Posted on 10/31/2005 1:04:47 PM PST by moutland
Now that conservatives have torn themselves apart over Harriet Miers, and the President has nominated Alito, it may be time to examine the fundamental flaws in conventional mindsets that predictably pulls nominees from the legal profession every time. This practice reveals a degree of elitism that illuminates the great distance we have moved away from original constitutional intent.
(Excerpt) Read more at americanminuteman.com ...
First and foremost, the Constitution was never intended to be high-brow legal dissertation. It was, and still is, a document written in fairly common language and understandable to the common man. There are fairly simple concepts detailed within, recognizing certain God-given rights enjoyed by all men, and framing the appropriate relationship between the people and government. There is nothing about the document that is esoteric. It is exactly what it is. It certainly does not take a lawyer to understand the meaning.
Why then, does every Supreme Court nominee have to be a lawyer? The Consititution does not require a Supreme Court judge to have spent years pursuing a law degree, or endless hours in retentive legal pursuits at some high-powered law firm, to be a member of the Supreme Court. There are no specific requirements at all. In fact, at the time of the Constitution's drafting, many lawyers were self-taught men, who may have studied under another lawyer, but who likely did not have formal legal education. In any event, wisdom and common sense are not exclusive to lawyers, and today that profession often attracts individuals with neither. Lawyers also have the unfortunate tendency to become obsessed with legal precedent and the writings of other lawyers and judges, and in this world the convoluted examination of fairly simple concepts becomes and end unto itself. Using strict Constitutional principles, however, allows quick disposition of lower court precedents: If the decision is not based on what can be specifically read in the document, the decision is wrong, and must be rejected as unconstitutional. Examples of this are the mythical right to abortion, and any gun control law ever applied to a law-abiding citizen.
Interpreting the Constitution requires only one skill: The ability to read. Believing that only lawyers and judges can understand it is to deny the brilliant accessibility intended by those who wrote it in the first place.
Well, but what would a layman justice do with all the legalese dutifully produced by his/her and others' clerks? To sit here with an open mouth would be undignified, to rubberstamp their output would not look too good either. Thus we either need a constitutional convention which would produce a radically simpler document not open to interpretation, or we are stuck with professional lawyers.
There were no plumbers or seamstresses available who have constitutional law as a hobby.
The Constitution IS a radically simple document. Compare it to just about any other nation's written Constitution.
What the author says is correct, except that we've spent a couple of centuries accumulating precedents that must all be weighed in making decisions.
While the Constitution is very simple, the accumulated precedents are anything but.
200,000 FReepers don't count?
Oh yeah. Never mind!
I like your idea, but in practice it just won't work.
Any law requires interpretation and application.
Application - yes, interpretation - not always. "The witches are to be burned" law [given as an example, for demonstration purposes only] does not leave much space for interpretation, or even for variations in application beyond using slow or fast fire. Indeed, the ideal constitution might even include a prohibition on any interpretation beyond literal meaning, thus precluding the development of a body of constitutional law.
It would be refreshing to have Spencer Tracy nominated. His common sense and plain-speaking would override his inability to handle the legalese.
Using your (hopefully hyperbolic) example, somebody still has to define who is a witch, and set up rules for deciding whether a person qualifies.
Look, I don't disagree with you at all that judges should not make law. I just don't think it is possible to write laws in such a way that an activist judge cannot reinterpret it. Look at one of the Civil Rights Laws which specifically prohibits discrimination on the usual grounds, yet within a few years was being interpreted to mean that discrimination against particular groups was required, not prohibited!
There are only two defenses that I can see against judicial activism:
1. Restraint on the part of judges. This means very careful choosing of who gets to be a judge.
2. Active use of impeachment against judges who overstep the bounds of their role. If writing your own preferences into law doesn't constitute a "high crime or misdemeanor" for a judge, I don't know what would.
The problem with 2, of course, is that it would require legislators with some guts and an electorate that would back them. Neither is likely.
A third possibility would at least limit the damage a given judge can do. Give judges a 10 year term and then make them find honest work elsewhere.
Anybody who ever saw [or heard about] hillary already knows who is a witch and does not need any further definitions. I think that non-reinterpretable law [such that a computer could be a judge] is possible, but that the body of such a law would be extremely unwieldy- and thus only a computer with terabyte memory would be up to the job.
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