13th.
Oh, dearee me, I simply must remember to include smilies for the benefit of the irony-impaired. Its just that I tend to think my japery is so obvious… I shall endeavor to be more inclusive.
I can, and do. The argument, brutally oversimplified, is that the state which the Constitution so imperfectly attempts to structure cannot exist without the secular wall, that if religious views are permitted to seethe into the body politic, disaster will ensue. The Constituion not being a suicide pact, we may safely presume that our Founding Fuckups were at least as aware of this crucial fact as we, if not more so. As to SSM, I simply hold that it is not necessary to find permission in the original text, so long as you cannot find forbiddance. The Cabinet office of Primate of Washington is forbidden, and for good reason. Forbidding the union of Mr and Mr Bruce has no such impelling motive, and must not be abridged unless such a compelling motive is discovered.
This tends to be the case, as we are generally in opposition to money and power. We should give up, I suppose. Would you? But at the very least, let us not pretend that the process is not already entirely politicized, and by forces intent on setting thier seal on the Court’s future course. They are intent, for instance, to overturn RvW, despite clear evidence that they lack the support of the majority of their fellow citizens. How much more “political” can you get without an actual coup d’etat?
I have read large chunks of Slouching Towards Gommorah, and found myself perversely flattered. I had no idea that me and mine, with our beads, incense and pubic lice had shaken the very foundations of Western Incivility. Frankly, I rather doubt it, but if we gave Bork the willies, well, that’s something, at least.
Oh wait, it was… um… ironic! Yeah, that’s the ticket. Irony. It was meant as irony.
Well golly gee whiz, it sure sounds simple when you put it that way. Let’s try your technique on something else. How’s about… Minimum Wage. Nothing in there that forbids me from hiring Joe down the street and paying him less than some fixed amount. Can I expect you to come rushing to my defense if I start a thread titled “Resolved: the MW is unconstitutional”? Now, that would be ironic!
It is not entirely politicized, but it is largely so. Most Republicans voted for RBG, and many Democrats voted for JR. But your method of ditching original intent ensures that the process is politicized.
Haven’t read it. Probably won’t. I’ll take your word for it.
Thanks.
You’re welcome, but in retrospect I should have pointed out that although the 13th abolished slavery, it did not abolish the 3/5 rule. That was the 14th.
Lets do it this way: I’ll tell you the truth and you can believe whatever you bloody well please. Works for me.
Yeah, that’s why I used the words “brutally oversimplified”. C’mon, John, play fair.
Remove “minium wage”, replace with “child labor”. Hows it look now? You can always find an absurdity to apply, as you know better than I, having read more of these debates.
Your problem lies in your attempt to rigidify and define the Constitution outside of its purpose: the mechanisms of democracy and justice. Put very, very simply, that which is unjust and anti-democratic is “unconstitutional”. Any man who is willing to parse and interpret the Constitution in order to advance the notion that injustice is beyond the powers of the people’s government is unworthy of America. And usually, a running dog jackal of the ruling class.
Bah! Humbug! Politics is a human endeavor, part emotional, part spiritual, part moral, and with minor dashes of intellectualism. The process is politicized in much the same war that fucking is sexual…
…in the same way that fucking is sexual…
Sheeesh!
And we can’t forget Federalist #76:
ISTM that the only way to keep “the possibility of rejection” alive is to reject, when clearly the President has nominated someone clearly “being in some way or other personally allied to him,” and very likely “possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
I don’t know if you’re in the “original intent” school, but I’d say this is the sort of action that would fulfill that intent. In spades.
(BTW, in answer to your question about my ‘borking’ post, I’m not sure what you’re after. I pointed out that Bork was borking Miers. That was all; there were no subtle hidden meanings.)
What, huh? I was being sarcastic. Next time I’ll remember the smilies. 
Then let’s just ditch your analysis and start over again. On second though, let’s not start all over again. That’s what this entire thread was about, and there is nothing simple about interpreting the consitution.
