In wars, even cultural ones, it is crucial to know the opposition—their strategies, their theories, their deceptions. Mark R. Levin’s Men in Black: How the Supreme Court is Destroying America, a New York Times best-seller, is a right-wing debaters’ manual that furnishes rhetoric to Tom DeLay, Bill Frist and their cohorts as they campaign to revamp the federal judiciary in… return to article
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Reader Comments (26)Page 1 of 1 pagesI don’t think it is any surprise that someone on the right has chosen to deify a document and their own interpretations of it, rather than learning the intent of the authors and using the document to further that intent.
Take, for example, the Ten Commandments. Clearly this is a case of deification, of holding the words above the meaning. If right-leaning judges truly believed these words that they want to hang above their benches, then there would be no death penalty, no state sanctioned divorce, and no desire to make false-gods out of documents!
Yet, we know that is not the case, and we know from history that any culture that clings too tightly to dogma eventually becomes a tyranny, blind and unyeilding. Even the most ardent right-winger knows that the framers never wanted that to happen.
Posted by mn on Jun 29, 2005 at 7:38 AM The Constitution should be interpreted strictly according to the will of the Framers? Why?
Posted by Matthew K. on Jun 29, 2005 at 1:05 PM Matt,
It’s the “intent” of the framers not the will. Anyway, what was the framer’s intent when it comes to stem cell research?
As an aside, does it occur to anyone that the underlying cause of being a conservative may be the same as the underlying cause of being a pedophile, spouse beater, child abuser. We’ve all heard the theory that these people do what was done to them by their parents, relatives, etc. It just seems to me that some similar catastrophic event(s) in childhood is a necessary underlying cause of becoming a conservative.
For example, anyone who has listen to right-wing wacko Michael Savage (pseudonym), knows from his obsessive diatribes about his father that his father abused him as a child. And as can plainly be seen, he has turned out to be an extremely hostile, hypocritical (gay man who hates gays), and pathological liar. Who knows what else he may have done.
So, if conservatism is a psychological disease state, perhaps some kind of therapy could treat it.
Posted by Lefty on Jun 29, 2005 at 3:38 PM Matt, the Constitution should be interpreted strictly to prevent judges from “interpreting” the Constitution to say whatever they want it to say. It’s the job of elected legislators to decide what policies are best for the people, and unelected judges shouldn’t be able to second-guess the will of the voters unless the Constitution clearly calls for it. It’s antidemocratic.
Posted by Ted on Jun 29, 2005 at 5:44 PM It is the job of judges to prevent elected legislators from depriving minorities of their rights. If that means knocking down unjust laws, so be it. If it means requiring necessary policies, so be it. Anything else would be undemocratic.
Posted by Matthew K. on Jun 29, 2005 at 6:02 PM Matt said:
“It is the job of judges to prevent elected legislators from depriving minorities of their rights. If that means knocking down unjust laws, so be it. If it means requiring necessary policies, so be it. Anything else would be undemocratic.”
Close! The US political system is not, and was never intended to be, a pure democracy. It is a “constitutional democracy.” What that means is that, for the most part, the majority gets its way. However, there are some things that are so important, some rights so inviolet (to reasonable people, I’m not talking about conservatives), that even the majority cannot impair them through the democratic/political process.
The job of the courts is to follow and apply the common law to the facts of the case before him/her, unless it’s been superceded by statute, and then to apply the statute - unless the argument is raised by one of the parties that the law, or the way it is proposed to be applied in a particular case, is inconsistant with the rights provided under the constitution.
For example. The majority of Americans may think that abortion should be illegal and that there should be a law imposing criminal penalties for anyone performing or receiving an abortion. The Supreme Court balanced the constitutional rights of the mother against the right of the state to protect the life of a fetus and came to a compromise - within the first 2 trimesters, the mother’s constitutional privacy rights outweighed the states’ rights to protect the life of the fetus. Thus, any law criminalizing an abortion within the first two trimesters is void as unconstitutional.
The intellectual problem with the argument is that there is no “express” right to privacy in the constitution. Nevertheless, the Supreme Court said, in a convoluted way, that the constitution protects privacy, and that that was the basis to protect a woman’s right to decide for herself, whether or not to abort her pregnancy.
