NationStates Jolt Archive

Do you believe that the high court of a nation has a right to impose new legal standards on a nation with little to no solid Constitutional basis, going with the idea of a "living Constitution" or a justice being a "loose constructionist" as opposed to a "strict constructionist" -- that the ideas expressed in such documents must be construed over time to match modern societal standards?

It depends. They can't run amok making new laws that are baseless, but if there are some laws which need to be reformed and a vast majority of the public agrees, the change can and should be made.

Let me guess......you like to complain about legislating from the bench?

As far as I'm aware legal rulings form part of the UKs constitution, as it is uncodified and the legal system is based in common law.

edit: and "No, Constitutions are specifically-intended documents ("strict constructionist")" makes the incorrect assumption that all constitutions are contained in a single document, and were created specifically to be constitutions.

For anyone who claims to be a "strict constructionist," how do you deal with the following:
(1) the 14th Amendment
(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights
(3) the 9th Amendment
(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights
(5) the following examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity

Do you really wish to insist that none of these are protected by the Constitution?

As far as I'm aware legal rulings form part of the UKs constitution, as it is uncodified and the legal system is based in common law.
I made the poll based on the American Constitution/U.S. Supreme Court. In the U.S., rulings are based on the Constitution, but do not make up part of it as it apparently is in the U.K. Sorry about the America-centric context, but then again that brings up a new point: should all Constitutions be laid out to allow rulings to become a part of them, therefore eliminating any idea of "judicial activism" in the first place?

Since it is the nature of the universe to change (or else time wouldn't exist), Constitutions should also change and adapt.

I made the poll based on the American Constitution/U.S. Supreme Court. In the U.S., rulings are based on the Constitution, but do not make up part of it as it apparently is in the U.K. Sorry about the America-centric context, but then again that brings up a new point: should all Constitutions be laid out to allow rulings to become a part of them, therefore eliminating any idea of "judicial activism" in the first place?
You should have said what country you are talking about.

This is a British forum for a game created by an Australian. So, you know...

Where is the "oh, who gives a fuck, your constitution is an anachronism either way" option?

You should have said what country you are talking about.

This is a British forum for a game created by an Australian. So, you know...
As I said, sorry for being America-centric -- I hoped in making the poll that I wasn't being too focused on the U.S. As you can see in reading it, there is no mention of the United States to be found. I wrote it to apply to nations with similar Constitutional and judicial standards to the United States. I assumed that they existed. Hopefully I'm right there.

As I said, sorry for being America-centric -- I hoped in making the poll that I wasn't being too focused on the U.S. As you can see in reading it, there is no mention of the United States to be found. I wrote it to apply to nations with similar Constitutional and judicial standards to the United States. I assumed that they existed. Hopefully I'm right there.
Well, then you should have said that it was designed for nations with similar Constitutional and judicial standards to the US.

Where is the "oh, who gives a fuck, you constitution is an anachronism either way" option?

It is; we should get rid of most of the current version, and replace it with something more sensible.

The only reason the system is workable is because judges have been "activist judges" and have updated it. Trusting a bunch of rich white male landowners from two centuries ago to determine how our country should be run in 2006 is clear stupidity.

It is; we should get rid of most of the current version, and replace it with something more sensible.

The only reason the system is workable is because judges have been "activist judges" and have updated it. Trusting a bunch of rich white male landowners from two centuries ago to determine how our country should be run in 2006 is clear stupidity.

Now now. They did an ok job. Could have been far worst. Oh not all were rich land owners.....

Now now. They did an ok job.

For the 1780s, maybe. But things like first-past-the-post elections, equal representation for small and large states in the Senate, the Electoral College, elections in the hands of states, and so on are pretty useless today.

Could have been far worst.

With Constitutions, it's pretty easy to write something worse.

Oh not all were rich land owners.....

True. I was exaggerating.

Do you believe that the high court of a nation has a right to impose new legal standards on a nation with little to no solid Constitutional basis, going with the idea of a "living Constitution" or a justice being a "loose constructionist" as opposed to a "strict constructionist" -- that the ideas expressed in such documents must be construed over time to match modern societal standards?
Uhhh, hell fucking no.

If the Constitution is to be the backbone of the country's legal system, then it better evolve, because the country evolves whether the Consitution does or not, and it can either evolve or be left to wither.

Uhhh, hell fucking no.

Really?

then answer my questions link (http://forums.jolt.co.uk/showpost.php?p=10796217&postcount=5)

It has to be, mainly because society changes to rapidly for the amendment process to keep up with it, wordings change and what was acceptable (or not) 200 years ago has flipped.

Really?

then answer my questions link (http://forums.jolt.co.uk/showpost.php?p=10796217&postcount=5)
Actually, it does :D

Actually, it does :D

You aren't making sense. Should that surprise me?

You aren't making sense. Should that surprise me?
Errr, I'm sorry, I miss read something..

If it doesn't surprise you, I would call a doctor..

Lemme read whacha posted again.

They should be protected, but don't you think a bias leader under the living constitution might act in his or her own choices when setting laws and rights instead of the peoples?

Look at Bush, he banned gay marriage.

Did I make any sense there? Seriously.. did I?

Errr, I'm sorry, I miss read something..

If it doesn't surprise you, I would call a doctor..

Lemme read whacha posted again.

They should be protected, but don't you think a bias leader under the living constitution might act in his or her own choices when setting laws and rights instead of the peoples?

Look at Bush, he banned gay marriage.

Did I make any sense there? Seriously.. did I?

That is why we have a system of checks and balances on the independent judiciary.

(And Bush didn't ban gay marriage. He hasn't the power.)

That is why we have a system of checks and balances on the independent judiciary.

(And Bush didn't ban gay marriage. He hasn't the power.)
Ah, I thought he did..

That is why we have a system of checks and balances on the independent judiciary.

(And Bush didn't ban gay marriage. He hasn't the power.)
Not that that has stopped him so far. I swear, I think Congress could pass a law codifying same-sex marriage and Bush would try to annul it with a signing statement.

Really?

then answer my questions link (http://forums.jolt.co.uk/showpost.php?p=10796217&postcount=5)

Those who wrote the Constitution understood that it specifically enumerated the powers of the federal government, and that if those powers and/or rights were not enumerated that they were understood to be retained by states or individuals. This is specifically stated in the 10th Amendment. Remember that one? This idea has been turned on its head now and people think that government is the grantor of rights, and that rights do not exist unless granted be the state. The founders felt that rights inherently belonged to the people and were only to be limited by the government as necessary for the common good. Hence, all those "rights" that you mentioned already belonged to the people and no rights were granted by the government. The Bill of Rights was not meant to create new rights from nothing, but were an enumeration of specific rights that the government especially should not atempt to limit. But, as I said, this whole philosiphy has been turned on its head.

They should be protected

This doesn't answer points 1-4, nor explain how you would protect the unenumerated rights listed in point 5.

Sorry, but you're the only strict constructionist brave enough to post so far.

Cat-Tribe, do you ever feel bad for whipping up on these poor, overwhelmed souls in threads like this one? :D

Do you believe that the high court of a nation has a right to impose new legal standards on a nation with little to no solid Constitutional basis, going with the idea of a "living Constitution" or a justice being a "loose constructionist" as opposed to a "strict constructionist" -- that the ideas expressed in such documents must be construed over time to match modern societal standards?
The American Constitution was designed to be a "living document," although primarily via amendments, not judicial fiat.

Those who wrote the Constitution understood that it specifically enumerated the powers of the federal government, and that if those powers and/or rights were not enumerated that they were understood to be retained by states or individuals. This is specifically stated in the 10th Amendment. Remember that one? This idea has been turned on its head now and people think that government is the grantor of rights, and that rights do not exist unless granted be the state. The founders felt that rights inherently belonged to the people and were only to be limited by the government as necessary for the common good. Hence, all those "rights" that you mentioned already belonged to the people and no rights were granted by the government. The Bill of Rights was not meant to create new rights from nothing, but were an enumeration of specific rights that the government especially should not atempt to limit. But, as I said, this whole philosiphy has been turned on its head.

Nice try. None of that has anything to do with strict vs. loose construction. (And you forgot the 9th - that is the one that says rights are retained by the people.)

The Constitution is an enumeration of powers with inherent limits for the federal government. that not enumerated is not a power of the federal government.

Nothing in the Constitution prior to the 14th Amendment limited the states.

Again, the 14th Amendment is an amendment and it changed some things.

This doesn't answer points 1-4, nor explain how you would protect the unenumerated rights listed in point 5.

Sorry, but you're the only strict constructionist brave enough to post so far.
This is all too.. serious for spammy ole' me.. can't I just be a liberal hippy and smoke alot of pot?

Cat-Tribe, do you ever feel bad for whipping up on these poor, overwhelmed souls in threads like this one? :D

That is why I was apologizing to Il Ruffino. :D

This is all too.. serious for spammy ole' me.. can't I just be a liberal hippy and smoke alot of pot?

Sure, but liberals tend to be "loose" constructionists.

If the Constitution is to be the backbone of the country's legal system, then it better evolve, because the country evolves whether the Consitution does or not, and it can either evolve or be left to wither.

The method for changing the constitution is already built into the constitution, it's called the amendment process.. It has been used successfully at least 27 times. I don't belive that the Founders wanted the Constitution to be changed easily by judicial fiat, or the whim of a few justices. The amendment process is intentionally laborious and lengthy exactly because the constitution should not be easily mucked around with. The founders could not have forseen all the changes of the modern day, but they understood human nature well. Thus they made it possible to change the Constitution as the need arose, but not to change it easily.

Sure, but liberals tend to be "loose" constructionists.
That's it. I'm moving to Canada.

Do you believe that the high court of a nation has a right to impose new legal standards on a nation with little to no solid Constitutional basis, going with the idea of a "living Constitution" or a justice being a "loose constructionist" as opposed to a "strict constructionist" -- that the ideas expressed in such documents must be construed over time to match modern societal standards?
I think of it this way: the Constitution was written in a preindustrial era, but it gave us basick freedoms. and stuff.

If the document isn't a "living document", we would have to make so many ammendments that it is all the legislature could spend their time doing.

Scalia, for instance, claims to be a "strict constructionist" and that the document is not a living document. Of course, by his logic, we would need a Constitutional Ammendment in order to extend protection of speech to movies, since the founders didn't know anything about movies.

Interestingly enough, by Scalia's logic (although I doubt he uses it this way), we would also need a Constitutional Ammendment in order to protect the "right" to own any modern weapons, since the Founding Fathers wouldn't have had experience with them either...

The method for changing the constitution is already built into the constitution, it's called the amendment process.. It has been used successfully at least 27 times. I don't belive that the Founders wanted the Constitution to be changed easily by judicial fiat, or the whim of a few justices. The amendment process is intentionally laborious and lengthy exactly because the constitution should not be easily mucked around with. The founders could not have forseen all the changes of the modern day, but they understood human nature well. Thus they made it possible to change the Constitution as the need arose, but not to change it easily.
The Constitution hasn't changed--the world has changed, as has our use of language and the way we interpret the words in that Constitution. Language evolves. Society evolves. And if the Constitution is to remain relevant, then our understanding of it has to evolve as well. Or do you really want to use an 18th century definition of commerce when trying to untangle intellectual property disputes?

