AAA's argument, which is the argument of the originalist/strict constructionist, in general, is that there is only one way to read the Constitution, i.e., with the express intent of the founders and with nothing else. Well, reality is that the founders are all DEAD, and no one knows what their express intent was. Let's get real for a second. At the time of the Constitution, men were omnipotent, and women and children were not much more than chattel property. If the issue of abortion had actually been presented to the Supreme Court in 1790, just to pick a date out of the blue, I suggest that it is highly likely that the court would have ruled that the decision of whether or not to abort the life should be left up to the husband, or father, if identifiable, because a man is traditionally the person who is responsible for the custody and control of children in minority (this was the fact at the time -- father's had absolute control over children). If no father were identifiable, then the court would probably have assumed the role of male parent and determined what was in the mother's best interest and ordered it. Modernly, we would all view the above as absurd. So, for abortion there really isn't any originalist view -- it's all just personal opinion dressed in the emperor's new clothes. As far as other subjects go, the founders wouldn't have know what to do with zoning regulations or homeowner's associations, they wouldn't have even considered the uniform commercial code, because there wasn't any, yet, they would have laughed at the idea that a man could be ordered to pay support to his spouse for the sole benefit of the child, absent a showing of breach of the marital contract, or tortious injury to the woman or child, they would have found attempts to control drugs, alcohol, tobacco and firearms within the borders of the states to be an overreach by the federal government -- need I go on? The originalist view of the Constitution is a legal fiction, and a bad one at that, because times have changed, and the Constitution has been amended. The reality, once you disrobe the justices from their robes, is that what the Constitution means is nothing more and nothing less than what the nine justices say it means, and the idea that there is anything to "find" in the instrument is ridiculous. The meaning of Constitution of the United States is simply the opinion of the nine justices, who happen to sit on the court at any given instant. Lower courts give stare decisis to prior justices opinions of what the Constitution is, and until the justices change their minds, the lower courts continue to apply the last rule issued, where that rule can be ascertained. Your statement that pragmatism by the high court would lead to chaos is not supported by the reality that lower courts will observe the high court's decisions, as much as is possible. Only the high court has the ultimate power to deal with issues in a pragmatic manner, because the high court can simply choose to announce its rules as applied to one case or to many. In eminent domain actions, the high court has consistently stated that all courts must deal with such issues on a case by case bases, and that the high court would do similarly. And, the high court has frequently chosen to narrowly confine its decisions to one set of facts, in other areas, as well (See Escobedo v. Illinois, for a criminal procedure case in point). Originalism leads to injustice, because it ignores the pleadings of the parties (remember, that a pleading always has a prayer for relief, and that's what courts are ultimately supposed to do -- provide relief for litigants). And, liberal interpretation (natural law) leads to violations of the separation of powers, because the judges start "finding" law to make the Constitution "work." Legal pragmatism leads to one thing -- justice.
Is it a coincidence that most constructionists also tend to be religious fundamentalists? As if they, and they alone have the magic key to unlock the thoughts of the authors of scripture/legal documents written hundreds of years ago or more. It is irrational in my opinion. The only thing that makes any sense is to look to the Constitution as a guide, the way in which a an adult looks to his education by his parents as a guide, but as an adult makes decisions based on reason, wisdom, common sense, and logic as it applies to a secular governmental and political situation.....and not locked into a rigidity of thinking that is outdated. In other words...pragmatism.
I was not arguing strict construction. By the way I heard Scalia actually argue that he was pragmatic in his application of the constitution. Pragmatic does not necesarily mean doing justice instead of deciding the cases on a principled basis. Now kj the minute you see zzz on your side you have to be wary. The less predictible your court system the more expensive justice and business becomes. Attempting to do the best for the parties instead of applying the law even handedly is a parlor trick. Pretty soon you have judges who think they should let a repetitive child molester go without jail time. Allowing judges to do justice instead of following the law will lead to a breakdown in the communities respect for the justice system. It will become a lottery with no respect. I would rather the group be served by consistent justice following the law then letting some clown play Solomon. That is the whole reason we live in a community. Justice is about being blind. It is about the applying the law evenly, fairly and consistently. It is not about splitting the baby.
Hey, let's cut down on the cost of the Justice system. Let's just institute Islamic law..... A prescribed punishment for every "illegal" act, no ifs, ands, or buts....and no appeal system. We won't have to adjust to changes in mores, societal changes, personal preferences, etc. We can simply live back in the 14th century.... Brilliant!!! Brilliant!!!
