Democrats & Liberals Archives

Judgment Call

I’m sure this isn’t the news the Republicans wanted to hear, so soon in Obama’s first term. Those of you on the red column were probably hoping that the Justices all took their vitamins and drew immense satisfaction and enjoyment from their job. Sorry. Cheer up, though. You got two justices, one of which, despite his relatively young years, was able to level up to Chief Justice. Guess he slew a dragon. Those provide plenty of XP. We have the Roberts court for the time being, and likely will continue to have it until Roberts stops playing or runs out of HP.

Either way, Bush, the Republicans, and everybody else on the right got their constitutionally mandated influence on the courts. Hell, with the exception of Clinton's couple, Breyer and Ginsberg, There are no Democratic Party appointees.

But what do I hear out from the Republican Pundits and so many others? The courts are packed with liberals!

Actually, the opposite is true. The Republicans have gotten their way on selections, and how.

Republicans have done an excellent job of getting conservatives appointed to the bench. There problem might, ironically enough, be that their judges just aren't activist enough. The dictates of the party were never the only obligations, or even the strongest obligations for judges in their courts.

For those impatient with the fact that the Judges haven't cooperated in destroying the old liberal order, the obvious call at this point would be to resist whatever liberal judges Obama appoints. Obstruction worked so well in all the other branches, why not here?

I'd tell Republicans, sympathetically, don't try it. If you're serious about influencing the choice, obstruction will only end up costing you your influence on who gets selected. This is especially true after last week's reversal of fortune, which illustrates why a party shouldn't tell people to get lost unless they truly can afford to see them go.

The Republican game in recent times has been seeing just how much support they can lose and still govern a country. They've found out in the last two elections: not much. Their quest for purity, in party politics if nowhere else, is part of what brought them down. Although Republicans count their lucky stars that there only a couple of moderate Republicans left, they should recount, since their losses of moderates have left them a part of social extremes, one where the members don't dare to compromise with the Democrats and Liberals on big ticket items, lest they be primaried, like Specter was going to be.

The trick is, the Republicans ended up driving many of their moderates to the other party, leaving them with not enough voters to maintain their majorities.

And now, it's on the verge of guaranteeing them a more liberal judge than they might otherwise get.

How does this work? Well, the Republicans tell the Democrats to get lost, and the Democrats disregard the Republican's opinion because there's no use reasoning with them. They'll just reject whetever candidates they deem reasonable. The strong likelihood will be that the Democrats will have 60 seats by October, and that's about the time Obama will want Souter replaced.

The question now is one of results, and how they can be achieved. You can count out getting another Alito or Roberts through, for obvious reasons, so the pure result is already out. The other pure result, the naming of a relatively strong liberal, after the Republicans start showing "the audacity of nope" once again and get shut out by the Democrats, should be considered undesirable by practical conservatives.

The alternative is involvement without the expectation of control. Accept that at this time, the best that you can do is influence the situation and understand that doing your best is nothing to be ashamed of. The folks in Congress aren't there to look good, they're there to represent their constituents. Purist Republicans have insisted this means perpetually pushing the ideology, but I've got an alternative to their largely symbolic partisanship: knowing that you may not win every battle, nor get everything you want, you still try and see what you can get. You negotiate compromises, you become a practical aid to good policymaking, you reach across the aisle, and you make sure that Democrats don't do much business that you're not in there, moderating, offering practical suggestions, and so on and so forth.

It could work, if certain constituents and a number of the dominant Republican special interests would let it work. Thirty years of being ascendant, then dominant, have left many on the Right unrealistic about how the political process works when you're neither popular, nor powerful enough to truly cut others out. They don't realize that they are on the free hanging portion of the branch that they are sawing through.

They don't have to get more liberal. I'm not even sure we have a name yet for what Republicans must change into to thrive in this political environment. But on issues like Supreme Court appointments, the Republicans must realize that the first change they must make are those necessary to get people to seek out their advice, their wisdom, and their support again. Which means, for the first time in a long time, Republicans have to consider how to be persuasive and admired by those other than just their own inner circle of pundits and true believers.