It looks the same to me. I don’t see that the constitution gives the Feds the right to regulate intrastrate commerce. Period. That authority should lie with the states, as does the authority to regulate marriage.
Well, it’s a good thing that we all agree on what injustice is, then, isn’t it? Otherwise, we’d be back to the not-so-simple mechanisms that are in use today. But, no, that’s not a good way to look at the constitution. If it were, we wouldn’t need the damn thing in the first place. We could just replace it with your platitude about justice and democracy. You can’t have it both ways, luc. You can’t claim to ditch the constitution when it doesn’t suit your purpose and then seek it out in defense of what does suit your purpose.
I’m getting a sense of deja vu all over again for some reason, so I’m just going to leave it at that, at least in this thread.
By that, I’ll take it that you mean we’re fucked by politics, and simply say: I’ll drink to that!
It’s not a bad reason to at least consider rejection. It’s very reasonable to be suspicious of her ability to objectively rule on cases concerning presidential powers, especially for this president. And we can expect the court to have to do so considering how much Bush likes to push the envolope.
It might be one data point, if one were inclined to use these types of documents to determine original intent. But you’d be wise to find more than one data point. If you were an originalist of the textualist school, like Scalia, I doubt that you’d consider that document as relavent. To determine that, you’d have to specify which particular word or phrase in the constitution you are having trouble with that this document sheds light on.
But I’m not sure how “original intent” comes into play here, since we’re not asking the SCOTUS to consider whether or not the Miers nomination is constitutional.
Right, you were using the word in the sense that the Democrats used when borking Bork. But the word’s meaning as used in the GOP Stylebook* has become common enough that what you said is capable of misinterpretation, as John’s replies have shown.
Nice find in the Federalist Papers - that’s a fine pre-emptive strike on the self-styled federalists of today. It just doesn’t have the same ring as Sen. Hruska’s comment about Carswell, though:
I think this is a very succinct and honest summary of how many people feel about the Constitution. Regardless of what the words say, they feel that the Constitution stands for the proposition that the government, state and federal, must be just and democratic, and they have no problem in saying that anything which is unjust or anti-democratic is “unconstitutional.”
Here’s why I believe that’s an unwise approach to judicial interpretation.
It puts into an unelected, lifetime tenured judge’s hands the power to decide almost anything, simply based on his personal ideals of justice and democracy. You may revel in the triumph of justice when a judge finds, say, an individual right to adult private consenting sexual behavior. But that precise rationale could be used to find that minimum wage laws are unconstitutional. After all, if two adults have the right to private determine which body parts they may rub against each other, they certainly have the right to determine what one will pay the other to paint a fence. The state, which has no justification to prohibit Ben and Steve from literally assfucking each other, by the same reasoning has no power to prevent Ben from figuratively assfucking Steve by paying him a tiny wage, as long as Ben and Steve are both consenting adults.
As long as you and the judges agree on what “just” and “democratic” mean, then it’s no problem. You have simply selected a wise and beneficient set of rulers for the country. But when you and the judges no longer agree on “just” and “democratic,” we have a slight problem… one that will last the lifetime of the judges in question.
On the other hand, when you restrict judges to the METHOD of interpreting only the words that are written, you keep the power in the hands of the folks writing the words. Now, of course, they too can decide that minimum wage isn’t a good idea. The difference is that you can get rid of them in a couple of years.
I want the power to rule placed in the hands of guys that I can kick out if I don’t like what they’re doing. Your approach puts too much power in the hands of guys that are, like kings, on the throne for life.
The other obvious problem is that what is “democratic” is very often not “just”. In fact, what **elucidator **is propposing pretty much to dispenses with the whole idea of democracy in favor of justice handed down by a handful of unelected members of the judiciary. I’m sure he doesn’t really want that, and would be dismayed if it actaully came about, but it is the logical result of his proposal.
