ISTM that you are. You’re saying that “all judges are like that, because they’re human, even when they don’t realize it”, and using that to argue in favor of granting judges the right to deliberately do that, instead of calling on them to refrain from that to the extent possible.
At least that’s how I understand you. If you’re saying something else, you need to clarify, I would think.
(my bold)
I think this is a key disagreement. I don’t think there are many many cases that aren’t obviously clear what the law is. And if there are such cases in what I would characterize as rare examples, perhaps the court shouldn’t weigh in at all for lack of justiciability.
I’m saying they already have that “right”, and there’s nothing anyone can do about it. Because they’re human, and because every decision requires some sort of interpretation. And I’m saying that I don’t trust anyone who says they or their philosophy is a more accurate, or literal, or strict, or whatever, interpretation of text. I think it all requires subjective opinion in their interpretation.
I in favor of trying to stick to text of law - I just don’t think anyone who says they have a better way of doing so actually does; they just have another interpretation. “Better” or “worse” depends on POV and opinion, except in some of the most obvious and clear examples, and can’t be determined objectively by humans.
And I am arguing that I want judges who consciously work to understand and avoid that interpretive method.
Look, sometimes cynics will say that the study of rational thinking merely gives students a rich language to explain the cognitive errors they continue to make. But that’s not true: understanding, as an example, the fundamental attribution error means that we recognize it and are less likely to fall victim to it.
So as an analogy: I want rational thinkers who understand the fundamental attribution error, and agree it’s valuable to avoid over-attributing behavior to traits, even if the reality is that they may fall victim to it, as opposed to thinkers who simply say that the fundamental attribution error is unavoidable and embrace it when it returns results they like.
The claim that the right to an abortion is sacrosant for the first trimester is as easily evident in the text of the Constitution as the claim that owning a semi-auto handgun is protected by the Constitution? Really? Those are both simply opinions, no objective difference there at all?
OK.
Once again I commit myself to ensuring that people that think like you don’t get to be judges, don’t get to appoint judges, and don’t get to influence the practice of judicial interpretation.
So you’re saying there’s no difference at all between a judge who tries his hardest to avoid expansion and creative reinterpretation of the law but who sometimes falls short, as people sometimes do, and a guy who deliberately and consciously expands and creatively reinterprets the law?
ISTM that this is a remarkable stretch.
So, are you implying that your comments on this message board make you a member of the press?
Or are your comments on this message board protected (from the government, not from moderators or owners) because they are speech?
And are your comments on this message board really speech, or are you typing on a keyboard into a digital communications device that they never would have envisioned.
Like I said, it is an easy interpretation to make, but it is an interpretation. If you were taking a purely textual interpretation of the constitution, I would ask you, where does it give you the right to digital communications?
I would say that it is more as if they had used the term “carriage” and the question is whether or not it should apply to cars.
In that case, it would be like taking the word “carriage” and applying it to motorcycles.
I was not arguing that the right to speech should not cover digital communication, I am just saying that speech != typing on a keyboard and sending it through electronic devices around the world. It is different not only in form, but in function as well.
I am arguing that it does require some level of interpretation to make that case.
Depending on your literal interpretation, I suppose it may, but that does not address anything I said, so I am not sure why you brought it up.
Hint, speech is not the same thing as the press.
Maybe I could have been clearer, but my point was that the first allows you to have freedom of speech, in that it disallows congress from passing a law against it. As you even acknowledge, those things that are not enumerated, while not prohibited because of their lack of enumeration, could be prohibited by congress, due to their lack of enumeration. With a refusal to interpret the constitution, and only take it literally, should congress pass a law restricting digital communications, the first amendment would not be a protection against that. With a slight amount of interpretation, it would be.
My point being, the argument is not over whether or not judges should be interpreting things, but as to how much room they should be given in interpreting things.
Courts don’t just “weigh in”.
People take a suit or a criminal complaint before a court, and the court needs to make a decision. That’s the entire point of the court. They are there to make a decision on cases where it is not obvious what the law is, if it was always obvious what the law was, we wouldn’t need courts, we would just need judge dred.
Basically, you are saying that courts should simply recuse themselves any time they find that the intersection of the law and people is tricky?
