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Prof. Rick Garnett on Why He Supports Fred Thompson for President:

From Prof. Rick Garnett — please see here for more on this feature:

A candidate for President should present to the voters a reasonably attractive personality, experience and evidence of sound judgment, a clear-eyed understanding of the challenges and opportunities our Nation faces, and an array of plausible, sound policy proposals. (Fundraising prowess and skeleton-free closets are nice, too.) He or she should also — and this is crucial — understand and appreciate the close, rich connection between the enjoyment of human liberty and the structural features of the limited government for which our Constitution is a blueprint.

An eminent scholar of constitutional law, echoing James Madison and many other luminaries, has observed that "[t]he genius of the American Constitution lies in its use of structural devices to preserve individual liberty." I agree. And, in my view, the candidate who seems most inclined, and best prepared, to honor this "genius" is Sen. Fred Thompson.

Every candidate has a stump speech and each has floated, endorsed, and promised — ideally, without contradiction or inconsistency — a dizzying array of programs, initiatives, and — of course — "changes." Informed voters realize, though, that so much of what presidential candidates propose and embrace is, to a great extent, beyond the practical capacity of Presidents to get done. A candidate can say — and they all do — that he or she will "reform health-care" or "restore traditional family values" or "defend our borders", but sophisticated citizens understand that a President's ability to deliver these goodies is constrained by Senate rules, powerful House Committee chairpersons, the stock market's performance, and the like.

We need to ask, then, not only about a candidate's grab-bag of wonkery and litany of bullet-points, but also about his or her animating commitments. Sen. Thompson has staked out what I think are realistic and responsible positions on a wide range of important issues. More important, though, he has developed and shared, in a way that goes well beyond candidates' usual sound-bite sloganeering, the "first principles", which arise "out of the documents of Nation's founding and the wisdom of the ages", and that "guide [his] approach to the issues that are crucial to our Nation's future." (Go to the campaign web site, and see for yourself.) This exposition is one that, in my view, commends Sen. Thompson's candidacy to all of us who value the rule of law and cherish our Constitution's particular "genius."

Sen. Thompson understands — as did the Framers — that (in his words) "[g]overnment must be strong enough to protect us, competent enough to provide basic government services, but limited by the delineated powers in the Constitution." To achieve and maintain such a government — in a way that protects and respects human freedom — is, of course, no small challenge. Our constitutional response to this challenge reflects the considered belief that, as the Supreme Court has put it, "liberty of the person inheres in [constitutional] structure." Put differently, and as Chief Justice Rehnquist observed, this "constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties."

These are not airy abstractions, far removed from real-world, "kitchen table" concerns. Our President must understand — and I believe Sen. Thompson does — the Constitution's end (human freedom) and means (federalism, separation of powers, and limited government). This matters more, all things considered, than the extent to which his canned debate answers please dial-turning focus-group members. "Our Constitution," he recognizes, "innovatively guarantees our liberties by spreading power among the three branches of the federal government, and between the federal government and the states."

(For more from Sen. Thompson on this point, go here.)

Now, among the President's most important responsibilities — second only, perhaps, to his national-security duties and his obligations as Commander in Chief — is the identification, nomination, and support of Executive officials and federal judges who understand the Constitution's "innovative" design and their own role in its service. They must be willing to enforce the Constitution's limited-government and separation-of-powers features and, at the same time, respect the limits on their own powers. Federal judges must appreciate — they must really believe — that the Constitution protects freedom not so much by authorizing them to resolve divisive moral and policy questions as by structuring government in a way that facilitates the enjoyment of ordered liberty.

No doubt, the valuable assistance Sen. Thompson provided during the confirmation of our new, excellent Chief Justice both confirmed and deepened his understanding of the importance of good judges. And, once again, Sen. Thompson's clear statement of "principles" justifies our confidence: "A free and independent judiciary that interprets the law by adhering strictly to legal text and respects its limited role in our system of government is essential to our security and freedom, and we need judges who understand that role if we are to preserve our republic and freedom."

Finally, this last statement adds texture to Sen. Thompson's firm, consistent, multi-faceted commitment to the dignity of human life, which has earned the respect and endorsement of a wide range of pro-life groups and individuals. Some might wonder whether Sen. Thompson's pro-life views are in tension with his limited-government principles. They are not. Quite the contrary, in fact. At the end of the day, no political community can be what ours aspires to be if it excludes children in the womb entirely from the law's protection. Even a limited government limits private violence. Putting aside the merits of the moral question, though, there exist few greater insults to the freedom-protecting structural features of our Constitution than the Supreme Court's gross and arrogant overreaches in the Roe and Casey decisions. Only a presidential candidate who sees — as Sen. Thompson does — these rulings for what they are can, at the end of the day, be taken seriously as a friend of ordered liberty through limited government.

