# Do these judges not read the Constitution? **URL:** \ **Category:** The BBQ Pit\ **Created:** [September 9, 2005, 4:32pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839 "2005-09-09T16:32:12Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [September 9, 2005, 8:58pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/41 "2005-09-09T20:58:08Z")
> [@Weirddave](#): > > Bricker is spot on in this thread, the knife cuts both ways. If you support the courts creating new extra-Constitutional rights (_Roe vs Wade_) or eliminating existing ones (_U.S. vs Miller_), then you have no room at all to scream when courts do the exact same thing in a direction that you personally happen to disagree with. What’s sauce for the goose… So if the Court gets it wrong in a couple of cases, it should be consistent and continue to be wrong in a different direction on an unrelated case? That sounds like the wierdest possible kind of jurisprudence to me. I’d be happy with _Roe v. Wade_ being precedent for fetuses not having the right to a speedy and fair trial, but it says nothing about the rights of adults to a speedy and fair trial. (And I’d be happy to entertain the view that _Roe v. Wade_ was wrongly decided,. and that abortion rights should be decided by state legislatures, even though I strongly support women’s rights to choose. Yes, not all possible rights are listed in the Bill of Rights, and some have to be dealt with by the normal political process.) ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [September 9, 2005, 9:02pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/42 "2005-09-09T21:02:43Z")
> [@Weirddave](#): > > Bricker is spot on in this thread, the knife cuts both ways. If you support the courts creating new extra-Constitutional rights (_Roe vs Wade_) or eliminating existing ones (_U.S. vs Miller_), then you have no room at all to scream when courts do the exact same thing in a direction that you personally happen to disagree with. What’s sauce for the goose… I _never_ support the Court taking away existing rights. And the argument about “extra-Constitutional” is a red herring. We’re talking about _explicitly protected_ rights that the court is eviscerating in the Padilla case. With this decision, comments by Bush about how much easier it would be if he were dictator, a never-ending TWAT, the Patriot Act and multiple other factors; it becoming more and more clear that more liberals need to hold the Second as sacroscant as the First. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [September 9, 2005, 9:07pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/43 "2005-09-09T21:07:26Z")
> [@Weirddave](#): > > _U.S. vs Miller_ (1939) takes away some of your Second Amendment rights. It is a poor decision, based upon a one sided argument (Miller, being dead at the time, decided not to show up to the hearing) and displays an astounding ignorance of military equipment (the basis for the decision being that a shotgun has no military value. WTF?), yet liberals have been using it for almost seventy years as the basis for a lot of there arguments in favor of gun control. Without getting into the specifics of any one case here (although I’ll state my personal opinion for the record on issues that have been brought up here: I am in favor of a woman’s right to chose, I fully support the right of gay folks to marry, and I think the Government should put Mr. Padilla and all of the detainees in Gitmo on trial immediately.), Bricker is spot on in this thread, the knife cuts both ways. If you support the courts creating new extra-Constitutional rights (_Roe vs Wade_) or eliminating existing ones (_U.S. vs Miller_), then you have no room at all to scream when courts do the exact same thing in a direction that you personally happen to disagree with. What’s sauce for the goose… Well, first of all, I don’t necessarily believe that _Miller_ was a good decision. I grew up in an area where hunting was very important. I grew up with guns. My parents shot black powder muzzleloader throughout my and my brother’s childhoods. I’m comfortable around guns. I’m hardly a gun-stealin’ liberal, if I’m a liberal at all (I tend to think that my positions on gun control, the limitations of welfare, and personal responsibility contrast with my sexual/religious/social libertine side to push me into the center). Second of all, as someone else pointed out already, there are differences between _ex parte Quirin_ and what’s going on now. Those differences matter. At least, they will until the courts hand Bush his throne. ---
