6th Circuit Slaps Down ACLU

Good. It should be noted, though, that the hyper-sensitivity referred to by the court is not limited just to those on the ACLU's side of this case. There's plenty of hyper-sensitive religious people as well.. who overreact and overreach just as willingly and fervently.

Yes like those hyper-sensitive religious people who sued the County of Los Angeles to remove the pagan goddess from the County Seal.

Mark, is there any subject where you don't fall back on the "everything is equal to everything else" argument? In this case, particularly, it's bizarre. Whoever these hyper-sensitive religious people are, they aren't suing left and right to impose their sensitivities on others.

Ben...

(I think Mark is one of those hyper-sensitive people...)

but Shh, don't say anything!

BB: Is there any subject where you don't tow the Right's line? This is a conservative blog. I'm more than happy to bring the right-wing euphoria back down to reality from time to time.

Aside from the case tP mentioned, there are also conservatives who want to impose the FCC's decency rules onto all cable and satellite programming and crusade against all other things in our society they view as "indecent". They'd love nothing more than to use the power of the courts in pursuit of those goals. Anyone serious about acquiring legal power in this country to advance their agenda must use the courts.

DD: Shh.. don't tell anyone, but I happen to agree with the 6th circuit court of appeals on this one. If that makes me one of those hyper-sensitive people, then you've apparently lost your sense of perspective.

You're avoiding the question, Mark. I was talking about arguments, not conclusions. You always use the same tu quoque argument: "Your side does it, too." It's not a persuasive argument.

I agree that you provide an important ideological balance here. Without you, everyone would agree with each other, which would be horribly dull. I'm just saying that you could make your points much more forcefully with a wider variety of arguments tailored to the specific topic under discussion. The weakness of tu quoque is that anyone can use it in any situation, so it doesn't really mean anything. There are better counterarguments out there, Mark, and I would love to see you make them.

On the more substantive point, I think you're wrong in saying that conservatives would love to misuse the courts for political purposes the way liberals have. Do you have any basis for your belief on that, or is it just ESP?

In my view, conservatives don't need the courts to advance their agenda; they have the ballot box. They believe in the ballot box. And when they lose at the ballot box, they take their case to the voters. I can't think of a time in the past eighty years where conservatives have gone to the courts because they lost at the ballot box. But maybe you have some specific examples in mind.

Well if you want a second example Mark, how about those hyper-sensitive religious people who sued the Sate of Utah to tear down roadside crosses put up using private money to memorialize Police Officers who were killed in the line of duty?

Gosh, Mark, don't get so defensive.

BB: You're implying a motive on my part that doesn't exist. My motive here isn't to persuade people to become liberals or even to adopt my positions on the issues. My motive here is to keep the right-wing sanctimoniousness to a minimum.

As for your other point, I disagree. What about all the conservative interest groups that were founded in the 80's and 90's to persuade the courts to rollback environmental regulations, zoning regulations, and health/safety regulations? Sure, their efforts weren't very successful.. but the point is that they wanted to use the courts in pursuit of those goals. What about the big to-do with judicial nominations? Are you telling me that conservatives wanted certain justices on the bench because their primary concern is federalism and because they perceive a strong liberal bias in the courts? (imagine that.. conservatives think the courts are too liberal, but I digress.) Ha! They wanted to use the courts, just like liberals wanted to use the courts, to advance or uphold their agenda. And social conservatives all across America rejoiced when they heard about judges who may overturn Roe v. Wade. Why were they rejoicing? Because their problem with Roe v. Wade was rooted in its implications on federalism? Ha! They cheered because they think it's the first step toward the government using its power, through laws and punishments, to ban abortion.

Conservatives certainly do use the ballot box and take the issues to the public. Like any other interest group, though, they tell the public only what they want the public to hear; their spin on the issue.

Side note: I wonder if social conservatives will leave MA alone on the gay marriage thing, now that it's been demonstrated that a majority of MA residents support it.

Gosh, DD, don't pretend to be so concerned.

What a great comeback.

Mark, I'm not sure what litigation you're talking about. If it was takings clause litigation, then I see that differently, because the US Constitution actually contains a takings, clause as opposed to a privacy clause or abortion clause.

