Politics: Onward from New Hampshire

[Secret_Agent_Man]

One last point --

Bilmore, I am sensitive to the problem that the "living document" approach to Constitutional interpretation has had the effect of greatly increasing the politicization of the judicial appointments process, with pernicious effects. I just don't see a better way.

S_A_M

[Sidd Finch]

Originally posted by Skeks in the city
Too slow, I said that last week. Ask the Sidd Finch.

Yeah, really, Slave. Keep up or keep out.

[Sidd Finch]

Originally posted by Atticus Grinch
Besides, we all saw the bad results that came about when Greg Brady tried to live by his Exact Words. Have we learned nothing since 1971?

Here I was, impressed with my own ability, for once, to keep up with your erudite posts. And you lose me with a Brady Bunch reference.

[Sidd Finch]

Originally posted by leagleaze
At the top third of law schools, 91% of African Americans graduate, and 84% of them pass the bar. These statistics suggest that once one gets to the bottom half of American law schools, well less than half of African American matriculants ever become attorneys. This is all, of course, a result of admissions policies pursued in the name of "racial justice."

Is it? Or is it a result of shitty, non-accredited law schools attracting a disproportionate share of African-Americans to their sub-standard programs?

The statistics on top-third law schools suggest that the admission policies you attack (policies that are much more likely to be applied at top schools then at non-accredited bottom-feeder schools) are working pretty well.

[bilmore]

Originally posted by Secret_Agent_Man
I am not intending to discard a government based upon a constitution. Moreover, my argument is not meant as a a variation on the "living document" argument -- it is meant to be exactly that argument. It seems to me that this argument, and that approach to Constitutional law, is the only approach that enables the Constitution to remain relevant and legitimate, and indeed to even survive as our society and our world continues to evolve.

But if you accept that a constitution, and the principles embodied by it, can "evolve" as situations warrant, you accept that our government can boil the Guantanamites in oil because of the evolving situation of world terrorism. It's all or nothing, I guess - either we accept the overarching principles contained within the document, or we don't. If not, then you accept that people can make decisions every day that alter the meanings of the document, and that leaves you free to wake up one day to discover that "due process" means only as much due process as is politically popular to the majority. The very freedom to alter the principles is the cause of what people today decry as a great loss of our constitutional values. It seems you only want to alter things your way - but, if situational evolution of the document can occur, it's going to occur with the political winds. That's exactly what's NOT supposed to happen.

Without this approach -- our government and society would be horribly calcified. Hell -- without that approach there would not even be judicial review of the actions of the Executive and Legislative branches -- which we have long since come to accept as a critical part of the checks and balances which make our Nation work and help the bulk of the citizenry buy into our civil and political society. John Marshall, not Warren Burger, was the first great judicial activist.

Disagree. What the Constitution embodies, in my mind, is a set of overarching, philosophical principles delineating what powers over me our government may not have. That's the main purpose of the document. Secondly, it sets out a very workable system for your checks and balances as it sketches out the framework of our three-branched government. All of the principles contained within it remain, I am convinced, as workable and as current as they ever were. We have simply gone so far in this "let's make this interpretation of "constitutional" today" direction that we have cemented in specific and situational-directed rulings that fail to evolve. The principles remain valid - but our willingness to make theoretical pronouncements as to the meaning of the clauses within specific circumstances is what causes the calcification. Were we less willing, over the last one hundred years, to make sweeping policy statements that we call "constitutional" rulings, I think we'd still be enjoying a relevant and working framework.

Look at the brevity of the document. The Consitutition provides an outline, nothing more. It is a framework for government and society which is meant to grow and evolve; to be filled in as time passes.

Disagree again. It is not meant to "evolve", or grow, or be filled in. It is meant to be, again, an overarching statement of principles, limiting and defining government in a way that works, no matter the situation. Government may not take my property without compensating me - that's a principle. The meaning of "take", and "compensate" - those are things that can be interpreted and can change with the times - that's how we allow for regulation - but the principle remains, and, if the "taking" gets to far out of bounds, we have that principle that we can fall back on as the starting point, and we can argue those meanings. We need that timeless basic principle around which are arguments can hover and center, though, because that defines what this country is.