**Author:** ![Orbifold](https://avatars.discourse-cdn.com/v4/letter/o/779978/32.png) [@Orbifold](https://boards.straightdope.com/u/Orbifold)\ **Post date:** [September 9, 2005, 10:16pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/44 "2005-09-09T22:16:23Z")
> [@Weirddave](#): > > Bricker is spot on in this thread, the knife cuts both ways. If you support the courts creating new extra-Constitutional rights (_Roe vs Wade_) or eliminating existing ones (_U.S. vs Miller_), then you have no room at all to scream when courts do the exact same thing in a direction that you personally happen to disagree with. What’s sauce for the goose… Suppose, just for kicks, that I accept this argument: that if I agree with _Roe v. Wade_ I somehow don’t have moral standing to complain about this ruling in the Padilla case. It would seem to follow (again, supposing that I accept this argument) that the people who do have moral standing to complain about this ruling are those who disagree with the courts ruling in _Roe v. Wade_. People such as, say, **Bricker** , who certainly disagrees with _Roe v. Wade_ and seems to disagree with this ruling as well. I can’t help but wonder then, in the face of a ruling which he appears to disagree with…one which seems to authorize the President to detain any U.S. citizen at any time by saying the magic word “terrorist”…why he’s wasting his fucking time going “nyah nyah” to abortion supporters. Hey **Bricker**? The author of _this specific opinion_, the honorable J. Michael Luttig, appears to be from _your_ side of the aisle. Do you have anything to say about _him_? Or are you too busy pointing fingers at liberals to have anything to say about the actions of a judge _appointed by Republicans_, who’s a contender for the next _Republican_ appointment to the Supreme Court? I mean, your blame-flinging powers are indeed dazzling, but there seems to be an elephant in the room. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 9, 2005, 10:22pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/45 "2005-09-09T22:22:56Z")
> [@Orbifold](#): > > Hey **Bricker**? The author of _this specific opinion_, the honorable J. Michael Luttig, appears to be from _your_ side of the aisle. Do you have anything to say about _him_? Or are you too busy pointing fingers at liberals to have anything to say about the actions of a judge _appointed by Republicans_, who’s a contender for the next _Republican_ appointment to the Supreme Court? > > I mean, your blame-flinging powers are indeed dazzling, but there seems to be an elephant in the room. Nice try. But my side of the aisle is populated by textualists. This guy isn’t on my side of the aisle. I condemn Republicans and Democrats who legislate from the bench will equal fervor. And both parties are guilty of it – just on different topics. This may be why some people think “activist” is an accusation hurled when you don’t agree with a ruling. It isn’t. It’s a comment on the method of analysis used to arrive at a conclusion. ---
**Author:** ![Orbifold](https://avatars.discourse-cdn.com/v4/letter/o/779978/32.png) [@Orbifold](https://boards.straightdope.com/u/Orbifold)\ **Post date:** [September 9, 2005, 10:32pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/46 "2005-09-09T22:32:24Z")
> [@Bricker](#): > > I condemn Republicans and Democrats who legislate from the bench will equal fervor. Bullshit, as far as this thread is concerned. Your condemnation of Luttig in this thread, as far as I can tell, consists solely of a disagreement with him over the application of the _Quirin_ precedent. Liberals, on the other hand, were accused of creating a Frankenstein monster in your very first post in this thread. I really don’t care about what particular definition of “activist” you use. I do care about you throwing sand in the air when it comes to _who is responsible for this particular decision_. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [September 9, 2005, 10:33pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/47 "2005-09-09T22:33:18Z")
It’s nice that, even after I’ve taken a few weeks off, that I can come back and see that **Bricker** , et al continue to blame every horrendous decision by any court on the bogeyman of those who disagree with their manner of constitutional interpretation. The more things change… ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [September 9, 2005, 10:36pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/48 "2005-09-09T22:36:43Z")
You know, I had never realized before that if my standards for how to appropriately interpret law are not Textualist, then _I have no standards whatsoever_. **Bricker** , you’re spewing bullshit in this thread. Just because someone isn’t a textualist doesn’t mean that anything goes with regards to legal interpretation. Jesus fucking H. Christ on a pogo stick. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 9, 2005, 10:51pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/49 "2005-09-09T22:51:35Z")
> [@Gorsnak](#): > > You know, I had never realized before that if my standards for how to appropriately interpret law are not Textualist, then _I have no standards whatsoever_. **Bricker** , you’re spewing bullshit in this thread. Just because someone isn’t a textualist doesn’t mean that anything goes with regards to legal interpretation. Jesus fucking H. Christ on a pogo stick. Untwist your panties, poopsie. Perhaps YOU, personally, would restrain yourself when armed with the tools of substantive due process and keep your Penumbra and Emanation Detector set to minimum. I have every confidence that you would use these tools sparingly. The problem is when you authorize the USE of such tools, they will eventually be used by persons unencumbered by your delicate sensibilities, and that danger is what I object to. So I’m not saying that everyone who isn;t a textualist is unprincipled with regards to legal analysis. I’m saying that everyone who isn’t a texualist or some form of originalist is responsible for opening the door that lets the crazies in. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [September 9, 2005, 11:02pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/50 "2005-09-09T23:02:10Z")