Posted by Stephen Daugherty at May 4, 2009 7:04 PM
Comments
Comment #281320

SD
The”audacity of nope”. Good one !

It does look like the more thoughtful Reps are starting to come around a bit. Jeb Bush and Rohmney are on a listenning tour for example. If they can resist packing the crowd they might even learn something. There was even a better than “dog eat dog” health care proposal on the red side,I am happy to say.
I have always found the selection process for SCOTUS to be vastly entertainining and I hope BHO keeps that in mind and nominates Anita Bryant for example,or maybe Bill Clinton.Sure he parsed the word “is” but justices parse words all the time. Thats their job.I also hope he follows the Rep lead and selects a younger justice for the sake of longevity. What’s Chelsey Clinton doing these days?

Posted by: bills at May 5, 2009 7:40 AM
Comment #281321

I wonder how many times you have typed the word Republican since the election Stephen?

Republicans are irrelevant. The only reason the 60 vote issue is of significance is because Democrats count “threatened filibusters” and “maybe filibusters” as real filibusters. Prop them up just to knock them down if you like.

What type of nominee should President Obama choose Stephen? What type of background, what type of philosophy would you like to see in a justice? Someone from U. of Chicago law to balance out the Ivey Leaguers? A Governor? A politico like Hillary? Are abortion and gun control litmus tests? I’m not sure what he’ll do for this first pick, but if I were Obama I’d go for my most controversial selection now while my popularity and political capital are at their highest.

And as I said in another post, if Lindsey Graham opposes this nomination on any grounds other than qualifications, he’ll hear it from me. Elections do matter, and this is Obama’s pick.

Posted by: George at May 5, 2009 8:52 AM
Comment #281325

George-
You know, until a few years ago, Democrats were irrelevant.

You never know how the political winds will blow, and if the Republicans are to come back, they must come back a better party than they went down, not a worse one.

In my opinion, there is nothing wrong with conservative sensibilities remaining operative in America. Liberals should not be the only people represented. There has to be a dynamic balance in America between conservative and liberals, not a destructive war where one side tries to win the fight forever.

I was a Clinton Democrat, and I was and still am a believer in working from a position of moderation. What lead me to join the more aggressive left of today was the belief that the changes of policy that this country needs to meet todays challenges would not be possible under Republican leadership, or leadership that deferred to the Republican on the policy paradigm.

What I work for is not an obnoxious, hyperdominant left, but rather, a self-sufficient left not dependent on the good opinion of the increasingly more hostile Republicans to operate.

I have seen the Right degenerate over the last couple decades, from a point where most people seemed reasonable enough, to the point where the destruction or permanent neutering of the left was openly discussed.

Many people like me had thought, that 2006 or 2008 would act as a wake up call to Republicans, that it would lead them to recognise that their behavior and their rigid ideology were in need of reform. But that seems not to be the case.

The Right needs to realize that their hostility towards Democrats and Liberals is crippling their party, and helping to isolate them behind the walls of a partisan echo-chamber.

I believe Republicans need to drop their obsessive pursuit of party purity, and instead turn to a less feverish, calmer pursuit of dialogue with the average American, and with their counterparts.

Posted by: Stephen Daugherty at May 5, 2009 12:08 PM
Comment #281329

The sad part is that both parties are looking to put someone on the Supreme Court who will further their political views instead of interpreting the constitution as they are charged. It started with FDR and continues to this day, just another of the legacies of ‘the ends justify the means’ mentality that we are forced to live with to this day.

Posted by: Rhinehold at May 5, 2009 12:16 PM
Comment #281330

BTW Wickard V Filburn is a prime example.

The Supreme Court argued that what someone did with their own property for their own needs violated was not allowed because it violated the ‘commerce clause’ of the Constitution.

