Perhaps the most respected Democratic legal scholar in America is Laurence Tribe. He teaches at the Harvard Law School and is by all accounts regarded as a brilliant writer and thinker, but most importantly he is a Democrat, which is to say he believes in nothing that is coherent, except perhaps in the genius of his own detached words. Here is how he, and many Democrats, define the way a Supreme Court Justice should interpret the Constitution: "It's about time that I roll my legal universe into a ball and toss it into the ring as my candidate for what the final rules of the interpretive game must be. For now, and perhaps permanently, I would respectfully decline that invitation. Indeed, I am doubtful that any defensible set of ultimate "rules" exist."
So what does this mean when one says there are no rules regarding reading the Constitution? Doesn't it mean that one can't read or that one doesn't like what one reads? Does it means that the Constitution can then mean whatever one wants it to mean? If you are an ultra leftist as Tribe is, this is a perfect plan to bend the Constitution in a Communist direction. But if you are limited to interpreting the Constitution by what is written and what was intended, the Constitution is a very Republican document for which Democrats can have no appreciation. Tribe goes on and on to brilliantly explain the tremendous linguistic, moral, jurisprudential, psychological, and philosophical problems that must be solved to read, interpret, and apply a Constitution that was written 200 years ago, but in the end it is pure sophistry (admittedly, brilliant sophistry), with no coherent end, designed only to make room for his extreme left wing ideology which, not coincidentally, he doesn't allude to in even the tiniest little way. What else can you do if you're a Democrat forced to deal with the text of a Republican Constitution?
Scalia, on the other hand, is an equally brilliant thinker, but a Republican who, accordingly, can take the Constitution just as it is. When he is asked how he likes the Democratic living Constitution he replies "I like it dead". Here is what he says in a similar context: "If the people come to believe that the Constitution is not a text like other texts; that it means, not what it says or what it was understood to mean, but what it should mean, in light of the evolving standards of decency that mark the progress of a maturing society- well, then, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they select to interpret it. They will look for judges who agree with them."
This calls to mind Roy Cohn's famously cynical comment, "don't tell me what the law is; tell me who the judge is". Anyway, Scalia closes with, "This [meaning, liberal Democratic thinking), of course, is the end of the Bill Of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all."
For instance, everyone knows that the Constitution did not encourage abortion or pornography. In fact it did not even mention them. But nevertheless, Democratic justices did manage to find a right to abortion and pornography in the Constitution, and of course both industries then grew from almost nothing to today's massive proportions. Abortions shot up from near zero to around 1 million a year, and pornography is now available on most supermarket shelves. Suppose in ten years the Democratic trend was still continuing and there were 20 million partial birth abortions a year, and the NBC Nightly News closed with 15 minutes of prime time pornography because the network noticed it attracted higher ratings than hard news?
If the people of, say, Kansas didn't want to live in that perverted anti family culture what recourse would they have given that Democrats had rewritten the right to abortion and pornography into the federal Constitution? They would have very little recourse. The whole nation would be stuck under the tyranny of one arbitrary Democratic standard. Under the original Republican Constitution, the States would be, to a large extend that was limited only by the fundamental rights and holdings of the original Constitution, allowed to be individual subcultures. Citizens could participate and vote to shape those cultures, and, if they chose, they could leave those cultures for other more preferable cultures in other States. It would seem that the Framers original Republican Constitution offered more freedom to more people than the new national Democratic tyranny.
Yes, there are lucky times when nine guys in Washington are right, Civil Rights most notable, and some of the States are wrong, but this does not mean we should sacrifice the very concept of freedom and liberty given to us by our Framers by gambling it on nine guys in Washington. The purpose of the Constitution, based on what our Framers had deduced from all of human history, was to distribute power everywhere so it would not concentrate anywhere, and to secure only the most basic and essential rights, not to concentrate power in the hands of nine liberal Democrats in one branch of the Federal Gov't. Accordingly, when George Bush nominates a Republican replacement for Justice O'Connor, let us all pray she finds her way to the Supreme Court where she can begin, forthwith, to tear it down.
