http://pjmedia.com/andrewmccarthy/
Today marks the launch of Andrew McCarthy’s new blog “Ordered Liberty,” at PJMedia.com. The inaugural post is below. also please see the interview by Roger Simon at:
http://www.pjtv.com/?cmd=mpg&mpid=174&load=6932
Roger L. Simon talks to former prosecutor, author and PJ Media columnist Andrew C. McCarthy about the illusion of Islamic democracy. McCarthy is an expert on the constitution, law enforcement and homeland security. He is working on a new book about the Arab Spring which he thinks is akin to spring fever. Hear why as McCarthy brings his insights about the Middle East to PJTV viewers.
For Edmund Burke, liberty was the distinguishing feature of the British constitution. He did not, however, mean liberty in some vacuous, hopeychangey sense. “The only liberty I mean,” he wrote, “is a liberty connected with order; and that not only exists with order and virtue, but cannot exist at all without them.”
When we hear the term “ordered liberty” nowadays, it is generally in a legal context. It has become famous — we might better say “infamous” — in the Supreme Court’s jurisprudence of “incorporation”: the doctrine holding that Bill of Rights protections that restrict the federal government are also validly asserted against the state governments, through the Fourteenth Amendment. The doctrine’s premise is dubious: state sovereignty is the foundation of our form of constitutional governance; if it had been the purpose of the Fourteenth Amendment to undo that basic assumption, one might have expected that incorporation would be clearly prescribed — and that it might have taken less than sixty years for the Supreme Court to start enforcing it.
That said, though, the real infamy lies in the doctrine’s inconsistency. It does not apply all of the Bill of Rights against the states; only those rights that the judges, in their wisdom, determined to be “implicit in the concept of ordered liberty,” as Justice Benjamin Cardozo put it in Palko v. Connecticut (1937). That is to say, there is an arbitrariness to “ordered liberty” as judicially manufactured. Caprice, even if it piously flies under the “rule of law” banner, undermines the very idea of order.