In the landmark 1995 case of United States v. Lopez, the first decision in six decades to invalidate a federal statute on the grounds that it exceeded the power of the United States Congress under the Commerce Clause of the United States Constitution, the Supreme Court described Wickard v. Filburn as “perhaps the most far reaching example of Commerce Clause authority over intrastate commerce.” The Supreme Court majority that decided the 2005 case Gonzales v. Raich relied heavily on Filburn in upholding the power of the federal government to prosecute individuals who grow their own medicinal marijuana pursuant to state law. In Raich, the court held that, as with the home grown wheat at issue in Filburn, home grown marijuana is a legitimate subject of federal regulation because it competes with marijuana that moves in interstate commerce. As the Court explained in Gonzalez:

Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

When justices make decisions that are exactly contrary to the intent, purpose and meaning of the Constitution in order to increase the power of the federal government (which the document is designed to limit) it is a telling and scary story of what we are in store for.

Posted by: Rhinehold at May 5, 2009 12:21 PM
Comment #281334

Rhinehold-
Here’s my problem with your argument, as offered.
You assume there is one interpretation, and that one is obligatory. While it is not reasonably arguable that the constitution can be denied as the source of our laws, the interpretations of that constitution are multiple, and not totally agreed upon in part or whole.

That’s why we need courts in the first place. If the solution to the differences between people’s opinions on the constitution’s meaning were so obvious, a Judicial branch would be a useless fifth wheel.

People do dispute the meaning, and somebody has to resolve those disputes. Keeping that in mind, the question is obviously, “who?”.

The constitution provides resolution: The Executive branch nominates, the legislative branch confirms or denies that choice. I do not think that the framers were unaware of the implications: that politicians with partisan interests and loyalties would decide the make up of the court, and to a certain extent, the character of the decisions that came of the court.

The lifetime nature of the appointments both keeps the judicial branch distinct and renders it more aloof from political cross currents. It also means that you’re not getting a court, except in the most extreme of circumstances, whose make up is decided by the whims of one political movement or another. Political independence is greater, and therefore the courts can act counter to the current trend, and often have to to the great annoyance of conservatives, liberals, and other movements alike.

The check on that is that the partisans and politicians get to decide who ends up on the bench. Getting somebody who respects the constitution is indeed important, but defining that respect as if just your particular intepretation represents respect to its principles is one of the excesses that the constitutional construction of the court was meant to remedy.

As for your cited cases?

Let’s go through them: Wickard vs. Filburn extended the power of the federal government to regulate private, non-commercial activity when, in aggregate, that activity would have a major effect on interstate commerce.

The background of the case concerned the government’s attempts to regulate the wheat supply by curbing production. The farmer in question argued that because he only produced grain for his own consumption, that meant he wasn’t covered by the law in question.

The government argued that while the farmer’s behavior alone would not have an effect on interstate commerce, the aggregate effect of millions of farmers producing for their own consumption would have considerable effect on interstate commerce.

While it would be debateable now whether such central planning would be palatable in this day and age, I don’t quite think the days of the ICC being interpreted this way are over.

Raich dealt with medical Mary-J. She made a similar argument to that farmer, and was similarly rejected with similar logic applied. Now you treat it as laughable, but is it? No. The drug trade is a market, and to regulate it, the federal government has to be able to regulate the means by which that trade is undertaken. Big exceptions for the product grown by other means would greatly complicate the efforts of those trying to get a handle on the drug problem.

but the case you site as critical does not relate to either kind of case. It was a case where a young man brought a gun to school, and was prosecuted by a law that took its authority for banning guns on school grounds from the commerce clause, on account of the effect that armed students would have on interstate commerce.

There is a serious argument as for why this is a bridge to far fro the commerce clause. But it’s difficult to deny that the drug trade is interstate commerce, and more so to deny that the courts upheld a major part of the justification for drug laws and other ICC-based legislation.