The Constitution hasn't changed--the world has changed,
And there are how many amendments? Hmm.

You're correct that the 9th specifically mentions the people as opposed to the 10th which discusses powers retained to the states and people. As I said the amendment process allows for change, which is why the 14th did bring about a fundamental change - through the process that was already outlined in the Constitution itself. This did not occur because a few judges decided it was tiem to make a change based on their desires.

The method for changing the constitution is already built into the constitution, it's called the amendment process.. It has been used successfully at least 27 times. I don't belive that the Founders wanted the Constitution to be changed easily by judicial fiat, or the whim of a few justices. The amendment process is intentionally laborious and lengthy exactly because the constitution should not be easily mucked around with. The founders could not have forseen all the changes of the modern day, but they understood human nature well. Thus they made it possible to change the Constitution as the need arose, but not to change it easily.

The Founders intended the Constitution to be interpreted by the Supreme Court.
Marbury v. Madison (http://laws.findlaw.com/us/5/137.html), 5 US 137 (1803).
Cohens v. Virginia (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0019_0264_ZS.html), 19 US 264 (1821),

And there are how many amendments? Hmm.

Much less than there would have been if the Constitution were not viewed as a living document by the court. We would have to have an exponentially larger number otherwise.

If the document isn't a "living document", we would have to make so many ammendments that it is all the legislature could spend their time doing.

Scalia, for instance, claims to be a "strict constructionist" and that the document is not a living document. Of course, by his logic, we would need a Constitutional Ammendment in order to extend protection of speech to movies, since the founders didn't know anything about movies.

Interestingly enough, by Scalia's logic (although I doubt he uses it this way), we would also need a Constitutional Ammendment in order to protect the "right" to own any modern weapons, since the Founding Fathers wouldn't have had experience with them either...

There does not need to be a Constitutional amendent to pass every possible law or to come to court decisions about those laws. That is the legitimate function of the legislature and the courts. What I am saying is that laws that are passed that clearly violate the express language of the Constitution should jnot be upheld. Likewise no judge shold be allowed to create new interpretations of the constitution that don't already existr in the Constitution itself because they thimnk that it ought to be there. The "penumbra" of the Constitution could theoretically conatin anything that any judge wants to be there.

I find it kind of ridiculous when people contend that a group of people who created a whole new system of government, would design it so it can't be amended to fit the times. These are people who said 'Okay, this isn't working. Let's try something new'. OF COURSE they intended newer generations to amend it, within certain limitations.

The Founding Fathers lived in 1776. Back when it took two weeks for news of a war breaking out to get from Massachusetts to Georgia, and people regularly died of ear infections. It was a far different era, and the Constitution was created for that era. If Thomas Jefferson came thorugh a time portal to 2006, saw airplanes, saw cars, saw the internet, saw how far medical technology had advanced, and saw the crowded condition of our cities, there's no way he would remotely suggest that the original provisions of the constitution, written in 1776, should be strictly applied today.

And why does everybody lend the Founding Fathers the same authority they would lend a God? Everybody on every side comes up with whatever they believe, says 'The Founding Fathers would have agreed', and acts like that suggestion alone proves their point irrefutably. The Founding Fathers believed in slavery for god's sake! They held it as their way of life and firmly believed that people with black skin were inferior creatures.

There are some principles that should *never* be changed in the constitution. The basic freedoms applied in the bill of rights, and the basic structure of the government, with three branches, each checked and balanced by the other two.

But if some of the more peripheral provisions prove not to make sense anymore, they should be changed.

sorry for the spelling my fingers got carried away..

I find it kind of ridiculous when people contend that a group of people who created a whole new system of government, would design it so it can't be amended to fit the times. These are people who said 'Okay, this isn't working. Let's try something new'. OF COURSE they intended newer generations to amend it, within certain limitations.

The Founding Fathers lived in 1776. Back when it took two weeks for news of a war breaking out to get from Massachusetts to Georgia, and people regularly died of ear infections. It was a far different era, and the Constitution was created for that era. If Thomas Jefferson came thorugh a time portal to 2006, saw airplanes, saw cars, saw the internet, saw how far medical technology had advanced, and saw the crowded condition of our cities, there's no way he would remotely suggest that the original provisions of the constitution, written in 1776, should be strictly applied today.

And why does everybody lend the Founding Fathers the same authority they would lend a God? Everybody on every side comes up with whatever they believe, says 'The Founding Fathers would have agreed', and acts like that suggestion alone proves their point irrefutably. The Founding Fathers believed in slavery for god's sake! They held it as their way of life and firmly believed that people with black skin were inferior creatures.

There are some principles that should *never* be changed in the constitution. The basic freedoms applied in the bill of rights, and the basic structure of the government, with three branches, each checked and balanced by the other two.

But if some of the more peripheral provisions prove not to make sense anymore, they should be changed.

I find it kind of ridiculous when people contend that a group of people who created a whole new system of government, would design it so it can't be amended to fit the times. These are people who said 'Okay, this isn't working. Let's try something new'. OF COURSE they intended newer generations to amend it, within certain limitations.

The Founding Fathers lived in 1776. Back when it took two weeks for news of a war breaking out to get from Massachusetts to Georgia, and people regularly died of ear infections. It was a far different era, and the Constitution was created for that era. If Thomas Jefferson came thorugh a time portal to 2006, saw airplanes, saw cars, saw the internet, saw how far medical technology had advanced, and saw the crowded condition of our cities, there's no way he would remotely suggest that the original provisions of the constitution, written in 1776, should be strictly applied today.

And why does everybody lend the Founding Fathers the same authority they would lend a God? Everybody on every side comes up with whatever they believe, says 'The Founding Fathers would have agreed', and acts like that suggestion alone proves their point irrefutably. The Founding Fathers believed in slavery for god's sake! They held it as their way of life and firmly believed that people with black skin were inferior creatures.

There are some principles that should *never* be changed in the constitution. The basic freedoms applied in the bill of rights, and the basic structure of the government, with three branches, each checked and balanced by the other two.

But if some of the more peripheral provisions prove not to make sense anymore, they should be changed.

sorry for the spelling my fingers got carried away..

There does not need to be a Constitutional amendent to pass every possible law or to come to court decisions about those laws.

There does according to the "strict constructionist" viewpoint. The reason is that the laws being passed today, in large part, are about things that the Founders never would have even imagined, and thus couldn't have specifically planned for. The courts have to figure out how the rules laid out in the Constitution apply to things that weren't even thought of at the time. A "strict constructionist" claims that only that which was the direct intent of the founders and those who amended the constitution can be considered. Thus, it cannot possibly be applied to anything new.

That is the legitimate function of the legislature and the courts. What I am saying is that laws that are passed that clearly violate the express language of the Constitution should jnot be upheld.

Of course not.

Likewise no judge shold be allowed to create new interpretations of the constitution that don't already existr in the Constitution itself because they thimnk that it ought to be there.

If they cannot interpret the Constitution beyond the exact language, then they cannot interpret it at all.

The "penumbra" of the Constitution could theoretically conatin anything that any judge wants to be there.

Theoretically, although unlikely, the Court could find things that most would not agree are there. Of course, that's a big part of the checks and balances. If the court makes a decision that the legislature doesn't like, they can ammend the Constitution to make it absolutely clear that the interpretation in question is not allowed.

I find it kind of ridiculous when people contend that a group of people who created a whole new system of government, would design it so it can't be amended to fit the times. These are people who said 'Okay, this isn't working. Let's try something new'. OF COURSE they intended newer generations to amend it, within certain limitations.

The Founding Fathers lived in 1776. Back when it took two weeks for news of a war breaking out to get from Massachusetts to Georgia, and people regularly died of ear infections. It was a far different era, and the Constitution was created for that era. If Thomas Jefferson came thorugh a time portal to 2006, saw airplanes, saw cars, saw the internet, saw how far medical technology had advanced, and saw the crowded condition of our cities, there's no way he would remotely suggest that the original provisions of the constitution, written in 1776, should be strictly applied today.

And why does everybody lend the Founding Fathers the same authority they would lend a God? Everybody on every side comes up with whatever they believe, says 'The Founding Fathers would have agreed', and acts like that suggestion alone proves their point irrefutably. The Founding Fathers believed in slavery for god's sake! They held it as their way of life and firmly believed that people with black skin were inferior creatures.

There are some principles that should *never* be changed in the constitution. The basic freedoms applied in the bill of rights, and the basic structure of the government, with three branches, each checked and balanced by the other two.

But if some of the more peripheral provisions prove not to make sense anymore, they should be changed.

I find it kind of ridiculous when people contend that a group of people who created a whole new system of government, would design it so it can't be amended to fit the times. These are people who said 'Okay, this isn't working. Let's try something new'. OF COURSE they intended newer generations to amend it, within certain limitations.

The Founding Fathers lived in 1776. Back when it took two weeks for news of a war breaking out to get from Massachusetts to Georgia, and people regularly died of ear infections. It was a far different era, and the Constitution was created for that era. If Thomas Jefferson came thorugh a time portal to 2006, saw airplanes, saw cars, saw the internet, saw how far medical technology had advanced, and saw the crowded condition of our cities, there's no way he would remotely suggest that the original provisions of the constitution, written in 1776, should be strictly applied today.
*SNIP*

Actually he would be too busy trying to figure out how the stuff worked and probably would be tickled to see his house still standing. ;)

The Founders intended the Constitution to be interpreted by the Supreme Court.
Marbury v. Madison (http://laws.findlaw.com/us/5/137.html), 5 US 137 (1803).
Cohens v. Virginia (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0019_0264_ZS.html), 19 US 264 (1821),
Operant word: "interpreted."

Not amended.

Operant word: "interpreted."

Not amended.
And the Supreme Court has never amended the Constitution. What's your point?

And the Supreme Court has never amended the Constitution. What's your point?
The Supreme Court, primarily the Burger Court ( IIRC ), has stretched the "judicial option" right to the limit several times. If the Constitution needs to be altered, the appropriate process is the amendment process, not judicial fiat.

EDIT: why do your posts almost always just reek of hostility??? :(

The Supreme Court, primarily the Burger Court ( IIRC ), has stretched the "judicial option" right to the limit several times. If the Constitution needs to be altered, the appropriate process is the amendment process, not judicial fiat.

EDIT: why do your posts almost always just reek of hostility??? :(
Because you read them that way? I don't know.

As to your point about the Burger Court, they never amended the Constitution. Yes, they expanded the interpretation of certain sections of it, but that's because the Constitution is a flexible document. Those interpretations have shrunk back a bit in recent years, and no doubt there will be further fluctuations in the future. One thing that people who argue that the Constitution is not alive have to understand is that when we say that, we're not talking about what should or should not be. We're talking about what is, just as when people who argue about evolution don't believe in it, they understand it. The Constitution has been flexing and stretching and shrinking for over 200 years, and as long as it's the basis for government in the US, it will continue to do so.

What will kill it is if it's ignored by the people who take oaths to uphold it.

