And following Taney’s line of reasoning, it becomes clear that a person with 7 US citizen grandparents of European descent (with a father, perhaps, being a President of the US), born within the US, cannot possibly be a US citizen, because that person’s mother’s mother’s mother was descended from a black woman captured in West Africa, and forcibly brought to America. That is, a child of Sally Hemings could have no rights under United States law against a man who bought them.
If that’s an example of strict constitutionalism, then I would not want any part of it.
If we want to change the law as written by those now-dead hands, we can do it: by CHANGING THE FREAKIN’ LAW!
I don’t say we are trapped by any dead hands. I say that the law, until it’s changed, means what those people meant it to. You want to change it – get enough of your fellow citizens on your side. Don’t try to rule by changing the mind of a few unelected jurists.
You see, we eliminated slavery NOT through the courts, but through the process of CHANGING THE LAW. We passed amendments to the Constitution: these amendments eliminated slavery and ensured that the conundrum you offer above did not exist any more. And a strict constructionist would give full effect to those changes, because they are WRITTEN EXPLICITLY INTO THE LAW!
It strikes me that no matter what jurists may say or what they hold up as a rationale for their decisions, most of the time their decisions miraculously tend to concurs with their personal leanings wrt to politics and morality. Thus a call for jurists not to interpret the law in any way is meaningless … they always somehow interpret the law to mean what they want it to, with learned solons on either side declaring that they adhered to the law or bent it out of shape, depending on the THEIR particular politics or morality. As a result, I’m not at all swayed by discussions such as these … they seem to be analogous to the clerics who use debates as to how many angels could dance on the head of a pin to advance their political and moral vaues.
Well, that depends on what level of reductionism you are applying to define the “result”. If one goes all the way down to “guy who broke the law goes free”, Kyllo would be considered “bad result”. Stopping a step back from that, and treating “making it clear that pointing a high-tech doo-dad at a specific target is, in fact, a ‘search’” as the result makes it an example of “good result”.
I went around with Dewey on this issue too, but Dred Scott is not a substantive due process case. Wasn’t when it was decided, it wasn’t when Brown came down, it wasn’t when Bork and Scalia tried to rewrite history and pretend that it was. Dred Scott was 50+ pages of originalism and strict constructionism at it’s worst, and claiming that it is substantive due process is politically motivated rhetoric and misleading.
I will not accept that just because government officials of some branches of government will not act to correct obvious injustices that there is nothing we can do unless it is specifically written down, “Thou shalt act to relieve injustice whereever found” which is what your position amounts to. The congress refused to CHANGE THE FREAKING LAW for almost a century up until the Civil war and for a century after it. It seems to me that clear original intent of the US Constitution is that all people should be treated equally by the law, even before the 13th, 14th and 15th amendments.
I’ll bow out now because it seems that you merely want to argue various legal points and I think the question of intepretation as more along the lines of what we want the country to be like and what we want to achieve as a nation.
At least it wasn’t the ubiquitous-and-always-stupid, “Discovery is continuing,” to which I normally reply either: “That’s why I sent you these discovery requests. This is the time when we do discovery. When it’s over, then I won’t be able to any more” or "It’s not really. You see, discovery would be continuing if you had answered my interrogatories . . . "
Interesting. Here is a trial balloon at a rebuttal:
Legislation is the the creation of statutes. By definition, Courts don’t do that.
Of course, I understand what you mean: when Courts read the Constitution broadly, they behave like legislatures, and so by analogy, they are legislating. But this itself is a broad reading of the Constitution. A narrow reading would be that the Congress has the power to enact statutes–neither the executive branch, nor the judicial branch does.
Of course, there is nothing inherently inconsistent for me about reading one provision of the Constitution broadly, especially when it presents a sort of meta-rule. But by the same token, there is nothing requiring this reading. So we are back to politics. Which is where I think this debate really belongs.
I question principle as a general interpretive principle. If someone tells me something, gives me an order, or makes a request of me, the default meta-message that I get is: Hey, I’m trying to tell you something. Figure out what I’m trying to tell you. Now I will start with the words, and I will do my best not to contradict the words, and I’ll even try to give effect to every word, but that’s not the end of my analysis. I’m going to try to figure out what the person really wanted me to know, or do, or give them.
I agree. And it seems that we also agree that meanings shift over time:
Contra, Antonin Scalia, Originalism: The Lesser Evil (evidence about the meanings of terms in the constitution should be limited to materials showing Congress’s intended meaning at the time).
I’ll come back to this, but you are giving an awful lot away here.
Now this gets a little tougher. I agree that stare decisis is valuable and traditional, but where is it in the constitution? And while we are at it, when we are talking about rules important enough to be codified in the constitution, doesn’t it make more sense to say that the Court should try to get the right answer in every case, especially if we are being textualists? I mean basically we are adopting a “what I tell you three times is true” rule, right?
Does this require the Court to construe the statute more or less broadly?
On the one hand, the weapon requirement seems to insist upon something in addition to the ordinary manner of assault–a necessary part of most robberies.
On the other hand, the statute seems concerned with the lethality of the means of robbery. If I can kill you with dentures, I can surely kill you with my bare hands.