Posted by: Stephen Daugherty at May 5, 2009 1:53 PM
Comment #281335

It wasn’t that long ago when Joe B and many others were talking about a new supreme court Justice and he was saying basically he’d go for the Regular Joe or Jane kind of nominee and would refrain from a pure ideologue or a super high Intellect we will find out.

Posted by: Rodney Brown at May 5, 2009 2:00 PM
Comment #281336

Ford, the last good Rpblcn, appointed the senior justice, Stevens, to the court in 1975. His family lived in Hyde Park, where he attended the U of C schools through college (BHOs daughters attended the same school). His father, Ernest, owned the LaSalle hotel and the Stevens hotel, which later became the Conrad Hilton, until about 1929.

http://supct.law.cornell.edu/supct/justices/stevens.bio.html

http://www.supremecourthistory.org/02_history/subs_current/images_b/003.html

Posted by: ohrealy at May 5, 2009 2:16 PM
Comment #281338

Got me there, I do Respect and Like Stevens though and I like kennedy to.

Posted by: Rodney Brown at May 5, 2009 2:25 PM
Comment #281339
You assume there is one interpretation, and that one is obligatory. While it is not reasonably arguable that the constitution can be denied as the source of our laws, the interpretations of that constitution are multiple, and not totally agreed upon in part or whole.

I think you are misunderstanding my position. It is not that some law or another might be interpreted one way or another, it is when that interpretation goes directly against the meaning and intent of the document as a whole that I have a problem with, as should all Americans.

The constitution is not a set of rights being conferred to the citizens, it is a document detailing the hard and exact limits that the federal government can operate within. By making decisions that, in effect, eliminate those bounderies, it destroyed the purpose of the document.

For example, Thomas Jefferson made a very clear point of detailing what the ‘general welfare’ clause means and how it should not be interpreted otherwise it would in effect eliminate the purpose of the constitution.

They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they sole judges of the good or evil, it would be also a power to do whatever evil they please…Certainly no such universal power was meant to be given them. It was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect.

Of course, we now have politicians and other hacks making THAT VERY ARGUMENT and getting away with it because of the expediency and desire for concentrated political power.

What do you think that Thomas Jefferson (who come claim is the ‘father of the Democratic party) would feel about what our country looks like today?

As for your reaffirming the interpretatins of the cases I mention, it was simply obvious that the government did not have the right it was granted through fiat. It should have been rejected and a constitutional amendment created that eliminated the private property rights that it obliterated. The federal government has (or should have) no say in what a private individual does on their private property. But, once we allow it, once, the power is now there and expands to the point where we have no protections from the government anymore, just the good will of the rulers to not violate our, now trumped, rights.

Lots of things will affect ‘interstate commerce’, their power was not supposed to extend to meet all of those things. Yet now it does and we have no real private property protection anymore, which was the foundation of this nation.

As I’ve said before, congratulations on completely ripping the meaning of the constitution up and throwing away. Or better yet, viewing those things you don’t like as ‘ink blots’.

Posted by: rhinehold at May 5, 2009 2:26 PM
Comment #281341

SD

From an upstanding member of the “obnoxious,hyperdominent,left”it is my hope that BHO nominates someone willing trim back the legal standing of corporations and help block interference with laws designed to limit their power or hold them accountable. I suspect that is what the real confirmation fight will be about, not the pro or anti choice dog and pony show or second amendment stuff.
It would also be nice if we don’t have much of that ,”There is no litmus test but…” crap. Of course there is a litmus test.Everybody knows it. It will also be refreshing that the rightwing theocrats will not be consulted about potential nominees, as they were under Bush. This is not Iran.


RH
On the bright side is that it a safe bet that BHO will nominate someone that recognizes the inherrant right to privacy enshrined in the Constitution and not attack the settled law regarding a women’s right to make procreative decisions without undue government interference. That means there will be at least one area you will be in agreement on.BTW, I admire what you have to say on the subject.

