment of all: "...while hundreds of thousands of our fellow citizens in New Orleans and the Mississippi Gulf Coast are mourning dead family and friends and trying to comprehend their losses in the flooded streets, Robert F. Kennedy, Jr. is blaming Haley Barbour, the Republican governor of Mississippi, and the GOP for the devastation caused by the hurricane." In one sentence, Tehran Ollie summarizes the impotence of the Republican response to charges of hurricane exacerbation. He completely misses the point of Kyoto- and Iraq-related post-hurricane critisms: nobody is charging that Bush and the GOP literally and directly caused the hurricane. Rather, they make two legitimate charges that conservatives can't dodge. First, as David Corn points out, liberals charge that American conservatives' neglect of emissions-related climate change has worsened the impacts of land-falling hurricanes, which, research indicates, may be intensified by global warming. Second, and most obviously, liberals charge that the national guard was unable to respond to the disaster as rapidly as possible due to its deployment in Iraq. This is almost indisputable; as a result, regular active-duty Army troops have been deployed (technically illegally) to help in the relief efforts.

Perhaps worse, some conservatives question the very idea of Federal rebuilding in New Orleans. Speaker of the House Dennis Hastert is one of these conservatives.

In situations like these, the people who are crying "exploitation" or "opportunism" tend to those who are unable to formulate rational, convincing responses. Sure, if Kyoto had been ratified by the U.S., or if U.S. troops had never invaded Iraq, Hurricane Katrina probably would have still happened, and it would have still caused significant damage. But we should not avert our eyes to the ways conservative policy can worsen natural disasters, especially in the face of the most damaging act of God in the modern history.