Chris Smith (mail):
I only hope that Thompson's anti-campaign doesn't become Perot redux.
1.2.2008 1:38pm
dcuser (mail):
In what sense does Rick Garnett count as libertarian? Aside from his positions on school choice and against government regulation of religious institutions (which are views that Mike Huckabee probably supports and could be ascribed not necessarily to libertarianism but rather to pro-religion conservativism), he seems like a pretty straight-up non-libertarian conservative. Shouldn't this feature be called "Some of my friends explain which Republican they support"?
1.2.2008 1:42pm
Mr. X (www):
Fred Thompson

Pluses:
Speaks highly of Federalism.

Minuses:
Lazy candidate who rated quitting the Senate as his greatest political accomplishment.
Polling below Ron Paul in New Hampshire.
Has to beg audience for applause during stump speeches.
Has incurable cancer.
1.2.2008 2:21pm
Rick Garnett (mail):
DCUSER: For what it's worth, I think I have a number of views, on a number of issues, that could fairly be characterized as libertarian. That said, you make a fair point: I'm not a purist. (Maybe I'm more of a policy libertarian than a philosophical one?) Also, and for what it's worth, Huckabee does *not* support vouchers. That's why the teacher-unions like him.
1.2.2008 2:41pm
PLR:
At the end of the day, no political community can be what ours aspires to be if it excludes children in the womb entirely from the law's protection.

Take that, you noisy broads!
1.2.2008 3:02pm
Aultimer:

At the end of the day, no political community can be what ours aspires to be if it excludes children in the womb entirely from the law's protection.

You realize that most of your audience has read RvW and is quite aware that it's ruling is about a balance of state and individual liberty, and not "go kill babies as you see fit" as the religious right purports it to be, no?
1.2.2008 3:31pm
EH (mail):

Take that, you noisy broads!


Yeah, if you rearrange all of the passive-voice wimpiness out of this statement, you get "we aspire to give the law control over a woman's womb." I can't imagine such nanny-state rhetoric would go over well if plainly spoken.
1.2.2008 3:35pm
bittern (mail):
Maybe the trouble is that Fred!s "animating commitments" have failed to do one thing: animate him. Prof Garnett's recommendation quotes from Fred!s laconistry quite a bit, but aside from his walking Roberts around and perhaps some prolifestry, it's not evident to me that Fred! has ever been very much animated by his high commitments. Though honestly, I'm too lazy to look into it.
1.2.2008 3:44pm
PLR:
Lobbyists don't need to be animated, they just need to pick up the dinner tab.

Romney will also pick up the dinner tab, as will Edwards. Obama, not so much.
1.2.2008 3:57pm
Arkady:
Of course, the question is really: Does Fred Thompson support Fred Thompson for president? The evidence seems to point to "No".
1.2.2008 4:08pm
Mr. X (www):
Fred Thompson on why he only did one event on January 1st.

"We decided that we would give the people a break," Thompson told reporters after a casual 34 minutes spent meeting veterans. "We could either -- it was a close call, to go jogging in almost zero-degree weather, or stay in and take a nap. After considerable consideration, I decided to take a nap."

Then, seeming to realize that such a line might be taken the wrong way for a candidate with a reputation for laziness, he added, "Just kidding, I didn't really take a nap."


He should go back to being a lobbyist/actor.
1.2.2008 4:11pm
davod (mail):
It is good to see most posters are taking their positions from the MSM. Reading
1.2.2008 4:53pm
bittern (mail):
Davod, it is good to see that you can fill us in with those many accomplishments of Mr. Thompson's that our other information sources and Prof Garnett have perhaps deliberately failed to note.
1.2.2008 5:07pm
gahrie (mail) (www):
Fred Thompson's position on abortion is:

1) Roe V Wade and the whole chain of cases associated with it are judicial activism and bad law.

2) Abortion should be decided on by the states.

He is a committed federalist. He does not want to "control women's wombs". In fact, many pro-life activists have a problem with Thompson because they feel he is not militant enough on the issue.
1.2.2008 5:32pm
Pierre Owner Bouncer Pink Flamingo Bar & Grill (www):
Thank you for that piece Mr. Garnett. It is always amusing to watch folks defend abortion. It is such an important issue...
1.2.2008 5:36pm
gahrie (mail) (www):
About Thompson's poor campaigning:

Give me a candidate who has prepared and issued detailed postions on all the major issues over a sound-bite glad-hander any day.

I want a candidate who hates campaigning. I want a president who is willing to serve, but not obsessed with becoming president.

Thompson is the anti-Democrat, especially in this election, in every way.