But, should the Democratic culture perverts really be so concerned about losing the Supreme Court? Probably not. The States would still have the right to enable many of the Democratic perversions, and undoubtedly some of them always would. But, most importantly, Democrats can take comfort knowing that the Republican belief in freedom and individual liberty is too great to allow them to take advantage of an opportunity to creatively find, for example, a prohibition against abortion and pornography on what the Democrats see as the Constitution's very blank pages.
comments: bje1000@aol.com
Ted Baiamonte
http://thedumbdemocrat.blogspot.com/
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1 comment:
Dear Mr. Baiamonte,
*********Hello; thank you for writing
I have now read several of the posts to your blog that you have sent as e-mails. If I understand you correctly, you assert that (1) the original understanding of the Constitution, by those who first framed and ratified and applied its provisions, should determine how judges (and presumably other branches of government) interpret and apply it now; that
*********correct
(2) those original understandings tend to support the political program of present-day
conservative Republicans; and that
**********correct
(3) some conservative Republican judges (you mention Scalia in particular) are faithful to
those original understandings in their interpretations of the Constitution, while Democratic judges (and their political supporters) are not.
************correct
All of these points are mistaken.
*********oh good, and you're going to explain?
No modern lawyer or judge, Republican or Democrat, conservative or liberal, reads the
Constitution as its framers and first generation of interpreters understood and applied it.
*********Oh, so Scalia and Thomas are not telling us the truth about the way they interpret the Constitution? And someone is lying to us about the "strict" versus "loose" terminology that is commonly used and accepted by everyone, including Supreme Court justices?
That Constitution would prohibit the federal government from issuing paper money or
building an interstate highway system; it would permit both federal and state governments to criminalize subversive speech as sedition, and state governments to create religious establishments and ban Catholics, Muslims and Jews from running for public office -- just for a start. No part of our modern government would have seemed more alien and frightening to the founders -- with their well-founded historical fear of the dangers that standing armies pose to a free republic -- than our enormous defense establishment; and the powers claimed for the executive to unilaterally initiate wars.
*********yes yes I pointed out in the blog article very clearly that Tribe used brilliant sophistry to highlight the inconsistently in Scalia, with which I have some agreement. If you want to be more accurate you might say Scalia is a moral conservative and jurisprudential textualist, i.e,. a Republican. He wants a conservative moral code like the one vigorously imposed by 18th century religion (in the absence of religion today) and a strict interpretation of the Constitution that would help to limit the scope and authority our modern nanny/ bureaucratic state to be closer to the 18th Century model. Yes, its a stretch to put the church in the Constitution but Jefferson never dreamed the church would die only to be replaced by MTV. I have a limited constituency so I can tell you the truth.
Scalia is no more faithful than anyone else to these original understandings.
*******ah so he is lying to us or just too dumb to know that he is no more a textualist/originalist/literalist than the liberals?? And the liberals vote opposite to him by coincidence??
You are obviously correct that the framing generation would not have found Constitutional prohibitions against criminalizing abortion and pornography; but neither would they have found such prohibitions (as Scalia has) against regulating commercial speech and advertising.
*******it's true that Scalia has a moral streak that seems at times to override his jurisprudential philosophy. But erring on the side of greater public speech morality seems a minor sin; if not a blessing. We all agree with Tribe and you that perfect consistency in such complex areas is impossible, but this does not mean that one cannot discern a trend in Scalia or a statistical pattern in his voting that differentiates him from the Democrats on the Court.
Indeed Scalia's entire First Amendment jurisprudence is of post-1980s origin; it has no support in original understandings of the Constitution. His reading of the 11th Amendment contravenes the express language of the text and has no historical warrant.
*******yes but again you are stuck on a percept, and ignoring the more important concepts? Perhaps you can explain to me the difference between Scalia and Stevens since you seem to be saying that in the end they are both inventing as they go with equal regard or disregard for the Constitution? There must be some discernible pattern or philosophy if they always disagree, while Scalia and Thomas mostly agree?
His view that affirmative action -- positive governmental action specifically targeted is
unconstitutional is directly contrary to the views of the framers of the 13th and 14th Amendments and the policies they adopted. He supports a view of the separation of powers (the so-called "unitary executive") that has no pedigree whatever in historical practice. Scalia often cites history in support of his arguments, but his histories are usually tendentious and sometimes wholly fictional.
Conservative Republicans -- as one can see from the record of the Bush presidency and Congress -- are as prone as Democrats -- if not more so -- to expanding federal power at the expense of the states and of individual liberty.
