Is Being an Originalist Supreme Court Justice a Simple Affair?

My heaviest casebook in law school was for Constitutional Law. It is a subject with a lot of different elements, including long lines of case law fleshing out the relatively imprecise words of the Constitution. Constitutional law particularly has depth and detail in areas like executive power, criminal procedure, administrative law, protections under the rubric of “privacy” and “substantive due process,” free speech, establishment clause jurisprudence, and the recent line of cases reevaluating states’ rights under the Tenth and Eleventh Amendments.

Hugh Hewitt and others have said Constitutional Law is not that hard, and thus Miers is up to the task. Under this logic, all law is not that hard. It's just a matter of reading the statute (or cases) in good faith and quickly connecting the dots. One wonders why we have lawyers at all. The necessity of lawyers points to the necessity of constitutional law specialists.

Law is a specialized field with specialized training, because it involves the analysis of language in light of broader legal policies that cut across the whole body of law. If you've ever seen a pro se brief or the briefing of a laywer that rarely analyzes actual law, it's quickly apparent why such work is done by specialists and that it's only done at the highest levels by the brighest, most rigorous lawyers. If you've ever read an intellectually incoherent state court decision, you see the costs of poor training and low degrees of intellectual ability. In the case of Constitutional Law the lawyering process is even more difficult, I would wager, because terms of art and considerations of structure and original intent require a broad education not only in statutory interpretation, but also some view of U.S. history, a concept of constitutional structure, and a view of standards of interpretation and stare deceisis that should apply to a species of statutory interpretation that is not easily remedied by the legislature.

Second, I'd argue even if constitutional law is far different from divining augeries, it does not follow that everyone knows it or can quickly be brought up to speed. That is, even if constitutional law answers are knowable, it does not follow that everyone knows them. For example, I think ERISA and Tax Law are knowable, but I wouldn't want to be a judge in either of those areas, as they are specialized fields with a lot of traps for the unwary. To those that think Miers can become an effective Supreme Court Justice because Constitutional Law is simple, they betray that they either don't know how compliciated the subject can be--e.g., the dormant commerce clause, Colorado River abstention, Footnote 4 of Carolene Products--or that they want a results oriented justice and are unconcerned how she makes her decisions. Just because something is knowable does not mean it's simple. If one believes constitutional law is at once knowable, complicated, and specialized, it's obvious why judges and other lawyers of great achievement and demonstrated intellect and knowledge of the field are the ones that you want making decisions. Without their intellect, their random and uninformed decisions will often be wrong and unpredictable. Consider, by way of analogy, the 50% reversal rate of lower courts' that consider patents and claim construction. Conservatives want this work done well, thoughtfully, and at the highest level. We want this precisely because we believe the work requires the application of the intellect and that if that is not done correctly, an objectively wrong legal answer can emerge.

Why do judges write opinions at all if the work they do is so obvious and the issues so straightforward? And what does it say about judicial claims of authority that they have long been staked on written opinions that have narrative integrity, both in a single case, and with respect to the law as a whole? Without power of their own, the judiciary depends upon its ability to justify its own assertions against those with phsycial power, namely the executive and legislative branches. This has been accomplished historically through written opinions that show a transparent and reasonable decisionmaking process. Opinion writing shows respect for the litigants and the process that is always somewhat suspect due to the absence of popular control over the judiciary. Writing opinions shows that what took place ultimately stemmed from the intersection of human reason, written laws with discernable meaning, and the facts of a particular case. That opinions are written thoughtfully and clearly is of fundamental importance to the integrity of the process and the reputation of the courts. The obvious results-oriented decisions of the 1960s did a great deal to discredit the courts, when ordinary people could discern that what had taken place was sophistry. Writing judicial opinions--like the analytical and writing process of so much law itself--shows that a result alone is not enough.

The best and brightest lawyers have long been propelled into the judiciary. By best I don't mean wealthiest or most persuasive in a courtroom, but those most capable of thoughtful, deliberate, and rigorous legal reasoning. It's important for conservatives to recognize that this task can be both objective--or at least with a range of reasonable disagreement--but also requires specialized training and a well-trained, capable intellect. It's no more elitist to recognize this fact in the realm of constitutional reasoning, than it is in the realm of physics or math or other specialized fields.

Finally, Supreme Court justices do much more than constitutional law. They interpret a great many federal statutes, including ERISA, tax, administrative law, and issues of federal jurisdiction. Harriett Miers likely has no experience in any of these areas. Dallas commercial litigators mostly litigate commercial cases under contract law or different Texas statutory and common law causes of action. I know, I litigated in that field in that city for four years. The kind of constitutional, administrative law, and federal statutory experience that specialized lawyers in DC and elsewhere acquire is largely not part of the skill set required to succeed in Dallas. There is no evidence from Miers' training, education, or experience that she has acquired this knowledge independently. And nothing in my own experience with Dallas litigators suggests that she would have.

Posted by at October 10, 2005 2:13 PM
Comment #84683


“The best and brightest lawyers have long been propelled into the judiciary. By best I don’t mean wealthiest or most persuasive in a courtroom, but those most capable of thoughtful, deliberate, and rigorous legal reasoning.”

Logic would dictate that wealthiest and most persuasive were at least once the best and the brightest.
I would also suggest that only those best and brightest lawyers, and judges that have the most experience will be able to wade through and translate the legaleaze without the magic decoder ring.

Posted by: Rocky at October 10, 2005 3:22 PM
Comment #84692

I have no doubt Miers has a great many skills and abilities that have led her to be a successful lawyer.There are certain practical courtroom and business development skills that successful lawyers have that are distinct from pure legal reasoning skill. It’s not that one is either dumb or brilliant. One may very well have all of those skills, but more often one is strong at one or another of them. Rare is the great public speaking lawyer, who is also capable of business development, and finally a brilliant thinker about the law. In fact strength in one may frquently preclude the other. Great ability to see the law in all of its complexity often makes one too careful and too deliberate to be a seat-of-you-pants advocate.

Posted by: Roach at October 10, 2005 4:13 PM
Comment #84693

I have to agree with you on the fact that most Lawyers are unable to read and interpret Law. As a Layman (One not learned in Law or Criminal Justice) who is able to defend my Civil and Constitutional Rights under “The Federal Common Sense Law of 1830/40” in the Courts of the Land, I am amazed at how easy I can and have take on my “Learned Peers” over the Rules and Regulations found in the U.S. Code.

From personally defending myself (something I do not reccommend) to being a political advocate for our citizens rights under the law, I have witnessed several Judges have to shut up (sorry, can’t remember the legal term) a Lawyer when him and I engage into a conversation over a Point of Law. Having been praised for my ability to use The Laws of Nature; The Intent of the Laws of the Land; and the Natural Course of Human Events to seek and defend what is known to be Unalienable Right Regardless for over 30 years, I still believe that I do not have the necessary experience to hold a seat on the Supreme Court.

The reason is simple. Although I can defend my own words and actions on an issue, I lack the expertise to seperate and pin peck the testamony of the individuals in a given case without wanting to interject my own point of view. It is for this reason that I respect most Judges and the oath that they must live by. For while Right can come in all shades, being and holding to what is Unalienable Right Regardless is made even harder when the Lawyers or Citizens only chose a narrowband of Case Law to defend their Point of View on the said actions of their case.

While I am trying to hold an open mind on Ms. Miers until I hear her in front of Congress, the fact that certain Republican Leaders is holding her to a different level of confidence than now Cheif Justice Roberts makes me wonder if she has the ability to use “Federal Common Sense Law of 1830/40” in reading and understanding The Constitution of The United States of America based on The Laws of Nature and God’s Nature.

Posted by: Henry Schlatman at October 10, 2005 4:14 PM
Comment #84697

While I am not going to pretend Harriet Miers would be who I would select, I would ask this question. What does the constitution say as to the requirements for a Supreme Court Justice?

Posted by: Lisa Renee at October 10, 2005 4:43 PM
Comment #84699

Almost nothing.

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

The protections of our liberties in that instance is the dual action of the President and the Senate, each cognizant of the power any Justice has by virtue of its Supreme appellate status and lifetime tenure of any individual Justice.

Posted by: Roach at October 10, 2005 4:49 PM
Comment #84703

So, Harriet Miers would meet that standard.

Sorry for asking a question I knew the answer to but I think the point is made without me belaboring it.


Posted by: Lisa Renee at October 10, 2005 5:05 PM
Comment #84711

Harriet Miers:
The left don’t like her. The right don’t like her.
She just might the right person for the job.

Posted by: Ron Brown at October 10, 2005 5:44 PM
Comment #84712

Chris, your article demonstrates a keen appreciation of the complexities of Constitutional Law. I tip my hat.

I will add that in addition to extensive knowledge and experience working with Constitutional law, temperament and institutional discipline are also extremely important qualifications for the Supreme Court. What do I mean? By temperament, I mean the ability to put one’s own personal drothers aside in the deliberation of case law in light of the Constitution and precedence. And by institutional discipline, I mean, having developed that long range sightedness that permits Justices to weigh future pros and con consequences against decisions favoring a particular case in the present sense, or plaintiff. Supreme Court rulings tend to outlive the plaintiffs, and therefore, it is vital that the Supreme Court decide in light of how a decision will affect the nation and its people, not just today, but, 50 or 100 years from now.