Let’s look at the SSM issue. Do we go with the democratic solution or the solution dictated by justice (assuming, for the sake of argument, that justice = legalilze SSM)?
I agree with you that far.
White House Chief of Staff Andy Card was helping make that point last night:
The problem is, if there is no point at which the advisability of considering rejection becomes the necessity of actually rejecting a nominee, then consideration doesn’t mean much.
In this case, it’s clear that the President is giving little heed to the “possibility of rejection” due to cronyism; consequently, it’s not exactly informing his choices. The only way to counteract that is to reject his choice.
Numerous data points are necessary when one is trying to draw conclusions about a large population through sampling. But here, we’re talking about the intent of a handful of men, and Hamilton’s testimony in this regard is generally regarded as fairly reliable.
And his testimony here speaks precisely to the point.
- Hamilton’s contemporaneous writings certainly reflect his intent, and the Federalist Papers are generally regarded as shedding light on what the Framers collectively meant when they wrote the Constitution.
That’s what one would presumably mean by ‘original intent.’
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We’re asking the Senate, not the SCOTUS, to interpret the ‘advice and consent’ phrase. The Senate must do that; the SCOTUS can’t.
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The Federalist passage I quoted (not my catch, btw; it’s been quoted frequently in the blogsphere in recent days) sheds light on how the Framers felt the Senate should apply that phrase to a situation like this one.
There’s cronyism and there there’s cronyism. A “crony” is just a longtime friend. If that “longtime friend” is incompetent, then outright rejection would be called for. For instance, this is the problem people seem to have had with Brown of FEMA. Miers, though a crony, isn’t so obviously an unqualified crony. There isn’t anything inherently wrong with the President nominating a “longtime friend”. I guess it comes down to how she gets sized up during the confirmation hearings.
Yes and no. Let me quote Scalia’s writings on this exact subject:
In short, I think there are significant differences in the way someone like Scalia uses the term “originalism” and the way you are using it. He might agree with your conclusion on this particular point, but not because he thinks Hamilton has the final word on every constitutional issue. Hence my comment about “one data point”.
Correct. But “original intent” is generally used when talking about SCOTUS decisions on constiutional matters, that’s all. And few, if any, Senators are equiped with the knowledge that a SCOTUS justice would have on these matters. At any rate, you’ve answered my question-- I wasn’t trying to argue the point, just understand exactly what you menat.
Let’s also keep in mind what I said earlier (either in this thread or others). You’ll hear “original intent” from a lot of Republicans, but few of them really know what it means. Many of them are, in fact, conservative activists (usually of the “social” kind) when it comes to interpretting the Constitution. I put Bush in that category, btw. The analog on the other side of the aisle are those who claim that originalism is an “extremist judicial philosophy” but have no problem quoting Madison and other Framers when it suits them.
So, I do tend to agree generally with your analysis, and if you want to call “hypocrite” on the Republicans who completely ignore that issue, I won’t disagree. In fact, I already beat you to it (either in this thread or another recent one).
Not quite. We hold that the Constitution is an expression of the desire to implement justice and democracy, such being the “spirit” of the Constitution. The Constitution is a very imperfect vessel to such laudable goals. For instance, the notion that North Dakota somehow deserves as many Senators as New York is both unjust and undemocratic. Still, as Dr. Johnson said about women writers, its not so much that the dog can walk well, but that the dog can walk at all.
In the hands of a just and democratic people, even the imperfect and clumsy mechanisms of the Constitution are workable, a Senator from North Dakota refrains from unjustly exploiting the faults of the Constitution because as a loyal American he shouldn’t, he mustn’t and he shan’t get away with it.
The Constitution is ours, we are not its. Without the founding spirit of its creation, its just a pile of words.
Nonsense. Since when? If a case could have been brought before the Supine Court in 1930, say, that offered the opportunity to legislate from the bench to effect equal rights for black people, would they have been right to rule in its favor? Of course. Would it have made any immediate difference? Most likely not. You wildly exaggerate the power placed in these people. My Cherokee ancestors still hear the words “Mr. Marshall has made his decision, now let him enforce it.” (Which reminds me, next person going to Hell, would you please baste Andy Jackson?)
