One of my very best friends just sent me his copy of this article from the March 9, 2003 edition of the New York Times Magazine which - like most things worth reading - fell beneath my radar. The article by Deborah Sontag labels the U.S. Court of Appeals for the Fourth Circuit the "Intellectual Heart of Conservative America" but then goes on to paint a ridiculously child-like portrayal of the court. (For example, it recounts Judge Luttig jumping out of his chair to remind counsel who dared to disagree with him during oral argument - "You can't! . . . You can't disagree!" Boy, if that humdinger of an argument came from the intellectual heart of conservative America, no wonder those of us conservatives with less-than-enviable God-given intellectual wherewithal are labelled narrow-minded, simpleton bigots.)

What I think I found most offensive from the article, though, was the conclusion. Sontag writes:

Legal scholars talk about the pendulum swinging from liberal to conservative, from a preoccupation with individuals' rights to a preoccupation with states' rights, and suggest that, in time, it will swing back once more. It would certainly help many Americans sustain their faith in the system if the courts could find their equilibrium, if they could become less ideological, less predictable and less political. That doesn't appear to be on the horizon, though, not in the foreseeable future. In the historic site in Richmond where the Confederacy once thrived, the United States Court of Appeals for the Fourth Circuit is ushering in the 21st century.

To suggest that the pendulum has swung away from a preoccupation with individual rights and toward a preoccupation with states' rights is insane! First of all, couching the dichotomy in those terms seals the conservatives' fate from the onset. I don't think the conservatives are any less "preoccupied" with the "individual" - its just a matter of the federalist concern with locus of governmental control. Plus, if anything, both extremes focus on individual rights - the only difference is they focus on the rights of different individuals. My wholehearted opposition to abortion, for example, has everything to do the rights of individuals - problem is, the "liberals" don't see it that way. Moreover, I am an individual who wants a right to regulate certain criminal behaviors so that my (individual) children won't have to grow up in a world where we endorse what I consider to be social ills - despite an overwhelming national majority apparently bent on glorifying the increasingly obscene through "mainstream media" outlets like sit-coms and "reality TV" shows that offer graphic violence, promiscuity, homosexuality, and pre-marital sex as the norm. (Although the temptation is strong here, I won't digress into a discussion of the problems with this indictment of 11th Circuit nominee Bill Pryor on the basis that filing a brief in defense of Texas' right to criminalize homosexuality makes him "anti-gay." If anything, I think it makes him pro-Texas.) Secondly, if Sontag thinks that the pendulum has swung in that direction, I think her focus on the Fourth Circuit has caused her to suffer from severe myopia. Sadly, I think "new federalism" is still the waning minority. Apparently, one other NYT reader agreees with me.

As far as I am concerned, the prospect of the Fourth Circuit "ushering in the 21st century" is - with the exception of its death penalty jurisprudence (or, more accurately, its lack thereof) - a welcome relief. Sontag's references to the Confederacy may demonstrate her own resignation that, at least with respect to its stance on states' rights, "The South Shall Rise Again!"



- posted by Anonymous @ 12:39 PM