A Justice who puts their personal values over these other interests of the nation and its people, today and tomorrow, can be a tremendous threat to our nation’s future and its stability.

Posted by: David R. Remer at October 10, 2005 5:45 PM
Comment #84713

I realize this is a bit off-topic, but why should the laws of a democracy be so complex that an average citizen can’t understand them? I think it would be more appropriate to stear clear of the overly litiguous laws and bring it down to a common level so that people could really understand what is and is not expected of them.

I think if Harriet Miers could/would bring the law back down to a common level, that would be a good thing.

Posted by: Stephanie at October 10, 2005 5:48 PM
Comment #84720

Stephanie, even if one’s goal were to make laws knowable, precise, and udnerstandable, it does not follow that doing so is easy. To do that, one must still have a coherent constitutional philosophy, particularly because much of the constitution is fairly vague and calls for interpretation. Disputes will arise and only a coherent philosophy can sort these issues out. But any such philosophy likely will make one side happy and another not so much, precisely because the outcomes that will result. For example,

Is the regulation of an internal business process for a business proper under “interstate commerce?” If not, when does it cross the line into interstate commerce? This is addressed in Lopez and Katzenbach v. McClung.

Does a content neutral restriction on speech and expression—for example an noise ordnance—constitute a violation of the First Amendment’s guarantees of free speech? Ward v. Rock Against Racism, Sullivan.

Does a content neutral restriction of a religious exercise constitute an interferene with religion, e.g., a restriction on animal mutilation. Smith, Church of the Lakumu Babalu Aye.

What is the scope of protection afforded by the “privileges and immunities” and “equal protection” clauses of the Fourteenth Amendment? Boerne, Roe, Griswald, etc.

To pretend these issues are not real, vital, and complicated is to show that one knows little about constitutional law. To resolve these disputes or at least have a framework for doing so, one must have some kind of philosophy of constitutional law, which Miers so far has not done and likely will not be able to do during her confirmation hearings.

Also the requiremnet of a judicial philosophy does not have to do with a democracy being confusing. This is something properly addressed to the Congress and state legislatures which are always minting new laws. They should not make so many laws and hard-to-understand regulations. But once they do so, it seems only experts, i.e., lawyers, typically have the ability to figure them out. And much of the Court’s judging is concerned with when such laws are authorized and when they are not, and that question of authorization involves both the issue of enumerated powers and the substantive protections of the bill of rights.

Posted by: Roach at October 10, 2005 6:58 PM
Comment #84721

Stephanie, a good deal of legal complexity in general comes from Congress’s myriad exceptions to laws they pass.

Roach did a pretty good job of explaining Constitutional complexity, but, to get a clear understanding of why it must be so, one has to study the history of the Constitution, how and why it was drafted as it was, and the role of the Supreme Court since it was drafted.

Posted by: David R. Remer at October 10, 2005 7:10 PM
Comment #84725

As a Layman, use your ability to argue almost any subject based soley on what is right and wrong (i.e. The Intent of the Law) than apply the Laws of Nature to show something exists in the real world. Finally, use the Natural Course of Human Events to demonstrate why some action is Right or Wrong.

For example, Chris spoke of noise ordnance. The Law says anything over 80 db is to loud and thus is a violation. However, if the street noise is at 79 db and I have my radio playing at 81 db have I broke the Law or am I simply trying to drown out the road niose? A very fine line, but one that Judges must make everyday. Nevertheless, if I was playing my radio at 3:00 am at 85 db no one would say that is ok even if I was trying to drown out the road noise.

It is this finite lines and what allows for Individual Freedom vs. Socially Acceptable Behavior that rules the way we live. While you have a Constitutional Right to walk down the street and hug every telephone pole, the moment you step toward me to give me a hug you have broken the Law. Now, does Ms. Miers have the experience and knowledge to deal with these types of arguments?

Posted by: Henry Schlatman at October 10, 2005 7:28 PM
Comment #84726

To really see that there is at least some unavoidable complexity, one would have to read the Constitution, the Federalist Papers, Madison’s notes to the debates, Justice Story’s book on the Constitution, probably a few modern constitutional theory book’s like Tribe’s and Bork’s and Akil Amar’s, a few competing books on originalism like Original Intention and Original Intentions by Harry Jaffa and Mel Bradford respectively, the Administrative Procedure Act, Title VII, the Civil Rights Act of 1866, a book on federal jurisdiction, a book on federal rules of civil and appellate procedure, and a complete Constitutional Law casebook. For people with no knowledge of any of these things, it’s kind of silly to opine about how simple it should or should not be to be a Supreme Court Justice.

Posted by: Roach at October 10, 2005 7:29 PM
Comment #84734

You hear that, Stephanie? Henry Schlatman does not find you attractive enough to hug him!!!

Bad Henry!!! However, I am always willing to take a Hug from females!!! Feel free!!!

Posted by: Aldous at October 10, 2005 8:56 PM
Comment #84747

Excellent article Chris.

I think the idea of originalism is wrong. It seems to me that the idea of a Constitution that is static would be an anathema to the founders. Indeed, the first ten amendments seem to embody a recognition that the Constitution as written was incomplete. I think the body of case law over time that has shaped our collective understanding of the Constitution is an example of the genius of the system of government we have. While we can all abhor “activist judicial legislation from the bench”, I doubt seriously anyone would want to overturn Brown or Griswold. The organic process of developing our Constitutional precedence was genius at its inception and I beleive Madison, Hamilton and the rest realized that for the Constitution to have meaning, it must be adaptive of the times. After all, I don’t believe the 3/5ths clause of “other persons” is viable today although it is highly visible in Article 1 section 3.

Posted by: Dennis at October 10, 2005 10:20 PM
Comment #84748

Chris, BTW, I totally agree with you regarding qualifications for being a Supreme Court Justice. Regardless of whether or not the candidate has been a sitting judge. I do believe they need a general mastery of constitutional law and precedent. I don’t know enough about Harriet Meirs, but from what I’ve read I don’t believe she would be considered someone of significant scholarship in the field.

Thanks again for a terrific post.

Posted by: Dennis at October 10, 2005 10:29 PM
Comment #84749

Roach, the problem I have with what you’re saying is that I fear anybody would be “unqualified” to serve on the Supreme Court by the standard you seem to be using.

Who has a fully rounded out practical and educational background in environmental law, antitrust law, banking law, labor law, immigration law, intellectual property law, real estate law, food and drug law, occupational safety law, health law, securities litigation, tax law, product liability law, telecommunications law, criminal law, etcetera—the list goes on as far as the eye can see, doesn’t it? And doesn’t each of these areas of law bleeds considerably into other areas, making it impossible for anybody to have an authoratative command of the all the statutes and precedents relevant to any given case?

I’m not a lawyer, so I’ll bow to your superior knowledge on the subject, but it seems to me that constituional law is the rubric under which the rest of law exists, and that it will always be a struggle—for any judge—to figure out what consitutional questions apply to the diverse issues before the court. Issues that a judge would VERY rarely be a personal expert on.

Having personal experience in all but a tiny portion of the issues that might come before the supreme court is virtually impossible, isn’t it?
For this reason, a general judicial philosophy and an ability to retain and sort through the conditions imposed by often conflicting laws seems more important to me than experience, per se, in any particular matter.

Does Miers possess this ability? I don’t know, which is why I’m just as frustrated and irritated by her nomination as you are. I really don’t know.

But I wonder if the lack of relevant experience complaint you raise is really the most pertinent and realistic way of framing the problem.

Posted by: sanger at October 10, 2005 10:44 PM
Comment #84754

While I like the list of books you made and agree that a person should have a grasp of these points of views of the Law, but applying and holding The Law Constitutionally deals with a lot deeper understanding of Human Nature and the need for a Nation & Society to grow with the Knowledge and Wisdom gain by Individuals and Society as a whole. For it is these larger questions and the effects of the answers that a Judge must weigh in even accepting to hear an argument.

One of the questions that I like to ask Judges is the speed limit law. Since I can recieve a ticket for doing the speed limit in adverse weather (i.e. driving to fast for road conditions) does that mean I can go faster than the posted speed when road conditions are perfect? Considering the way we develop the speed limit for a given area, doesn’t this make all speeed limit laws subjective and thus unconstitutional?

BTW you’ll be happy to hear that no Judge will allow me to bring the case in front of the Court for reasons that I am sure you are aware. However, as the Judges keep pointing out to me “If I allow your reason and logic to go forward, what and how can the Court do about speeding?” Unable to pull any reasonable answer using the same line of logic does The Public win or does the Individual Rights win on the issue?

While the Law could be struck down on tech reasons, the ability of Society to ensure Public Safety would have a greater effect. Thus, by accepting the argument would not a Judge be making Law instead of interpreting it? I’m not sure; however, I have spoke to some Lawyers that think that they should. I do know that the State of N.C. has since changed the Law on speeding to where the posted speed limit is the absolute fastest someone can travel.