Posted by: bills at May 5, 2009 2:41 PM
Comment #281342

bills,

Yes, it is good that the right to privacy (found in the 9th amendment) will be preserved in this case, now if we can just get it extended to the rest of the society (like online gambling, drug use, person safety, etc) I will be very happy. And if Obama would start acting like more of a classic liberal than a progressive, I would probably be one of the first ones to jump up and support his efforts.

*daydreams*

Posted by: rhinehold at May 5, 2009 2:54 PM
Comment #281346

Roberts did admit he flubbed it up the first time. http://en.wikipedia.org/wiki/File:President_Obama_Re-Takes_Oath.ogg

Posted by: Rodney Brown at May 5, 2009 3:53 PM
Comment #281347

Thanks for that link Rhinehold. I loved the quotes from Justice O’Conner in the Gonzalas case-

Federalism promotes innovation by allowing for the possibility that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

and

Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.


and the quotes from Justice Thomas:

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.”

and

This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”

Posted by: George at May 5, 2009 4:04 PM
Comment #281351
It is not that some law or another might be interpreted one way or another, it is when that interpretation goes directly against the meaning and intent of the document as a whole that I have a problem with, as should all Americans.

Well, of course. The trouble there is that we end up having to deal with different People’s opinions of what that meaning and intent is.

So what do we do? We set people up on high to make those determinations. Laws and cases are put to the test. Judges and lawyers hash out the dynamic, ongoing problem of what the law and constitution mean in terms of our messy, everyday lives.

My post here is about the process by which we choose it, and how one side’s non-negotiable insistence on getting folks who make the interpretations they much prefer, their resistance to the legitimacy Obama’s exercise of his constitutional duty and privilege, is going to cost them the chance to have actual, practical influence on that choice.

The constitution is not a set of rights being conferred to the citizens, it is a document detailing the hard and exact limits that the federal government can operate within. By making decisions that, in effect, eliminate those bounderies, it destroyed the purpose of the document.

Hard and exact? In some places, it’s plain to see who does what and how. But in other places, the details are left to be hashed out. Thus the necessary and proper clause. Believe me, when politicians get around to it, they can define the hell out of things. They have pages JUST for definitions of what terms mean, especially now in the time of hyperclever litigators.

Excessive narrowness of definition, though, can hobble the ability of laws to work as intended, as well as constitutional privileges. Take the 4th Amendment. We extend it to cover electronic communications unimaginable in 1791. Do we need, in light of a theory of infinite exactness of language, to stick to just letters or things like that?

No, because language, used in a healthy, practical matter allows for some of its meaning to be recovered after the fact, rather than directly conferred by the exact language. The obvious intent of the language of the constitution was to protect the communications, homes, and person of the average law-abiding American from intrusion and seizure without cause.

The people who wrote the constitution didn’t think they needed to spell everything out for us. The problem with this, nowadays, is that people have gotten hyper-quibbly about legal language, we’ve forgotten much of the context that gave full meaning to the text, and there are a whole bunch of people, left, right, Libertarian, Republican, Democrat, who have their own personal mythologies as to what the original intent of the Framers, was. This isn’t helped by the fact that the framers themselves didn’t agree.

Jefferson is on one side of the constitutional argument, an advocate for states rights who only really threw his support to the constitution after he got the Bill of Rights as a concession. Yet we must face the fact that his party’s state-rights argument eventually got out of control, and the federal system had to reassert itself. That particular argument got a little bloody.

You ask what I think Jefferson would think today. I think he would find this world alien to his own existence, and I don’t honestly know how he would adjust. You might make one argument concerning how he would react to Marijuana’s criminalization, but how would he react to the effects and results of modern hard drugs, and the culture that surrounds them? You might say he would support unlimited gun rights, but how would he react to the weaponry and military technology of today?

This is the precise reason the framers gave us a Democracy, rather than erecting a temple to their own ideals and forcing that on us. This is the precise reason that such hypotheticals can be so pernicious. How many people understand what life really was like for the folks of that age, what their attitudes were like? How can we get past the problem of putting words and ideas about modern challenges and modern issues in their mouths, and using them as a circular arguments for our own ideas?

