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Milling About: Going Beyond the Constitution
Breakpoint with Charles Colson ^ | January 26, 2006 | Mark Earley

Posted on 01/26/2006 9:38:55 AM PST by Mr. Silverback

Note: This commentary was delivered by Prison Fellowship President Mark Earley.

As we await the final vote on the nomination of Judge Samuel Alito to the Supreme Court, we might want to ask ourselves, “What have we learned from the process?”

One possible answer: a great deal about the clash of worldviews that made the process so bitter.

In his opening statement, Senator Richard Durbin of Illinois (D) set forth what he called his “test for a Supreme Court nominee.” It was not “where he stands on any one specific issue”—no litmus tests for the gentleman from Illinois. Instead, what Durbin wanted to know was whether a nominee “will use [his] power on the court to restrict freedom or expand it?”

Durbin called the Court “the last refuge in America for our rights and liberties,” and asked Alito whether he would uphold this “legacy.”

While this is high-sounding rhetoric, it is not the job of a Supreme Court justice to “expand freedom.” His job is to interpret and apply the Constitution and federal law. Cases like Brown v. Board of Education enjoy the respect they do because the Court took what was written, such as “equal protection of the laws,” and applied it. On the other hand, cases like Roe, which invented “rights” out of whole cloth, will never enjoy that kind of acceptance.

But there is another problem with Senator Durbin’s criteria besides its making unrestrained judicial activism the measure of a good justice: that is, the idea that expanding freedom should be an end in itself.

If calling expanding freedom a “problem” strikes you as odd, it’s important to understand what is meant by freedom here. It goes beyond the kind of political and civil rights mentioned in the Constitution: freedom of speech, religion, and freedom from unlawful searches.

What’s meant by freedom here owes much more to the nineteenth-century philosopher John Stuart Mill than the Founding Fathers. Whereas the Founders were concerned about governmental tyranny, Mill feared “the tyranny of the prevailing opinion and feeling.”

For Mill, the only freedom deserving of that name is “that of pursuing our own good in our own way . . . ” A person should be free to “frame” the “plan” of his life, including his “tastes” and “pursuits,” even if others regard them as immoral. For Mill, the only permissible impediments to this “framing” were those needed to keep my “framing” from impeding yours.

It’s impossible to imagine decisions like Roe, Casey, and Lawrence without Mill. The “mystery passage” in Casey, which defines liberty as the right to define “one’s own concept” of “existence,” and “the mystery of human life,” is straight out of Mill. The idea that government should be neutral, not only in matters of religion, but in most moral matters, has nothing to do with the Founders and everything to do with Mill.

By explicitly making the expansion of freedom his test for serving on the Court, Durbin has, however inadvertently, opened the door to a long-needed debate. He should have to explain why the views of John Stuart Mill, written decades after the Constitutional Convention, should prevail over those of the Founders. It’s time we put this legacy to a long-overdue test.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events; Philosophy; Politics/Elections; US: Illinois
KEYWORDS: 109th; alito; alitovote; breakpoint; markearley
In his opening statement, Senator Richard Durbin of Illinois (D) set forth what he called his “test for a Supreme Court nominee.” It was not “where he stands on any one specific issue”—no litmus tests for the gentleman from Illinois.

Earley got it way, way wrong here. Durbin's a gentleman like I'm a potted plant.

While this is high-sounding rhetoric, it is not the job of a Supreme Court justice to “expand freedom.” His job is to interpret and apply the Constitution and federal law.

Hear, hear! All judges should hold unswervingly to the Roberts rule...the Constitution says whether the big guy or little guy wins. Durbin just wants to expand license, not freedom. For those members of our government whose job is to expand freedom, see the Army, Navy, Air Force and Marines.

There are links to further information at the source document, including the text of Senator Eddie Haskell's Durbin's opening staement and Mill's On Liberty.

If anyone wants on or off my Chuck Colson/BreakPoint Ping List, please notify me here or by freepmail.

1 posted on 01/26/2006 9:38:56 AM PST by Mr. Silverback
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To: 351 Cleveland; AFPhys; agenda_express; almcbean; ambrose; Amos the Prophet; AnalogReigns; ...

BreakPoint/Chuck Colson Ping!

If anyone wants on or off my Chuck Colson/BreakPoint Ping List, please notify me here or by freepmail.

2 posted on 01/26/2006 9:40:00 AM PST by Mr. Silverback (GOP Blend Coffee--"Coffee for Conservative Taste!" Go to www.gopetc.com)
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To: Mr. Silverback; Neil E. Wright; Jim Robinson; All
While this is high-sounding rhetoric, it is not the job of a Supreme Court justice to “expand freedom.” His job is to interpret and apply the Constitution and federal law.......