For anyone who claims to be a "strict constructionist, yadda, yadda, yadda..."

It's worth remembering that if the Constitution is indeed a living document then no liberal has any moral right to object to the overturning of Roe v. Wade. :)

Does anyone want to start a betting pool on how long it will take Pro-"Choice" people to suddenly become strict constructionists and start thumping their chests like so many apes while they bellow out about "Da Lawww of de Lannnnd!" when they figure this one out? :D

It's worth remembering that if the Constitution is indeed a living document then no liberal has any moral right to object to the overturning of Roe v. Wade. :)

Does anyone want to start a betting pool on how long it will take Pro-"Choice" people to suddenly become strict constructionists and start thumping their chests like so many apes while they bellow out about "Da Lawww of de Lannnnd!" when they figure this one out? :D
Nice straw man--want to see it go up in flames?

We have every right to object to the overturning of Roe because we believe that Roe is constitutional based on our interpretation of the Constitution as a living document. The Court certainly has the power to reverse itself, but they would be doing so, we believe, based on faulty logic, not based on the idea of the Constitution as a static document.

The Supreme Court, primarily the Burger Court ( IIRC ), has stretched the "judicial option" right to the limit several times. If the Constitution needs to be altered, the appropriate process is the amendment process, not judicial fiat.
Could you please show me judicial fiat from SCOTUS? Every opinion, every judement I have read from them has been grounded in the Constitution or previous judement (which if you traced them back you'll find the Constitution somewhere). I've never read anything that stated, "The is right because we say so and we say so because we liked the idea at the time."

I mean, really, what cases have really been decided due to whims of the court?

Nice straw man--want to see it go up in flames?

We have every right to object to the overturning of Roe because we believe that Roe is constitutional based on our interpretation of the Constitution as a living document. The Court certainly has the power to reverse itself, but they would be doing so, we believe, based on faulty logic, not based on the idea of the Constitution as a static document.

But you see, for such a belief to matter, you would also have to believe that popular opinion as represented by the legislature and elected executive has the right to overturn the rulings of the judiciary. As embodied in the Constitution. You would also have to believe that precedent matters in ways that the Living Constitution theory does not allow for. Otherwise, while you have a *legal* right to complain you most certainly would not have a *moral* one since you would then be arguing from a base of hypocrisy.

The prime weakness of the "Living Constitution" is a simple one: Anything a court awards itself the right to give becomes something a court can take away. Everything Cat Tribe boasted of as being granted exclusively being bestowed by the court system is in effect something that could be reversed should the court have a bad hair day or the wrong bowl of chili. That's the reason reliance upon a written constitution is always wiser than a reliance upon what judges will do.

Neither SCOTUS Justices nor any other judge in this country does nor ever has "legislated from the bench". That's just meaningless buzzwords -- code for "they didn't decide that case the way I wanted them to". Boo-f'ing-hoo. They don't always make decisions I agree with; I don't attempt to undermine separation of powers because of it.

But you see, for such a belief to matter, you would also have to believe that popular opinion as represented by the legislature and elected executive has the right to overturn the rulings of the judiciary. As embodied in the Constitution. You would also have to believe that precedent matters in ways that the Living Constitution theory does not allow for. Otherwise, while you have a *legal* right to complain you most certainly would not have a *moral* one since you would then be arguing from a base of hypocrisy.

The prime weakness of the "Living Constitution" is a simple one: Anything a court awards itself the right to give becomes something a court can take away. Everything Cat Tribe boasted of as being granted exclusively being bestowed by the court system is in effect something that could be reversed should the court have a bad hair day or the wrong bowl of chili. That's the reason reliance upon a written constitution is always wiser than a reliance upon what judges will do.Do you think we do't realize that? Do you think we don't know that a reactionary court could reverse the decisions of the past? Of course we know that. It's part of the deal.

But here's the thing--and I'm coming from a linguistic, rather than a legal point of view. The Constitution is so vague and abstract in spots that you can make it say almost anything--you can fit all sorts of retarded rights in there if you wish. And we've seen that happen over the years. That's the reason that the Constitution is living, is flexible--it can't be pinned down easily. It breathes with the times.

As to what you're blathering about not having a moral basis for objecting, I have no idea. You've got to do better than the tripe you've put forward already. The idea of a living constitution doesn't ignore precedent, and doesn't even really discount it. It simply accepts that times change, and that previous understandings of the abstracts included in the Constitution might not be appropriate or might not be feasible anymore. That makes a whole lot more sense than trying to make 18th century definitions fit 21st century issues.

For anyone who claims to be a "strict constructionist,"

Hi, there. So, is this going to be a friendly conversation, or a bitter arguement where neither of us convinces the other of anything?

how do you deal with the following:

Pointless bitter arguement it is then. Those are always fun.

(1) the 14th Amendment

The 14th amendment extended the constitutional protections of the people to potential infringements by the states, right? Because it was an ammendment, and upheld, I will assume that it went through the legal procedure defined in the constitution's main body? Ammendments are perfectly acceptable tools for changing the constitution without becoming a "lose constructionist".

(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights

Well, if the Bill of Rights is extended to the States, then the unenumerated rights spoken of by the 9th ammendment also get carried over.

(3) the 9th Amendment

You mean the "don't do something stupid and think just because we wrote down some important rights that these are all of them that are protected" ammendment? It's perfectly acceptable to interpret that strictly. It states pretty much that when there is some conflict between legislation and something seen as a fundamental moral right, the law is to be presumed to be on the side of the fundamental moral right. Moreover, the vagueness of the nineth ammendment (as well as the neccesary and proper clause and the interstate commerse clause) is what makes a strict constructionist viewpoint possible. Because the language itself is vague, you don't have to "legislate from the bench" to get a valid legal result. You just have to accept the fundamental, expressly spelled out roles of the various parties that the constitution served as a contract between, namely the federal government, the states, and the people.

(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights

You mean the thing I just talked about where they actually codified that in the form of the nineth ammendment?

(5) the following examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity

Do you really wish to insist that none of these are protected by the Constitution?
Of course not. You seem to think that strict constructionism equates to limiting people's fundamental rights. Strict constructionism is the practice of placing the constitution's words and the intent behind those words above all other forms of law and legal prescedent. The constitution's actual words clearly serve to limit the powers of the state in several important ways, and the intent behind them, as determined by many of the published writings of it's authors (ie. the federalist papers and the antifederalist papers) also make it clear that curtailing the fundamental moral rights of individuals was not something that was within the perview of this government.

These people were revolutionaries, desprately afraid that the government they created might turn out no better than the one they had all faught to break away from. The US Constitution enshrines the ideals of liberty in a document which was supposed to be the unquestioned law of the land.

The trouble is that a lot of people claiming to be strict constructionists have used the title and actually gone and "legislated from the bench" against the preservation of moral rights. I believe in the doctrine of original intent, because I believe (after reading the federalist papers and other documents) that the founders had the right idea about limited government, and protecting minorities from the tyrany of the majority.

Uhhh, hell fucking no.

Agreed. The Supreme Court has no business making laws. Their job is to interpret the law. Let the Legislative Branch do their job.

*snip*
Side stepping the funny notion of moral rights (who's morality?), but could you please point out a case that was decided based on something other than the document at hand?

Please? Pretty please? With sugar on top? I'd dearly love to see it because I have yet to see a single case that doesn't have a nice logic chain, or one that doesn't fit your claims above.

Agreed. The Supreme Court has no business making laws. Their job is to interpret the law. Let the Legislative Branch do their job.
Same goes to you, when has the judical branch ever actually MADE laws?

The constitution is rather open to interpretation, and as such it must be interpreted to meet the times. However, I would prefer that the courts follow precedent, and allow the constitution to be left to the legislators.

EDIT: So pretty much how it goes now.

The 14th amendment extended the constitutional protections of the people to potential infringements by the states, right? Because it was an ammendment, and upheld, I will assume that it went through the legal procedure defined in the constitution's main body? Ammendments are perfectly acceptable tools for changing the constitution without becoming a "lose constructionist".

Actually, that is incorrect. The idea of reading the rest of the Constitution through the 14th Amendment didn't come about until quite a while after it was added. And it was not explicitly stated as such - that is an interpretation - one that was "added" by the court well after the amendment was passed. Some judges would argue that the "intent" of the 14th Amendment was to protect blacks from discrimination, no more and no less. Of course, such an argument would be funny, since most of its early uses were to apply it to corporations, rather than to any individuals.

See, the way we look at things changes over time....

Same goes to you, when has the judical branch ever actually MADE laws?


Never.

Neither SCOTUS Justices nor any other judge in this country does nor ever has "legislated from the bench". That's just meaningless buzzwords -- code for "they didn't decide that case the way I wanted them to". Boo-f'ing-hoo. They don't always make decisions I agree with; I don't attempt to undermine separation of powers because of it.

Side stepping the funny notion of moral rights (who's morality?), but could you please point out a case that was decided based on something other than the document at hand?

So, side stepping the entire basis of my position? No, I don't think I'm going to bother.

Please? Pretty please? With sugar on top? I'd dearly love to see it because I have yet to see a single case that doesn't have a nice logic chain, or one that doesn't fit your claims above.
Beg all you want. I assert that every time the supreme court has upheld a limit of any sort on those rights listed as "shall not be infringed" they have blatently ignored the constitution, and have sided with what they call "a need to ballance individual rights against the needs of society". That is consistently used whenever basic rights are infringed, and it appears no where in the constitution.
Actually, that is incorrect.

It was precisely because I was not familiar with the 14th amendment that I put all those statements in the form of questions. Regardless, I'll check the ammendment as quoted on wiki in order to inform my arguements.

...

...

...

...

...Okay, I'm back.

I see that it was one of those ones that was ratified during the Civil War period, thus questioning it's legality under a strict constructionist viewpoint. Still, since the southern states were not members of the union when the amendment was drafted (according to their own declaration of independence) onc cannot be expected to yield the power of one's governing process to what is, in essence, a foreign power.

The idea of reading the rest of the Constitution through the 14th Amendment didn't come about until quite a while after it was added. And it was not explicitly stated as such - that is an interpretation - one that was "added" by the court well after the amendment was passed. Some judges would argue that the "intent" of the 14th Amendment was to protect blacks from discrimination, no more and no less.

The arguement is also baseless, since the amendment also contained clear instructions about imigration and citizenship, as well as a clause guarenteeing equal protection to all persons. The idea that this only applies to blacks facing discrimination is to ignore the attempt made by congress to make the language of the amendment broadly applicable.

Of course, such an argument would be funny, since most of its early uses were to apply it to corporations, rather than to any individuals.

And since corperations are not persons by any stretch, this is another example of the kind of "legislating from the bench" that I opose as a strict constructionist.

See, the way we look at things changes over time....
I see that human nature doesn't seem to change much, and since that is the primary basis for constitutional rights and powers, I don't get your point.

So, side stepping the entire basis of my position? No, I don't think I'm going to bother.
Fine, want to talk about that one for a bit?

Who's morality are we going off of, these moral rights? And how do these jive with the establishment clause?