Private property is written into the constitution so it can be taken away by the government if just compensation is offered, more or less, but it is protected nonetheless, and searches and seizures are also regulated. We have a right to a degree of privacy, to retain wealth and property, though not all of it. Taxation, Seizure of property, and other powers are written into the constitution, after all.

It’s not disrespect to the constitution that property rights are not absolute, since the exceptions and mechanisms of its taxation and confiscation are written into the text. Different folks will emphasize different parts, use different philosophies and interpretations.

You seem intolerant to that. You may very well have sound reason for that intolerance, but so might others for differing from your opinion. The system was not built so it could be rigged to favor your particular political ideology.

Interstate commerce has gotten a lot more complex and involved since the days of Washington, Madison and Jefferson. Could you imagine what they would think of the internet? What they would think of the Interstate Highways System? What they would think of the huge businesses whose worth dwarfs small countries?

Why should we insist on an interpretation of this clause that doesn’t take account that the target for this particular clause of the constitution has moved incredibly far from where it was in colonial days?

Posted by: Stephen Daugherty at May 5, 2009 6:17 PM
Comment #281358
Well, of course. The trouble there is that we end up having to deal with different People’s opinions of what that meaning and intent is.

Well, the trouble is that there is no discussion about the intent because we have the people who wrote the document’s words written down to show their intent. We don’t have to guess, we don’t have to interpret, we have it as the historical record.

If you want to ignore that intent, if you want to support people who ignore that intent, for political expediency, that’s your problem.

We set people up on high to make those determinations

People. Yes, people, and people make mistakes and are subjected to political pressures. Which is what we saw in the 1930s with FDR’s manipulation of the courts. That is why those decisions can, and should, be reversed. They are not ‘set in stone. Case law can be changed, the words of the constitution can only be changed by amendment.

My post here is about the process by which we choose it, and how one side’s non-negotiable insistence on getting folks who make the interpretations they much prefer, their resistance to the legitimacy Obama’s exercise of his constitutional duty and privilege, is going to cost them the chance to have actual, practical influence on that choice.

And my response to that was that equally, those who think they have the ability to push their agenda onto the supreme court over the valid interpretation of the constitution is equally as bad.

Believe me, when politicians get around to it, they can define the hell out of things. They have pages JUST for definitions of what terms mean, especially now in the time of hyperclever litigators.

Which was why, thankfully, the founding fathers put the language as simply as possible so that even us lay people can read it and know what it means and know when our politicians are full of it.

Excessive narrowness of definition, though, can hobble the ability of laws to work as intended, as well as constitutional privileges.

Good, as it was intended.

Take the 4th Amendment. We extend it to cover electronic communications unimaginable in 1791. Do we need, in light of a theory of infinite exactness of language, to stick to just letters or things like that?

No, we need to change the constitution, through the approved amendment process, not just ‘change it’ because we don’t want to go through the ‘hassle’.

The obvious intent of the language of the constitution was to protect the communications, homes, and person of the average law-abiding American from intrusion and seizure without cause.

And how did that work out? Even those on the left side of the aisle admit that we are being spied upon on the internet constantly and we should just give up the notion of ‘privacy’. Aren’t we glad we allowed for it without hard limits set in the constitution that a constitutional amendment would have done?

we’ve forgotten much of the context that gave full meaning to the text, and there are a whole bunch of people, left, right, Libertarian, Republican, Democrat, who have their own personal mythologies as to what the original intent of the Framers, was. This isn’t helped by the fact that the framers themselves didn’t agree.

There was disagreement on whether they needed to spell out everything to us, the ones who should be here respecting the document, not gutting it. They even had disagreements on how much the federal government should be allowed to do. BUT, the fact that the FEDERALISTS were saying that the document should be hand binding and limiting, that should tell you something about how far afield we have come from their original intent.

And lucky for us, they wrote this all down. We know what the agreed upon intent was. It is not some ‘mythical’ anything goes scrum, as you would have us believe, allowing you to have your way and still believe you are following the constitution.

