Reaction to Bush's High Court Nomination - Yahoo! News
Rather than seeing how one interprets the law and sees the constitution, let's crawl inside their psyche and try to predict how they will judge every major decision likely to come before them. The Judicial Hearings with their emphasis on "reproductive rights" are a farce. Ruth Bader Ginsburg can take her seat without answering, but Planned Parenthood demands to know this woman's stand.
Frankly, all I need to hear is a firm commitment to interpret law and not to legislate from the bench. I don't need necessarily a strict constructionist--we live in the twenty-first century. But I'd like to know that the person interpreting the law is doing so in accord with the priciples laid down as the foundation for the law. AND that they are interpreting rather than finding new law.
Like development of doctrine, this can be a very subtle and nuanced thing. The line between the growth of the old and the espousal of the new can be very, very vague--very difficult to define.
As to Ms. Miers, I know nothing of her and cannot find reason for opposition based solely on the fact that she is the President's friend. Not a recommendation for me, but perhaps a heartier recommendation for those who are more enthusiastic fans of the younger Bush.
I agree. That is what I thought during the Roberts hearings. Their court records should show tendencies either to interpret law or make new ones and thus decisions can be made as to whether the judge would be appropriate or not.
In fact, my husband said that until recently no judge would show up for those hearings. They'd send letters declining and simply let their records speak for them.
Steven, you may be interested in some of the facts that are emerging.
Thought-provoking post. Personally, I trust the Founding Fathers more than I trust today's elites, and therefore prefer strict constructionism to the kind of development (unaided by the Holy Spirit) we see today. But the main thing I wanted to say is that obviously there is a built-in, designed process by which we allow the Constitution to grow: the very democratic Amendment process.
Dear TSO,
But congress and society are not dealing with eternal verities that they are struggling to understand. Strict constructionism makes no allowance for tangible changes in societal conditions and in society at large. For example, the Founding Fathers had no real notion of trans-national adoptions and rules and regulations governing them. The Supreme Court must interpret the constitution often as regards things that the Founding Fathers could not have dreamed of in either contract law or other legal problems. I prefer one to cleave as closely as possible to original intent--but how does original intent apply to questions of whether or not it is legal to use otherwise illegal drugs in religious ceremonies? This wasn't even a question that would have crossed their minds.
Hence, I leave room for development as regards the new things that transcend the limitations of knowledge of the time. I don't approve of finding in "emanations and penumbras" newly discovered rights and privileges. I think we're generally on the same page.
shalom,
Steven
Dear TSO,
The short version--innovation in application not in principle.
shalom,
Steven
I mostly agree but when you say, "But congress and society are not dealing with eternal verities that they are struggling to understand."
Isn't that precisely the problem - judges or society is in way over their head? Society does not know what to do with religion, for example. It doesn't know what to do with abortion (or, actually it has decided, I believe very wrongly). It doesn't know what to do with stem cells and how to deal with ethical decisions involving medical care.
I would rather have the public decide those than marauding, "morally superior" judges. And I don't think judges even have the capability of being "subtle" in their use of power. ("Subtle use of power" is nearly an oxymoronic phrase.) The past fifty years have shown that. We can see what interpretation, unmoored from divine guidance, did to the Christian church - it fractured her into thousands of denominations. Imagine what it can do with judges.
As for trans-national adoptions and illegal drugs in religious ceremonies I would say they be be decided as much as possible by the people's representatives (Congress) although I recognize there are no "good" answer since the public is as apt to as wrong as the elites. But the difference is that I would prefer many people (i.e. Congress) making a decision (and possibly being wrong) than one person, which is often the difference in 5-4 Court decisions.
Dear TSO,
We agree in almost every particular. My point is that 1783 is not 2005. There will be things that need to be adjusted for societal differences that are in principle within the constitution. That is why I allow for development of doctrine. Without development of doctrine, we would have to interpret "Cruel and unusual punishment" by the standards of 1783--which includes such things as keel-hauling and stocks and pillories (although now that I mention the latter. . .)
But I do allow for the fact that times have change. A strict constructionist cannot--the law becomes a static and deadly thing. I want a constructionist, not a legislator, as I think the post made clear. But I also want someone who is rational enough not to strictly interpret where society mores have sufficiently diverged from our inception to preclude it making sense. I don't want the interpretation of law to be anachronistic. When I read some strict constructionist opinions, it appears to me that do occasionally devolve upon this.
But I think you've read enough of my opinions to know that I am adamantly opposed to legislation from the bench. And, in some cases, I would like a stricter constructionism. For example, we could do with a reasonable reinterpretation of present copyright law to realize the purposes for copyright in the first place. The eterno-extension mickey mouse protection act is damaging to the arts, aggravating, and ultimately creating a new class of "criminals" who publish to the web various works that are in the limbo of no publisher/no public domain. Further, I think perhaps recent decisions on eminent domain, for example, were too strictly constructionist. They took the idea that government could take land for the public interest and decided that the government could seize private property to build condominiums because of the additional income they would bring to the community. I think this wrongly decided and weighing much too much in favor of a only possible public good against private property ownership. In sum, private property is not private anymore if the local government should decide that your prime real estate is prime enough to build communities.
Roads, public works, etc. perhaps. To seize land to give to a private contractor--questionable.
So, I want a court that interprets by the principles--sticks to the letter when viable, but adjusts for societal mores.
The example of abortion is one in which a new right was found in the constitution (actually in a previous case dealing with the selling of contraceptives). This was not interpretation.
As to allow the public to decide about religious practice. What happens to the establishment clause when Congress starts deciding whose religious ceremonies are viable and whose are not? Are we safe from such legislation. And isn't it pretty clear from the first amendment that "Congress shall make no law regarding the establishment of religion," that the Founding Fathers didn't want the majority to rule in the face of religious practice. I think the question of illegal drugs in religious ceremonies does fall squarely into the lap of the Supreme Court regarding interpretation of the establishment clause.
As I said, I do agree with you, but I think it is far more complicated that strict constructism allows. I don't want penumbras and emanations and mystical language, but I also don't want us to reinterpret those things that are not legislation into legislation. I don't think the Supreme Court had any business ruling on abortion in any way ever. So too, I don't think the supreme court has the right to overturn California's propositions on how to treat illegal aliens or property tax, or school busing, or any number of other things.
But they do have to rule on what constitutes establishment, with reference to religion. I think they've done a really poor job of it so far. . . . but. . .it is their ball-court.
shalom,
Steven