He has proven in his career in Tennesse politics and the Senate that he is willing to walk the walk and live up to his words.
1.2.2008 5:38pm
Pierre Owner Bouncer Pink Flamingo Bar & Grill (www):
Btw I support Fred. Huckabee and McCain are dangerous to the constitution. Guiliani is too soft on immigration and wants my guns...no sale there. Romney is a bit too slick for my tastes and I have seen him up close. Nice guy who I could vote for given a choice between him and any current democrat.
1.2.2008 5:40pm
David M. Nieporent (www):
You realize that most of your audience has read RvW and is quite aware that it's ruling is about a balance of state and individual liberty, and not "go kill babies as you see fit" as the religious right purports it to be, no?
You do realize that those of us who have read RvW and all the subsequent abortion rulings know that it is in fact, as the religious right purports it to be, right?
1.2.2008 5:44pm
David M. Nieporent (www):
Lazy candidate who rated quitting the Senate as his greatest political accomplishment.
It was a joke, son.

And in any case, would that we had more politicians who didn't think that spending their lives in Washington was a good thing.
1.2.2008 5:46pm
BruceM (mail) (www):
I don't see how anyone who desires a candidate who respects the Constitution and the notion of limited, enumerated powers could vote for anyone other than Ron Paul, let alone suggest that a candidate other than Ron Paul is more understanding of the Framer's intent as to how our system of Constitutional governance was intended to function.

I'm not saying Paul is the right/best/ideal/perfect candidate, only that everything this guy says about Thompson is more true about Paul (and questionably true about Thompson).
1.2.2008 5:56pm
Constitutional Crisis (mail):
Well, with the encomia for Paul, Giuliani, Thompson and Romney (where art thou, Huckabee and McCain?) I suppose we can put to rest the notion that this blog abstains from trafficking among ideologues. Is there no deliberate praise for Clinton, Edwards or Obama that merits consideration by those who take the law seriously?
1.2.2008 6:10pm
gahrie (mail) (www):
BruceM:

The difference is, Fred Thompson understands international relations.

Ron Paul is the worst type of isolationist, and would be a disaster as president.
1.2.2008 6:22pm
gahrie (mail) (www):
Constiutional Crisis:

Go back and read the process this blog set up for these posts. They clearly stated that they were interested in/printing libertarian arguments in favor of the candidates. It has nothing to do with "those who take the law seriously".

I hardly think it is surprising thatthere is no serious libertarian support for any of the Democratic candidates.
1.2.2008 6:25pm
John Herbison (mail):
Senator Thompson is reported to have said that Roe v. Wade "was fabricated out of whole cloth." Does that mean he also rejects the continued validity of Griswold v. Connecticut and Eisenstadt v. Baird?

How can anyone who calls him/herself libertarian take Eric Rudolph's side of the culture war?
1.2.2008 6:37pm
eric (mail):
<i>Griswold</i>, as distinguished from Roe in John Hart Ely's <i>The Wages of Crying Wolf</i> can be defended because the First, Fourth, and Fifth Amendments all "limit the ways in which, and the circumstances under which, the government can go about gathering information about a person he would rather it did not have." Enforcing a ban on the use of contraceptives would necessarily inquire invading the privacy of a person's home.

Roe, on the other hand, bans a procedure that is not performed in the home and among innocents. <i>Griswold</i> and <i>Roe</i> are not that closely related.

Thompson's comments on Roe are defensible. The only way that John Herbison's standard would allow the comment to be defensible is if the court cited nothing. They are not that brash, yet.
1.2.2008 7:00pm
Morat20 (mail):
Enforcing a ban on the use of contraceptives would necessarily inquire invading the privacy of a person's home.

No it wouldn't. It would just require enforcing a ban on the sale of such. Much easier, as the government regulates business and interstate commerce all the time. IIRC, that's exactly what went on prior to Griswold -- you couldn't buy it, because it wasn't allowed to be sold.

I'm sure there was a thriving black market, but that made it expensive and available only to the well-off or the criminal.
1.2.2008 7:05pm
eric (mail):
Morat20,

Ely addressed your comment here.


Commentators tend to forget, though the Court plainly has not,[70] that the Court in Griswold stressed that it was invalidating only that portion of the Connecticut law that proscribed the use, as opposed to the manufacture, sale, or other distribution of contraceptives. That distinction (which would be silly were the right to contraception being constitutionally enshrined) makes sense if the case is rationalized on the ground that the section of the law whose constitutionality was in issue was such that its enforcement would have been virtually impossible without the most outrageous sort of governmental prying into the privacy of the home.[71] And this, indeed, is the theory on which the Court appeared rather explicitly to settle:



The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama, 377 U.S. 288, 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.[72]


