And unfortunately, W isn't a conservative.
I think you are right about Brown and Olson, but I think it will be Scalia who is elevated to Chief Justice.
Democrats would never accept Ted Olsen. His wife was murdered on 9/11 so the democrats would say he was too close to the terrorism issue to be a fair judge.
It stands to reason. One of the reasons they don't like Michael Luttig is because his fathers killer was executed so they don't trust him on the death penalty.
can you send that along to his speech writers?
Even if YOU don't get a dime for it, it is perfect.
But some of us would like him to be at the ranch in Crawford wearing his jeans and cowboy hat when he says it....
Thats what I like to see, child-like idealism.
Keep dreaming John, It'll keep you young.
I'm thinking the actual announcement of the names is made by Michael Buffer in a tux, and then "Let's get ready to ruuuuuuuumble!!"
I even agree with the nominees.
May I pass this around???
Witch.
Nah... Antonin Scalia has seniority, and should be the one elevated. Besides, he's the best judge on the court anyway.
Both definitions of "living document" in this paragraph are wrong. The Constitution "is" a "living document" in that it can be changed at will BY A 2/3 VOTE OF EACH HOUSE OF THE CONGRESS AND A VOTE OF 3/4 OF THE LEGISLATURES OF THE STATES---i.e. its written amendment process.
Until such a change is made, the the "originalist" doctrine is the only correct one---it must be interpreted "as written", and "as understood" by those who wrote it.
Great post, John - I think he may well put Thomas forward as the next CJ - wouldn't that fix the libs' bicycle!
However, there's always a "however"! Here's mine:
Re: Some people say it should be a “living document,” that must be newly interpreted, depending on the times we’re living in, while others say it must never be altered, and must strictly be adhered to.
This is dangerous wording, and inaccurate as well. True Constitutionists do not maintain that it "must never be altered", only that if alteration is necessary it must be done by following the proper procedures as outlined in the Constitution, not by the whimsical fiat of appointed, unaccountable judges.
It's Olson.
And he's too old.
And the woman will be Jones.
ping for a perfect world.
Good speech. I prefer a lot of folks to Olson, though. Too milquetoast, genteel. Those guys get chewed up in the rough and tumble of the court, and are the ones most likely to turn to the dark side. Give me Luttig or someone who is a clear constitutionalist.
Yep, that's pretty much the perfect scenario.
I like your bottom line.
"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton
The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and independent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.
The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature--even an act subsequently authorized by the judiciary--is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.
Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:
"Altho' the old idea of a compact between the Govt. & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.
"The original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a Govt. over them." (In a letter to Nicholas P. Trist, February 15, 1830)
Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."
In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.
What THE PEOPLE were not permitted to do in 1787-88 was to deprive - or pretend to deprive - posterity of their natural right to do in the future what the founding generation had done in 1776. Nor could they, by pretending to delegate it to Congress, the President, or the Supreme Court, deprive them of their sovereign power to change the Constitution. Instead, that power was recognized in the Constitution's provisions in Article V.
The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit "within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved. . . . .
In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality--"adaptability"-- that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.
In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:
"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both of U.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.
"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."
So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its explicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary. . . . .
A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.
Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.
They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:
"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."
At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.
Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."
Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.
. . . .
That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.
Our Ageless Constitution - Part VII (1987) (Publisher: W. David Stedman Associates; Stedman & Lewis, Eds.) ISBN 0-937047-01-5 (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum, The Phi Kappa Phi Journal, Fall 1984)
"Do We Have a Living Constitution?" is a question whose answer, in the interest of liberty for future generations, demands honest and objective review of the Founders' own writings regarding their intent.
The essay quoted in my post exposes one of the "antics with semantics" used by those who wish to change the Founders' Constitutional protection of a 'government of laws, not of men', into a 'government by a few men and women who can change the law at will.'
In order to accomplish a transformation in public opinion regarding that unlawful change, the dishonest perpetrators used the actual words of Marshall, but strung them together in a way that changed his meaning altogether.
We often see similar tactics used by spokesmen of the Left in order to impose a distorted view of the Constitution upon an unwitting citizenry.
On Page 128 of "Our Ageless Constitution," the volume from which the previous essay was quoted, is the following statement:
"The degree to which the American people have accepted this departure from the Framers' concept of rule of law through 'a government of laws, not of men,' can be seen by considering a statement made in a small-town, locally-sponsored seminar for the purpose of studying the Constitution during its Bicentennial. A member of the local audience asked the visiting lecturer, a university professor from a a major state university conducting the seminar, 'Why is it that our Constitution has survived for 200 years when those of other countries have historically failed?' The professor's reply was that in the United States, the citizens had a Supreme Court that was 'courageous' enough to make changes to the Constitution without going through what he described as the slow, cumbersome, and deliberative process the Founders had laid out. Instead, he said, 'What we have might be called a 'sitting constitution!' Sadly, the twenty-five or so people in the audience, with the Constitutional knowledge which had been provided to them through their educational system, were evidently not alarmed by his statement. . . ."
President Bush's nominee for the Supreme Court will have opportunity, it is hoped, to call attention to the powerful protection of Article V of the Constitution he/she is sworn to defend, by interpreting according to the intentions of the geniuses who drafted, and the citizens who ratified a Constitution for the United States of America!