Posted by: Henry Schlatman at October 10, 2005 11:18 PM
Comment #84851

What is the ““The Federal Common Sense Law of 1830/40”?

Posted by: Mark at October 11, 2005 8:57 AM
Comment #84867

“Supreme Court rulings tend to outlive the plaintiffs, and therefore, it is vital that the Supreme Court decide in light of how a decision will affect the nation and its people, not just today, but, 50 or 100 years from now.”

How can you expect this?
You are talking about rulings based on laws that can be changed by policy makers who are more interested in the current issues (and their special interest groups). The same people who pick the judges they want because they want a certain policy that effects all of us upheld.
The Judges are NOT supposed to make laws or change them to fit what they believe policy should be either now or 100 years from now.
I thought the SC is supposed to rule on cases based on the past and present NOT the future. Base decisions on CURRENT law NOT what they believe the laws should be or how they should read.
The policy makers are the ones who need to make laws that are understood. Any ‘good’ lawyer can twist ‘intent’ and interperate most laws to fit their clients needs.
IMO some laws that are written are unclear intentionally so that the ones writing them can leave it to the courts to decide what is actually constitutional or not. This is where the problems begin. Then the lawmakers complain that their laws were ‘interpreted’ wrong when the decision goes against their ‘original intent’(depending on the loud moaning from their voters).
It is all nothing but a word game.

What is most amusing is how ‘we’ went from accepting that we shouldn’t know all of a judge’s personal views (because they are not supposed to matter) to ‘we’ can’t confirm her because we don’t know her personal views.
I can just see the ‘framers’ laughing their asses off at all the ‘intellectuals’ who couldn’t possibly know their intent but think they can interpret it.
Good thing there is more than 1 Supreme Court Justice.

Posted by: dale at October 11, 2005 9:44 AM
Comment #84879

Henry it sounds like you’ve been reading some crack pots. Briefly, on speed limits, the text of the speed limit law defines your obligation. On top of that, there are standards governing road conditions and weather in other ordnances. These are twin prohibitions. You must pass through both nets to be in the right. The fact that you can violate one only in bad weather does not give you any rights to violate the other in good weather. These are simple issues of statutory interpretation and your confusion in the face of them only suggests to me that you and other nonspecialists would muck up the constitution if you were given power to do so.

Posted by: Roach at October 11, 2005 10:23 AM
Comment #84905


excellent post.

To get the most fundamental point about our legal tradition and why strict interpretation is problematic, I want to remind everyone we are a nation that is based upon English common law.

Common law is a system in which the law is a combination of tradition, custom and precedent, as stated in the decisions of the courts. It is the foundation of law in the US, Canada, England, Ireland, Scotland and Australia.

Civil law, where the law is what is written in a statute, is the primary rule in Louisiana and in Europe.

There are written statutes in common law countries, but they are always amended by judicial decisions which apply those statutes more precisely.

Coming from a common law background, none of the founding fathers even questioned that courts would write decisions that would become the law of the land, the SC included.

This is where the argument that interpreting laws strictly falls on its face - it goes against our entire system of laws and our legal history, which dates back to the Magna Carta.

If you understand this, you get the complexity and importance of understanding laws in societal/historical context and why decisions, as a constitutional lawyer, must be looked at within the context of the next generations.

The constitution is the framework, albeit an incomplete one, within which our society works - reading it literally misses most of what it was intended to be.

Thinking that interpreting constitutional law and writing legal decisions is common sense is like saying that performing brain surgery is a function of knowing the steps and having steady hands - would you trust your brain to an auto mechanic without the shakes?

Sorry, constitutional decision making is beyond the reach of most lawyers(this one included), let alone the uninitiated. Everyone can’t do every job, everyone is not capable of a perfect score on their SATs, everyone cannot get a 4.0. And being a realist requires recognizing this.

Here is another thing you forget about SC cases - the justices and their clerks sort through thousands of cases to pick the 1-2% they actually hear arguments on. They still make decisions on those thousands of cases they chose NOT to hear.

Being a SC justice is an intellectually rigorous job, whose reward is the doing of the job itself. And it is not for one with no constitutional background, even though the president is free nominate anyone.

Last point - you need to be a supremely bright (pun intended) justice to manage your law clerks. A SC justice with less training and brain power than his/her staff will find themselves being led to decisions by them. If we elect Harriet Miers, her decisions will be made by her clerks - guaranteed.

Posted by: CPAdams at October 11, 2005 11:23 AM
Comment #84919

Why are Republicans always stonewalling? I demand an immediate up or down vote on Miers! :)

Posted by: American Pundit at October 11, 2005 12:24 PM
Comment #84929

Why are Republicans always stonewalling? I demand an immediate up or down vote on Miers! :)

But I didn’t hear you calling for an immediate up or down vote on Roberts.

Posted by: Ron Brown at October 11, 2005 1:33 PM
Comment #84943

To all
Time to throw in my conservative two cents.

First off,judicial temperment and lack of corruption have always been the deciding factor in confirming an appointee.

Abe Fortas got hammered back during the Nixon years on precisely that issue…corruption.

Outside of that the President can nominate whomever he chooses..including a non-lawyer or judge for the post.

Ever read Stranger in a Strange Land by Micheal Valentine Smith?In that book he had professionial jurists called Fair Witnesses sitting as jurors.Professionially trained witnesses.

In Italy if you want to become a judge you go to school for precisely that…pass the exam and you become a judge.

Maybe we should do that here..have candidates take a test.


The president knows the nominee inside and out.His word is good enough for me.This woman will assure that a conservative/moderate (note I am not saying hyper conservative) view remains the swing vote for a long time.

Really it’s his peragotive…he doesn’t need a consensus from the left or center either…he won the election last year,remember.

On a philosophicial note,Roe really created a deep divide in this country when the righhty to proivacy was created judicially…”pneumbra” is the word the justices used,I believe.In other words they took elements from the First,Fourth,Fifth,Eleventh amendments and “created” the right of privacy despite the fact that nowhere in the constitution does the word exist.

This issue is a matter of conscience and it is too bad that it has now become the litmus test for a nominee.

The president may very well be able to fill a third slot before his term expires… that should give a little heartburn to our lefty friends,no?

Posted by: Sicilian Eagle at October 11, 2005 2:32 PM
Comment #84952

“The Federal Common Sense Law of 1830/40” is a Supreme Court Ruling that states All Laws must use and make Common Sense using The Laws of Nature; The Intent of the Law of the Land; and the Natural Course of Human Events to come to their conclusion And do it in a manner that a Layman (one not learned in Law or Criminal Justice) can come to the same conclusion.

Take for example the speed limit law. While it can be argued that it does not make “Common Sense” that I can get a ticket for doing the speed limit in adverse weather, but can’t drive faster on the same road during excellent road conditions. As pointed out by Chris, the Law is written and applied in such a manner that it does make “Common Sense” to the average citizen when looking at the “Big Picture” and the “Individual.”

While you probably will not get pulled over for doing the speed limit when it is raining cats and dogs, even if the rest of the flow of traffic is going 10 mph slower; however, cause an accident or violate some other law that puts into question your speed as part of the equation than the Officer has every right to charge you with “Driving to fast in adverse road conditions.”

Although I can prove that one part of the Laws governing the speed limit does not make “Common Sense,” I must be capable of proving that any ruling on the subject would not have adverse effects on society. Hence, if the “Speed Limit Law” was proven to be unconstitutional, how would the Court control the Public Safty on the roads and in our neighborhood? What about the other “Prohibitions” that come into play? How would it effect them? Do we really want to say as a society that it is ok to drive 90 mph through your neighborhood?

Again, Chris and CPAdams are right about how one reads “Common Law” and the “Statutory Interpretation” of them. It is also the same reason that as a Layman, I can defend my Civil and Constitutional Rights based on the Ideology of being Unalienable Right Regardless as seen through the eyes of the “God of Nature.”

Complex and confussing to the point that most people get lost even in the bring an argument, our Constitutional Laws are designed by Nature to be held at a standard of “Common Sense” that goes above most peoples realm of thought because the Rulings must withstand the “Test of Time.” Yes, as our (Society) Common Knowledge grows over time some factors change, thus the Law changes to keep up. And that is why any Supreme Court Justice needs to be able to interpret constitutional law and write legal decisions that make “Common Sense” to us simple Laymans. For without that standard the Law, itself becomes mute based soley on Human Nature. If I don’t understand something, I don’t care; thus I’m not going to follow it. Time and Time again that has been proven correct both in reality and Case Law.

BTW Chris,
Because I am not that well versed in “Constitutional Law” and how all Laws interplay upon each other, I would agree that I would screw up the Supreme Court. It is also the reason that IMO Ms. Miers is not qualified to be selected. While Cheif Justice Roberts and me probaly have a slightly different view on what “IS” is, I have no doubt that he will use the same Standard of “Common Sense” that I would use to draw a conclusion. The difference is he knows a whole lot more Law and Case Law than I do or even want to as a simple Layman.

