But I got distracted. His first cliche is diversity is strength. He makes a good point about how diversity can erode social trust. However, diversity can also foster new ideas and approaches. A colleague recently remarked to me how much the diverse viewpoints and backgrounds enhances our ability to get our job done and interact successfully with differing clients. He contrasted this with the false and pointless diversity stereotyped in the media.
This I find very true. The point of diversity isn't to provide "extra help because of the horrible legacy of slavery and institutionalized racism" (though there is a lot of evidence that institutionalized racism remains prevalent in the US), it is because different perspectives can reveal problems and propose solutions that would not be revealed by a uniform perspective. Admittedly, race is an imperfect proxy for this, but it is a readily identifiable one that tends to be substantially correlated with having a different background and upbringing, and thus often perspective, from the individuals that tend to make up the majority of firm management or classroom students. Of course, this advantage can also be eliminated by hiring managers who choose to select for members of a race most like themselves in upbringing and viewpoint to meet quotas, there is no institutional solution to human stupidity and obstinacy. I'm sceptical of anti-diversity "color-blind" arguments because they almost invariably elide into a selection process that would select on universality of background, and often perspective, whatever the skin color of the person under consideration. Which just shows these arguments entirely miss the point (I should mention that more than a few people have proposed that men such as Socrates would have been influenced by the diverse individuals that they encountered in the Athenian forum, race provides a good proxy for diversity in America, in other cultures other traits would be correlated with diversity of belief and perspective).
On to the next cliche. Violence never solved anything. Who seriously argues this outside of a college campus. I think he was trying to get a round five by adding this one, there's really no substance worth commenting on here.
The third cliche is the living constitution. Goldberg writes
I can't say I know enough about Wilson to know what he was getting at, or if Goldberg is accurate in his portrayal of Wilson's beliefs.
It is dogma among liberals that sophisticated people understand that the Constitution is a “living, breathing document.” The idea was largely introduced into the political bloodstream by Woodrow Wilson and his allies, who were desperate to be free of the constraints of the founders’ vision. Wilson explained that he preferred an evolving, “organic,” “Darwinian” Constitution that empowered progressives to breathe whatever meaning they wished into it. It is a wildly ideological view of the nature of our political system.
What I can say is that I have never heard this phrase to mean that progressives can do whatever they want. Instead, the idea of a living constitution is that our understanding of it is inherently limited by the differing ideas in our time and in the founder's time. Concepts such as liberty have radically changed over this time span and this has to be taken into account when using the document for modern purposes.
For instance, the founders had a notion of liberty that was more similar to that of classical times than to our own notion. If you read literature contemporary to the Constitution, and reflect on the presence of property requirements for voting, it becomes clear that the belief that taking a wage created a form of dependency between the wage earner and the employer was still strong (though by no means universal at this time, this is the period where that belief began to shift). Someone who did not acquire their subsistence through the use of their own private property and lived by the market was a dependent, and not to be trusted with the vote because they could be influenced by their employer. This is obviously rather different from modern conceptions of liberty and freedom, and is just one example of how the Constitutions is a living document, the founders had in mind a rather different set of relations between individuals and institutions than we have.
Another example would be the modern ubiquity of the market economy, and especially corporations. For the founders, businesses were necessarily local. Larger, more profitable business were dependent upon natural shipping facilities or upon proximity to natural features, like ore or fuel supplies. Modern technology obviously makes this untrue, the relative power of private actors to localities and states has shifted, making some of the implicit assumptions behind the Constitution invalid.
This is even more evident with the proliferation of large corporations. When the Constitutions was written the only large corporations were institutions such as the East India Company. The very existence of these corporations was seen as an act of state, they were seen as an intrusion of the state into private affairs. Modern, privately held multinational corporations would have been inconceivable. Trying to interpret how the Constitution applies to these new institutional forms means the Constitution is necessarily a living document, because social reality has changed the interpretation of the Constitution must necessarily organically change along with it. It is not possible for an originalist interpretation to be possible, these entities are too radically different from the kind of diversified mercantile trade that the founders meant to regulate. It is entirely possible (though admittedly unlikely) that the founders would have seen the very existence of a modern, multinational corporation as antithetical to individual liberty and free association, putting decisions such as Citizens United in a rather different light.