(ETA) - I hasten to add that I don't mean that we can alter the meaning of these significant words to change the overall proscription as political winds change. I mean, we are free to argue, in light of new situations, for a meaning that works our way and is also consistent with what has been the interpretation in the past. That kind of evolution I can live with - the ability to make consistent arguments when completely new situations arise, as long as they are not made in contradiction to the deeper principles.

The amendment process is -- with good reason -- way too cumbersome and protracted to use to address each and every issue that arises whcih falls outside the basic text of the Constitution.

I can think of very few - well, none, actually - situations which fall outside the Constitution. I can think of situations which I would like to handle differently than called for in the Constitution, but that's different - if I want the power to act in a way that violates the Constitution's directions as to what power I, as a governmental type, can exercise over another citizen, well, I am guilty of wanting to live in a society based on someting other than a constitutional one. Remember - every time you wish you could take on power that doesn't seem to be provided for, there's someone else who wants to do the same thing, with aims and goals that you are likely to hate - and you confer upon them the right to do it, every time you do it yourself.

So anyway, I realize that the knife cuts both ways -- and that I will not always agree with the decisions of an "activist" court. That is why judicial appointments are so desparately important to me.

I think, in a society that actually followed the words, the identity and politics of judges wouldn't matter - they would be enforcing the basic principles, and would not be free to bend them to fit their goals. It's this evolving that has fostered the impotrance of a Scalia, or of a Marshall.

The general framework and principles are admirable. But why should we care what John Adams would have thought about regulating pollution, for example? Constitutitional law need not and should not be simply a matter of "interpreting the contract."

I care not what Adams thought about pollution. What I care about is, what power does, and should, government have over me to regulate my conduct? As long as the government acts in conformity with the overarching principles of due process, and fairness, as set out in the Constitution, how does the Constitution interfere with pollution regulation? I don't think it does - I think you just want to be able to ignore certain protections in order to impose your (completely honorable) desires vis-a-vis clean air and water. But, while it may be more work to do it all in conformance with the Constitution, that's what our country is founded upon. Just because you have a desirable goal in mind, you cannot take power away from me that is reserved to me. You have to do things legally, and you have to exercise only the power that you have. It might be much more convenient to simply allow the feds to run everything and to hold all power - but they ran everything in many european countries from which people were running, and there's a reason they ran.

I will also say that I do not believe that the "living document" approach deprives our Constitution, judiciary, or government of "legitimacy". Legitimacy is like money in that its value is all based on perception. In my view, a crabbed, strict constructionist approach to Constitutional interpretation would cause our system to have far less legitimacy in the eyes of the populace. Indeed, it has often been precisely those crises of legitimacy that has led to shifts in our jurisprudence.

Strongly disagree. If anything, it has been the ability of people on both sides to redefine "constitutional" to fit their own needs that has caused this loss of respect and legitimacy. Roe, in my mind, did more to undermine constitutional principles as did anything else since it was written.

[You've also cleverly hit on one area (suits v. states) where I think that the language is so crystal clear that it is hard to "evolve" and probably requires amendment if you want to sue the states. I know you're hitting this area because of the Pryor discussion yesterday.]

"Crystal clear"? Pryor thinks so, too. Is there room in your mind to entertain the idea that he fights the way he does because he respects our need for immutable principles, and finds that one crystal clear, and resists all attempts to water it down? That he could hold your own same views about the different races and genders, but not be willing to undercut the Constitution simply for a political end? That he truly is an honorable guy, who likely wants the same racial and gender equality as you do, but isn't willing to acts as a dictator, against the precepts of power-sharing found in our Constitution, in order to get there? (No, I'm not claiming he's for gay rights - but his religious-based views on that are outside of this discussion.)

Finally, I return to the point that the social freedoms you fear the "christers" may roll back would not exist without the "living document" approach. I don't see that as a "Yeah, but." or a "So what?"