But the facts are that once you support changing the meaning and intent of the constitution for one single partisan belief, you lose any right to demand that any other issue is ‘unconstitutional’ and should be protected. IMO.

how would he react to the effects and results of modern hard drugs, and the culture that surrounds them?

I’m sorry, but the culture of today is not that much differnet than the drug culture of then. In fact, we KNOW the result of prohibition from just less than 100 years ago, but we don’t listen or learn. THe people of 1780 were not mythical creatures that could not imagine society being what it is today, they planned for it. It is those of us who have come since that have messed it all up.

This is the precise reason the framers gave us a Democracy

Except they didn’t.

You seem intolerant to that

No, you are ignorant of my views on the subject if you think that. What I am intolerant of is attempting to make the document a list of what rights citizens retain, not what it is supposed to be, a detailed and succinct list of what the government is limited in doing for ANY reason. Any additional powers that the federal government was to be given were to be added through the amendment process, much like the 16th and 18th amendments.

‘Things are more complex’ is not a valid reason to change the entire meaning and purpose of the document governmening our society. That is only a valid reason to seek to amend it, as proscribed, not ignore the troubling areas.

Could you imagine what they would think of the internet? What they would think of the Interstate Highways System? What they would think of the huge businesses whose worth dwarfs small countries?

Yes, in relation to the constitution, since that is the filter I view those things through. I don’t ignore what their reasoning and intent for governance was just because I want some partisan view to win out.

Posted by: rhinehold at May 5, 2009 9:56 PM
Comment #281359
Well, the trouble is that there is no discussion about the intent because we have the people who wrote the document’s words written down to show their intent. We don’t have to guess, we don’t have to interpret, we have it as the historical record.

If you want to ignore that intent, if you want to support people who ignore that intent, for political expediency, that’s your problem.

That’s a lot of ifs. Do I want to ignore their intent? No. Do I support people who ignore the intent of the constitution, much less just for expedience? No.

Let me lay this problem down as simply as possible: There is always an unavoidable difference of perspective between different people. Sometimes we can square that difference, sometime we can’t.

You assume that most basic of argumentative fallacies, that the other simply knows you’re right, but doesn’t want to admit it.

I don’t think like you. It’s not that I’m dense, stupid, or simply contrarian. I just don’t agree. And if you presented me with a case, and I knew enough law to judge it competently, I might come to a different conclusion than you would, and would likely think that my approach best satisfied the requirements of the constitution.

Don’t take it personally. That’s the way the world goes.

We need the Judges on the Supreme Court to be as resistant as possible to political pressure, yet be in some way selected according to some kind of Democratic principle. The appointment by the executive and the confirmation by the Senate constitutes one of the main checks and balances against a court where the members, short of gross malfeasance on the job have lifetime appointments.

Cases, and you’re right about this, are not set in stone. But even so, when the court makes a decision, compliance with it or dispute of it is not in cards. It’s decisions are final, and the binding interpretation of the law.

You are entitled to your opinion about the high court’s decisions, but to my mind, if what you really want is a change in the laws and the way the law is applied, you need to stop seeing your sense of the law as a transcendant reality everybody else needs to recognize, and instead understand it as an argument that needs to have convincing legal foundations and rhetoric that is compelling to more than just your friends in the political spectrum.

There’s no way to win an uphill battle, if you won’t even let yourself become aware of what kind of grade exists below your feet.

And my response to that was that equally, those who think they have the ability to push their agenda onto the supreme court over the valid interpretation of the constitution is equally as bad.

Over YOUR interpretation, which you consider the valid one. Part of the point of why the Framers set things up the way they did was to maintain the alignment of the public’s interests with the court. In a Democracy (or a Liberal Democratic Republic if you want to insist on formal correctness of political terms of art) Part of the check on the Court’s powers to interpret and reinterpret law was that the politicians of the Executive Branch and Congress would have a say in its makeup, allowing them to put court members sympathetic to their point of view.