So, as you can see, in a constitutional democracy, the role of the courts, by design, is to circumvent democracy when the majority is trying to deprive someone of a constitutionally protected right.
Posted by Lefty on Jun 29, 2005 at 7:04 PM Matthew K., the role of judicial review is to strike down laws that violate the Constitution, not any law that judges deem “unjust.” Giving an individual judge’s sense of justice more weight than the majority will is anything but democratic.
Posted by Ted on Jun 29, 2005 at 7:34 PM By “unjust,” I meant any law or policy that violates the Constitution.
Posted by Matthew K. on Jun 29, 2005 at 7:48 PM Ted,
You’re right. Thanks to the genius, wisdom and foresight of the founding fathers, we live in a “constitutional democracy” not a pure democracy.
Posted by Lefty on Jun 29, 2005 at 8:49 PM Lefty, you sound like a conservative in your last two posts. Are you the same Lefty who wrote, “if conservatism is a psychological disease state. . .” on June 29 at 4:38 PM?
Posted by Ted on Jun 30, 2005 at 7:00 AM “By ‘unjust,’ I meant any law or policy that violates the Constitution.”
Matthew K.:
You just answered your own question about Constitutional interpretation. If it’s not construed strictly, judges can read it to mean whatever they want and strike down any laws they consider unjust, regardless of whether they actually violate the Constitution.
Posted by Ted on Jun 30, 2005 at 7:15 AM The Founding Fathers were great men, but they were human. They raped their slaves lying down like everyone else. Ok, cheap shot, but the point is, there is no good reason why the Constitution has to be interpreted to mean exactly what the Framers intended. All the more so since we don’t always know what the Framers intended or how they meant the Constitution to be interpreted. There were disagreements among the Framers themselves, even on the level of individual ambiguity. Besides, the Framers also intended for the Constitution to be a living document, to be changed, and interpreted, in accordance with society’s changing needs.
Posted by Matthew K. on Jun 30, 2005 at 7:18 AM Ted:
The point at issue is that we all have different understandings of what “actually” violates the Constitution.
Posted by Matthew K. on Jun 30, 2005 at 7:19 AM Perhaps it is the false hope of one who is just John Q Public, but I beleive that the true intent of the framers was to make all three branches of goverment responsible to see that ALL sides of any issue would be considered with honorably in the formation of the laws of our nation. It is indeed unfortunate that the first part of their intention to disappear from the public forum was the word “honorably’
Posted by rmb on Jun 30, 2005 at 7:21 AM Matthew K. said: “There were disagreements among the Framers themselves, even on the level of individual ambiguity.”
I agree completely. There’s no way to determine the Framers’ intent or legislative intent, for that matter.
“Besides, the Framers also intended for the Constitution to be a living document, to be changed, and interpreted, in accordance with society’s changing needs.”
Again, some did and some didn’t. Some provisions of the Constitution were clearly written to be flexible standards (the prohibition on “unreasonable” searches, for example), but the mechanism for changing the Constitution to suit society’s changing needs is the amendment process. After all, don’t you think legislators who have to cater to public opinion to keep their jobs are better at guaging changes in society than judges?
“The point at issue is that we all have different understandings of what ‘actually’ violates the Constitution.”
Exactly. My point is that the Constitution only prohibits what the text says it prohibits, not what some judge thinks contemporary society needs it to prohibit. The problem with this notion of a “living document\” is that it gives judges way too much discretion to strike down laws just because they don’t like them. This elitist view of the Constitution is as dangerous for liberals as it for conservatives. What if a right-wing Supreme Court struck down all gun control laws, claiming that the 2nd Amendment had to change with the times, and that the threat of terrorism demanded a well-armed populace?
Posted by Ted on Jun 30, 2005 at 8:33 AM But WHAT precisely does the “text [say] it prohibits” as opposed to “what some judge thinks contemporary society needs it to prohibit?” Since we’ve already agreed that there was no uniform judgment by its Framers about what the Constitution exactly meant, we’ve simply shifted from a discussion of how the Constitution should be interpreted to one about how the intentions of its Framers should be interpreted. Six of one.