Beg all you want. I assert that every time the supreme court has upheld a limit of any sort on those rights listed as "shall not be infringed" they have blatently ignored the constitution, and have sided with what they call "a need to ballance individual rights against the needs of society". That is consistently used whenever basic rights are infringed, and it appears no where in the constitution.
Translation: I have no clue and no case, but I've heard someone talk about legislating from the bench so I'm gonna complain.

Oh no, if you're going to make such statement you better damn well provide a case. One, show me one case that was not grounded in the actual Constitution. One. Bring one case were the court decided to infringe on rights.

If not, then I will have to assume you are, as we say in Nevada, full of it.

Hi, there. So, is this going to be a friendly conversation, or a bitter arguement where neither of us convinces the other of anything?

Depends on what you are capable of.

The 14th amendment extended the constitutional protections of the people to potential infringements by the states, right? Because it was an ammendment, and upheld, I will assume that it went through the legal procedure defined in the constitution's main body? Ammendments are perfectly acceptable tools for changing the constitution without becoming a "lose constructionist".

No duh. The 14th Amendment is an amendment. You fail to address its meaning and impact or -- more critically to a strict constructionist -- its intent.

Well, if the Bill of Rights is extended to the States, then the unenumerated rights spoken of by the 9th ammendment also get carried over.

Then you assume there are unenumerated rights that are actually protected by the Constitution. That is not the normal strict constructionist view.

You mean the "don't do something stupid and think just because we wrote down some important rights that these are all of them that are protected" ammendment? It's perfectly acceptable to interpret that strictly. It states pretty much that when there is some conflict between legislation and something seen as a fundamental moral right, the law is to be presumed to be on the side of the fundamental moral right. Moreover, the vagueness of the nineth ammendment (as well as the neccesary and proper clause and the interstate commerse clause) is what makes a strict constructionist viewpoint possible. Because the language itself is vague, you don't have to "legislate from the bench" to get a valid legal result. You just have to accept the fundamental, expressly spelled out roles of the various parties that the constitution served as a contract between, namely the federal government, the states, and the people.

What, pray tell, is the difference between exploiting the vague language as you suggest and "loose" construction?

You mean the thing I just talked about where they actually codified that in the form of the nineth ammendment?

Yeah. The part where the Founders didn't believe in strict construction. You don't address it.

Of course not. You seem to think that strict constructionism equates to limiting people's fundamental rights. Strict constructionism is the practice of placing the constitution's words and the intent behind those words above all other forms of law and legal prescedent. The constitution's actual words clearly serve to limit the powers of the state in several important ways, and the intent behind them, as determined by many of the published writings of it's authors (ie. the federalist papers and the antifederalist papers) also make it clear that curtailing the fundamental moral rights of individuals was not something that was within the perview of this government.

These people were revolutionaries, desprately afraid that the government they created might turn out no better than the one they had all faught to break away from. The US Constitution enshrines the ideals of liberty in a document which was supposed to be the unquestioned law of the land.

The trouble is that a lot of people claiming to be strict constructionists have used the title and actually gone and "legislated from the bench" against the preservation of moral rights. I believe in the doctrine of original intent, because I believe (after reading the federalist papers and other documents) that the founders had the right idea about limited government, and protecting minorities from the tyrany of the majority.

This is cute. You've basically redefined strict constructionism to allow for a loose construction. Under your definition, no court has ever applied a loose construction.

Judge Richard Posner on the Importance of Judicial Gap-Filling:

A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning the use or distribution of contraceptives] would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple's second child and place it in a foster home....We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution.

Posner is not a strict constructionist.

Neither, it appears are you.

The American Constitution was designed to be a "living document," although primarily via amendments, not judicial fiat.

Since when is interpretation equal to amendment by judicial fiat?

Nice job of ducking the particulars of my argument.

There does not need to be a Constitutional amendent to pass every possible law or to come to court decisions about those laws. That is the legitimate function of the legislature and the courts.

It is a legitimate function of the Court because it has the flexibility to do so. Either you would deprive it of that flexibility or your strict construction is meaningless.

What I am saying is that laws that are passed that clearly violate the express language of the Constitution should jnot be upheld.

Of course not. Who suggested otherwise?

Likewise no judge shold be allowed to create new interpretations of the constitution that don't already existr in the Constitution itself because they thimnk that it ought to be there.

So Brown v. Board of Education of Topeka (http://laws.findlaw.com/us/347/483.html), 347 US 483 (1954). was wrongly decided?

It definitely was without precedent or based on a pre-existing understanding of the Constitution.

The "penumbra" of the Constitution could theoretically conatin anything that any judge wants to be there.

1. By your crack at "penumbra" are you suggesting Griswold v. Connecticut (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=479), 381 US 479 (1965) was wrongly decided?

2. Tommorrow a unanimous Supreme Court could declare anything -- that free speech only applies to chickens. Theoretically it is possible. That doesn't mean it would be valid. There is a difference between a "loose" construction and no logic at all.

Operant word: "interpreted."

Not amended.

When, pray tell, has the Supreme Court amended the Constitution?

Would you like to explain how protection of fundamental unenumerated rights is consistent with strict constructionism?

The Supreme Court, primarily the Burger Court ( IIRC ), has stretched the "judicial option" right to the limit several times. If the Constitution needs to be altered, the appropriate process is the amendment process, not judicial fiat.

Ah, the Burger Court. Odd choice.

Care to be more specific?

EDIT: why do your posts almost always just reek of hostility??? :(

Perhaps you are projecting.

It's worth remembering that if the Constitution is indeed a living document then no liberal has any moral right to object to the overturning of Roe v. Wade. :)

Does anyone want to start a betting pool on how long it will take Pro-"Choice" people to suddenly become strict constructionists and start thumping their chests like so many apes while they bellow out about "Da Lawww of de Lannnnd!" when they figure this one out? :D

Silly strawman.

First, you seem to have confused strict construction with stare decisis.

Second, the alternative to strict construction is not simply judges deciding cases willy-nilly.

Courts offer opinions that explain and justify their opinion in light of the facts, precedent, the Constitution, etc. An overturn of Roe v. Wade could not be legitimately justified.

Third, most strict constructionists would hold that Roe was wrongly decided in the first place. Thus your argument is hollow.

But you see, for such a belief to matter, you would also have to believe that popular opinion as represented by the legislature and elected executive has the right to overturn the rulings of the judiciary. As embodied in the Constitution.

No. There is no relation between "loose" construction and a lack of judicial review.

You would also have to believe that precedent matters in ways that the Living Constitution theory does not allow for.

No. "Loose" construction is in no way inconsistent with the existence of precedent. To the contrary, stare decisis is more justifiable under a living Constitution.

Otherwise, while you have a *legal* right to complain you most certainly would not have a *moral* one since you would then be arguing from a base of hypocrisy.

What would be hypocritical? To the contrary, it is a strict constructionist view that eschews any reading of morals into the Constitution.

The prime weakness of the "Living Constitution" is a simple one: Anything a court awards itself the right to give becomes something a court can take away. Everything Cat Tribe boasted of as being granted exclusively being bestowed by the court system is in effect something that could be reversed should the court have a bad hair day or the wrong bowl of chili. That's the reason reliance upon a written constitution is always wiser than a reliance upon what judges will do.

No the alternative to strict construction is not simply any construction or an internet poll.

You've forgotten the effect of stare decisis and the accumulation of precedent. Law under a "loose" construction evolves. It doesn't just change because "the court [has] a bad hair day or the wrong bowl of chili."

I note you've failed to answer my challenges regarding strict construction.

Meh. It doesn’t matter.

The US government is ingeniously designed to do what governments do best, screw the people, and they can do so with or without the courts and with or without a constitution The most important parts of our government are the IRS, the FBI and the US Army. If they don’t ruin you financially, they’ll arrest you and if you give them too much trouble, the DA will have the armed forces obliterate you.

Agreed. The Supreme Court has no business making laws. Their job is to interpret the law. Let the Legislative Branch do their job.

See the Posner quote above. There is a necessary and proper role for the judiciary in interpreting the law to fill gaps.

Meh. It doesn’t matter.

The US government is ingeniously designed to do what governments do best, screw the people, and they can do so with or without the courts and with or without a constitution The most important parts of our government are the IRS, the FBI and the US Army. If they don’t ruin you financially, they’ll arrest you and if you give them too much trouble, the DA will have the armed forces obliterate you.

Paranoia as constitutional theory.

So, side stepping the entire basis of my position? No, I don't think I'm going to bother.

In other words, you cannot name a case that violates your notion of strict construction.

Beg all you want. I assert that every time the supreme court has upheld a limit of any sort on those rights listed as "shall not be infringed" they have blatently ignored the constitution, and have sided with what they call "a need to ballance individual rights against the needs of society". That is consistently used whenever basic rights are infringed, and it appears no where in the constitution.

So, you are not only a strict constructionist, but an absolutist. The Hugo Black school: "no law means no law"

Funny how there is a difference between strict construction and absolutism.


It was precisely because I was not familiar with the 14th amendment that I put all those statements in the form of questions. Regardless, I'll check the ammendment as quoted on wiki in order to inform my arguements.

...

...

...

...

...Okay, I'm back.

I see that it was one of those ones that was ratified during the Civil War period, thus questioning it's legality under a strict constructionist viewpoint. Still, since the southern states were not members of the union when the amendment was drafted (according to their own declaration of independence) onc cannot be expected to yield the power of one's governing process to what is, in essence, a foreign power.

The arguement is also baseless, since the amendment also contained clear instructions about imigration and citizenship, as well as a clause guarenteeing equal protection to all persons. The idea that this only applies to blacks facing discrimination is to ignore the attempt made by congress to make the language of the amendment broadly applicable.

*sigh*

You have no clue what the 14th Amendment was about or how it has changed our law.

The strict constructionist would not allow the 14th Amendment to protect fundamental rights under the auspices of the Due Process Clause.

And since corperations are not persons by any stretch, this is another example of the kind of "legislating from the bench" that I opose as a strict constructionist.

LOL.

I suggest you read up on the long judicial (and legislative) history behind corporations being held to be persons under the Constitution.

Would you really suggest that corporations have no 4th, 5th, or 6th Amendment rights?

I see that human nature doesn't seem to change much, and since that is the primary basis for constitutional rights and powers, I don't get your point.

Please explain Brown v. Board of Education (http://laws.findlaw.com/us/347/483.html), 347 U.S. 483 (1954).

It did not follow precedent. It was not based on strict construction.

BTW, I apologize for the block of responses by me. I was unable to be on the forums for much of this discussion. Please indulge my attempt to catch up.

BTW, I apologize for the block of responses by me. I was unable to be on the forums for much of this discussion. Please indulge my attempt to catch up.
No worries, but I think you scared them away. ;)

No worries, but I think you scared them away. ;)

I truly hope not. :eek: ;)

Do you believe that the high court of a nation has a right to impose new legal standards on a nation with little to no solid Constitutional basis, going with the idea of a "living Constitution" or a justice being a "loose constructionist" as opposed to a "strict constructionist" -- that the ideas expressed in such documents must be construed over time to match modern societal standards?

The Constitution is strict in terms of the granting of powers to the Government, and loose is its application and recognition of the liberty of the populace at large.