You totally don’t get it. You seem to think that there is only one way to understand the language in the Constitution, and any deviance from that allows judges to do whatever they want. THAT is the view I’m calling bullshit. But that is precisely what you are arguing. And it _is_ bullshit. There are multiple ways to understand the language of the Constitution, and just because I don’t understand it the way you do doesn’t mean that it isn’t the language of the Constitution that I’m understanding. This crap that I somehow judges should be empowered to go beyond the Constitution is nonsense. I don’t. I think they ought to be constrained by the Constitution every bit as much as you do. Where we differ is on what the language means and how it ought to be understood. I wish you’d get that through your thick skull. You trot out this stupid argument every single time someone comments unfavourably on a court ruling, and it has become extremely tiresome. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [September 9, 2005, 11:30pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/51 "2005-09-09T23:30:29Z")
> [@Gorsnak](#): > > You trot out this stupid argument every single time someone comments unfavourably on a court ruling, and it has become extremely tiresome. Actually, it was tiresome 2 years ago. Now it’s almost reached the level of depressing parody. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 10, 2005, 12:02am UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/52 "2005-09-10T00:02:09Z")
> [@Gorsnak](#): > > You totally don’t get it. You seem to think that there is only one way to understand the language in the Constitution, and any deviance from that allows judges to do whatever they want. THAT is the view I’m calling bullshit. But that is precisely what you are arguing. And it _is_ bullshit. There are multiple ways to understand the language of the Constitution, and just because I don’t understand it the way you do doesn’t mean that it isn’t the language of the Constitution that I’m understanding. > > This crap that I somehow judges should be empowered to go beyond the Constitution is nonsense. I don’t. I think they ought to be constrained by the Constitution every bit as much as you do. Where we differ is on what the language means and how it ought to be understood. I wish you’d get that through your thick skull. You trot out this stupid argument every single time someone comments unfavourably on a court ruling, and it has become extremely tiresome. If you could manage to articulate PRECISELY what sort of bounderies exist for your method of interpretation, and the principled distinctions that let you arrive at those bounderies, I might believe you. But you cannot, because they don’t exist. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [September 10, 2005, 12:22am UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/53 "2005-09-10T00:22:43Z")
> [@Bricker](#): > > If you could manage to articulate PRECISELY what sort of bounderies exist for your method of interpretation, and the principled distinctions that let you arrive > at those bounderies, I might believe you. > > But you cannot, because they don’t exist. :rolleyes: You can’t articulate PRECISELY what sort of boundaries exist for your method of interpretation either. If you think that any substantial theory on a large, complex topic such as this is going to be immune to hypothetical counterexamples it cannot answer satisfactorily, I’ve got news for you. The fact that I don’t have a fully articulated theory of interpretation that will answer every single one of your questions doesn’t mean that my thinking on the subject of jurisprudence isn’t informed by principles. I’ll give you a hint to get you started. You’re a strict deontologist. I’m a consequentialist. They are both principled views. Out of curiosity, if you’re a textualist, why do you take an originalist view of the 14th Amendment? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [September 10, 2005, 2:03am UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/54 "2005-09-10T02:03:15Z")
I find it necessary to note that, while Jodge Luttig wrote the decision, and he is a George H.W. Bush appointee, the case was assigned to a three judge panel. The decision was joined by both of the other judges, making it unanimous. The other judges, M. Blane Michael and William B. Traxler, Jr., were both Clinton appointees. The discussion about activism is one thing, but posters who want to paint this as a horrible fault of the right wing ought to keep this fact in mind. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [September 10, 2005, 4:17am UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/55 "2005-09-10T04:17:08Z")
> [@](#): > > **Moto:** : …Posters who want to paint this as a horrible fault of the right wing ought to keep this fact in mind. **THUD!** ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [September 10, 2005, 4:58am UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/56 "2005-09-10T04:58:31Z")