*********Jefferson thought of himself as a Republican, he said "the gov't which governs best governs least" all the sophistry in the world won't change the obvious fact that if one wanted less gov't in 1800 or in 2008 one would vote for a Republican. I will agree that if you check the numbers you will find that the careerism, compromises, corruption, and bureaucracy that influence politicians cause Republicans to expand the gov't as fast as Democrats, but this does mean their political or jurisprudential philosophies are non-existent or the same.
Honestly, I think what it means is that the flip floppers or independents in the middle have caused a disproportionate dilution of both philosophies even though in the end American is nothing but an idea or philosophy.
The conservatives on the Supreme Court have done almost nothing to contain the federal commerce power, and are not likely to do much, since that power mostly benefits their corporate constituencies.
********ok then, do you think Thomas or Breyer said this: "If Congress can regulate this [two women in California growing small patches of marijuana for medicinal proposes) under the Commerce Clause, then it can regulate virtually anything," including "quilting bees, clothes drives and potluck suppers." Thus, "the federal government is no longer one of limited and enumerated powers."
********Yes, Conservatives may have done little, but little is more than Liberals would prefer.
Was it liberals or conservatives who stood up in court against FDR's New Deal? This again is not merely coincidence.
You seem to have the impression that American in 1789 was a laissez-faire society.
*******absolutely, at least in comparison to today's society
It was not. Virtually every facet of economic life at the time of the founding was minutely
regulated by state laws -- including strict wage and price controls on the making and marketing of basic commodities. It was a mercantilist economy, through and through. We would not wish to return to it even if we could -- and we can't.
*******I don't recall that state laws were our subject?? In 1800 the Republicans won and defined America, at least until 1932, as a place where the Federal Gov't was to be limited; not the State Governments.
The Constitution changes as circumstances change, as the meaning of language changes, as practices of the various branches of government change.
******you mean it changes if we nominate, elect, hire, and appoint liberals?
The entire modern administrative state was unforeseen by the founding generation, who made no room for it
*******is "no room for it" a legal term? I think you can simply say they did not address it or the price of tea in China, directly.
in their constitutional scheme. Nonetheless as soon as the Constitution was ratified the
first Congresses and Presidents went about beginning to build an administrative state. It has since grown to immense proportions.
*********yes this is exactly what Jefferson warned us against and what Marx predicted would be the most caring and efficient state.
That fact may be fortunate or unfortunate, but very few people today seriously suppose that judges could destroy the federal government by declaring most of it contrary to the intent of the founders.
*******if the framers intended a limited gov't in which freedom from that gov't was the first priority I'm sure today's federal gov't could be slowly reduced, and indeed that is what all Republicans want, because they are at heart Jeffersonians who believe Jefferson established the Constitution in 1800 to mean that American stood for freedom from gov't; and not just freedom from the govt of England.
Modern judges have to try -- and most of them do try, liberals and conservatives alike -- to be faithful to the general principles and purposes of our constitutional arrangements, while adapting them to new circumstances and the solution of new problems.
********that is a good rendition of the progressive liberal philosophy and nothing more. Shame on you. I see you are from Yale which is in many ways the heart of the liberal monoculture beast; so I am not surprised.
There is no one true way to do this;
********what on earth does that mean?? There are two philosophies: Liberal and Conservative. Liberals think their one way is the true way and Conservatives think their one way is the true way. If they both have opposite philosophies and vote oppositely to prove it, it is virtually a lie to pretend something else is operating here. Yes, textualism and active liberty are fraudulent terms designed only to comfort us into thinkng judges are safely united and above partisan political philosophy when in fact there is nothing but partisan political philosophy. That is why Republicans like textualists, and liberals don't. You apparently have bought the lie because 1) it helps provide a cover for your brave new progressive world of bigger gov't and 2) because it falsely shields the legal community into a seemingly less partisan world where the disputes are merely jurisprudential and above the political world, when this is factually, perfectly, and absolutely impossible. It is merely a cover to enact the liberal agenda.
so there is room for debate and disagreement about how best to do it.
*******yes, the same debate Jefferson and Adams had in 1800: freedom v. gov't. The same debate the Federalist and Anti Federalists had. You don't like that debate because it defines your real position too accurately. Sadly, it is the only debate in human political history, much as it may not serve your liberal ends.
It is absurd to suppose that conservatives are smart and liberals dumb as a general matter: there are plenty of both in both parties.
********how is it possible for two men to both be smart if they have two different and opposite philosophies?
best,
********Best
Robert W
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