Miers -- One View

Myself | 10/09/2005 | Wisconsin

[yoe]

None.

I am quite sure they envisioned filling up a country with willing workers knowing full well that out of that base would come the brilliant inventors, writers, teachers, and yes the very successful if not the robber barons they were called, the Framers hoped for talents from many cultures and they were fairly plain spoken about it. AND they expected those chosen to judge the populace to use their duties to give faithful meaning to the words of the lawmakers/constitution. As they were often divided over intent, their final draft did try to cover any and all arguments as the United States Constitution is one magnificent document.

[copwife]

Mega Dittos!

[Wisconsin]

Well that is always a problem. You put somebody on the court that you are absolutely sure of, they drink a little of that life tenure punch, munch a few of the unchecked power canapes, and next thing you know the Constitution requires tasteful colors in cop uniforms.

Heck, age alone might do it. My great grandfather left the family in shock when he was 93 and seperated from my grandmother stating that he "had put up with that woman for 65 years and enough is enough".

No way to protect against it. Number of law review articles doesn't count.

[thoughtomator]

Agreed. And when you start with someone whose philosophy is inconsistent to begin with, the risks multiply exponentially.

[pollyannaish]

Thank you very, very much for your perspective.

[DJ MacWoW]

Probably can't re-build a carburetor either. What was Bush thinking? Sheesh

LOLOL!!!

[ARCADIA]

Maybe Harriet is that person.

Then again the President supported the Kelo decision.

[IncPen]

Then again the President supported the Kelo decision.

Do you have substantiation?

[ARCADIA]

This is the comment I have heard from a few sources:

"On the Justice Department's historical research: As I udnerstand it, the Jsutice Department was prepared to file an amicus on behalf of New London, but did not because of political considerations, not because of its view of the legal merits."

I pick the quote up from here (however, keep googleing and you will find more): http://corner.nationalreview.com/05_06_19_corner-archive.asp

Have you ever heard the President speak out against the Kelo vs. New London decision?

[Torie]

Interesting post John. As a guess, I suspect that you are more of a justice O'Connor guy than a Rehnquist guy.

I would note that in the case you won, the court engaged in just such a balancing test that you find unfortunate. Balancing tests are inevitable often when there are competing considerations, and no readily available bright line test appear useful or practical. Gerrymandering is one such area where a bright line test just isn't there on the horizon to grab at.

I do have the impression that SCOTUS colors the facts from below to get to a result. Would you care however to offer up some examples for our edification?

Thanks again thanks for the post.

[marsh2]

To me, the law is of whole cloth. One must understand its Roman and Salic ancestors (Danelaw,) how those traditions mixed and presented themselves in Saxon life, how manorial law was overlain by Norman feudal law and eventually dominated by English Royal Law. The historical integrity of the law and the logical and consistent (stare decisis) relationship of all of its parts was the English constitution.

At its heart, English common law was considered "once given (by the Creator) and immutable." The limits of legal memory were said to be Richard I in 1189. Case decisions were opportunities to determine what the existing law was in application to a specific case. The sum of all those decisions was the law - the cases were studied to determine what the law was. Royal proclamations were considered merely a clarification of existing law. Unlike Roman Civil law, the law was not codified.

The so called "rights of Englishmen" evidenced in the Magna Carta were rights that had been incorporated in the traditional law over centuries, an understanding most likely a heritage from Roman and Viking ancestors. (I have found an excellent source on this to be Colin Rhys Lovell's English Constitutional and Legal History, Oxford University Press, c1962.)

The people who colonized the United States argued that "the rights of Englishmen" were their heritage as well, sparking many of our colonial disputes with England and the articulation of an understanding of those rights forming the body of Founding documents, secured under our Bill of Rights and the limits placed on government by our Constitution.

When the new States passed their reception statutes, they adopted the English common law as their base, in effect, inheriting all the history and traditions that law embodies, as well as its underlying embedded constitution with an understanding of the "rights of Englishmen." Through the law, America inherited a core understanding that the law once given and immutable, and consistency was ensured through stare decisis.

If you look at property rights cases of the United States up until the time when we started signing international treaties on migratory birds, there was a consistency with past tradition and in cross application of principals between cases on seemingly unrelated matters. It made sense and if it diverged, it was glaringly apparent.

After that, one can see a change where new principles were manufactured from what the judges thought they should be (social engineering.) You can see this in zoning cases of the 30's. These departures magnify over time until that whole cloth is being torn apart, in my opinion. This is being accelerated by now referencing International law, foreign to our traditions.

I am concerned that Ms. Meirs may have a background so narrow in practice and so focused on detail that she may not have a "big picture" understanding of the law and further accelerate the disintegration of that whole cloth. I hope I am wrong.

[ScreamingFist]

Interesting. The anti Miers FReepers have a chance to argue their concerns with a real lawyer that has stood before the SCOTUS. Not many takers. Apparently coulter, krauthammer and kristol aren't here to back them up.

[Bush 100 Percent]

Thanks, Wisconsin.

This is the type of discussion we need.

[IncPen]

Have you ever heard the President speak out against the Kelo vs. New London decision?

No, but it wouldn't seem prudent to do so. There are plenty of issues on which the President doesn't speak out. What would be the purpose (unless you're a Clinton or a Kennedy) of speaking about something that everyone agrees was a bad decision? I don't see an upside to wasting political capital where it's not needed.

I have in mind the President's signing of the campaign finance bill. Everyone here thought that it would be booted by SCOTUS... it wasn't, but it still functioned to Bushs' advantage- and made its supporters rue the day they even imagined such a monstrosity.

[Howlin]

You have done a wonderful job of showing us why, with a few of the details thrown in, you would be a qualified candidate for the SC justice. You have argued a philosophy of the court, have argued before it, and we could potentially find and review your briefs for the court. This just underscores our concerns about Miers.

Oh, has she been posting on here?

[ThePythonicCow]

Bump. Excellent. Thank-you.

I liken this to replacing a member of a Pro Basetketball team, which are similar in size. The best team is not nine centers. The best team has various talents, playing together. This is not a fan voting system, with the nine most popular players making an all-star team. Those teams are never as good as a coach picked team, where the coach has a good understanding of group dynamics and the value of various talents, and chooses in light of that.

We still need to vet Miers, to learn if she intends to respect her oath to the constitution and the law, and not just legislate her own preferences from the bench. If that's her commitment, and if we judge that she will honor that commitment, then we're ok.

[AndyJackson]

Oh, has she been posting on here?

No, nor has she written or posted anything anywhere else as near as anyone can tell.

[ScreamingFist]

"How does a free society prevent" such crimes, she asked. She then explained:

The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.

Miers, however, rejected the notion that "precious liberties", including "the right to bear arms," should be sacrificed in the name of crime prevention. Quite obviously, she was referring to the "right to bear arms" as an individual right.

It's technically possible that she was referring only to the Texas Constitutional arms right, which clearly is individual, rather than to the Second Amendment. However, the context of the quote does not seem so constricted, and even to describe the Texas right a precious liberty says a good deal about Ms. Miers' thinking.

She then explained the true solution to crime:

We will be successful in solving our massive crime problems only when we attack the root causes....

We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction

[Torie]

Voila.

[AndyJackson]

Do you think they questioned his schooling and demanded to see the paper trail?

Moses had a well established record of leadership by the time God handed down his commandments.