Posted by: Henry Schlatman at October 11, 2005 3:02 PM
Comment #84958

Henry, two things.

First, it sounds like you’ve been reading the learned writings of the Michigan Militia and the Freeman. You say, “If I don’t understand something, I don’t care; thus I’m not going to follow it. Time and Time again that has been proven correct both in reality and Case Law.” This is just false. People go to jail all the time for doing things they think are right, but are in fact illegal. We may have natural rights, but we also live in society with other people. Further, we have certain political rights—like the right to vote—that can only come into being in organized society. Thus we have positive, written down, and generally applicable laws that courts apply and enforce and interpret based on their written down meaning. This is the analysis of language. Freestanding thoughts about right and wrong—upon which reasonable men have hundreds of different opinions—do not modify or change the application of statutory or common law. The federal courts are not even common law courts; they’re courts of limited jurisdiction that either interpret federal statutes or the law as defined by state courts and legislatures in diversity jurisdiction.

I think your writings on this subject are incoherent, unclear, and pseudointellectual, Mr. Schlactman. You’ve note even cited this case you keep talking about. Let me tell you, I’ve read every major Supreme Court decision in the last 40 years and no one has gotten off or gotten any benefit from some obscure 19th Century Case that says common sense should inform judicial decisionmaking. Even if it should, the text and its unambiguous meaning remains primary.

The exact balance of our natural liberties and social obligations is the work of the legislature and has been since this country started. Consider, if nothing else, the extensive regulations of markets, property, estates, and the like since day one, both under the common law and under state statutes. I strongly recommend my professor William Novak’s book Salus Populi for an extensive discussion of the various ways social regulation have stretched back to the earliest days of this country. And I strongly recommend to you and everyone else here not to think something nonsensical cannot result from the strictly written down language of a statute. Consider the case of the man who was able to keep his inheritance after murdering his parents in the late 19th Century. Of course the legislature quickly changed the law thereafter.

Posted by: Roach at October 11, 2005 3:39 PM
Comment #84980

A Justice who puts their personal values over these other interests of the nation and its people, today and tomorrow, can be a tremendous threat to our nation’s future and its stability.

That is a very strong statement. It is equally correct. I am just curious about your views on what I believe to be a related topic. Are the Justices doing that when they quote foreign laws and rulings in their decisions? I saw Justices Scalia and Bryers debating this on C-SPAN and am just curious.


Posted by: submarinesforever at October 11, 2005 7:24 PM
Comment #85017


Okay, back-track to the point where you KNOW that Miers isn’t familiar with Constitutional law, since that’s what your argument is dependent on. For myself, I know virtually nothing about the woman, so I can’t say whether she is or is not qualified. Luckily, it isn’t up to me anyway. For all we know, studying Constitutional law may have been a hobby for her, which might be part of why she got chosen. WE DON’T KNOW. That’s my problem with Miers. Nobody seems to know for sure what she’s about.

Then, going back to my point, assuming she gets confirmed, assuming she has or quickly develops the sense necessary (even if she has to borrow some of it from her peers, after all she won’t be there making the decisions alone) to make the decisions with which she’ll be faced, her being less of an intellectual will then give her the ability to help write the responses in such a way that they would be more approachable by the American public.

I would also like to point out that even the decisions that have been made are open for interpretation as to how they would/should effect any current decision…which isn’t even addressing the fact that the Supreme Court has the power and at least the occasional tendency, to change its collective mind over a particular issue. So, while being familiar with past issues of Constitutional law is very important, having it already drilled into ones mind what these particular decisions mean isn’t necessary, or in my mind even advisable.

Having predictable laws is not, in my mind, more important than having laws that make sense and are understandable to the general public. To use an example…until relatively recent it was legal in Missouri to shot a Mormon on sight. Now, if such occured and this law was used as justification, it would probably have gone to the SC and been over-ruled as unConstitutional. However, that didn’t happen. Missouri took the law off their books. Now, one might argue that this wasn’t a consistent act, since it had been a law for quite awhile. However, it made sense and it was right.

Posted by: Stephanie at October 11, 2005 11:11 PM
Comment #85022


One more thing…

“Also the requiremnet of a judicial philosophy does not have to do with a democracy being confusing. This is something properly addressed to the Congress and state legislatures which are always minting new laws. They should not make so many laws and hard-to-understand regulations. But once they do so, it seems only experts, i.e., lawyers, typically have the ability to figure them out.”

I understand the complexity of our current laws have more to do with the legislature than the SC…I’ve always thought it unfortunate that the majority of our laws are written primarily by lawyers. In that, I think the Romans had it right, though I’m sure they did it for different reasons. There should be those few “normal” guys there who, like Josh in the movie “Big,” are just there to say, “I don’t get it.”

Posted by: Stephanie at October 11, 2005 11:20 PM
Comment #85024


“Roach did a pretty good job of explaining Constitutional complexity, but, to get a clear understanding of why it must be so, one has to study the history of the Constitution, how and why it was drafted as it was, and the role of the Supreme Court since it was drafted.”

Lisa Renee did a very good job of demonstrating that as far as the Constitution is concerned Miers is qualified. If the position of a Supreme Court justice is philosophical in nature, then it should not require strict adherence to past decisions, and as history has proven it does not. Perhaps, having seen how a certain decision played out in the real world is more necessary then being overly familiar with how and why that decision was reached.

Posted by: Stephanie at October 11, 2005 11:25 PM
Comment #85026


I’ve no need to go to court at this time. The only time I’ve been to court was to testify against a juvenile criminal. And the only time I can foresee going to court is to fight, along-side my husband, for custody and placement of my step-son. So, debating the law in front of a judge isn’t something I’m really concerned about. All things considered, I’m a pretty good, law-abiding citizen.

Oh, and for the noise problem, use headphones or ear plugs, then you avoid the whole legal issue entirely! :-)

Posted by: Stephanie at October 11, 2005 11:29 PM
Comment #85028


I thought you weren’t living in the US. That would make the possible situation of me giving you a hug while passing on the street a statistical improbability, but I’ll keep it in mind should we ever cross paths.

Posted by: Stephanie at October 11, 2005 11:31 PM
Comment #85111

I said “”If I don’t understand something, I don’t care; thus I’m not going to follow it.” Thus, if the Law does not make sense than I’m not going to follow it. And you call that we are governed by “The exact balance of our natural liberties and social obligations is the work of the legislature.”

One comes from the Individual’s Point of View. One comes from the Social Contract of “We the People” through a representive government. However, the 18th Amendment proves my Point of View. While it was illegal to drink on The Books, Reality of our Land was something totally different than the Intent of The Law. That is why I can use Common Sense and seek the Truth in The Law by our Spoken Word and Lawyers have to keep to the Books; however, both of us are held to what is Unalienable Right Regardless according to the Written Law as The Judge (s) views it. How well one prepares their argument or breif to fit the partical nature course of Human Events that they are debating “Points of The Law” in a manner that is believed based of Reality of The Intent of The Law passed before Congress and that which is brought before The Bench.

Although Lawyers are probited by Law to use this method of Reasonable Deduction, I have spoke with several “Senior” Judges and Congressional Representatives to know what I am talking about. What seperates your burgen as a Lawyer is you get off the hook based on what is allowed in Court. Since I can only defend myself with this method I must be able to prove based on the Evidence why my actions were Unalienable Right within a Realm of being Regardless. The Right that I must give up at that point is the simple fact that if I am wrong on one question than The Judge has the Right to call my testamony out as being wrong. Not a fun spot and while most people seeking Lawyers proably have already lost that right under the 5th Amendment. In other words if I can’t prove to the Judge what I did was Right regardless of what I’m charged with than I need a Lawyer. Still, I do not recommend to anyone to try it because while the theory is real neat to learn and understand, saying the America’s Judical System is not seeking what is Unalienable Right Regradless by the Spoken and Written Laws of Man and Nature is taking Powers away from that Branch of The Government.

Posted by: Henry Schlatman at October 12, 2005 4:44 AM
Comment #85144


Please provide the cite for your claim. Your paragraph below carries no weight without citing the specific Supreme Court Rulings. Also, how can a single ruling be referenced by 1830/40?

“The Federal Common Sense Law of 1830/40” is a Supreme Court Ruling that states All Laws must use and make Common Sense using The Laws of Nature; The Intent of the Law of the Land; and the Natural Course of Human Events to come to their conclusion And do it in a manner that a Layman (one not learned in Law or Criminal Justice) can come to the same conclusion.
Posted by: Mark at October 12, 2005 7:40 AM
Comment #85161

Roach, good article, but I have to agree with SE (ahhh!). It’s Bush’s call, he can nominate anyone he wants. Unless Miers is corrupt or insane, she seems to have all the qualifications necessary for the job under the Constitution.

She wouldn’t be my first pick, but I’m not the President. *shrug*

Posted by: American Pundit at October 12, 2005 9:02 AM
Comment #85189

Henry, you’re making no sense whatsoever. This is not just a matter of me being too steeped in the mores of my profession; you are simply a sophist with a poor education. I suggest you read a few dozen books before you make a fool of yourself any further.