Under kent and ZZZ's doctrine, there would be no need to look at legislative intent when a court applies a law. What difference would it make what the people who wrote and passed the law meant? After all, that could have been years ago and times change. Also, all that would matter is for the judge to render a feel-good decision, not implement the law as those who passed it intended. Clearly, that kind of approach flies in the face of every traditional tenet of statutory construction. The proper approach is to look first at the plain language of the law, thento precedents interpreting it, then finally to legislative intent. I see no reason why it is somehow unfair to follow the exact same procedure when interpreting our basic law, the U. S. Constitution. We have a congress and 50 state legislatures to enact social policy. We don;t need the Supreme Court to do it and thensomehow pretend that it is a constitutional imperative that we are all obligated to respect as the "law of the land." In fairness, kent would get around this problem by having courts just play a solomon-like role for the litigants, rendering substantial justice to them and not announcing binding precedents. To an extent, this is what trial court judges do, particularly in what are called cases in equity, ie cases where the plaintiff is not suing for money damages but for injunctive relief. But our system of common law depends on appellate courts to announce binding precedents that lower courts must follow. Unless we drastically change the system, the Supreme Court will have the responsibility of interpreting the ocnstitution. My position is they should do so by looking first to the actual text, then to well-reasoned precedents and finally to the original intent of the Drafters. Any other approach threatens chaos and the substitution of the justice's personal policy preferences for the constitutional limitations.
kjent- All your explainations sound good, but isn't it just a way to get around the 'separation of powers' ? Your points about the changing times, etc are valid, and under that assumption, we could agree that R v W would be decided different then, as opposed to 'now'. But isn't the point to allow checks and balances ? If the law doesn't apply, then the court shouldn't bend it to fit. That would make them omnipotent, right? Instead, the Congress should pass anew law that addresses the new situation. That would keep the powers serarate, and I believe that is clearly spelled out in the Constitution. Or am I wrong ?
The founding fathers were big on freedom, yes? Personal freedoms? Lack of interference in the personal lives of citizens, yes? Bill of rights and all of that, yes? Okay, so on which side should the government (including the courts) err? On the side of those who want to control the personal lives of others, or on the side of personal freedoms? Where it can be shown that personal freedoms are actually an honest to goodness threat to our society, not just actions that fundamentalists don't like or don't approve of, then we should err on the side of personal freedoms.
The separation of Powers is another not very well defined legal fiction. While we know that the President can't sit on the Supreme Court and be the Speaker of the House, all at the same time, other Separation doctrinal issues are much less clear. For example, the Congress can and routinely does, enact legislation that grants "rulemaking authority," to the Executive branch. A federal rule, as published in the Code of Federal Regulations is "law," and it has the same power as an Act of Congress, duly signed by the President. But, the rule never sees a Congressional vote from either the House or the Senate. All that is required, is that Congress delegate its rulemaking authority to the federal agency via a Congressional Act that provides an "intelligible principle," to guide the federal agency in implementing the policy authorized in the Congressional Act. I could stop right now, because, as is well known, federal agencies such as the FAA, FCC, FDA, IRS and SEC "make" law every day, within the scope of their delegated authority, and if you violate one of those laws, you can be subjected to all manner of penalties, just as if those laws were direct Acts of Congress. Likewise, since the beginning of the nation, and prior to, Courts have "made" case law (i.e., the "law of the case"). A court that issues a judgment/order is making law, no different than an Act of Congress or a Rule made by a federal agency. In the judicial branch, however, when law is announced by a court, the law is isolated and binding only on those courts which are subordinate in authority to the court that makes the law. So, a trial court's judgment/order is binding only that trial court and no other. For a mid-level appellate court, its judgment is binding only on those trial courts whose judgments/orders are appealed to the appellate court. And, at the top of the food chain is the U.S. Supreme Court, whose authority covers all courts in all jurisdictions, EXCEPT for state courts that are acting on state laws that are reserved under the 10th Amendment to the States (or to the People), or prohibited by the 11th Amendment, which prevents federal courts from hearing actions by private parties or foreign powers who try to sue a state for damages in federal court. But, if there is a question of federal constitutional law, treaty, statute rule, or any other power, either expressly granted to the federal government under the constitution, or prohibited under the 14th Amendment, and Congress' proportional and congruent enforcement of civil rights, then the U.S. Supreme Court has the final word, and it can, and it does "make" law, ESPECIALLY, with respect to the litigants themselves, because they are expressly bound to the court's authority, and whatever the court rules, is the law that the litigants must follow -- period. So, this entire idea that judges aren't supposed to legislate is just a bunch of political rhetoric, spun out by people with an agenda, who either don't understand how the law actually works, or simply choose not to tell their