"Roll back"? First of all, the ability to sue a state isn't a social freedom granted in our constitution. Neither is some "right" to "privacy a constitutional principle. There are ways to accomplish what we think is right, (subject to limits, obviously, because what you think is right doesn't always match my perceptions) without rewriting the fundamental framework of our country. It is arrogance to think that you should be able to accomplish your own social engineering in derogation of constitutional principles based on the idea that "it's okay, because we're right". Hitler thought he was right. So did Gingrich. So did Abbie Hoffman. I wouldn't want to live in any of their worlds, and I'm glad our Constitution doesn't allow them power over me in many ways, but I fear you're taking us there.

[Sidd Finch]

Originally posted by Sidd Finch
Is it? Or is it a result of shitty, non-accredited law schools attracting a disproportionate share of African-Americans to their sub-standard programs?

The statistics on top-third law schools suggest that the admission policies you attack (policies that are much more likely to be applied at top schools then at non-accredited bottom-feeder schools) are working pretty well.

Sorry -- read first, then reply. This horse was already dead.

[Mmmm, Burger (C.J.)]

so much for that ado

Shortly after the clerk scheduled the matter for oral argument, the panel decided it did not need argument to decide the motion seeking to undo Roe.

[Secret_Agent_Man]

A truly excellent post. In an effort to avoid rehashing old points, and given the length -- I'll just address a few snippets and thus possibly clarify my position.

Originally posted by bilmore
It's all or nothing, I guess - either we accept the overarching principles contained within the document, or we don't.

I'm a big fan of "overarching principles" and "immutable precepts". I see those as mostly expressed in the Preamble and the Bill of Rights. (including, I guess, the 9th Amendment). I also know that the balance of power between the federal and state governments was an overriding concern at the Constitutional Convention, and think that it may well be a good thing that the "federalism" pendulum has swung back a bit.

However, we fought a war about "states rights" 140 years ago, and the "states rights" folks lost. They can't secede from the Union, and (so sorry) the federal government is Supreme. The "states rights" doctrine has been used to protect and preserve all manner of abuses over the past centuries, and I am unwilling to allow certain states or people within certain states to hide behind that doctrine and (for example) violate the other "immutable principles" in our Constitution.

I think it is a very good thing that (for example) activist courts have used the 14th Amendment to extend the requirements of the Bill of Rights to State governments. You seem to suggest that a federalism uber alles approach is the way to go.

Originally posted by bilmore
Were we less willing, over the last one hundred years, to make sweeping policy statements that we call "constitutional" rulings, I think we'd still be enjoying a relevant and working framework.

I think we still are enjoying said framework. However, we were never going to get anything done in a modern, industrial society if we hadn't adopted the expansive reading of the "regulate interstate commerce clause". Are you really with Judge Brown (?) on that one?

Originally posted by bilmore
I think, in a society that actually followed the words, the identity and politics of judges wouldn't matter - they would be enforcing the basic principles, and would not be free to bend them to fit their goals. It's this evolving that has fostered the impotrance of a Scalia, or of a Marshall.

But before the evolving, everyone was Scalia (but perhaps not as smart) and Marshall couldn't sit down to eat in many restaurants. What else should they have done about that, other than court challenges? Constitutional amendments would not have passed, and I'm not willing to say -- "too bad, wait another 50 years."

Originally posted by bilmore
I care not what Adams thought about pollution. What I care about is, what power does, and should, government have over me to regulate my conduct? As long as the government acts in conformity with the overarching principles of due process, and fairness, as set out in the Constitution, how does the Constitution interfere with pollution regulation? I don't think it does - I think you just want to be able to ignore certain protections in order to impose your (completely honorable) desires vis-a-vis clean air and water.

A whole lot of people would have disagreed with you prior to about 1936(?). There was that whole "enumerated powers doctrine" that the old strict constuctionists used to take very seriously.

Originally posted by bilmore
But, while it may be more work to do it all in conformance with the Constitution, that's what our country is founded upon.