American Pundit, what then is the purpose of Senatorial advice and consent if the President’s choice deserves unthinking and uncritical deference?

Posted by: Roach at October 12, 2005 10:27 AM
Comment #85311


How is it Unalienably Right to be more concerned with figuring out how not to get punished, then figuring out how to obey the law? If you can go through so much trouble to understand how to argue you’re way out of punishment, it goes to show that you should be quite capable of understanding what you’re expected to do to be within the limits of the law.

Posted by: Stephanie at October 12, 2005 6:43 PM
Comment #85322


Thank you for your initial post, your article was excellent. I am new to this blog and I appreciate the respective viewpoints here. Roach, your expanse knowledge regarding the subject here is quite respectable even though it has been challenged by those not nearly as knowledgeable as well as those who are blatantly without knowledge on the subject. I thoroughly enjoyed the insight you provided on the subject of constitutional law and can see your passion for it. Being as advanced as you are in your field, I respect your opinion as to the should be qualifications of a Supreme Court nominee even though I believe Lisa Renee made a very good point and I agree with Stephanie and think it is important to have a layman’s perspective represented on the Supreme Court.

I believe that the entire purpose of our constitution is to protect the rights of the people in an effort to form a great union of people, as the pre-amble indicates. IMO, superior level judiciaries can move to a level of intellect in their interpretation of legalese that puts them out of touch with the layman’s perspective leading to decisions being made that can be a detriment to the general public as a whole. In the recent ruling of Kelo vs. The City of New London, this is exactly what happened. While I understand the perspective of both sides of the ruling, I believe the lack of a layman’s perspective overall, prompted a split decision weighing more heavily on the side of the legalese interpretation. This ruling, IMO, will have a negative impact on a large number of real estate owners in this country, primarily those in blighted residential areas where individuals are less likely to replace the homes that will ultimately be taken from them. Had there been a greater representation of the layman on the Supreme Court, this ruling would have been different. The decisions of this case open the door to condemnation of any homeowner’s property merely because there is an “approved plan” for redevelopment in a given municipality. Owning a home IS the American Dream and regardless of the legal interpretation, it should be common sense that the taking of ones home for the benefit of greater financial gain of the majority is simply not right. Again, I can see both sides of their (Supreme Court Justices) interpretation of the law, but that doesn’t make the ruling right for the people of this nation.

Again, thank you all for your postings. I enjoyed them very much.

Posted by: Laura B. at October 12, 2005 7:54 PM
Comment #85527

Oh! Happy Day!

Pundit actually agrees with me.

Full moon this week or what?

Posted by: Sicilianeagle at October 13, 2005 7:07 AM
Comment #85566

Thank you, I’m glad to see that somebody gets it. Giving this Cardinal Knowledge of Law by My Elders in the Community to keep me out of trouble, I am amazed all the time by how following the Laws of America and being Right by Self Nature goes hand in hand. Although IMO it is impossinle to live an Absolutely Unalienable Rightous Life in Ameruca, I do believe that The Law and more important Public Opinion/Self-Nature of all Americans feel that way.

No I can’t link to the case because as a Judge told me before “I don’t need to read it.” Why I don’t know, but when a Judge tells “Or Other” do you really want to push it? However, basically it is a ruling about the time some one called into question on how our government Judges what is “Right by Law?” Where do we draw the line of “Human Self-Nature?”

Nice thing about being a Layman is that I don’t need to know Case Law, all I have to prove is that it is part of My Self-Nature to act in a manner that allows me to be close enough in my actions and words that I have/was in My Civil and Constitutional Rights to act that way. Like I said not an easy tash considering it is up to the Judge if he wants to even hear it. And proving that you are/were in The Right of the Law only leads to the Judge asking you why you know those actions are Right.

Our Founding Fathers wrote the Declaration of Independence and The Constitution of The United States. In the Declaration of Independence, they wrote that a government should follow the “Laws of Nature and “God’s Nature.” So as a Citizen, I do believe that our Laws of the Land are based on The Laws of Nature held to the same Standard as found in The Laws of “God’s” Nature.

It is an Unalienable Right Fact that picking up a “Red Hot Coal” will burn you bare hand and to say it will not damage the skin in a manner that has been effect by extreme heat is just simply wrong. However, we can argue and debate all day long on the different causes and effects that can be the result, but the fact still remains that picking up that “Red Hot Coal” got your hand burned. Now, do I learn this from Others, Reading, or my Own Experience and Self-Thought.

We all have different opinions and interpretations of the way we look at the Law; however if you can not fit your argument into the “Peg-Holes” provided in The Law so that you are found to be Right by Peers at the end of the day than why do we have Laws? On who’s Standard of Righteous do we place Our Laws up to The Light?

And when it comes to My Supreme Court Justices, I want them to be able to tell me what Our Founding Fathers meant when they wrote the words “We the People…” For the only way to look at another citizen is as a Consumer and if what is asked of the Court is good for all Consumers because “I the Consumer” can not have “It All” until some one figures out how to make it so that “We the Consumers” can have “It All.” Look at The Law and the why our Justice Systems works. Consume properly and no harm will come to you. Step out of line and deal with what you have to deal with in a timely manner and everything is ok. Nevertheless, there are those few than will step over The Line were consuming is seen as “Socially Unacceptable” and that is were Lawyers are needed. Because sometimes the “Story” required to be told to the Judge might just get to close to that Line for one to be honest by Self-Nature.

Posted by: Henry Schlatman at October 13, 2005 9:09 AM
Comment #85599

More sophistry from Harry. Also, the Declaration says “Nature and Nature’s God,” not Nature and God’s Nature as you say.

Laura B. thanks for the compliment. As for Kelo, it’s a technical question whether the public use language in the takings clause is limited. There is a reasonable view that it includes the right to take property for any police power authorized usage. So long as the property is compenstaed, there are checks on local government usurpation. Kelo distracts us from the bigger problem, de facto takings through regulation and zoning.

As for the layman’s perspective, that’s the job of the political branches, the local and federal legislatures. The Court’s job is technical, to intepret the objective meaning of thoir laws once they’re put to paper. Since any law and any constitutional right represents a balancing of interests, it’s probably counterproductive for the Court to be too close to any of the litigants. Their detachment is a virtue, not a vice.

Posted by: Roach at October 13, 2005 11:24 AM
Comment #85603


You do need to know the law, or at least be able to back yuorself up. Your sophistry is clear when you make the statements below. The problem is that some poor fool will believe you, attempt to use your logic in court, and get thrown in jail for such foolishness. BTW, I too am just a layman but I read case law and know the importance of shepardizing law. Please stop leading people astray. There is no such case law and no such humanistic centered philosophy, as you present, under the law. “The laws of nature and of nature’s God” means the natural law and divine law.

Nice thing about being a Layman is that I don’t need to know Case Law, all I have to prove is that it is part of My Self-Nature to act in a manner that allows me to be close enough in my actions and words that I have/was in My Civil and Constitutional Rights to act that way. Like I said not an easy tash considering it is up to the Judge if he wants to even hear it. And proving that you are/were in The Right of the Law only leads to the Judge asking you why you know those actions are Right.
Posted by: Mark at October 13, 2005 11:49 AM
Comment #85604

Okay, I get it now and understand what you are saying, Roach. Thank you. Rather than correct an ill-written piece of legislation through the courts, we really need to write better law, period. I guess thinking the courts should be the welfare mom and pop of the legislators is a rather liberal thought and taking from one to give to another doesn’t correct the problem at the core rather it makes the chain of mess just that much longer! I get it! Thank you for enlightening me.

Posted by: Laura B. at October 13, 2005 12:02 PM
Comment #85617
American Pundit, what then is the purpose of Senatorial advice and consent if the President’s choice deserves unthinking and uncritical deference?

Aww, Roach. Now you’re just putting words in my mouth. Boo.

I said Miers is qualified under the Constitution, and Bush can nominate anyone he wants. If Congress wants to giver her the thumbs down, that’s fine, but not having argued a case before the Supreme Court doesn’t automatically disqualify her.

Posted by: American Pundit at October 13, 2005 1:00 PM
Comment #85629

American Pundit, the implication of your remarks were that she’s qualified because there is no formal requirement of skill or ability or education to be a Supreme Court Justice.

There are de facto and de jure qualification issues here. She may be de jure qualified—pretty much any American citizen is—but whether she is qualified in the broader sense of that term is at issue, and there is a good case to be made she’s not. If she is, there’s little evidence of it. That’s why we, participants in our political process, are voicing our opinion on the subject.

Posted by: Roach at October 13, 2005 1:59 PM
Comment #85644


“Thank you, I’m glad to see that somebody gets it.”

Huh? I have no idea why you’re thanking me. What I said was not at all complimentary.

1) You consistently write about what is “Unalienably Right.”

2) You are currently writing about talking your way out of punishment, in front of judge, by saying the law you broke was either a) not Unalienably Right or b) not understandable by the common man.