You’re certain of that, eh?
So, let’s say that Trump gets a bunch of strict textualists on the court, and they decide that the 2nd Amendment only apples if you’re actually in a militia. Is your response:
Strict textualism is an important judicial philosophy, even when it leads to results I don’t like.
Strict textualism is an important judicial philosophy, which was badly misapplied in this case.
Strict textualism is a bunch of bullshit!
I assume your answer is something other than “3.” Why do you assume that people who disagree with you would react any differently than you do?
**iiandyiii **makes the claim that there are many many instances that it is not clear what the law is. And because he believes that, he is sanguine about the idea of judges using their positions and embracing their own biases to do what’s right. So my disagreement is two fold - first, I don’t think there are many many instances where the law is not clear. Second, if the law truly is not clear, then the issue at play may not be justiciable. If that is the case, then the court should not try to answer those questions.
(2)
And I assume other react differently because they are results-driven in the first place: they want judges to have this interpretive stance because it will lead to results they like, not because they believe some fundamental role of judges is in play.
I think there’s a difference, but I’m not sure if it’s “objective” – obviously neither is called out explicitly in the text.
I’m not sure if you fully understand how I think, but even if you did you’d still probably feel the same way. Which isn’t surprising, of course – people who disagree politically are likely to work so that the other side shouldn’t be judges and shouldn’t influence who gets to be judges.
No, not that there’s no difference, but that the difference is often (and maybe usually) not visible, or not able to be determined with any more certainty than a coin flip.
In terms of contentious issues, I think there are many such instances. In terms of overall legal decisions in the entire world of law, then there might be relatively few… but amongn the issues that tend to dominate GD, I think instances in which the law isn’t obvious and clear are pretty common (examples: abortion, gun rights, discrimination, voting rights, and many more).
Or maybe they honestly actually have a different legal interpretation based on their understanding in the strictest and most literal sense of what the text says.
No shit.
What is your definition of “speech”? Verbal only? Face to Face? What about on the telephone, which the Founders also didn’t envision? How about written? Only in a letter back home? A Letter to the Editor? A pamphlet? Or, in an email or message board post?
Hint: They are all speech.
Under the Ninth Amendment, they can’t.
Any polling data to support this? Strikes me that the Democratic base is VERY worked up over Russia right now, and given that most Americans are concerned about possible connections between Russia and the Trump campaign, and two-thirds support the appointment of a nonpartisan special prosecutor, I’m not finding this assertion particularly plausible.
Being worked up about Trump’s links to Russia doesn’t translate into being worked up about confirming Gorsuch while Trump’s links to Russia have not been fully investigated.
Nobody seriously thinks that Gorsuch, or Trump’s nomination of Gorsuch, has anything to do with Russian influence.
k9befriender:
Is it clear that the founders included in “free speech” not only oral verbal communication but also whatever forms of communication were available in their time, such as ink-on-paper writing, or stage acting? If so, then it’s clear that other, yet unheard of forms of communication are also included as they become available.
What are the limits of your judicial philosophy, Bricker (and F-P and Bone, if you like), if they exist? If there were a hypothetical situation in which a madman was allowed, by some strange fluke of law, to build a doomsday device or doomsday disease in his garage, would you be okay with a judge selectively interpreting law to find a way to structure an argument to order authorities to stop him before the end of the world? Did the judges correctly apply law in the Dred Scott decision… and if they did, how wrong would it have been for them to have selectively interpreted text to find a way to decide the other way? Would it have been wrong for the judges and Roman soldiers to find a way to free Jesus, even if the law was “correctly” applied in his verdict and sentencing?
In my view, there’s a limit. When something is as profoundly unjust as slavery, that limit is probably pretty damn low – it would have been entirely moral and just to arm Nat Turner and other slaves with machine guns, if possible, IMO, even if it were very obviously against the law. And it would have been morally correct and justified for a judge to manipulate legal language and interpret text to find a way to free slaves.
It’s not nearly so bad now, but I think a limit still exists (as I assume everyone does, even if it’s only for silly doomsday scenarios), even if it’s reasonable to discuss where that limit ought to be.