Your mistake is in assuming that a “loose” interpretation of the Constitution is synonymous with “any” interpretation at all. It doesn’t, or at least, shouldn’t. For example, the Constitution empowers Congress to regulate commerce “among the several states” (I’m quoting from memory here, the exact wording may be different), and to pass any law it deems “necessary and proper” to carry out its duties. Traditionally, this was thought to refer to the physical transportation of goods or supplies across state lines for commercial purposes—the only kind of “interstate commerce” that existed when the Constitution was written. The FDR administration, having to respond to the problems of an industrialized society that didn’t exist when the Constitution was written, believed that these clauses gave them the right to regulate companies that operated across state lines, as opposed to the mere transportation of goods.
Now, there is nothing in the language of either of those two clauses, or any other part of the Constitution, that in any way forbids them to be interpreted in the way described. The Supreme Court, however, took an originalist line, and knocked down program after program that could have speeded the nation’s economic recovery, or at least ameliorated the suffering of hundreds of thousands. Is it really necessary to adhere to the “horse and buggy” interpretation of the Constitution if there is no language in the Constitution strictly requiring us to do so? If so, why?
Posted by Matthew K. on Jun 30, 2005 at 9:42 AM The words “commerce among the several states” have meaning on their own so I see no need to limit their meaning by trying to determine what the Framers understood that phrase to mean. If the Constitution only authorized Congress to regulate the “sale and movement of goods among the several states” or something to that effect then it would be a different story. “Necessary and proper” has some built-in flexibility: it has no meaning by itself and requires an extra-Constitutional determination of what laws are in fact “necessary and proper” to regulate interstate commerce. With that said, I think the Commerce Clause has been stretched beyond its plain meaning in that it’s been used to justify laws that have nothing to do with the regulation of interstate commerce.
Posted by Ted on Jun 30, 2005 at 10:52 AM Why does the Commerce Clause have “meaning on its own” and not every other clause?
Isn’t the fact that the Necessary and Proper Clause has “no meaning by itself” (I think it has SOME meaning by itself) and “requires an extra-Constitutional determination” of what laws it applies to a frank admission that the Founders intended the Constitution to have “some built-in flexibility”? Isn’t that just all the more reason why the Commerce Clause, and all other clauses, should be interpreted broadly?
In fact, I would argue that the Constitution has to be interpreted broadly. The meaning of words, all words, including those used to write the laws of our and all other nations, is not fixed in some timeless realm of abstraction. Words derive their meaning from context and usage. Laws cannot be applied the same way in every case, nor can the words they are composed of be presumed to apply the same way to every set of social conditions. That’s why we—and every other nation with a rule of law—have a judiciary. To interpret the law.
Incidentaly, Ted, since you did such a good job of explaining how rubbery the Commerce Clause is, what is this “plain meaning” from which you think it has been so unceremoniously torn?
Posted by Matthew K. on Jun 30, 2005 at 1:57 PM “In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress’ assertion of authority thereunder, has evolved over time. [FN24] The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. [FN25] For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. [FN26] Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U.S.C. § 2 et seq.”
* * *
“Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937). Only the third category is implicated in the case at hand.”
* * *
“Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce.”
* * *
“In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.”
* * *
“Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, [FN33] we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.”
* * *
Gonzales v. Raich, 125 S.Ct. 2195, 2205 (2005)
Posted by Lefty on Jul 2, 2005 at 11:44 AM I could have sworn you guys were interested in the commerce clause. I cite, from the recent marijuana case, the USSC’s own explanation and not a single response.
Posted by Lefty on Jul 6, 2005 at 6:11 PM Michael Hardesty, aka Martin, Mikey, Peter, Jack Barnes, etc., is a PAID CONSERVATIVE TROLL who has conversations with himself under numerous screen names (including hijacking others’ screen names - like mine), in order to disrupt liberal discourse. JUST IGNORE HIM.
Do a Google search for “Michael Hardesty” and you’ll see he does the same thing on other liberal message boards. How pathetic is that?
Posted by Lefty on Jul 13, 2005 at 7:44 PM Please IGNORE this identity thief Michael Hardesty, aka Martin, Mikey, Peter, Jack Barnes, etc. The man is a professional perpetuator of the myth of the Nazi “holocaust” and a known proponent of legalized miscegenation. He’s taken my name in an effort to lend credibility and prestige to these unholy causes and will use these forums to force his twisted worldview on all of us. HELP ME STOP THIS MAN!
Posted by Lefty on Jul 14, 2005 at 8:15 AM Page 1 of 1 pages -
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