The battled over the US Sup Ct isn't about federalism, Mark. It's about the will of the people. Reversing Roe, for example, doesn't make abortion illegal; it returns the issue to the state legislatures, where it belongs. You're welcome to indulge in DailyKos fantasies about far-right plans to take over the world. But there's no evidence, no proof.

Conservatives want to preserve what we have (or recently had), which was a constitutional republic in which goverment derived its just powers from the consent of the governed. The bitterness over Roe perfectly encapsulates the reasons the founders chose democracy over monarchy: If you tell a group of people that they have no voice in government, then they will hate that government and bring it down when they can.

Roe was an experiment in anti-democracy, where the imperial judges assured themselves that taking the issue away from the ballot box would end the strife. They were wrong. Putting conservative judges on the court shows that we are not a monarchy, or a banana republic, or any other non-democratic government. In our system, every citizen has a vote. It's really very simple. Liberals seem to want some other system.

On gay marriage, it isn't a matter of leaving MA alone. The problem is that MA won't leave all the other states alone. MA residents will bring endless full faith and credit clause lawsuits, claiming that everyone must accept what MA did, whether or not they were allowed to vote on it. It'll be a mess.

BB: Are you really going to sit there and tell me that religious conservatives across the country are upset over Roe v. Wade because they think it should be a state issue and not a federal one? Sorry, but that's BS. Trust me, coming from and being in a very religious and rather conservative state, people want abortion made illegal everywhere, not just in their own state. Part of me wants Roe v. Wade overturned for that very reason. I think a few things would happen:

1.) The map of red and blue states would change significantly.. there'd be a bit more blue than there is now.

2.) The people in red states whose state governments choose to outlaw abortion will be upset that there are neighboring states that allow it. They'll want the federal government to outlaw it everywhere. The people in blue or red states whose state governments choose to allow abortion will want it made legal everywhere.

And so, the concern of a majority of the country isn't about whether it falls within the purview of the state or federal government. In the hearts and minds of citizens, it's about whether it should or should not be allowed anywhere in the country.

As for the gay marriage thing, if you're really so concerned that MA will try to impose themselves upon other states (your own rendition of a DailyKos-type fantasy that liberals are planning to take over the world), have your conservative friends create a constitutional amendment that simply prevents one state's decision on the issue from impacting other states. In effect, making DOMA a constitutional amendment. I'd support that anyday. What did conservatives do instead of that? They tried to float a constitutional amendment that reached further and, accordingly, sunk.

As for your contention and the contention of many conservative activists, consider the book: A Court Divided, by Mark Tushnet

The contention, which I forgot to mention, is that the courts are too far out of sync with the public.

Mark, you're missing the distinction between what conservatives want and how far they're willing to go to get what they want. Of course most of them would like to see abortion outlawed in all 50 states. And they will try to persuade the voters in all 50 states to put that view into law. That's exactly how our system should work.

But suppose that they fail. You assume that they're willing to do anything at all to achieve their goal. You seem to think that they would try to get the US Sup Ct to invent a constitutional prohibition on abortion. But they wouldn't. They would stay within legitimate channels, trying to win popular support. Some of them might want to federalize the issue and have Congress pass a national statute. But it'll always be through legitimate channels.

The liberals are different. They don't seem to care how they get what they want. If a court invents a new right out of thin air, that's great if it's what they want. If America gives up some of its sovereignty to some trans-national body, that's great, too, if it gets them what they want. The end justifies the means.

Your constant tu quoque argument is especially ridiculous in the context of the ACLU, because there is no conservative counterpart. As far as I know, there are no conservative organizations devoted to changing publicy policy through litigation. That just isn't how we think. We want fair and square victories at the ballot box, not anti-democratic and duplicitous misinterpretations of constitutions.

BB: It'll *always* be through legitimate channels for conservatives? .. and liberals always seem to not care how they get what they want?

Sorry, I'm not buying your snake oil.

As for conservative counterparts to the ACLU, the following two come to mind:

ACLJ (American Center for Law and Justice)
IRF (Individual Rights Foundation)

Once again, Mark, you're trying to cram the situation into your all-purpose "everyone is equal to everyone else" argument. I'm talking about reality, past and present, not fears about the future.