That is, the government is granted only those powers which are specifically enumerated (written), but the rights of the people include those rights which are enumerated (Amendments 1-8) and those which are non-enumerated (Amendments 9 & 10).

Neither SCOTUS Justices nor any other judge in this country does nor ever has "legislated from the bench". That's just meaningless buzzwords -- code for "they didn't decide that case the way I wanted them to". Boo-f'ing-hoo. They don't always make decisions I agree with; I don't attempt to undermine separation of powers because of it.

Sorry to jump back in so late, but Kelo is a perfect example of this. The idea that property belongs to the government and can be taken for any purpose is a Marxist idea, and is not based in the constitution. The Kelo decision is an absolute example of judicial fiat, because the justices who voted for it "interpreted" the Constitution in a way that it was never intended. Because 5 justices decided that the 'public good" meant any purpose that a government entity decided was right means that they just totally changed the Constitution by their legal decree without regard for the meaning of the constitution, previous legal precedent, or even common sense.

If we stick to a rigid constitution then it will become more and more outdated and out of touch and we will end up like fundamentalists, things have to change and evolve.

First, you seem to have confused strict construction with stare decisis.

Correct me if I'm wrong, but it seems that stare decisis wouldn't mean anything at all to a strict constructionist, since the only thing that should matter is what they see in the language itself. A previous decision, unless it agreed with how they view the constitution, would mean nothing.

In other words, you cannot name a case that violates your notion of strict construction.

They pretty much all do, so I didn't feel it neccisary to point to any specific case. The one which refferenced yelling "fire" in a crowded theater is one example, where the right of free speach is infringed based on a supposed need to ballance it against the "needs of society".

So, you are not only a strict constructionist, but an absolutist. The Hugo Black school: "no law means no law"

Funny how there is a difference between strict construction and absolutism.

Not familar with the term, so you might be right.

*sigh*

You have no clue what the 14th Amendment was about or how it has changed our law.

The strict constructionist would not allow the 14th Amendment to protect fundamental rights under the auspices of the Due Process Clause.

It is, however, well within the perview of the idea of orignal intent, which was pretty much about limiting the government's ability to opress it's citizens.

LOL.

I suggest you read up on the long judicial (and legislative) history behind corporations being held to be persons under the Constitution.

Why? So I can get even more depressed?

Would you really suggest that corporations have no 4th, 5th, or 6th Amendment rights?

Individuals have rights. Corperations have no rights.

Please explain Brown v. Board of Education (http://laws.findlaw.com/us/347/483.html), 347 U.S. 483 (1954).

It did not follow precedent. It was not based on strict construction.
Failure to provide equal oportunities to all persons acting within a legal government based system is clearly grounded in the equal protection clause. Previous prescedent aside, it did do plenty to limit the ability of the government (in this case state government) to supress the people. This is quite consistent with the idea of original intent.

Sorry to jump back in so late, but Kelo is a perfect example of this. The idea that property belongs to the government and can be taken for any purpose is a Marxist idea, and is not based in the constitution. The Kelo decision is an absolute example of judicial fiat, because the justices who voted for it "interpreted" the Constitution in a way that it was never intended. Because 5 justices decided that the 'public good" meant any purpose that a government entity decided was right means that they just totally changed the Constitution by their legal decree without regard for the meaning of the constitution, previous legal precedent, or even common sense.

*Sigh* You didn't bother to read the decision, or even O'Connor's dissent, did you?

There was nothing at all in the Kelo decision to suggest that "public good" means "any purpose that the government entity decided was right." While I agree that Kelo was wrongly decided, it was not because anything new was interpreted into the Constitution. They backed the decision up with the Constitution itself and with precedent. The most you can say for the decision is that they misused precedent - applying it in a way that it should not be applied.

Sorry to jump back in so late, but Kelo is a perfect example of this.

Another example of Judicial legislating (and one that CT will recognize) is Castle Rock v. Gonzales.

[QUOTE=Dempublicents1]*Sigh* You didn't bother to read the decision, or even O'Connor's dissent, did you?

*Sigh* I generally have to work for a living. But in this case I did read much of the decision and the dissenting opinions. The precedents you describe are examples themselves of the court changing the meaning of public use to a "public purpose" and thereby changing the intent of the constitution.
i gree with you tht it was wrongly decuded for two reasons. First it was an example of the Justices trying to overlay their own opinions on the original meaning of the "Takings Clause". Second because the net effect was that they were allowing a private entity (Pfizer) to essentially sieze the land of a private property owner in the name of "public purpose".

From the dissenting opinion:
The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning. For the reasons I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court.

*Sigh* I generally have to work for a living. But in this case I did read much of the decision and the dissenting opinions. The precedents you describe are examples themselves of the court changing the meaning of public use to a "public purpose" and thereby changing the intent of the constitution.
i gree with you tht it was wrongly decuded for two reasons. First it was an example of the Justices trying to overlay their own opinions on the original meaning of the "Takings Clause". Second because the net effect was that they were allowing a private entity (Pfizer) to essentially sieze the land of a private property owner in the name of "public purpose".

From the dissenting opinion:
The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning. For the reasons I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court.That was O'Connor's opinion--doesn't mean she was absolutely right, as in fact five justices disagreed with her. The opinion itself basically said that it's not the Supreme Court's place to decide individual cases involving eminent domain--that's the job of state of state and local governments, and as much as I hate to admit it now, I think they're right. The Constitution allows for it, and there's a democratic way to stop it from happening--elect people who oppose using it to benefit private investors.

*Sigh* I generally have to work for a living.

As do I. Sometimes it means that I don't try to talk about something I don't know much about.

Second because the net effect was that they were allowing a private entity (Pfizer) to essentially sieze the land of a private property owner in the name of "public purpose".

Actually, Pfizer didn't get any of the land under dispute. Pfizer, IIRC, was going to build a plant on the closed base - which was already government land. The decision was very clear in stating that a large part of the reason the takings were allowed was that the land in question was not to be sold to any particular private entity. It was simply to be used for a specific purpose (parking and industrial offices, IIRC). Those who would eventually buy it were not yet known.

From the dissenting opinion:

That is from *a* dissenting opinion - Thomas' to be exact. Considering that Thomas wanted to go all the way back and basically argue with Marbury v. Madison, I only skimmed his opinion. We are, after all, talking about the justice who has point-blank stated that it would be perfectly fine for a state to declare an official religion.

I tend much more towards O'Connor's dissent, which doesn't break down precedent which I think was actually necessary. She makes it clear that her problem with the Kelo decision is that the current use of the land was not, in and of itself harmful. The difference between the Kelo decision and the precedent was that in each precedent case, the current use of the land was harmful - it was blighted or was continuing an oligarchy, etc. In the Kelo case, the current use was not harmful, but the government thought it could be put to "better" use. It is in this point that they strayed from precedent, and, I believe, from the Constitution.

But, one way or another, it cannot be construed as "legislating from the bench" any more than any case any one of us might disagree with could be. It was a difference in interpretation, not a decision which was not based in the law.

That was O'Connor's opinion--doesn't mean she was absolutely right,

Actually, it was Thomas', which makes it much, much less likely to be right.

Actually, it was Thomas', which makes it much, much less likely to be right.
Ah, I was assuming that the poster I quoted knew what he was quoting. My bad.

Another example of Judicial legislating (and one that CT will recognize) is Castle Rock v. Gonzales.

Castle Rock v. Gonzales, (http://www.law.cornell.edu/supct/html/04-278.ZS.html) 545 US ___ (2005) was wrongly decided, but it had nothing to do with judicial legislation. To the contrary, it was a product of strict constructionism.

*Sigh* I generally have to work for a living. But in this case I did read much of the decision and the dissenting opinions. The precedents you describe are examples themselves of the court changing the meaning of public use to a "public purpose" and thereby changing the intent of the constitution. i gree with you tht it was wrongly decuded for two reasons. First it was an example of the Justices trying to overlay their own opinions on the original meaning of the "Takings Clause".

Read strictly, the Takings Clause does not limit the taking of public property to public use. To the contrary, it says when property is taken for public use, it must be justly compensated for. It took a non-strict interpretation of the Constitution to create the doctrine you call the "original meaning".

Prior to the 14th Amendment the power of eminent domain of the states was unchecked by any authority.

So what original meaning are you complaining was glossed over?

Those precedents that were followed were the very ones that placed a limit on eminent domain.

Second because the net effect was that they were allowing a private entity (Pfizer) to essentially sieze the land of a private property owner in the name of "public purpose".

As already noted, this is not true. Pfizer is building adjacent to the disputed land.

From the dissenting opinion:
The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning. For the reasons I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court.

Apparently you belong to the school of strict constuctionism where precedent place no role in your decision. You just tabula rasa decide from the original document. Stare decisis goes out the window.

Moreover, such an interpretation is static. It does not allow the law to change. Brown v. Board of Education would be invalid under this view.

There is a reason why Thomas's dissent was a lone one.

*vain attempt at a bump*

Castle Rock v. Gonzales, (http://www.law.cornell.edu/supct/html/04-278.ZS.html) 545 US ___ (2005) was wrongly decided, but it had nothing to do with judicial legislation. To the contrary, it was a product of strict constructionism.

Just goes to show that when people talk about "judicial activists", they mean, "judges who don't agree with me," and when they complain about "loose constructionism", they really mean, "decisions that don't agree with me."

Just goes to show that when people talk about "judicial activists", they mean, "judges who don't agree with me," and when they complain about "loose constructionism", they really mean, "decisions that don't agree with me."
Bingo.

And The Five Castes, I'm still waiting for you to point out one case. If all of them have indeed violated the Constitution and have been the products of judical larks, you should have no problem in finding one to use as proof, ne?

I think that it's become apparent that the lines between a strict intrepretation and a loose interpretation are quite blurred. It's hard to say where to start and where to stop, in my mind.

Of course, in the U.S., there's the infamous decision of Roe vs. Wade . In that decision, the members of the court effectively legislated their collective opinion that the mother's right to privacy under the fourteenth amendment trumped the fundamental right of the fetus to life. Now, I don't mean to get into an abortion debate here, but I do think that this ruling is a good example of where the high court should draw the line in judicial review. When the view points are as divisive as they are in cases with issues such as abortion, where there are many different ideas at odds with one another, the court should leave the issue up to the discretion of the states. Abortion can be viewed from many angles -- as a privacy issue, as a moral issue, and so forth. Therefore, ruling that abortion should be legalized federally based upon the "due process" clause of the fourteenth amendment (the right to privacy itself having been rightfully judicially interpreted from this amendment) was expressing a view point of the court on a divisive issue. In cases like these, laws should be left up to the discretion of the states, as is laid out in the ninth amendment.

In other cases, however, judicial interpretation of the Constitution not based soley on what is written is necessary. For instance, freedom of speech has been interpreted to entail freedom of expression in forms other than written and verbal ones. The decision to be made with this was clear: is expression intended where it says "speech" or not? I believe that in cases such as this one, judicial interpretation, or, as some call "activism", is needed to ensure basic freedoms. It is necessary to make sure that judicial interpretation is kept only where it protects basic freedoms and does not extend to cases where there are more shades of grey.