Does the President derive power solely from the _Constitution_? Are non-citizens on American soil protected by the _Constitution_? Doesn’t the Constitution cover "within the shield of its protection all classes of men, at all times, and under all circumstances”? (_Ex parte Milligan_, 1866) And from the same case, aren’t civilian courts supposed to be used when they are available? I know we’ve touched on these, but the answers have been a little elusive. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [September 10, 2005, 5:15am UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/57 "2005-09-10T05:15:35Z")
> [@Zoe](#): > > Does the President derive power solely from the _Constitution_? > > Are non-citizens on American soil protected by the _Constitution_? Doesn’t the Constitution cover "within the shield of its protection all classes of men, at all times, and under all circumstances”? (_Ex parte Milligan_, 1866) > > And from the same case, aren’t civilian courts supposed to be used when they are available? Clearly the Constitution does not do this, as the saboteurs in the Quirin case were not guaranteed anything resembling constitutional protections. They were tried by military tribunal, and six of them were executed. All of this took place in a period of a few months. The Court in _ex parte Quirin_ explicitly squared that decision with _Milligan_. > [@ex parte Quirin](#): > > Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case, 4 Wall. page 121, that the law of war ‘can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed’. Elsewhere in its opinion, 4 Wall. at pages 118, 121, 122, and 131, the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court’s statement as to the inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here-martial law might be constitutionally established. > > The Court’s opinion is inapplicable to the case presented by the present record. We have no occasion now to define [317 U.S. 1, 46] with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform-an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [September 10, 2005, 5:52am UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/58 "2005-09-10T05:52:00Z")
> [@Hamlet](#): > > Actually, it was tiresome 2 years ago. Now it’s almost reached the level of depressing parody. Much in the same way that 1930s-era Soviet Stalinist literature can be read as depressing parody. In actual fact, it’s depressing idiocy, but it certainly can be improved upon by reading it as parody. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [September 10, 2005, 8:39am UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/59 "2005-09-10T08:39:53Z")
What I don’t understand is how this issue ends up back in a federal court when the Supreme Court has already ruled on _Padilla v. Rumsfeld_. The government argued that the Commander in Chief’s power to conduct war necessarily implies that the President alone could judge military necessity and that the military therefore had jurisdiction over a citizen accused of collaborating with the enemy. (I’ve mostly used the language of the ruling, but altered it slightly.) The Supreme Court rejected these arguments. Is this still a separate issue? BTW, **Mr. Moto** , that same SCOTUS decision had this to say about _ex parte Quirin_: > [@](#): > > _Quirin_ was part of a wartime excess. The Court ruled precipitously, under pressure of the most difficult year of the war and a presidential threat to defy a contrary ruling. It heard argument the day briefs were filed and announced its decision one day after argument. It did not issue an opinion until three months later – after six defendents were already executed. > > This placing of the decisional cart before the jurisprudential horse was later regretted by Justice Frankfurter as “not a happy precedent.” Justice Douglas lamented the practice as “extremely undesireable…Because once the search for the grounds, the examination of the grounds that had been advanced is made, sometimes those grounds crumble.” > > _Quirin_ thus illustrates _Milligan’s_ admonition that constitutional liberty is most at risk when “society is disturbed by civil commotion – if the passions of men are aroused and the restraints of law weakened…” Do you really want to support a SCOTUS decision that is generally held is such disregard and one that was made under such horrid circumstances? It was not one of our finest hours. And it was a black mark against President Roosevelt. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 10, 2005, 11:52am UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/60 "2005-09-10T11:52:17Z")
> [@Gorsnak](#): > > Out of curiosity, if you’re a textualist, why do you take an originalist view of the 14th Amendment? Answered this before, but briefly… What does the word “bay” mean? It depends on the context in which it’s being used. Hounds bay. An attacker is kept at bay. I can saddle up the bay for a ride. Or I can take the boat out on the bay for some fishing. To a textualist, words mean something in the context in which they are written. We cannot literally apply the Fourteenth Amendment, because literally it forbids _any and all_ classifications: age, sex, criminal conviction, none are permitted under a literal reading. It is necessary to take into account the context of the writing in order to give it effect. [Previous page](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839.md?page=2) [Next page](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839.md?page=4)