BINGO!
That is the job!
No more, no less!
'Nuff Said!

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Click The VetsCor Graphic

3 posted on 01/26/2006 10:16:37 AM PST by Fiddlstix (Tagline Repair Service. Let us fix those broken Taglines. Inquire within(Presented by TagLines R US))
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To: Mr. Silverback
It’s impossible to imagine decisions like Roe, Casey, and Lawrence without Mill. The “mystery passage” in Casey, which defines liberty as the right to define “one’s own concept” of “existence,” and “the mystery of human life,” is straight out of Mill. The idea that government should be neutral, not only in matters of religion, but in most moral matters, has nothing to do with the Founders and everything to do with Mill.

Interesting. Perhaps the esteemed author can point to us where in the Constitution the Framers intended for the federal government to be the final say in matters of morality. As a matter of fact, Madison had something to say about that in Federalist #45

Freedom - # S: (n) freedom (the condition of being free; the power to act or speak or think without externally imposed restraints)

Liberty - # S: (n) autonomy, liberty (immunity from arbitrary exercise of authority: political independence)
# S: (n) liberty (freedom of choice) "liberty of opinion"; "liberty of worship"; "liberty--perfect liberty--to think or feel or do just as one pleases"; "at liberty to choose whatever occupation one wishes"
# S: (n) liberty (personal freedom from servitude or confinement or oppression)
# S: (n) shore leave, liberty (leave granted to a sailor or naval officer)
# S: (n) familiarity, impropriety, indecorum, liberty (an act of undue intimacy)

For those members of our government whose job is to expand freedom, see the Army, Navy, Air Force and Marines.

It s no more the job of the Armed Forces to 'expand' freedom than it is for the President of the United States to 'define' freedom from speech to speech. The Armed Forces may defend freedom, but its very existence is God given. The Framers understood I receive no rights or freedoms from the government.

Granted the Framers understood freedom and liberty as it pertains to morality. But they also understood 'the powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State' and not 537 elected hacks or 8 judicial statists (Justice Thomas exempted as he seems to understand the rights of the respective and sovereign states)

Conservatives (non-Republican) are just as concerned with the nomination of Alito and confirmation of Roberts as others are.

While this is high-sounding rhetoric, it is not the job of a Supreme Court justice to “expand freedom.” His job is to interpret and apply the Constitution and federal law.

Well there's one Justice that understands that at least. The rest seem to side with the federal government when it suits their need.

4 posted on 01/26/2006 10:22:14 AM PST by billbears (Deo Vindice)
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To: Mr. Silverback

John Stuart Mill was known as a Utilitarian. Also he was knows as an "Empiricist" and a libertarian. His philosophy in economics was akin to the great Adam Smith. He is quoted:
"that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection;"
He did not believe in Hegelian or Marxist determinism. There is much to be admired in his philosophy.


5 posted on 01/26/2006 10:24:44 AM PST by GeorgefromGeorgia
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To: GeorgefromGeorgia

You are correct that Mill deserves admiration, or at least a helthy level of respect. But I believe Earley is right that there are many people who've mistaken the Founders for proto-Mills.


6 posted on 01/26/2006 10:51:31 AM PST by Mr. Silverback (GOP Blend Coffee--"Coffee for Conservative Taste!" Go to www.gopetc.com)
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To: Mr. Silverback

The founders believed in liberty, but had standards (they were still Kantish on universal values).


7 posted on 01/26/2006 10:55:37 AM PST by GeorgefromGeorgia
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To: billbears
Interesting. Perhaps the esteemed author can point to us where in the Constitution the Framers intended for the federal government to be the final say in matters of morality. As a matter of fact, Madison had something to say about that in Federalist #45

Sure, just as soon as you point me to the part of the Constitution where the Founders overruled every morality-related law that was in existance. No more blue laws, etc. It's in there, right?

The thing about the armed forces was a quip. Lighten up.

I'm sorry to tell you this, but your "Alito isn't a real conservative" routine has the same tone as when a radical leftist I know tells me that Clinton was the best Republican President ever. The bottom line is that if a judge follows the Roberts Big Guy-Little Guy Rule, he is doing his job, even if that means he sides with the government.

8 posted on 01/26/2006 11:02:57 AM PST by Mr. Silverback (GOP Blend Coffee--"Coffee for Conservative Taste!" Go to www.gopetc.com)
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To: GeorgefromGeorgia
The founders believed in liberty, but had standards (they were still Kantish on universal values).

I like Earley, but you've described the Founders' beliefs more aptly in one line than he did in paragraphs. Nice work.