3) Yet, you are using psuedo-legal sophistry which, by it’s nature, determines that you are quite capable of understanding the law and using techniques to get around it in a way that does not demonstrate your own tendency to be Unalienably Right.

Today I saw a t-shirt that said “It’s only illegal if you get caught.” It seems your attitude is “It’s only illegal if you can’t argue your way out it.” Neither attitude is one I can support. And, imho, neither attitude is anywhere near Unalienably Right.

“Although IMO it is impossinle to live an Absolutely Unalienable Rightous Life in Ameruca…”

The only response to that I can offer you is Christian in nature, so I’ll spare you.

Posted by: Stephanie at October 13, 2005 3:42 PM
Comment #85768

You may say my statement is sophistry; however, having invoked it in The Court of the Land and several times with Judges and Lawyers present I can ensure you that it is real. Even as a Lawyer you are bond by The Law not to bring anything forward to The Bench that does not exist (i.e. The Laws of Nature) You than must bring proof of why something is Right/Wrong under The Intent of The Law. You are than required to show how through the Natural Course of Human Events works to prove your Point of View on The Law. All the time not saying what is right/wrong for that is up to The Judge to decide. You can’t say the cow jumped over the moon for unless you can prove that a cow can factually jump over the moon.

You may have the law degree; however, as I have said before I do not recommend that others try it in the Court of Law. Nevertheless, I’m curious so where do you believe that Absolute Right in The Law is drawn from? Belief? Abstract Ideas from Others? Rulings by Courts? All important to shape an opinion, but not all have withstood the Test of Time.

Law like The Constitution must be able to grow with the Intellect of the Citizens or perish. While there are countless laws of the books from every subject from A to Z, their ability and usefulness in the 21st Century Society can be questioned by every American. Having people like Judge Roberts and Scallia on The Supreme Bench is actually a good thing. Although I disagree with some of Scallia’s Rulings, I do respect his ability to “Gap” or what I call “Being Unalienable Right Regardless” the two sides of The Law.

What is Right for “We the Consumers” vs. “I the Consumer” or more directly to the Point of Law in Today’s Society “What is Right for “We the Corporations” vs. “I the Corporation” is by Public Creed the Beast of Nature leading the Social Contract of America since the 1970’s. This guiding light of Truth, Justice, and The American Way was put in action by Our Elders after Kent State, Ohio proved all sides of society wrong by Self-Nature. All I add to the Great Debate of Society is the cold hard fact of life that they to consume and as such should be treated as any other consumer. So how does that step outside The Rule of Law?

While it is an absolute fact that no single corporation could supply the World with everything we. Humans, want and need, it is through learning and understanding that a single consume can have it all while staying in the Framework of Our Constitution. Where we draw that Line of Humanity (“Society Acceptable and Capable of anyone generation to effect) is left up to people who are willing to put their own personal unalienable Rights aside for the betterment of The Human Race. And again I ask you do you think that Ms. Miers has that capability?

Posted by: Henry Schlatman at October 14, 2005 5:18 AM
Comment #85772

You asked “How is it Unalienably Right to be more concerned with figuring out how not to get punished, then figuring out how to obey the law? Short answer; Human Nature. Your Christian Beliefs teaches you to learn The Laws of your religion, but don’t you think it strange that as a Society we do not teach our Children the U.S. Code of Rules and Regulations for these are The Laws that we must live by?

While no Teachings in Humanity’s Spoken or Written History states that a Human has to be 100% Perfect, the Ideology of being “Absolutely Prefect” is considered “Common Knowledge” among all Citizens of America and the world when they view their government and society. A problem considering no one corporation can provide it “All”

What is taking place in Today’s Society is the fact that some people want to shift that Point away from our Government and Society Laws. Make it so being Right in only one way would be more “Cost Effective” for “I the Corporation.”

Posted by: Henry Schlatman at October 14, 2005 5:59 AM
Comment #85793

Hey Henry, you’re using the word “unalieanable” wrongly. What do you think it means?

You’re also making no sense, as ususal. If your position is that there are natural rights prior to positive law I agree. But I don’t agree courts are the right institution to implement them. They’re bound by the positive law. I doubt your thinking is clear enough to understand this, but I hope it might move you into the direction of something coherent, as opposed to gobbeldy-gook words strung together in nearly meaningless fashion.

Burke was spot on in his own discussion of the limited role of “natural rights” in informting practical political decisions. He said, “The science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught a priori. Nor is it a short experience that can instruct us in that practical science, because the real effects of moral causes are not always immediate; but that which in the first instance is prejudicial may be excellent in its remoter operation, and its excellence may arise even from the ill effects it produces in the beginning. The reverse also happens: and very plausible schemes, with very pleasing commencements, have often shameful and lamentable conclusions. In states there are often some obscure and almost latent causes, things which appear at first view of little moment, on which a very great part of its prosperity or adversity may most essentially depend. The science of government being therefore so practical in itself and intended for such practical purposes — a matter which requires experience, and even more experience than any person can gain in his whole life, however sagacious and observing he may be — it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society, or on building it up again without having models and patterns of approved utility before his eyes.

“These metaphysic rights entering into common life, like rays of light which pierce into a dense medium, are by the laws of nature refracted from their straight line. Indeed, in the gross and complicated mass of human passions and concerns the primitive rights of men undergo such a variety of refractions and reflections that it becomes absurd to talk of them as if they continued in the simplicity of their original direction. The nature of man is intricate; the objects of society are of the greatest possible complexity; and, therefore, no simple disposition or direction of power can be suitable either to man’s nature or to the quality of his affairs. When I hear the simplicity of contrivance aimed at and boasted of in any new political constitutions, I am at no loss to decide that the artificers are grossly ignorant of their trade or totally negligent of their duty. The simple governments are fundamentally defective, to say no worse of them. If you were to contemplate society in but one point of view, all these simple modes of polity are infinitely captivating. In effect each would answer its single end much more perfectly than the more complex is able to attain all its complex purposes. But it is better that the whole should be imperfectly and anomalously answered than that, while some parts are provided for with great exactness, others might be totally neglected or perhaps materially injured by the over-care of a favorite member.

“The pretended rights of these theorists are all extremes; and in proportion as they are metaphysically true, they are morally and politically false. The rights of men are in a sort of middle, incapable of definition, but not impossible to be discerned. The rights of men in governments are their advantages; and these are often in balances between differences of good, in compromises sometimes between good and evil, and sometimes between evil and evil. Political reason is a computing principle: adding, subtracting, multiplying, and dividing, morally and not metaphysically or mathematically, true moral denominations.”

Posted by: Roach at October 14, 2005 10:42 AM
Comment #85844


“Short answer; Human Nature.”

Human nature doesn’t make you right, Henry. It makes you as fallible as anyone else. It also makes you selfish and self-absorbed. How does it benefit society for you to break the law? Except in rare circumstances, the answer is: It doesn’t! That’s why the laws were created. However, since the laws are also written by people, the laws themselves can be fallible. Thus…Martin Luther King Jr.’s acts were justifyable as to how he defied the laws that were unjustly unfair to blacks. You creating a noise violation because you don’t like the noise of traffic and can’t think to use headphones is not anywhere near the same sort of deal. Then, you’re just be selfish.

“…but don’t you think it strange that as a Society we do not teach our Children the U.S. Code of Rules and Regulations for these are The Laws that we must live by?”

I’m not convinced there is any such thing as the “U.S. Code of Rules and Regulations” since you have a drastic tendency to over-use captial letters to express ideas that don’t seem to exist anywhere other than your own head, but…

I do think it very unfortunate that we do not teach the children of this nation, as you were obviously not taught, the responsibilities they have as American citizens and members of the world body, as well as their rights, and what is expected of them as adults.

“What is taking place in Today’s Society is the fact that some people want to shift that Point away from our Government and Society Laws.”

Henry, people have wanted to not have to obey the law for a very long time…as long as there have been laws. Your reasons and justifications do not make you any more right then the anarchists and criminals that have come before you. I care very little for making things more “cost effective” for the Corporation or many corporations or whatever it is you’re trying to say.

As a side note, Henry, I’m a person, a human being, which amounts to a lot more than being merely a consumer. You seem to imply that humans are supposedly the most supreme entities you can imagine, with money being even more important than humans. It’s a shame really.

In closing, I suggest you read The Animal Farm by George Orwell. Just a hint: the pigs were the bad guys.

Posted by: Stephanie at October 14, 2005 4:51 PM
Comment #85845


Does your lengthy quote mean you know where Henry is getting this stuff?

Posted by: Stephanie at October 14, 2005 5:01 PM
Comment #85850

So, what about Miers? Roach, is there an individual you would suggest for consideration?

Posted by: Laura B. at October 14, 2005 5:58 PM
Comment #85909

Sorry I didn’t meab to leave you out, but I was to sleepy tp continue. You asked why I do not need to show Case Law? The answer is two-fold. One, the Burden of me as a Layman to have a complete up to date Case Law Libary is unreasonable. Snot, I would almost be willing to bet that most Law Firms do not have one. And since our Federal Public Depositories do not have one either, the odds of me getting use of one is slim to none. I’ve even asked a Judge if I could use his and guess what the answer was?