You have Griswold wrong. Plainly, the court invalidated a ban on the use of contraceptives, not the sale thereof.
1.2.2008 7:11pm
John Herbison (mail):
Has Fred Thompson ever commented on whether he does or does not regard Griswold v. Connecticut and/or Eisenstadt v. Baird (which involved a criminal prosecution for distribution of a contraceptive device, not the use thereof) as being wrongly decided? I ask that because I don't know. I also don't know whether the question has been posed to Senator Thompson. If not, it should be, in light of his "fabricated from whole cloth" remark.
1.2.2008 7:34pm
eric (mail):
The fact that Eisenstadt involved a prosecution for the distribution of contraceptives is irrelevant. Eisenstadt was decided on the basis of equal protection, not due process.
1.2.2008 7:49pm
Waldensian (mail):
I didn't realize Thompson was running for President.
1.2.2008 8:41pm
Mark Bahner (www):

Our President must understand — and I believe Sen. Thompson does — the Constitution's end (human freedom) and means (federalism, separation of powers, and limited government).


If Fred Thompson understands (and respects!) federalism, why did he vote for No Child Left Behind legislation?

What part of the Constitution authorizes the federal government to fund and regulate public schools?
1.2.2008 9:18pm
Mark Bahner (www):

At the end of the day, no political community can be what ours aspires to be if it excludes children in the womb entirely from the law's protection.


Again, this is not a federal issue. There is nothing in the Constitution that authorizes the federal government to protect "children in the womb." It's a matter for state governments. Does Fred Thompson make that clear?
1.2.2008 9:21pm
David M. Nieporent (www):
Senator Thompson is reported to have said that Roe v. Wade "was fabricated out of whole cloth." Does that mean he also rejects the continued validity of Griswold v. Connecticut and Eisenstadt v. Baird?

How can anyone who calls him/herself libertarian take Eric Rudolph's side of the culture war?
I don't understand your question. Being a libertarian doesn't entitle one to lie about what the constitution says. If it doesn't protect the sale of contraception, then it doesn't, regardless of whether we think it ought to.
1.2.2008 11:28pm
Mr. X (www):
I don't understand your question. Being a libertarian doesn't entitle one to lie about what the constitution says. If it doesn't protect the sale of contraception, then it doesn't, regardless of whether we think it ought to.


It doesn't say anything about playing baseball, eating apple pie, or loving Mom either. So there's no right to do any of those things?
1.3.2008 12:21am
Eli Rabett (www):
There were not very many condoms for sale in CT before Griswald as in zero.
1.3.2008 12:34am
gahrie (mail) (www):
The Constitution does not grant rights to the people. It limits the power of the national government.

Since the Constitution does not give the national government the right to ban the sale of contraceptives, the national government cannot do so.

However, if the state of Connecticut wishes to ban the sale of contraceptives the U.S. Constitution is silent. The U.S. Supreme Court should have been also.
1.3.2008 12:54am
Mr. X (www):
However, if the state of Connecticut wishes to ban the sale of contraceptives the U.S. Constitution is silent. The U.S. Supreme Court should have been also.


If only there was an Amendment in between the Eighth and the Tenth that protected individual liberties. How could you forget such a thing, George Mason?
1.3.2008 8:29am
Aultimer:

David M. Nieporent:
You do realize that those of us who have read RvW and all the subsequent abortion rulings know that it is in fact, as the religious right purports it to be, right?


Cite the part of RvW that "excludes children in the womb entirely from the law's protection." You can't, because it says the opposite. Or does the religious right get special decoder rings to know that the words don't mean what they say.
1.3.2008 9:51am
gahrie (mail) (www):
Mr. X

You mean the 9th one that goes:


The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.



That one? The one that applies to the national government?
Unfortunately, it gets honored as often as the next one, the 10th which goes:


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


So you see, while you could argue that the 9th Amendment protects the right of the people to buy contraceptives from intrusion by the national government, (which I did) while also arguing that the 10th Amendment gives the people the power to pass a State law banning the sale of contraceptives. (as I also do)

You don't get to pick and choose which Amendments to follow.
1.3.2008 10:26am
David M. Nieporent (www):
It doesn't say anything about playing baseball, eating apple pie, or loving Mom either. So there's no right to do any of those things?
Not in the Constitution.
1.3.2008 10:50am
Just Dropping By (mail):
I didn't realize Thompson was running for President.

It's an incredible piece of performance art.
1.3.2008 10:53am
David M. Nieporent (www):
Cite the part of RvW that "excludes children in the womb entirely from the law's protection." You can't, because it says the opposite. Or does the religious right get special decoder rings to know that the words don't mean what they say.
I don't know. Did you get secret x-ray glasses that allow you to skip words I write? So that when I write, "those of us who have read RvW and all the subsequent abortion rulings" you can read that as "RvW"?
1.3.2008 10:54am