constituents because it doesn't suit the message being advanced. Because, when one of the litigants is a State or the United States, and the court issues the law of the case, then the litigants are bound, and that means that the case law extends to all of the enforcement and law making mechanisms of the government that is party to the court's orders. Courts make law. It's constitutional that they do, and it doesn't violate the Separation of Powers. Now, if any of the conservatives who claim otherwise want to achieve a different outcome, then they can do so, either by packing the court with jurists who subscribe to the originalist doctrine, or by amending the Constitution to prevent the courts from making binding precedent. Otherwise, the system is gonna continue to operate the same as it has for the past 235+ years, and no amount of complaining is gonna change things. I am not, by the way, suggesting that judges invent law or continuously overrule themselves. Frankly, this is not even a plausible outcome, because law schools train lawyers to analyze facts and apply the law as if the law was unchangeable. But, at the same time, lawyers are also trained to discover possible counter arguments to every legal question, and in fact, to discover every possible contra, no matter how remote, so as to make certain that the lawyer has thought of every possibility. And, as it is the rare exception that a judge is not first a lawyer, the likelihood that the judicial branch will wake up one morn and suddenly start issuing every decision without regard to statute or prior case law is a practical nullity. It just ain't gonna happen. There's a far better chance that Bush would attempt to stay in office after his term expires. After all, judges only have a bailiff/marshall/and some semi-auto rifles, whereas the President has neighborhood nuclear superiority. LOL! I don't really think Bush is interested in attempting a coup -- I just want to point out that the whining from the Right about the judicial activism of the court is incredibly disingenuous, in light of the fact that the President routinely writes signing statements that he will interpret laws the way he wants and wire tap when and where he wants, and etc., all under the umbrella of his duty to defend the Constitution. As is the whining from the Left that the President is a power mad nut, on the verge of obliterating the Bill of Rights and instituting a fascist state. Neither is imminent or likely. It's all just about power and money -- morality and principle is the farthest thing from your government's mind, . When you lose sight of this reality, you have taken the sucker's bait. The rich like their freedom as much as the poor, and there's plenty of disbursed power in the U.S., sufficient to keep everyone on their respective heels. The only real threat is that the balance becomes upset by some wholesale modification of the Founders' well-considered system. Diminishing the Court's power substantially is a danger to the freedom of the individual, no less than is diminishing the President's power similarly.
Updated: 05:28 PM EST IM This E-mail This Supreme Court Justice Reveals Death Threats By GINA HOLLAND, AP WASHINGTON (March 15) - Supreme Court Justice Ruth Bader Ginsburg said she and former Justice Sandra Day O'Connor have been the targets of death threats from the "irrational fringe" of society, people apparently spurred by Republican criticism of the high court. Ginsburg revealed in a speech in South Africa last month that she and O'Connor were threatened a year ago by someone who called on the Internet for the immediate "patriotic" killing of the justices. Security concerns among judges have been growing. Conservative commentator Ann Coulter joked earlier this year that Justice John Paul Stevens should be poisoned. Over the past few months O'Connor has complained that criticism, mainly by Republicans, has threatened judicial independence to deal with difficult issues like gay marriage. Worry is not limited to the Supreme Court. Three quarters of the nation's 2,200 federal judges have asked for government-paid home security systems, Attorney General Alberto Gonzales said this week. Ginsburg said the Web threat was apparently prompted by legislation in Congress, filed by Republicans, that would bar judges from relying on foreign laws or court decisions. "It is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe," she said in a speech posted online by the court earlier this month and first reported Wednesday by LegalTimes.com. According to Ginsburg, someone in a Web site chat room wrote: "Okay commandoes, here is your first patriotic assignment ... an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use (foreign) laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom. ... If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week." Rep. Tom Feeney, R-Fla., a sponsor of one of the congressional proposals, wrote about the legislation on his Web site and in bold letters featured a quote from O'Connor predicting the Supreme Court would probably increasingly rely on foreign courts. Ginsburg pointed out that the legislation was first proposed in 2004, an election year. Justices, in some of their most hotly contested rulings, have looked overseas. Last year, for example, justices barred the executions of juvenile killers on a 5-4 vote. Justice Anthony M. Kennedy said then that "it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." In an angry dissent to that decision, Justice Antonin Scalia said capital punishment policy should be set by states, not "the subjective views of five members of this court and like-minded foreigners." Ginsburg said, "Critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions." She said those decisions are used for guidance only. O'Connor said last week during a speech at Georgetown Law School that the justices have received threats. But the Ginsburg remarks at the Constitutional Court of South Africa provide unusual detail. Ginsburg, who turned 73 Wednesday, told the audience O'Connor "remains alive and well - as for me, you can judge for yourself." 03/15/06 16:28 EST