Well, not everybody needs sex, but damn near everybody needs money. But yes, of course you’re right, the hyper-literalist mindset can bend the same rationale to fit wildly disparate subjects. They do that to you in law school, right? Does it hurt?
[Cartman]That analogy is so gay![/C]
Steve is consenting, is he willing, as well? Enthusiastic? Do Steve and Ben approach this situation as equals? Or is Steve obligated to accept the unwelcome intrusion of Ben due to economic or legal weakness? If Ben takes advantage of Steve’s relative poverty or powerlessness to Steve’s detriment, he is a reptile and a criminal. Why would you imagine that forcibly raping Steve is any less of a crime than impoverishing his children?
Oh, Hell, no! They are but one of a set of such rulers, mutually cooperative and mutually antagonistic. The Founding Fuckups built it that way. This hampers the efficiency of fledging tyranny, having to keep all the plates spinning. They thought it was a good idea, overall, not too bad. Sorta kinda.
But the words are already written. Whats the point in keeping power in the hands of men long, long dead? I don’t want power in their hands, I want it in ours. I want the interpretation done from the present viewpoint, with all its change and progress from those days intact and relevant. We ain’t in Kansas anymore, Toto.
Are we still talking about the Supreme Court? Are you suggesting we do away with its power to declare legislation unconstitutional? Seems rather a different kettle of piranha, if that’s where you’re going with this. Advise.
OK, that’s a good point. The power of the courts is not unlimited.
But under your plan, it would get much closer than it should. The Supreme Court under John Marshall didn’t have the decades of tradition backing it up that it does now. You’re right that Marshall’s Court couldn’t impose its will without limit.
But can you imagine a similar event today? I cannot.
On your other example… I’m not so sure. Are you suggesting that in 1930, the Supreme Court’s ruling on a Brown-like case would have fallen flat, but in 1954 the time was ripe?
Not a law school trick. All that’s needed is a True Believer, a judge that honestly and sincerely believes in, say, the libertarian principles of non-coercion. He’ll have no problem in gutting minimum wage, and he won’t be dishonest or hyper-literal. He’ll just be doing his duty, exactly following your instructions… only he won’t agree with you. THAT is the problem, elucidator: people of good faith and reasoned beliefs can still end up with positions that don’t square with yours.
OK. Doesn’t change my point, though: if one set of rulers is unelected and governs for life, and the other set is elected every two, four, or six years, which set is going to amass more power? My argument for keeping power out of their hands is just as strong, even if they’re not the only rulers.
OK. But again: if the “change” and “progress” isn’t viewed the same way by the judges, how is that power is your hands? Seriously: judges that view the unborn as deserving of full constitutional protection, judges that view the rights of adults to contract freely with each other as paramount… they would say, honestly, that they are enforcing progress and good, wise change.
No, I think they should keep that power. But I think we should select people for that position that are deferential to the written law, because we can change the written law easier than we can change the judges.
What approach maximizes our collective freedom?
Emphasis added.
What does the “present viewpoint” say about SSM? With the power in our hands, what will the result be?
I’m starting to have some serious doubts about Miers. She is being “pushed” as being very religious, an evangelical christian. She worked (I believe) to oppose abortion. She is a long time crony of GW Bush, from way back. There is precious little useful information about her. When Roberts was “submitted” as a potential Justice, conservatives made a lot of noise that his religious background should not be a factor and should not be discussed. Now with Miers, it’s all we hear about (maybe because there is nothing else), except for “I’m Bush and I like her, trust me”. I wasn’t aware that the constitution (which she is expected to interpret soon) allowed the appointment be along religious lines, or that it be a qualifier or requirement for the job. I am concerned that she might use the Court to further her own religious beliefs at the expense of others too.