Back to the point about reasonableness and other terms that give the court license to decide whether the term applies to an activity. I suggest that most cases involve such terms. In most cases, some court must decide how much content to put into statutory terms.
I will flesh this argument out by discussing the cases in my next installment (gotta get back to work for a bit).
But I do have a few more questions:
Do you think that the current method of selecting judges results in the selection of judges who are most likely to apply your (Bush’s) interpretive theories?
Where would you draw the line in Commerce Clause cases?
For me the fundamental problem with Taney’s judgment in Dred Scott is that it comes down in the end to “might is right.” Those negroes are basically inferior because their ancestors let themselves be caught and transported into the US. On the other hand, the white guys who wrote the US Constitution are superior, not because of their appeal to certain human rights in the Declaration of Independence, but because they successfully rebelled against established legal authority. By the same logic that Dred Scott could never become free, George Washington could never cease to be a subject of King George III – except, of course, that he led a sucessful revolt, and got beyond the power of the British Army to catch and hang him as a traitor.
And Washington had rights under British law as a British subject. The slaves had none as US subjects. So if those slaves had been able to write their own Declaration of Independence, choose their own leaders, revolt against their owners, and form their own territory in which they were the citizens, and whites were automatically slaves, could Taney have legitimately complainmed about his own enslavement under such a regime? Hardly – they could have quoted Dred Scott at him, and said the tables were turned.
So Dred Scott leads inevitably to John Brown’s attempt at rebellion. John Brown may not have shared Taney’s views on slavery, but he did share his views that might is right, and attempted to imposed the might of a slave rebellion. And it leads to the Civil War, where the people of the Confederacy were forced to lerarn that might is indeed right (though at least Lincoln and the Union had more morality in their side this time).
Because the smartest judges, or those who have been reveresed the least, may not rule the way Bush thinks they should. Bush, and Clinton before him, and Reagan before him, and pratically every president has considered the political repurcussions of their appointments and how closely those judges’ rulings will fit with their ideology. The only difference I see is that Bush, as his presidency has consistently indicated, does not see any benefit in compromise.
The judiciary branch’s role is to interpret the constitution, to try and ascertain what words mean. In Bricker’s example, the definition of “deadly weapon” is usually defined by statute, but, putting that aside, the court must make a determination of what a deadly weapon is. They could, of course, only look to what the legislature’s intended “deadly weapon” to mean, what the usual definition of “deadly” is, at what other courts have said about what “deadly weapons” means. Or they could use all those, and many more factors, in their determination.
Now just imagine if you are asked, rather than “deadly weapon” what “liberty” means. It gets even more dicey.
In some cases yes, in some cases no. I disagree that Brown, Owens, and others he’s appointed fit that description. But they will likely rule the way he wants them to.
Well, judges who say they are making laws are few and far between. Most every judge will say that he/she is, indeed, interpreting the Constitution and not making laws. Which is why Bush’s statement is pretty much empty rhetoric. What he actually is saying is: “My job is to pick people who will interpret the Constitution the way I think it should be, not use the bench from which to write laws.” It’s much the same as calling any decision he disagrees with as judicial activism. Empty rhetoric.
Actually, the Dred Scott case is a good example of that not being true, because the Chief Justice was opposed to slavery. He had freed his own slaves, was an officer of a colonization society (to free slaves and colonize them in Africa), and successfully defended someone accused of leading a slave revolt.
This is one of the least discussed issues in jurisprudence, because it’s not really a jurisprudential question. What about the judge who sits an an evil society. The law is clear, but clearly immoral. Should he, as a moral actor override his duty as a public official and refuse to enforce the law because to do so would be morally reprehensible? We didn’t give the Nazis a superior orders defense; should we give the judges, an “I was just doing my job” defense?
That kinda begs the question. My question was if the president says he is trying to appoint judges who will interpret the Constitution, why not pick the smartest ones, or the least reversed? You are telling me that he doesn’t because they may not rule in his favor (or “interpret the constitution”). I guess my larger question is, is a judge’s politics a good indicator of whether the judge is able to apply the law? I’m really trying to keep this from breaking down into another righty-bashing thread.
Which is how? Will they interpret the constitution or not?
Good point. But if that’s the case, how should a president pick judges? If there truly is a neutral procedure for interpreting the constitution, how could one go about finding judge’s who will follow that procedure?
“Interpret the Constitution” is not a magic phrase that defines a judge’s legal theories. All judges “interpret the constitution”, which makes it a merely rhetorical statement. What I believe Bush is saying is that he would appoint a judge who “interprets the constitution” using strict constructionism. He is intimating that he would appoint judges who exercise “judicial restraint” and will not be “activist”. Now, there are activist judges who are conservative (Owens and Brown) and there are activist judges who are liberal (Warren). From his track record of the major appointments, I think he’s much more interested in the conservativism of the judge as opposed to the “restraitivism” (I’ve always wanted to make up words!). But he’s not going to say that.
Once again, whether or not they will “interpret the constitution” is not the issue, it’s HOW they will “interpret the constitution.”
I’m sure there are exceptions to this rule. And I am sure that there are many judicial decisions which do not tempt judges to rule on the basis or morality or politics – pretty much cut and dried decisions. Still, I bet that in most cases where temptation occurs, temptation finds cover in some sort of legal folderol. See the 2000 election for a sterling example.