Just goes to show that when people talk about "judicial activists", they mean, "judges who don't agree with me," and when they complain about "loose constructionism", they really mean, "decisions that don't agree with me."



Thanks for agreeing with me, but I did already make a post to that effect.

I think that it's become apparent that the lines between a strict intrepretation and a loose interpretation are quite blurred. It's hard to say where to start and where to stop, in my mind.

Clearly, the lines between strict and loose interpretation are quite blurred in your mind. They aren't in everyone's, however.

Of course, in the U.S., there's the infamous decision of Roe vs. Wade . In that decision, the members of the court effectively legislated their collective opinion that the mother's right to privacy under the fourteenth amendment trumped the fundamental right of the fetus to life. Now, I don't mean to get into an abortion debate here, but I do think that this ruling is a good example of where the high court should draw the line in judicial review. When the view points are as divisive as they are in cases with issues such as abortion, where there are many different ideas at odds with one another, the court should leave the issue up to the discretion of the states. Abortion can be viewed from many angles -- as a privacy issue, as a moral issue, and so forth. Therefore, ruling that abortion should be legalized federally based upon the "due process" clause of the fourteenth amendment (the right to privacy itself having been rightfully judicially interpreted from this amendment) was expressing a view point of the court on a divisive issue. In cases like these, laws should be left up to the discretion of the states, as is laid out in the ninth amendment.

1. Bizarre that you would say a right to privacy was properly found in the 14th Amendment under a strict constructionist view.

2. Given a right to privacy and bodily integrity, of course there is a right to abortion.

3. Courts shouldn't shy away from an issue because it is controversial. Brown v. Board of Education was highly controversial and most felt at the time the decision should be left to the states. Was Brown wrongly decided?

4. The 9th Amendment in no way says that certain laws should be left to the discretion of the states. That would be the 10th. And as we have already discussed, the efffect of the 10th is limited by the 9th and the 14th.

In other cases, however, judicial interpretation of the Constitution not based soley on what is written is necessary. For instance, freedom of speech has been interpreted to entail freedom of expression in forms other than written and verbal ones. The decision to be made with this was clear: is expression intended where it says "speech" or not? I believe that in cases such as this one, judicial interpretation, or, as some call "activism", is needed to ensure basic freedoms. It is necessary to make sure that judicial interpretation is kept only where it protects basic freedoms and does not extend to cases where there are more shades of grey.

So, in other words, loose construction or activism is OK if you agree with it and not if you don't.

Thanks for agreeing with me, but I did already make a post to that effect.

Dem1 pointed to how a specific example proved your rule.

Of course, in the U.S., there's the infamous decision of Roe vs. Wade . In that decision, the members of the court effectively legislated their collective opinion that the mother's right to privacy under the fourteenth amendment trumped the fundamental right of the fetus to life. Now, I don't mean to get into an abortion debate here, but I do think that this ruling is a good example of where the high court should draw the line in judicial review. When the view points are as divisive as they are in cases with issues such as abortion, where there are many different ideas at odds with one another, the court should leave the issue up to the discretion of the states. Abortion can be viewed from many angles -- as a privacy issue, as a moral issue, and so forth. Therefore, ruling that abortion should be legalized federally based upon the "due process" clause of the fourteenth amendment (the right to privacy itself having been rightfully judicially interpreted from this amendment) was expressing a view point of the court on a divisive issue. In cases like these, laws should be left up to the discretion of the states, as is laid out in the ninth amendment.
Let's look at that for a second then, your point is that the right to privacy, which is the basis of Roe should be left up to the states.

Your right to have your medical records private would therefore be subjected to the state, which may decide that its right to peak to see if you're abusing drugs trumps yours.

The right to decide medical treatment for yourself would be subjected to the same.

Your right to do whatever it is in your bedroom with another consenting adult is null and void (Just remember, some states still have laws against oral sex).

Your right to read what you want to read and watch what you want to watch without the state looking on is subjected to what your state legislature thinks about such things.

But, again, sounds less like judical legislation (since you note that the right to privacy was grounded in the text), but more like you disliked the decision.

I think that it's become apparent that the lines between a strict intrepretation and a loose interpretation are quite blurred. It's hard to say where to start and where to stop, in my mind.

Of course, in the U.S., there's the infamous decision of Roe vs. Wade . In that decision, the members of the court effectively legislated their collective opinion that the mother's right to privacy under the fourteenth amendment trumped the fundamental right of the fetus to life. Now, I don't mean to get into an abortion debate here, but I do think that this ruling is a good example of where the high court should draw the line in judicial review. When the view points are as divisive as they are in cases with issues such as abortion, where there are many different ideas at odds with one another, the court should leave the issue up to the discretion of the states. Abortion can be viewed from many angles -- as a privacy issue, as a moral issue, and so forth. Therefore, ruling that abortion should be legalized federally based upon the "due process" clause of the fourteenth amendment (the right to privacy itself having been rightfully judicially interpreted from this amendment) was expressing a view point of the court on a divisive issue. In cases like these, laws should be left up to the discretion of the states, as is laid out in the ninth amendment.

What you're really arguing is not that a right to privacy does not exist, but rather that the right is overruled by a compelling interest of the state to protect unborn life. That is a fine argument, one that has been used before and recognized in Roe. It is not, however, an argument that a right to privacy DOES NOT EXIST. You've in effect conceeded that it does, but that it should be ignored in the greater interest of common unity, which is the oddest legal argument that I've ever heard.

Judge Richard A. Posner on Originalism and Pragmatism
Excerpts from Overcoming Law (1995) ("What Am I? A Potted Plant?" and "Bork and Beethoven")

From "What Am I? A Potted Plant?"

*****Politically, I feel more governed than self-governing, and this is one reason why I think more warmly of limited government than of popular government. In considering whether to shrink what are now understood to be constitutional safeguards to the slight dimensions implied by a literal interpretation of the Constitution, we should be careful to have a realistic, not an idealized, picture of the legislative and executive branches of government, which would be even more powerful than they are today if those safeguards were reduced.

The framers of a constitution who want to make it a charter of liberties and not just a set of constitutive rules face a difficult choice. They can write specific provisions and thereby doom their work to rapid obsolescence, or they can write general provisions, thereby allowing substantial discretion to the authoritative interpreters, who in our system are the judges. The U.S. Constitution is a mixture of specific and general provisions. Many of the specific provisions have stood the test of time well or have been amended without much fuss. This is especially true of the rules establishing the structure and procedures of Congress. Most of the specific provisions creating rights, however, have fared poorly. Some have proved irksomely anachronistic-for example, the right conferred by the Seventh Amendment to a jury trial in federal in all cases at law if the stakes exceed $20. Others have become dangerously anachronistic, such as the right to bear arms. Some have turned topsy-turvy, such as the provision for indictment by grand jury. The grand jury has become an instrument of prosecutorial investigation on, rather than being the protection for the criminal suspect that the framers of the Bill of Rights expected it to be. If the Bill of Rights had consisted entirely of specific provisions, it would no longer be a significant constraint on the behavior of government officials.

Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforeseen changes, but it creates the possibility of alternative interpretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies judges have any right to exercise discretion. A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated by its drafters, requires the exercise of discretion and the weighing of consequences. Reading is not a form of deduction; understanding requires a consideration of consequences. If I say, "I'll eat my hat," one reason why my listeners will "decode" the meaning of this statement in nonliteral fashion is that I couldn't eat a hat if I tried. The broader principle, which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it.

Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly," or, "Read me narrowly." The decision to do one or the other must be made as a matter of political theory and will depend on such things as one's view of the springs of judicial legitimacy and the relative competence of courts and legislatures in dealing with particular types of issue.

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." Read narrowly, this just means that the defendant can't be forbidden to retain counsel. If he cannot afford counsel, or competent counsel, he is out of luck. Read broadly, it guarantees even the indigent the effective assistance of counsel. It becomes not just a negative right to be allowed to hire a lawyer but a positive right to demand the help of the government in financing one's defense if one cannot do it oneself. Either reading is compatible with the semantics of the provision, but the first better captures the specific intent of the framers. When the Sixth Amendment was written, English law forbade a criminal defendant to have the assistance of counsel unless his case presented abstruse questions of law. The framers wanted to do away with this prohibition. But, more broadly, they wanted to give criminal defendants protection against being railroaded. When they wrote, government could not afford, or at least did not think it could afford, to hire lawyers for indigent criminal defendants. Moreover, criminal trials were short and simple, so it was not completely ridiculous to expect a lay person to be able to defend himself competently from a criminal charge without a lawyer if he couldn't afford to hire one. Today the situation is different. Not only can the society afford to supply lawyers to poor people charged with crimes, but modern criminal law and procedure are so complicated that an unrepresented defendant is usually at a great disadvantage.

***** The liberal judicial activists may be imprudent and misguided in their efforts to enact the liberal political agenda into constitutional law. But it is no use pretending that what they are doing is not interpretation but "deconstruction," not law but politics, just because it involves the exercise of discretion and a concern with consequences and because it reaches results not foreseen two hundred years ago. It may be bad law because it lacks firm moorings in constitutional text, or structure, or history, or consensus, or other legitimate sources of constitutional law, or because it is reckless of consequences, or because it oversimplifies difficult moral and political questions. But it is not bad law, or no law, just because it violates the tenets of strict construction.

From "Bork and Beethoven"

The Tempting of America [by Judge Robert Bork] defends the position that "all that counts" to a judge interpreting the Constitution "is how the words used in the Constitution would have been understood at the time [of enactment]." But rather than produce convincing reasons why society should want its judges to adopt originalism as their interpretive methodology in constitutional cases, Bork seems almost to want to place the issue outside the boundaries of rational debate. How else to explain the pervasive religious imagery? It begins with the title of the book. Any doubt that the reference is to the temptation is dispelled by the tide of the first chapter-"Creation and Fall"-which begins, "The Constitution was barely in place when one Justice of the Supreme Court cast covetous glances at the apple that would eventually cause the fall."

*****A summons to holy war is not an argument for originalism. Bork's militance and dogmatism will buck up his followers and sweep along some doubters, but it will not persuade neutrals. One especially wants a better ground than piety for genuflecting to originalism because Bork rightly if incongruously reminds us of the danger of "absolutisms" and "abstract principles," criticizes reliance in constitutional law on "history and tradition," and implies in his interesting discussion of originalism's historical roots that the nonoriginalist heresy may be part of the original 'understanding of the Constitution.

Bork thinks, originalism necessary in order to curb judicial discretion, and curbs on that discretion necessary in order to keep the handful of unelected federal judges from seizing the reins of power from the people's representatives. But if democracy is the end, originalism is a clumsy means. Bork notes that in the wake of the New Deal the Supreme Court read out of the Constitution the limitations that the commerce clause of Article I appears to place on the regulatory powers of the federal government. By the test of originalism, the Court erred. But by erring it transferred power to the people's representatives.