9 posted on 01/26/2006 11:09:54 AM PST by Mr. Silverback (GOP Blend Coffee--"Coffee for Conservative Taste!" Go to www.gopetc.com)
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To: Mr. Silverback
Sure, just as soon as you point me to the part of the Constitution where the Founders overruled every morality-related law that was in existance. No more blue laws, etc. It's in there, right?

It's not in there anymore than legislating morality is in there. Why? Because that was the business of the separate and sovereign states, not 537 do gooders in Washington. The very issue of the blue laws was a state issue but ended up in federal courts. Alito and Roberts will continue the unintended power of taking on state laws that are none of their concern. Except now the decision will hopefully be what 'we' want right? And that condones the same injustice against the Constitution how again?

I'm sorry to tell you this, but your "Alito isn't a real conservative" routine has the same tone as when a radical leftist I know tells me that Clinton was the best Republican President ever. The bottom line is that if a judge follows the Roberts Big Guy-Little Guy Rule, he is doing his job, even if that means he sides with the government.

Not when 'doing his job' is expansion of the national government further than the Framers intended it's not. Alito, just as Roberts, is a big government 'conservative'. Thomas OTOH is more of a limited government conservative as intended by the Framers. The supposed right and the left can sit and divine all sorts of rights, powers, and an enumeration of about anything else they want out of the Constitution. And that's exactly what Alito, Roberts, and unfortunately sometimes Scalia will do. But that's what Republicans want.

10 posted on 01/26/2006 11:10:02 AM PST by billbears (Deo Vindice)
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To: billbears
Except now the decision will hopefully be what 'we' want right? And that condones the same injustice against the Constitution how again?

Sorry, but you're proving that even smart people can use straw man arguments. First, I do not know of a single conservative, NOT ONE, who wants justices to ignore the Constitution in order to advance our particular political views. NOT ONE. Second, A justice reading the Constitution and interpreting it faithfully is not committing an injustice against the Constitution, period. That even applies when they disagree with you, OK?

It's not in there anymore than legislating morality is in there. Why? Because that was the business of the separate and sovereign states, not 537 do gooders in Washington.

Yes. And here's where reading the article comes in handy. Mill and Durbin believe that not only the feds, but the states and local communities have no business legislating anything remotely connected to morality, and that they become tyrannies if they get anywhere near it. Meanwhile, the Founders (and Earley and I) recognized that freedom could not be absolute, and that some minor restrictions chosen by local democracy would be necessary.

And that's exactly what Alito, Roberts, and unfortunately sometimes Scalia will do. But that's what Republicans want.

I still think you're listening to Ted Kennedy. Be specific. Where did Roberts, Scalia or Alito expand federal power in such a manner?

11 posted on 01/26/2006 11:53:16 AM PST by Mr. Silverback (GOP Blend Coffee--"Coffee for Conservative Taste!" Go to www.gopetc.com)
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To: Mr. Silverback
First, I do not know of a single conservative, NOT ONE, who wants justices to ignore the Constitution in order to advance our particular political views.

Better speak with Justice Scalia and Justice Roberts then. The dissent in the latest case in Oregon was wrong. Justice Thomas dissented but for a different reason. Scalia and Roberts dissented based on the supremacy of the federal government in matters that involves the citizens of the respective states, a clear violation of Madison's intent (as outlined in Federalist #45)

Mill and Durbin believe that not only the feds, but the states and local communities have no business legislating anything remotely connected to morality, and that they become tyrannies if they get anywhere near it. Meanwhile, the Founders (and Earley and I) recognized that freedom could not be absolute, and that some minor restrictions chosen by local democracy would be necessary.

I understand Mills' view quite well thank you. I also understand the Republican party, as noted by the nomination of Alito and Roberts, intend for certain issues to be determined by the federal judiciary. Issues that are none of their business (see Federalist #81, even the worthless Hamilton could hit on the right idea now and again).

Where did Roberts, Scalia or Alito expand federal power in such a manner?

Most recent decisions? Alright

Scalia -- Gonzales v Raich
Alito-- US v. Rybar

And we'll not even discuss the reasoning the Executive Branch apparently has no bounds as advocated by Roberts.

12 posted on 01/26/2006 12:50:59 PM PST by billbears (Deo Vindice)
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To: billbears
And we'll not even discuss the reasoning the Executive Branch apparently has no bounds as advocated by Roberts.

I'll research and come back to you. But...

And we'll not even discuss the reasoning the Executive Branch apparently has no bounds as advocated by Roberts.

Quote to back that up, please. There is no way he said any such thing.

13 posted on 01/26/2006 1:00:03 PM PST by Mr. Silverback (GOP Blend Coffee--"Coffee for Conservative Taste!" Go to www.gopetc.com)
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