I don't like the way you're using "in conformance with the Constitution" as a substitute for "via the Amendment process". A whole lot of very smart and honorable people think that many or most of these changes did come about "in conformance with the Constitution". [The third branch of government, remember? Interprets the laws and passed on constitutionality?]

Also, you persist in ignoring the reality that its not just "more work" do do things strictly via the Constitutional Amendment process. It is all but impossible. Less than 30 amendments in 200+ years? That way is no way, and it leads to destruction.

Originally posted by bilmore
It might be much more convenient to simply allow the feds to run everything and to hold all power - but they ran everything in many european countries from which people were running, and there's a reason they ran.

And they run almost everything in a lot of European countries no one is running from. The cataclysm is not a foregone conclusion. I also doubt that a strong federal system is enough to stop a charismatic dictator in time of crisis. The key is the values and character of the population and whether the Army will support him.

Originally posted by bilmore
Strongly disagree. If anything, it has been the ability of people on both sides to redefine "constitutional" to fit their own needs that has caused this loss of respect and legitimacy. Roe, in my mind, did more to undermine constitutional principles as did anything else since it was written.

Ok. I think I see. You're talking mainly abotu evrerything that's happened since Douglas began seeing penumbras in 1963. I'm talking mainly about stuff that started a lot earlier.

Originally posted by bilmore
"Crystal clear"? Pryor thinks so, too. Is there room in your mind to entertain the idea that he fights the way he does because he respects our need for immutable principles, and finds that one crystal clear, and resists all attempts to water it down?

It is entirely possible that Pryor is an honorable, principled man. That doesn't mean I want him as a federal appellate judge. Also -- you can't really separate a person's strongly-held religious views from a discussion of that person's character.

Originally posted by bilmore
"Roll back"? First of all, the ability to sue a state isn't a social freedom granted in our constitution.

Why do you keep talking about that so much? Its really the smallest part of what I was talking about. I really did not intend this to be a continuation of the Pryor topic.

Originally posted by bilmore
Neither is some "right" to "privacy a constitutional principle.

Why not?

Originally posted by bilmore
It is arrogance to think that you should be able to accomplish your own social engineering in derogation of constitutional principles based on the idea that "it's okay, because we're right".

''in derogation of contitutional principles" - - Again, you make underlying assumptions that rig the game.


S_A_M

P.S. "Hitler"? If another one arises, it sure won't be our Constitution (or strict construction) that stops him.

[Tyrone Slothrop]

I'm trying hard to follow this terrific exchange about the Constitution, but I'm not sure where the fault lines are on the ground. We all agree that the Constitution states principles that may apply differently over time and context. There certainly is a harm if judges push these too far -- it delegitimizes and politicizes the law. But this is just bad judging, right? You can say the same thing about bad statutory interpretation.

eta: Damn, I seem to have broke the board.

[Secret_Agent_Man]

at least no one's talking about polygamy.

[sgtclub]

disappointing -

http://apnews.myway.com/article/20040224/D80TNENO0.html

[bilmore]

Originally posted by Secret_Agent_Man
at least no one's talking about polygamy.

No, but now they expect me to do my work for a bit . . . .

The cads.

[Mmmm, Burger (C.J.)]

Originally posted by sgtclub
disappointing -

alienating.

[SlaveNoMore]

Mmmm, Burger (C.J.)
alienating.

To us here, most definitely.

To middle america - not at all.

There's the rub.

[sgtclub]

Further to our discussion last week, here is a timely article by Thomas Sowell on the myth of the working poor:

http://www.townhall.com/columnists/t...20040224.shtml

Are there genuinely poor people who stay poor? Yes. However grossly exaggerated the numbers, there are such people. But studies that follow the same individuals over time find that most of those in the bottom 20 percent of income earners are also in the top 20 percent at some other time in their careers.

Only a fraction of the people who are in the bottom 20 percent in income at any given time will be there for more than a few years. Of those whose pay is at or near the minimum wage, for example, most are young people or part-time workers, or both.