Second, by introducing Case Law, which is factual, into a Common Sense defense is stupid in so many different ways. Can a Lawyer inject The Letter of the Law into a Factual Law case? By stipulating to a Common Sense Defense, who am I to believe that I have more knowledge about The Law than a Judge? Does that even make sense? I am sure not even the smartest lawyer in the world would make that remark to a setting Judge.

Remember, if you walk in front of a Judge on the Bench charged with something you have only a few options. A claim of Innocence where you must show that you did not step over “The Line” or Guilty with a reasonable and logical explanation of why your actions did not Intentionally break the law. Thus, What are the odds that my case is going to be indentical to another Case Law? Nevertheless, I can refer to what would and does happen in The Natural Course of Human Events to explain what and why I did in a manner that shows I was using Common Sense and good Judgement. Although I may of accident crossed The Line, my intent was not that of malice. Going further than that under a Common Sense Defense is totally ill-advised and should/would be stopped by a Judge.

Posted by: Henry Schlatman at October 15, 2005 7:01 AM
Comment #85920

If you breath, drink, and eat than you are a consume. You may be a certain type of consumer, just ask any marketing agency, but at last you and every Human on Earth is looked upon as a consumer by The Powers-to-Be. No Matter who is running the show. “I the Nation” “I the Corporation” or anybody else you want to put on top. Shot, even our universe consumes and who is in charge of that?

Now consider that we only use 10% of our brain and one should realize that something should exist in the other 90% of the brain. What is it? I don’t know, but I do know as a Civilization we can find out. Less than 15,000 years ago we started building Humanity’s Civilization and less than 230 years ago Our Forefathers brought on to this land a new Nation that for the first time in Spoken and/or Written History gave each citizen Self-Freewill that we all may do what is right regardless of our on points of view. Now to say people don’t know right from wrong, all one has to do is to look at the 60’s Generation to seek that answer as a Society.

On the U.S. Code of Rules and Regulations, if you do a quick web search you can find plenty of sites. However, if you want to do it the old fashion way find a Federal Depository Libary in your neck of the woods and they should have a copy of it. However, you can’t forget the lastest updates and the funding for such actions and programs. A side note: Read for the Intent (what it is trying to say)of the chapter first and than reread it so that you can find the “Peg-Holes” that allow you to be right.

On Human Nature, most Humans find it easier and more profitable to do what is right when they know what is expected of them. Why do you think we moved away from the police state of the 60’s? However, if a local DA wanted to, do you realize that they could have almost every citizens arrested for a violation of a law or ordinance? Anywhere USA that ability exist as long as Americans are not willing to teach our children about the Laws of the Land and why following our Laws is good for them in so many ways. While he might not get reelected or worse, he carries that ability based on laws we have on the books.

Posted by: Henry Schlatman at October 15, 2005 9:07 AM
Comment #85922

Yes, that is what I mean and although I have spent years coming to terms with how it works in real life, I have always stood up proudly for those unalienable rights of all humans. Learning where that “Line” is drawn by our Courts and Society, well at least I’m not in jail. What really drives me nuts is that their are certain things I can not/should not say about what I have learned over the last 30 some years.

It is this very Point of Law that I question Ms. Miers ability to hold (excuse me if the words is wrong) tanastity and release for it is why an American is an American. Does she have that confidence? IMO I don’t see that spark in her or any other thing that I have seen. Have you?

On what I mean by “Unalienable Right by Law” is probably easiest understood by the Intent of the Assualt Laws of the Land (pleases don’t tell me how many there are). While the Law is written that assualt occurs when some one’s person and/or space is touched than to be Unalienable Right Regardless would mean that one can never touch another Human without the express written constent of the other party. Does that mean I can go to jail for bumpping into to some one in a store? Yes, but Good Luck getting a Society to live like that.

However, what you call “Positive Law” (I’ll have to remember that word) explains way somethings are assault and some things are not. Because having Congress or any Body of Government to spell out exactly what and how assault occurs is IMO stupid. Given Human Nature, it is even worse. So guidelines are established (you and I probably agree that they need to be worked on) in order to give as much freewill to the individual while keeping in mind that we must live in the real world. Hence, Intent of the Individual and their Self-Nature must be taking into consideration when ruling a judgment.

What really made me realize just how important that line is was when I was standing before a Judge and he gave the assisant DA and me a question to answer on what was the next step of a case in which both sides where right in the way they looked at the law and both sides were wrong when they looked at the law. Remindful that I was in court, I spoke of the one who wears the Black Robe. What scared me was when the assistant DA spoke up and said that he would decided for the State. Funny thing is the Judge seat him over on the bench with the rest of the lawyers while him and I debated Civil and Constitutional Rights for about 30 minutes. That was fun, but I don’t want to repeat it anytime soon. BTW, thanks for the debate, while I can’t/shouldn’t be straight forward on certain parts of the law the Righteousness found in the Intent and Positive Law of our Nation amazes me when it is done correctly. The reason I would like us to politically swing to “We the Consumers” is because of Domain Laws. Although I know they are out of bounds for me as an Officer of the Court do you believe that we should have rule over all that we consume?

Posted by: Henry Schlatman at October 15, 2005 9:53 AM
Comment #85970


My point was not that I do not consume, but that as a human being I am much more than a consumer. A consumer, in the way you are using it, is purely animalistic in nature. Human beings think, they believe, they create. That goes far beyond mere consumption.

“…but at last you and every Human on Earth is looked upon as a consumer by The Powers-to-Be.”

That depends on who or what you consider the “Powers-to-be” is/are. As for myself, I believe and know that the most supreme power is God and He sees human beings as His creations whom He loves, and our necessity to consume is only a small part of our mortality.

It is corporations and businesses that see us as merely consumers. Even politicians see us as voters and citizens (or non-voters and non-citizens, as the case may be), so I do not see the validity of your argument whatsoever.

“Read for the Intent (what it is trying to say)of the chapter first and than reread it so that you can find the “Peg-Holes” that allow you to be right.”

My belief in honesty as something that is Right prevents this action, but thank you for the suggestion.

“While he might not get reelected or worse, he carries that ability based on laws we have on the books.”

That is why morality and/or ethics is so important. Your interest in “legally” breaking the law is neither.

Posted by: Stephanie at October 15, 2005 6:43 PM
Comment #86012

Learning and acting in a way that allows one to live by being right in Natural Law should not break man’s law. Luke put is best, wlak the walk don’t just talk it. If America is and was founded on Law than all Americans should learn how to live in the Realm of being Unalienable Right Regardless of our Written Laws because our Nation and Society is built on The Laws of Nature and Nature’s God.

As far as being a consumer, what and why do we build, but to consume more efficently. Does not “God” also consume? Otherwise how does he/she exist? He truely consumes your thoughts doesn’t he? Step outside your box and look inward the Truth will bring you closer to what you seek.

Posted by: Henry Schlatman at October 16, 2005 6:21 AM
Comment #86164

I have to intervene, even though I fear Henry is ineducable and possibly mentally ill. Henry, when you say “unalienable right,” you’re using the words wrongly. We have “inalianble” or “unalienable” rights. Alienability relates to whether we have the power to reject these rights. Jefferson and Locke said that the nature of things made these rights inalienable, because they are hard-wired into our nature; that to alienate or abjure them one would, by necessity, be acting in compulsion and acting irrationally. We can no longer reject these rights than we can reject responsibility for our actions. Why? Because our nature is to pursue our own perfection, what they called happiness. You cannot change this duty and this state of being, nor can you reject the necessary compliments to that nature, one’s inalienable rights and one’s moral agency.

You, on the other hand, are using the word right singularly and the sense of moral right. But one neither can or cannot alienate moral right; it exists outside any one person. “Rights” on the other hand, are specific moral claims against government and others, held by individuals, and chiefly conceived as necessary for their human flourishing. So it is both illogical and grammatically incorrect to talk about living in a state of “inalienable right.” You seem to think the word means really good, or higher, or really important, but it doesn’t. Alienability and inalienability only make sense in the limited realm of political, civil, and natural rights that one holds against other individuals and the government, such as the right to life or the right not to be enslaved. Alienability and inalienability are artifacts of English property law; certain property, such as a fee simple, are alienable. Others, such as a trust or joint tenancy, are not, or at least not as easily. I’m sure you know none of this and will ignore this challenge like you did last time; the last thing a sophist like you can stand is to be exposed as a complete fraud. You’re likely even less educated friends and relatives fawning praise will likely no longer sustain you when you realize that you don’t know what you’re talking about. Their praise and your self-esteem will melt in the recognition of how poorly educated you really are. Go get an education and quit opining until you have something to say.

You’re just stringing together words that you barely understand. It’s as if you said, “The square root of originalizsm reveals the oxidation state of jurisprudence. But moral philosophy trumps them both, as it is esoteric and logarithmic.” You’re obviously not that smart, but I wonder if you realize how fundamentally useless, incoherent, and meaningless your musings are.