And democracy is not the end, at least not the unalloyed end. The democratic (really Bork means the populist) principle is diluted in our system of government. Policies are made by agents of the people rather than by the people themselves-precisely so that raw popular desire will be buffered, civilized, guided, mediated by professionals and experts, informed through deliberation. Even the representatives do not have a blank check. They are hemmed in by the Constitution itself representing, to be sure, popular preferences, but those of a sliver of a tiny population two centuries ago. As Dworkin would say, the question posed by an originalist versus an activist or a pragmatist judiciary is not, one of democracy or no democracy, but of the kind of democracy we want.

*****Anyway there is no evidence that the Court's authority depends on adherence to originalism. Bork knows this, for he says (in great tension with his remark about the destructibility of the institution) that "the Court is virtually invulnerable"; it "can do what it wishes, and there is almost no way to stop it, provided its result has a significant political constituency." That is a sensible observation. The Court's survival and flourishing depend on the political acceptability of its results rather than on its adherence to an esoteric philosophy of interpretation. The Court has never been consistently originalist, yet has survived. Maybe the Justices know more about survival than their critics do; we economist types believe that people generally know more about how to protect their own interests than a kibitzer does.

Bork argues that if the only criterion for evaluating the Supreme Court's decisions is their political soundness, anyone who thinks the Court is politically wrong "is morally justified in evading its rulings whenever he can and overthrowing it if possible in order to replace it with a body that will produce results he likes." He adds ominously: "The man who prefers results to processes has no reason to say that the Court is more legitimate than any other institution capable of wielding power. If the Court will not agree with him, why not argue his case to some other group, say the Joint Chiefs of Staff, a body with rather better means for enforcing its decisions? No answer exists."

Actually there are plenty of answers, and one is that Bork is posing a false dichotomy: a court committed to originalism versus a court that a "naked power organ;" blind obedience versus rebellion. These dichotomies imply, implausibly, that the only method of justification available to a court, the only method of channeling judicial discretion and thus of distinguishing judges from legislators, is the originalist. No other method-one that emphasizes natural justice, sound justice, social welfare, or neutral (but not necessarily originalist) principles-so much as exists. "The judge who looks outside the historic Constitution always looks inside himself and nowhere else." And it may be doubted whether the forbearance of the Joint Chiefs of Staff to attempt a takeover of the government of the United States is dependent to the slightest degree on the Supreme Court's adherence to originalism. If one may judge by the evidence that Bork arrays, the Court has since the beginning strayed repeatedly from the originalist path, yet the Joint Chiefs (or their predecessors) have never tried to take over the government. Nor are they likely to try.

*****The idea of the Constitution as a binding contract is an incomplete theory of political legitimacy, not an erroneous one. A contract induces, reliance that can make a strong claim for protection; it also frees people from having continually to reexamine and revise the terms of the relationship. These values are independent of whether the original contracting parties are still alive. But a long-term contract is bound eventually to require, if not formal modification (which in the case of the Constitution can be accomplished only through the amendment, process), then flexible interpretation, to cope effectively with altered, circumstances. Modification and interpretation are reciprocal; the more difficult it is to modify the instrument formally, the more exigent is flexible interpretation. Bork is aware of the practical impediments to amending the Constitution but is unwilling to draw the inference that flexible interpretation is therefore necessary to prevent constitutional obsolescence.

*****The long-dead framers are a convenient group to whom to pass the buck. But although judges are not immune from the all too human tendency to deny responsibility for actions that cause pain, the significance of this fact is another matter. It is a considerable paradox to suggest that these reasons which uncandid judges give for their actions are the only legitimate grounds for judicial action. If the result-oriented or activist judge is queasy about the title deeds of his rulings, the originalist is (on the evidence of The Tempting of America, at any rate) queasy about the consequences of originalist rulings. And rightly so. A theory of constitutional interpretation that ignores consequences is no more satisfactory than one that ignores the political importance of building a bridge between the contemporary judge's pronouncement and some authoritative document from the past. It is difficult to argue to Americans that in evaluating a political theory they should ignore its practical consequences. Bork is not prepared to make such an argument. He continually reassures the reader that originalism does not yield ghastly results, while at the same time denouncing judges who are "result-oriented."

*****The originalist faces backwards but steals frequent sideways glances at consequences. The pragmatist places the consequences of his decisions in the foreground. The pragmatist judge does not deny that his role in interpreting the Constitution is interpretive. He is not a lawless judge. He does not, in order to do short-sighted justice between the parties, violate the Constitution and his oath, for he is mindful of the systemic consequences of judicial lawlessness. Like Samuel Lipman's ideal conductor, however, the pragmatist judge believes that constitutional interpretation involves the empathic projection of the judge's mind and talent into the creative souls of the framers rather than slavish obeisance to the framers' every metronome marking. In the capacious, forward-looking account of interpretation that I am calling pragmatic, the social consequences of alternative interpretations often are decisive; to the consistent originalist, if there were such a person, they would always be irrelevant.

In a representative democracy, the fact that many (it need not be most) people do not like the probable consequences of a judge’s judicial philosophy provides permissible, and in any event inevitable, grounds for the people’s representatives to refuse to consent to his appointment, even if popular antipathy to the judge is not grounded in a well-thought-out theory of adjudication. The people are entitled to ask what the benefits to them of originalism would be, and they will find no answers in The Tempting of America. If, to echo Samuel Lipman again, orginalism make bad music despite or perhaps because of its scrupulous historicity, why should the people listen to it?

What you're really arguing is not that a right to privacy does not exist, but rather that the right is overruled by a compelling interest of the state to protect unborn life. That is a fine argument, one that has been used before and recognized in Roe. It is not, however, an argument that a right to privacy DOES NOT EXIST. You've in effect conceeded that it does, but that it should be ignored in the greater interest of common unity, which is the oddest legal argument that I've ever heard.
The right to privacy does exist. Whether or not abortion falls under this right is a decision that should be left up to state governments. There is no clear indication on a judicial level whether or not the matter pertains to privacy; there are judges that feel that the life of the fetus overrules the woman's right to privacy, those that feel the privacy rights of the woman overrule any rights of the fetus, that a fetus is not protected by the Constitution, that a fetus is protected by the Consitution, etc. It all boils down to a matter of opinion, and not legal expertise. Therefore, it's an issue best left up to the state governments.

And for the record, I'm pro-choice, and do believe in a woman's right to privacy. Using Roe as an example was not intended to be a veiled attack on pro-choice arguments, but rather to use the shakiness of the ruling as an example of my point of view.

Now Cat-Tribe, you know good and well no one around here is actually going to read all that. :)

Let's look at that for a second then, your point is that the right to privacy, which is the basis of Roe should be left up to the states.

Your right to have your medical records private would therefore be subjected to the state, which may decide that its right to peak to see if you're abusing drugs trumps yours.

The right to decide medical treatment for yourself would be subjected to the same.

Your right to do whatever it is in your bedroom with another consenting adult is null and void (Just remember, some states still have laws against oral sex).

Your right to read what you want to read and watch what you want to watch without the state looking on is subjected to what your state legislature thinks about such things.

But, again, sounds less like judical legislation (since you note that the right to privacy was grounded in the text), but more like you disliked the decision.
Once again, I'm pro-choice. I'm for a woman's right to choose, and therefore believed in the end achieved by the ruling. However, whether or not abortion falls under the right to privacy is not clear from a legal standpoint; there are a number of different opinions on the issue, none of which supercede the other on a Constitutional level. There's the right to life, and then there's the right to privacy. Which is it? In an issue where there are shades of grey like these, it's best to leave it up to the discretion of the states.

The right to privacy does exist. Whether or not abortion falls under this right is a decision that should be left up to state governments. There is no clear indication on a judicial level whether or not the matter pertains to privacy; there are judges that feel that the life of the fetus overrules the woman's right to privacy, those that feel the privacy rights of the woman overrule any rights of the fetus, that a fetus is not protected by the Constitution, that a fetus is protected by the Consitution, etc. It all boils down to a matter of opinion, and not legal expertise. Therefore, it's an issue best left up to the state governments.

And for the record, I'm pro-choice, and do believe in a woman's right to privacy. Using Roe as an example was not intended to be a veiled attack on pro-choice arguments, but rather to use the shakiness of the ruling as an example of my point of view.

It is rather absurd to say their is a fundamental right to privacy protected by the Constitution, but that its scope should be left to the states. You wouldn't say such a thing about the right to free speech.

In light of Planned Parenthood v. Casey (http://laws.findlaw.com/us/505/833.html), 505 US 833 (1992), there is nothing shaky about the ruling in Roe v. Wade.

There is clear indication on the judicial level: states may not place an undue burden on the right to abortion prior to the point of viability. There are no holdings to the contrary. There may be individual judges that disagree here or there, but that is their personal opinion.

You have yet to distinguish Roe from Brown v. Board of Education in terms of a controversial decision. Brown arguably "boils down to a matter of opinion. Not judicial expertise." Judges at the time certainly disagreed with Brown and some still say it was wrongly decided.

Why do you duck that question? Is it because Roe is an easy target and Brown isn't?

Once again, I'm pro-choice. I'm for a woman's right to choose, and therefore believed in the end achieved by the ruling. However, whether or not abortion falls under the right to privacy is not clear from a legal standpoint; there are a number of different opinions on the issue, none of which supercede the other on a Constitutional level. There's the right to life, and then there's the right to privacy. Which is it? In an issue where there are shades of grey like these, it's best to leave it up to the discretion of the states.

Again, what good is a right to privacy if its scope is left to the states? Would you leave the scope of other fundamental rights up to the state?

The rights protected by the Fourteenth Amendment are of persons "born or naturalized in the United States." There is no consitutional right to life for the unborn fetus, so your "shades of grey" don't exist.

Now Cat-Tribe, you know good and well no one around here is actually going to read all that. :)

I can dream. Even if they just skim it, it is worth it. :cool:

Do you believe that the high court of a nation has a right to impose new legal standards on a nation with little to no solid Constitutional basis, going with the idea of a "living Constitution" or a justice being a "loose constructionist" as opposed to a "strict constructionist" -- that the ideas expressed in such documents must be construed over time to match modern societal standards?

Here in Canada they do use a "living constitution" approach: i.e. the constitution must be interpreted according to the standards of modern society. It's colourfully referred to as the "living tree doctrine" (i.e. the constitution is a tree that was planted in the fertile soils of Canada, where it can grow). It was what enabled the courts to find that women were "persons" whereas they had not previously been so under Anglo-Canadian law, among other things.

I think the first thing worth noting is that Constitutions always have to be interpreted. The wording is going to be inherently ambiguous, and the understanding of meanings of words will change over time. In the "persons" case I mentioned, it was obvious by that time that the common understanding of persons included women, but the legal understanding of that word had not kept up. So it is often more about updating the legal understandings of words than anything else.

Personally, I don't see how you can do otherwise. If you try to freeze the interpretation of your constitution in time, then you end up with a bunch of archaic definitions that defy the commonly understood meaning of the words. The constitution then becomes a document that can only be understood by judges and lawyers, and not the people themselves.

It is rather absurd to say their is a fundamental right to privacy protected by the Constitution, but that its scope should be left to the states. You wouldn't say such a thing about the right to free speech.

In light of Planned Parenthood v. Casey (http://laws.findlaw.com/us/505/833.html), 505 US 833 (1992), there is nothing shaky about the ruling in Roe v. Wade.