The claim is: The two sides use very different tactics in trying to achieve their goals. Conservatives go to court to prevent illegitimate changes in the law, or to enforce their rights under established law. Liberals use the courts to create new law when they can't do it through the democratic process.

If you disagree with that, then present specific facts or counterexamples. But just saying "you guys are bad, too" is not a meaningful argument.

On the the ACLF and IRF, what lawsuits have they brought that you see as asking the courts to invent new public policy contrary to tradition?

BB: Your claim is undoubtedly the function of your bias, because "going to court to prevent illegitimate changes in the law or to enforce their rights under established law" is exactly what the ACLU and its proponents would say they're doing.. and so when you say that conservatives go to court legitimately and liberals go to court to create new laws, you're sounding like just another conservative activist. In other news, Ford says GM's vehicles aren't as good as theirs.. what a shocker.

Your original contention was that there was no conservative ACLU counterpart that is devoted to "changing publicy policy through litigation". That premise doesn't jive with me, because the ACLU goes to court for individual cases, not for causes beyond the scope of the individual case. I suspect the ACLJ and IRF do the same. Now, if you want to say that the aggregate of these individual cases constitutes "changing public policy through litigation", that's fine.. but you also have to apply that consideration to the aggregate of the cases taken up by the ACLJ and IRF.

BB asked: "On the the ACLF and IRF, what lawsuits have they brought that you see as asking the courts to invent new public policy contrary to tradition?"

I reject the flawed premise upon which the question is based. The flawed premise is that the ACLU goes to court to invent new public policy and that the ACLJ and IRF do not. If you can show me objective evidence of this, evidence that's not filtered through your conservative angle of the prism, then I'll entertain the question.

"the ACLU goes to court for individual cases, not for causes beyond the scope of the individual case."

That one nearly made Diet Dr Pepper come out my nose. Surely you aren't serious. Are you suggesting that the ACLU just randomly helps people in need, without any plans to produce specific precendents?

"I suspect the ACLJ and IRF do the same."

You suspect it, but on what basis?

"If you can show me objective evidence of this, evidence that's not filtered through your conservative angle of the prism, then I'll entertain the question."

When you accuse me of bias, you make further conversation impossible. I'm not going to waste time trying to disprove personal attacks, just for the privilege of having you consider what I'm saying.

Once again, as in so many areas, we differ. I don't think you're dishonest; I just think you're confused. You could argue---and think---much more clearly about these subjects if you didn't jump so quickly to your all-purpose response that everything is the same as everything else. That argument, if taken seriously, is antithetical to thought. I hope that one day you'll find something better, and thus become a more persuasive liberal.

BB: No, the ACLU doesn't just randomly help people in need anymore than the ACLJ or IRF do. The ACLU helps people when their case involves issues that the ACLU feels are important to fight for.. and so does the ACLJ and IRF. Precedent here, for either constituency, seems less a matter of any one or two cases but of the aggregate of their entire set of cases.

BB said: "I just think you're confused. You could argue---and think---much more clearly about these subjects if you didn't jump so quickly to your all-purpose response that everything is the same as everything else. That argument, if taken seriously, is antithetical to thought."

It's not so much an argument as it is a statement rooted in common sense. Is the ACLU simply out to create new laws out of thin air via the courts, as you suggest? I find that highly unlikely.. and rather unbelievable, coming from a conservative. Criticism of an ideology or political party from those within that ideology or political party carries much more weight with me than any conservative claptrap about how liberals have used and will use un-democratic means to take over the world, or about how liberals are anti-religion and against "traditional values".. or some liberal claptrap about how conservatives want to rule the world by putting a gun to every country's head, or about how conservatives want to screw over the environment, etc. I see plenty of that sort of thing here on MW's blog, and the role I've assigned myself is to take the edge off of the Right's hubris.

I'm not here to swing people to the left so much as I am here to swing people back to the center.. back to the big hump in the metaphorical bell curve of political and ideological affiliation, which is where the majority of the public is.