My point isn't to argue for how strongly the above examples should be taken as a statement of how the founders would have interpreted their own document, in both cases I overstated and simplified the case. The point was to simply illustrate that Goldberg is trying to discredit the argument by misstating it, the liberal argument is that we live in a changing social reality and that it is impossible for a document written in a different social reality to be interpreted in its original sense. Human judgment is biased, we can't get back to the founder's perceptions of liberty, justice, or political economy (though we can get to an approximation through extensive reading on the subject). This doesn't give anyone free reign to do what we'd like, it simply means we have to acknowledge that most modern disagreements are over ideas with radically different assumptions than those held by the writers of the Constitution, they meant something different than what we do and it is necessary that we update our interpretation of it to the prevailing social reality.
I'd also like to add that Goldberg's terrorism example is terrible as an example of updating to the times. Modern terrorists pose nothing like the level of threat that American Indians did to the early Republic. Modern terrorists are much weaker and much less able to inflict proportionate casualties or to spread widespread terror in comparison. This simply isn't a subject where the social reality has changed, it was in abeyance for many decades but the security threat posed by non-state actors that don't recognize the legitimacy of our government is hardly novel. It's irrelevant to the notion of a living Constitution since our founding documents were written with this form of threat very much in mind.
The next cliche is Social Darwinism. Goldberg makes much of the fact that some noted Social Darwinists didn't recognize the term, which is completely irrelevant to anything at all. It is an umbrella term used to describe a set of beliefs about society, whether an individual author made use of the term is beside the point (most schools of thought acquire a term from outside and only later do the people it is applied to begin to use it, or not).
As far as the substance, well, there really isn't any to address. Goldberg doesn't like the term and doesn't like it being applied to small government and libertarian ideas. But this means ignoring the point that liberals are trying to make. Social Darwinism is meant to apply to the idea that competition will naturally lead the best to occupy the top positions and to sort society based upon merit.
Liberals say this is a naturalistic fallacy. Success in society is the result of constructed social institutions. Our ability to act in society is largely the result of constitutive norms that allow for progressively more complex actions as society develops and becomes diversified. Since our ability to act is largely determined by the social institutions within which we live the specific structures of these institutions play a substantial role in determining which individuals attain which positions within society. Change the underlying institutions and the assortment of individuals in differing social positions will change. There is nothing natural about which position one occupies, it is a result of the institutional structure of society (which is not to say that an individual does not determine their status partially through their own effort, but given heterogeneity of traits and differing potential value society places upon these traits the range of positions available to an individual with a given set of traits is determined by a socially constructed valuation of those traits not through an abstract natural valuation of those traits that can be mapped onto a simplistic construction such as merit).
Social Darwinism is used in order to contrast the liberal worldview of a created, structured society with the naturalist worldview often used by Conservatives. It is used to cast doubt on the notion that the market accurately sorts people based on ability and that the wealthy possess greater fitness (or merit) than those without wealth. The term is used to point out that the point of view that the market and society sorts based upon merit is an ideological viewpoint in need of empirical evidence not a self-evident principle of reality. If Goldberg would like to suggest another term for the idea that individuals are sorted within our society based upon merit by some kind of naturalistic process akin to natural selection I suggest he do so, rather than simply disparaging the extent term for this kind of thinking. But to discuss the problems with a viewpoint require having something to call it, and most everyone using the term Social Darwinism believes there are substantial empirical and theoretical problems with the idea that the market will sort people by merit as a natural property (though only a small minority would state this view in those terms).
I'm running out of steam. The last cliche is "better 10 guilty men go free than one innocent man is punished." Goldberg acknowledges that it is basically a truism. But no one that uses it is fixated on the ratio. It is used to express that depriving someone of freedom is a great crime against them, it is hard to measure concrete gain against it. Where the argument relies on imprecise or subjective criteria (like the drug war or the death penalty) there is little need to do anything but express one's incredulity that the other argument is being made. When we are talking about concrete public good (like having a law against rape or murder at all) of course the argument is absurd and inapplicable. But where even the presence of a net gain is uncertain and the real possibility of depriving an individual of their freedom is real, why does the policy exist at all?