http://www.the12points.com


About

The Twelve Points are a statement of conservative principles, objectives, philosophy, and additional guiding considerations, composed by Karl Born, a young Indianapolis writer and attorney, beginning in early 2008, completed on July 2, 2009. The idea for the Twelve Points, along with several of the points, came from the "Seven Points," an older statement of conservative principles, created by a group of young conservatives at Indiana University, in 2003: Grand Old Cause. 

The purpose of the Twelve Points is to serve as a delivery mechanism for distilled, concentrated conservative thinking, offered in order to return completeness and clarity to popular conservatism, to spread knowledge of the true principles of conservatism throughout the conservative community, and to focus and promote agreement among conservatives. 

Over the past two decades, the conservative movement has lost its uniting sense of direction, which has rendered it confused, frustrated, and impotent. Certain crucial conservative principles and concepts have faded from our common memory and lost their rightful influence and, consequently, our fellow conservatives (including conservative leaders) too often can no longer be relied upon to understand them, to be committed to them, or to apply and advance them in a coherent way. No conservative should be satisfied with the results that this has produced in American public policy. 

The Twelve Points will help to solve this problem, this statement of conservative principles being an instrument by which we may frequently recur to these fundamental principles and keep points of conservative thought freshly in our minds, teach conservative thought to the newer and younger conservatives, and provide all conservatives with a means of together affirming that, yes, we still care about these conservative principles, and conservative principles still define this movement.

Send your questions or ideas to 
the12points@gmail.com!




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SUNDAY, FEBRUARY 7, 2010

Misunderstandings Concerning the Conservative Position on the Judicial Branch


This issue has turned up repeatedly, so it is worth addressing: the question of what the conservative view on constitutional interpretation actually is.

In an article published at Reason.com a few days ago, Damon W. Root criticizes "judicial restraint," suggesting that the conservative position is that judges and justices should be reluctant to intervene in the cases that come before them, allowing the executive and legislative branches great latitude in deciding how to act without being bound by the Constitution. This is not the first time that the conservative opposition to "judicial activism" and "legislating from the bench" has been interpreted this way. As Root points out, many liberal critics criticize the application of constitutional restrictions that they do not like as judicial "activism." (Root agrees with their characterization of such decisions as judicial activism, but not with their conclusion that such "activism" is a bad thing.) Additionally, Root himself has criticized this understanding of "judicial restraint" before.

I want to address this issue here because this is an example of how ambiguity in the substance of conservatism can fracture the movement. The relationship between conservatism and libertarianism is well-known, but confusion and misunderstandings have deepened the divide between self-described conservatives and libertarians. To libertarians who think that conservatives have adopted a general rule that judges should avoid limiting the discretion of the other branches or the states, conservatism must seem alien and irrational.

The conservative, however, does not oppose "activist" judges for acting; he criticizes them for disregarding the Constitution in deciding whether and how to act. As a result, while a conservative should oppose courts in imposing contrived rules of law, as the Supreme Court did in Roe v. Wade (though it had already more or less invented that "right" on a previous occasion), a conservative should not applaud courts in ignoring constitutional violations committed by a state or by the other two federal branches, as it did in Wickard v. Filburn.

Additionally, the conservative position that certain issues should be left in the control of the more democratic branches is not based on the mistaken view that voters are generally more wise and just than judges. Rather, it is based on two important observations: 1) when there is no constitutional provision or valid Act of Congress to apply, it is unconstitutional for a court to apply a novel, extraconstitutional standard, and doing so also exceeds the legitimate authority of the court; and 2) When the courts do create and impose novel, independent rules of law (whether or not they bother to include an implausible, token explanation of how the rule actually is based on the Constitution), we can only correct them by amending the Constitution or organizing a sustained political effort over the course of a generation or more to alter the composition of the Supreme Court. Either of these would be too difficult to accomplish to be a meaningful defense against the courts' arbitrary exercise of power. Such a check on the power of the judicial branch is needed for the same reason that it is needed on the power of the executive and legislative branches, especially once it has effectively assumed the power to legislate!

There are doubtlessly self-described conservatives who do not quite understand the conservative position or who misapply it. In this way, too, confusion over the substance of conservatism is dividing natural allies and scrambling the conservative movement's sense of direction. This is one of the reasons why it is so important to make conservatism better known and more clearly understood.

Conservatives are not always clear in our communication of these views, and some of us are not even clear in our understanding of them. In writing the Twelve Points, I made a point of stating them clearly, hoping to help all conservatives to understand and communicate them better. As a result, unsurprisingly, this issue points back to a familiar conclusion: If you think that something needs to be done about this, spread the word about the Twelve Points!