They would be counterbalanced by other justices, who serving life-long tenure, would be perfectly capable of representing all the other points of view of preceding administrations, in addition to their own personal, developing philosophies of the law.

Which was why, thankfully, the founding fathers put the language as simply as possible so that even us lay people can read it and know what it means and know when our politicians are full of it.

The real trouble is, the indeterminacy of language is impossible to remove. Even the most anal legal definitions and logical constructs can be twisted and pulled into so much legislative taffy.

Folks in your camp of legal intepretation have a blindspot as far as this goes. You equate literalism and strict construction of logic with uniformity of standards and close mapping of intention and reality.

Do you understand what is wrought of this? Laws get more complex in order to get ahead of literalists interpretations. As they get more complex, the opportunity for loopholes grows, as the growing volume of jurisprudence weighs down from above.

The alternative, in a strict constructionist sense, is to just let the interpretations proliferate. However, due to the human imagination, the fact that small nuances can spell huge differences in interpretation, and the fact that folks alternatively forget or remember things that the authors of the bill knew, the interpretations proliferate anyways.

After all, we can always talk of people following the letter of the law, while violating its spirit. Why? Because words can and always will be twisted, even if you’re dead careful about how you compose every sentence.

No, we need to change the constitution, through the approved amendment process, not just ‘change it’ because we don’t want to go through the ‘hassle’.

We don’t change the Fourth Amendment because we know precisely what the Amendment means: The private portions of people’s lives, communications, property and whatnot are protected from search and seizure without a warrant or probable cause.

If we amended the constitution to deal with every peculiar instance of property, communication, organization or other parts of our private sphere, We’ll add in bulk without much increasing the substance of the amendment.

Thus, the necessary and proper clause. The thing you neglect to consider in your advocacy of the plain language of the constitution is that plain language in both colonial times and our own is characterized often enough by what is gracefully left out. That’s part of the reason why intent is important, at least in forming part of the calculus of law and the constitution.

We need to figure out what it is that was left out because it would have been obvious, and what was left out simply because it was germane, part of the intent in question.

You seem to advocate an acceleration of amendment, but has it occured to you that the proliferation of literal legalism would ring a deathknell for your political philosophy? The Literal Legalist MUST control every interpretation. Anything less than absolute control means things will spiral out of control. (It does anyways, but don’t tell them that.)

If our interpretation is looser, but still aimed at be accurate, we can better approach the task of approaching the law the old fashion way: through healthy, functional reason. In their quest to beat back activist judges, the Right and Conservatives have strangled much of the judges discretion in deciding cases. Ironically enough, this adds to the pressure to legislate the crap out of everything, due to the absurd results that often come of the constrained decision-making. In trying to fight judicial activism, Republicans create a situation where the law multiplies, invades, and overwhelms people’s ability to comprehend it.

We have to realize, ultimately, that the law has to be human manageable, human enforceable, or its worth nothing. a little flexibility of interpretation goes a long way to preventing greate complexity of legal codification.

More Amendments is not better.

Posted by: Stephen Daugherty at May 5, 2009 11:42 PM
Comment #281365

The Supremes ruled fairly recently that the 2nd amendment really does apply to individuals.They,the instituion had been avoiding this ruling for around 30 years by just not accepting cases that would require their clarification. I hope that BHO nominates someone that is at least willing to accept the settled law on that matter.
That being said,the ruling should have no great effect on gun statutes like the ones from the 30s that prohibit automatic weapons,sawed off shotguns and military weapons like grenades and launchers without elaborate licensing requirments. Why? RH,listen up. The Bill of Rights is NOT and never was a suicide pact.

Posted by: bills at May 6, 2009 7:47 AM
Comment #281371

I think Jefferson would fit right in -in short order. He had the Capacity To in reverse most all of US would fail on his turf .

Posted by: Rodney Brown at May 6, 2009 11:43 AM
Post a comment