I realize I may be close to the line of this website’s attack the message policy, but I believe Henry’s sophistry has crossed all reasonable bounds of a reasonable discussion. He’s saying nothing and tying up bandwith.

Posted by: Roach at October 17, 2005 1:50 PM
Comment #86165

One more thing, we’re not writing German. Capitalizing your nouns in an archaic matter for emphasis doesn’t add gravitas to your lunatic ravings; it just makes them harder to read and reinforces the justifiable impression that you’re a total sophist, who probably did not graduate from college, and, in either case, has nothing interesting to say.

Posted by: Roach at October 17, 2005 1:51 PM
Comment #86186

If nobody responds or comments to or about the blablablalienablablabla then there most likely wouldn’t be more of it. :)

Posted by: Laura B. at October 17, 2005 5:20 PM
Comment #86190

You’re probably right Laura, but I’m a glutton for punishment, and I’m hoping those on the sidelines are not lead astray by this nonsense, which they might mistake for great erudition simply by virtue of the fact that it cannot be deciphered.

Posted by: Roach at October 17, 2005 6:19 PM
Comment #86205

Roach, your concern is a noble one but I suspect that those who would buy into any of it simply would not ever make it that far down the posts in this blog to even read the nonsense.

Posted by: Laura B. at October 17, 2005 7:44 PM
Comment #86207

So, what about Miers? Did anyone see the newsclips with Bush and some of the former Texas Supreme Court Justices who were beaming and bursting with glorious praise over Harriet? Interesting move/tactic on the part of Bush. Wonder if they’re planning another media powwow with Bush and her high school teachers?

Posted by: Laura B. at October 17, 2005 7:51 PM
Comment #86217

While you’re argument wants to limit my unalienable rights to what is or has been proper by man, the natural fact of life is that All Humans or alomost all Humans that have reasonable intellect has the cardinal ability to tell the difference between what they think is right and what they know is right just by their own spoken word. Hence, unalienable right. Ask any parent or adult who is willing to be honest with themselve about this fact.

You, as a Lawyer, should agree that a “Gap” exists between Natural Rights/Laws and Positive Law. An area where an inidividual can cause such action that it falls outside positive law but not in natural law (i.e. a judgment call). On the positive side you must build a bridge of evidence that shows that the person has crossed into this realm to show innoccence; however, as a Layman I am required to prove that I have not built that bridge to show my innoccence using only what I know to be right by the spoken word. Since my actions can/should be able to infracture natural law before I infracture positive law, how can I be held accountable in Man’s Law?

While I may not be able to give advice on how to use this “Gap” for so many self evident reasons and logic, I can and am allowed to use this reason and logic to protect my Civil and Constitutional Rights as an American Citizen. In fact, when one reads the way America is to be governed it is by this standard. Otherwise a lawyer would be able to take on the role of a Judge. Now, as a member of the court do you think/know of any case that allows a lawyer to be placed higher than a judge?

Point in fact. I had a court date/time that I missed due to having to take pain pills legally given to me be my doctor; however, once I awakened I got up and went directly to the court house prior to the end of the business day. Now, should I be charged with failure to appear or do I have a Civil/Constitutional Right to be heard on my argument of a valid reason before such action can be issued by the court? Having had this happen to me, the judge agreed with me on that point even after the assistant DA kept saying he didn’t have to listen. Since any delay on my behalf or the courts behalf would of lead to a violation of my rights and that my actions fell within the judgment call of what is deemed reasonable behavior I was heard. Failure of the court to take such action at that moment would of overstepped the gap between local/state/ and federal law. Since many Civil and Constitutional Rights are time sensative, if I would of waited until the next day to seek legal reprentation the effort would of been mute.

Now, if my excuse would not of meet that clause of a valid reason; say I stopped of for breakfast first than the door/bridge to positive law would of been built. Knowing where that line is belongs strictly in the eyes of judges, not law. Nevertheless, as a Layman, I have the right and duty to keep my actions in that realm of what reasonable people would deem as being right. However, I am required to stop just prior to saying something is right/wrong just as a Lawyer is. Nevertheless, I do have the right to openly question that line in court and the halls of our elected officials just as long as I do not use positne law to bring my case. Again, I have to show that my actions did not build that bridge, thus a violation of postive law on my behalf does not exist. Which returns to to me to my orginal question. Does Ms. Miers have that ability and understanding of law?

Posted by: Henry Schlatman at October 17, 2005 8:41 PM
Comment #86220

If you do not swallow the bait, you will not be caught.

Posted by: Laura B. at October 17, 2005 8:54 PM
Comment #86244

Right, now does Ms. Miers understand the (excuse Chris) unalienable right why it is to exist in law?

Posted by: Henry Schlatman at October 18, 2005 4:28 AM
Comment #86401

Your knowledge of grammary and your vocabulary evidence your status as a pseudointellectual.

You don’t know what the word inalienable/unalienable means and you’re using it incorrectly. You’re still doing so.

The word is moot not mute.

You talk about “cardinal” knowledge. How is that distinct from any other knowledge? The way you use the phrase makes no sense; do you just mean, as in the case of unalienable, really really important. Why not unalienable knowledge or cardinal right? You use words you barely understand to sound important and lend gravity to your adolescent ideas; these trends are the surest sign of a pseudointellectual.

Finally, on the merits, not every issue is of constitutional import, such as missing a court deadline or hearing. I do think it’s a sign of what an irresponsible screwup you are, however, that you did so, medicine or not.

Posted by: Roach at October 18, 2005 10:32 AM
Comment #86724

You are right about me not having the ten million dollar words that would make you happy and content on your side of the gap; however, as a layman all I have to do is to be understood. The fact that you followed my argument proves my point. Now, please do you believe that it is important that Ms. Miers understand why sound reason and logic must be self evident in a Justice’ statement on their opinion.?

Since this is a political blog and asked in a pure political insight to what makes a good Supreme Court Justice, I would like your opinion. However, not be legally able to define what as a Lawyer of 40 years you should already know as stirctly a Judge’s Right, what else do I call it and stay on my side of the “Gap?”

Posted by: Henry Schlatman at October 19, 2005 10:09 PM
Comment #86727

Henry, see today’s article in the WSJ by Robert Bork.

Posted by: Laura B. at October 19, 2005 10:54 PM
Comment #86764

Laura B.,
Thanks for the info. Although I could not find a link to the main article, I did find a couple of blogs that had inserts. However, I am glad that I am not the only one who sees that Ms. Miers debates points of law only from one side. I might not agree with Judge Bork on many things, but for a Supreme Court Justice not to be able to listen, see, and debate equally from both sides of the issue IMO is a serious problem.

While I may drive Chris nuts on my choice of words, he would go nuts if he and other lawyers where held to the strict “Yes/No” debate of the points of law that IMO is the correct way to conduct a court. Although I like Law & Order, they carry on sometimes to much, yet to believe that a judge should let a person like Matlock have their way in court is beyond proper conduct.

Nevertheless, I did find the case a href=””>Georgia’s Voter ID which will give me a chance to politically discuss what I mean by the words unalienable right. Because no matter which side of the issue you are on the Ruling of the Judge is made clear. The law as it stands now is unconstitutional.

Why? Because the law amounts to a poll tax. Thus, until such time some person can bring a “Yes/No” debate that can prove that statement wrong than the Ruling by the judge is unalienable right regardless. Now what the legal Latin Term for that is I do not know and couldn’t repeat it if I did.

Although the “Gap” has been established soundly so that neither side has an advantage, some lawyers want to take this argument all the way to the Supreme Court. And IMO the solution is really quit simple.

The Governor in the same article said that a program would be made available to offer free ID’s to those who can not afford them. Thus, removing the barrier which would be considered a poll tax; however, to keep the other side from yelling foul, the Court would also have to see in Society that it was Common Knowledge to all citizens that a pictured voter id was free. For that would be unalienable right through the Eyes of the American Eagle.

If you have to take the bait than shouldn’t it be done in such a manner that the hook don’t come with it? While it makes sense to me, I have to warn people that I hold our constitutional law is what is the “Proper Question” not the one we can slide by. And thats why I’m not a lawyer.

Posted by: Henry Schlatman at October 20, 2005 7:26 AM
Comment #87447

Although I can’t speak directly to the Federal Common Sense Laws of 1830/40 due to the fact that they are held in Judicial Rights, I did find a good article on the a href=””> History of the Supreme Court written by the Supreme Court Historical Society which will lend cause to my argument. However, for those of you that still want to know more. Ask a person over the age of 60 who is a law officer.

While I agree with Chris that Laws governing some things do not need to be viewed in this manner, it is our Constitutional Right and Duty to future generations to not allow our right to be governed by a href=””>the Laws of Nature and of Nature’s God be taken from us by lawyers and political spin masters who think that a piece of paper makes them smarter than one who can do the work by hand and mind. For as Stephanie put it; “we are all more than just consumers.” Now the question is what and how can we prove that as a society?

Posted by: Henry Schlatman at October 23, 2005 8:24 AM
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