There is clear indication on the judicial level: states may not place an undue burden on the right to abortion prior to the point of viability. There are no holdings to the contrary. There may be individual judges that disagree here or there, but that is their personal opinion.

You have yet to distinguish Roe from Brown v. Board of Education in terms of a controversial decision. Brown arguably "boils down to a matter of opinion. Not judicial expertise." Judges at the time certainly disagreed with Brown and some still say it was wrongly decided.

Why do you duck that question? Is it because Roe is an easy target and Brown isn't?
First off, the ruling of Roe is now judicial precedent -- Planned Parenthood vs. Casey has no bearing on this discussion, as it was ruled on nineteen years after Roe.

Brown v. Board of Education dealt with an institution (segregation) that lead to a violation of the equal protection clause of the fourteenth amendment. The case at hand was a clear question of whether or not segregation in schools violated the fourteenth amendment. In Roe, there was a conflict -- is a fetus entitled to life ("life, liberity...") or is the mother entitled to privacy under due process in this situation? It's not a question that can be answered definitively from a legal standpoint, but by a matter of personal opinion. When this occurs, a court is not going through the procedures of judicial review anymore -- they are legislating, which is not their duty.

I can dream. Even if they just skim it, it is worth it. :cool:

Believe it or not, I read through most of it, although I skipped a few sentences here and there once I thought I got the point of a paragraph.

Of course, I'm a little weird, and I was already pretty sure I didn't like Bork, now I'm a bit more sure. =) The man actually tries to argue that the 14th Amendment can *only* be applied to black people, since that was its intent....

It is rather absurd to say their is a fundamental right to privacy protected by the Constitution, but that its scope should be left to the states. You wouldn't say such a thing about the right to free speech.

In light of Planned Parenthood v. Casey (http://laws.findlaw.com/us/505/833.html), 505 US 833 (1992), there is nothing shaky about the ruling in Roe v. Wade.

The problem with RvW is not it's central holding, which PPvCasey supports. It's the rest of that bastardised ruling that was the problem. PvC basically rewrites the rest of RvW in a much more concise format while holding on to the central position of it. None of which changes the fact that RvW was horribly, horribly written.

First off, the ruling of Roe is now judicial precedent --

Glad you recognize that. You had acted earlier like it was an open question.

Planned Parenthood vs. Casey has no bearing on this discussion, as it was ruled on nineteen years after Roe.

Planned Parenthood v. Casey specifically reaffirmed the central holding of Roe. You can't claim that Roe was legislating from the bench and Planned Parenthood v. Casey was not.

Brown v. Board of Education dealt with an institution (segregation) that lead to a violation of the equal protection clause of the fourteenth amendment. The case at hand was a clear question of whether or not segregation in schools violated the fourteenth amendment.

Yeah it was such a "clear question" that the Court had decided it the oppositte way in Plessy v. Ferguson (http://laws.findlaw.com/us/163/537.html), 163 US 537 (1896).

For 68 years what you now say was a "clear question" was battled over in the courts, with the Court deciding in favor of seperate but equal until Brown. To now make it sound like there was no conflict to be resolved is to be deliberately obtuse. To the contrary, Brown was one of the most controversial decisions the Court has every made. Some southern schools closed for a decade rather than be desegregated. In other states, federal troops had to be used to enforce the Brown order:

In 1957, in the wake of the Brown decision, U.S. President Dwight Eisenhower enforced the Supreme Court's 1954 school desegregation order by sending troops to Little Rock, Arkansas when the Governor of the state resisted allowing black students (known as the Little Rock Nine) to attend the previously all-white Little Rock Central High School. President Eisenhower used United States Army troops, when Governor Orval Faubus had mobilized troops from the Arkansas National Guard to prevent it, setting a precedent for the enforcement of court orders relating to racial integration by the Executive Branch of the Federal Government.

http://en.wikipedia.org/wiki/Little_Rock_Integration_Crisis

You should read Brown (http://laws.findlaw.com/us/347/483.html) and explain to me how it is strict constructionist decision. You can't do it.

In Roe, there was a conflict -- is a fetus entitled to life ("life, liberity...") or is the mother entitled to privacy under due process in this situation? It's not a question that can be answered definitively from a legal standpoint, but by a matter of personal opinion. When this occurs, a court is not going through the procedures of judicial review anymore -- they are legislating, which is not their duty.

First of all, you overestimate the degree of the "conflict" in Roe. As I explained, the fetus is not a person so it has no constitutional right to life, liberty, or property. The mother has a fundamental right to abortion.

The question has been answered definitively from a legal standpoint. But more importantly you give no reason why it the fundamental rights of women are merely a matter of "personal opinion." You yourself have said the protection of fundamental rights is one of the things for which judicial review is properly used.

The Court decided the case before them in 1973 and again in 1992. They were not legislating. They were applying the Constitution -- as per their oath.

The problem with RvW is not it's central holding, which PPvCasey supports. It's the rest of that bastardised ruling that was the problem. PvC basically rewrites the rest of RvW in a much more concise format while holding on to the central position of it. None of which changes the fact that RvW was horribly, horribly written.

I beg to differ. Roe was a well decided case. If anything it sought to compromise too much with the anti-abortion viewpoint. After all it was written by a Republican conservative.

After 19 years of further litigation the Court was able to streamline its opinion. That doesn't mean Roe was wrong to begin with.

Believe it or not, I read through most of it, although I skipped a few sentences here and there once I thought I got the point of a paragraph.

Good for you. Thanks.

Of course, I'm a little weird, and I was already pretty sure I didn't like Bork, now I'm a bit more sure. =) The man actually tries to argue that the 14th Amendment can *only* be applied to black people, since that was its intent....

Most people don't realize how truly nutty Bork is (and was).

Here in Canada they do use a "living constitution" approach: i.e. the constitution must be interpreted according to the standards of modern society. It's colourfully referred to as the "living tree doctrine" (i.e. the constitution is a tree that was planted in the fertile soils of Canada, where it can grow). It was what enabled the courts to find that women were "persons" whereas they had not previously been so under Anglo-Canadian law, among other things.

I think the first thing worth noting is that Constitutions always have to be interpreted. The wording is going to be inherently ambiguous, and the understanding of meanings of words will change over time. In the "persons" case I mentioned, it was obvious by that time that the common understanding of persons included women, but the legal understanding of that word had not kept up. So it is often more about updating the legal understandings of words than anything else.

Personally, I don't see how you can do otherwise. If you try to freeze the interpretation of your constitution in time, then you end up with a bunch of archaic definitions that defy the commonly understood meaning of the words. The constitution then becomes a document that can only be understood by judges and lawyers, and not the people themselves.

Well put.

The right to privacy does exist. Whether or not abortion falls under this right is a decision that should be left up to state governments. There is no clear indication on a judicial level whether or not the matter pertains to privacy; there are judges that feel that the life of the fetus overrules the woman's right to privacy, those that feel the privacy rights of the woman overrule any rights of the fetus, that a fetus is not protected by the Constitution, that a fetus is protected by the Consitution, etc. It all boils down to a matter of opinion, and not legal expertise. Therefore, it's an issue best left up to the state governments.

And for the record, I'm pro-choice, and do believe in a woman's right to privacy. Using Roe as an example was not intended to be a veiled attack on pro-choice arguments, but rather to use the shakiness of the ruling as an example of my point of view.
So you're not arguing that a right to privacy does not exist, but rather that the issue was weighed improperly by the courts. You are not a strict constructionalist, just someone who is angry that the courts went against a pet law. Saying that the court lacks jurisdiction simply because the case is controversial is silly, as the entire point of the court is to weigh rights against one another and decide issues in constitutional law

So you're not arguing that a right to privacy does not exist, but rather that the issue was weighed improperly by the courts. You are not a strict constructionalist, just someone who is angry that the courts went against a pet law. Saying that the court lacks jurisdiction simply because the case is controversial is silly, as the entire point of the court is to weigh rights against one another and decide issues in constitutional law

Indeed, the Court lacks jurisdiction except over Cases and Controversies. If there is no controversy, there is no jurisdiction.

Well put.

Thanks. Another controversy in Canada right now that illustrates the problem with the strict constructionist approach is the controversy over the definition of marriage. Courts in most jurisdictions in Canada have found that the definition of marriage does include same sex marriages, and that any attempt to restrict it to a union between members of the opposite sex violates the equality provisions of our Charter of Rights and Freedoms.

Those that disagree with these rulings argue for a "traditional" definition of marriage. But what exactly is a a traditional definition of marriage? Or to put it more pointedly, at what point in time are we going to freeze the definition of marriage, and in whose cultural tradition? The understanding of marriage varies across cultures and has evolved over time within any given culture. It has been used at various times as a political tool to unify countries, a means of transferring property rights, a mechanism for ensuring the education of children, etc. One traditional definition of marriage would begin "a young man of means approaches a girl's father to negotiate an appropriate dowry ...". Is that the traditional definition of marriage we wish to enshrine? I would guess that if those who support a traditional definition of marriage were asked to articulate that definition beyond not including same sex couples, we would see widely varying definitions.

I think a stronger argument against same-sex marriage would be that the socially accepted definition of marriage does not yet include same sex couples (although the public appears to be divided on that issue). But that may not deal with the equality argument, not to mention restricting the freedom of religion of those groups that do believe in it.

*whistles while he bumps*

It depends. They can't run amok making new laws that are baseless, but if there are some laws which need to be reformed and a vast majority of the public agrees, the change can and should be made.
Isn't that why most constitutions allow amendments? That's certainly more democratic than allowing judges to change the law of the land.

Isn't that why most constitutions allow amendments? That's certainly more democratic than allowing judges to change the law of the land.

But isn't part of the point of Constitutions to protect us from abuses of democracy?

The US isn't a democracy. We are Constitutional Republic. The Founders were horrified at the thought of a pure democracy. One of the things they wanted instead was an independent judiciary.

More importantly, interpreting and applying the law of the land isn't changing it. It is doing exactly what the judiciary is supposed to do.

Finally, pray tell what is democratic about strict constructionism.

Finally, pray tell what is democratic about strict constructionism.
The constitution (in most countries) is maintained by the elected parliament. If the public think part of the constitution is outdated, they can vote in politicians who would repeal that part - just as you would with any other law. For an unelected judge to willfully interpret a law differently from how it was intended is completely undemocratic - and if a law is ambiguous the parliament must clarify it, rather than a judge declaring what they think it should mean.

The constitution (in most countries) is maintained by the elected parliament. If the public think part of the constitution is outdated, they can vote in politicians who would repeal that part - just as you would with any other law. For an unelected judge to willfully interpret a law differently from how it was intended is completely undemocratic - and if a law is ambiguous the parliament must clarify it, rather than a judge declaring what they think it should mean.

And yet laws -- particularly the US Constitution -- are sometimes purposely vague and flexible and require interpretation by the judiciary.

Why would binding the US to the strict construction of language written over 200 years ago be democratic. No one alive had anything to do with the wording.

The US Constitution is not so easily amended. What is the point in having a Constitution if it can be changed at the whim of a mere majority? The point of consitutions is not pure democracy.