Posted on 07/13/2005 3:48:33 PM PDT by Jim Robinson
Edited on 07/13/2005 4:11:42 PM PDT by Jim Robinson. [history]
With O'Connor's retirement, Rehnquist's possible retirement this summer, and hints of the possibility that Ginsburg and Stevens may be retiring within his term, President Bush has an historic opportunity to reshape the court. This is the opportunity that we've all been fighting for. Most of us are counting on the president filling these vacancies with solid conservatives who respect and abide by the Constitution and we will be sadly disappointed if the president appoints squishy moderates.
Sadly disappointed? Did I say, sadly disappointed? Hell, we'll be up in arms!
But that's just my opinion. Before we go much further in this discussion, I'd like to get yours. Please answer the following FR poll question, then come back and post your opinion.
Assuming a potential supreme court nominee is qualified in all other respects, which of the following concerns should be the deciding factor:
Acceptable to minority party
Maintain balance of court
Must be moderate
Must be mainstream
Gender/race/ethnicity
Friendship/loyalty
Pro life/marriage
Must be originalist
Other
Pass
Originalist bump.
Originalist.
Interpret the Constitution.
Win or lose Idealogy can and should only be advanced through the ballot box. In this way even if the people do not always get it right, we have a means to fix it down the line.
IF any opinion should become widely held it is believed it should be embedded in the Constitution, do so through the amendment process. If it cannot survive the obstacles to qualify, it should not be so ordered by the Judiciary.
BTW, I voted "other".
Thank you.
Doesnt have to be an "originalist" by the way. The Dred v. Scott decision was "originalist". I just dont want a whore for big business like Bonnie Owens.
I voted pro family and pro life.
However if by orginalist we can assume that any future SP can nullify (is that the word?) Roe v Wade, and can affirm that this nation is founded on Christian principles that should hold sway in rulings and that Christians can display religious symbols any where and at any time then I am also an originalist.
Originalist, please...accept no substitutes!
HUH? The US Constitution is older than Judaism, Christianity, Buddhism, Hindi, or Islam?
Let's say for the sake of argument, you get your wish and R-V is put to the democratic process and it is outlawed.
Down the road, gay marriage is put to the democratic process and the majority of Americans now believe in it. Then what?
the u.s. constitution allows religious freedom.
OH, from the post I was like... Man what's this guy smokin'.. :D
I also voted 'Originalist'. I tend to fall under the 'Federalist' category, I think.
Must be originalist...I did vote that way too.
I don't think the Constitution has anything to say about the definition of marriage. Marriage and divorce laws are matters for the states under the Constitution.
IMHO we can't be originalists only when we like the result.
Originalist. However, since the Constitution at the moment is a "living, breathing" work, I would like to see it exhale Roe v. Wade and a few other miasmas of the liberals before it reverts back to its original intent.
Then they would be wrong, and you would have the right to spend years convincing them the opposite result should be realized in law.
Though on gay marriage I do not think you'll find the outcome you describe. Recent elections defy that analogy. Abortion would be the better symbol to hold up in argument since thanks to the Supreme Court, no on can be quite sure where the American people would fall.
Some thoughts on originalism from Barnett:
http://randybarnett.com/73colo1275.html
--- I am of the view that the courts and Congress should respect the original meaning of the Constitution where that meaning can be determined. I also think that, when the meaning is vague or where the text authorizes supplementation, as it does for example in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment, there is room for discretionary choices and a need for judges to formulate constitutional doctrines to put these clauses into effect.
I will confine my use of the term originalism to a method that seeks and relies upon the original public meaning of the text, not the original intent of its framers or ratifiers.
Even those who do not consider themselves originalists seem drawn to original meaning, as exemplified by the recent controversy over what constitutes an "impeachable offense."
Liberals and conservatives, academics and public commentators alike, all began with, and placed great stock in, the original meaning of the term "high crimes and misdemeanors" and then attempted to apply that meaning to the conduct in question. The same holds true of those who debate the meaning of the Second Amendment's "right of the people to keep and bear Arms."
And many academics who purport to reject originalism think that the original meaning of a constitutional term or passage should serve as a starting point or at least an important factor in establishing the meaning of the Constitution's text.
The inherent attraction of original meaning flows, I believe, from the insight that where the Constitution speaks, judges are not empowered to change its meaning.
As was contended by Isaac Penington, Jr. in 1651: "They who are to govern by Laws should have little or no hand in making the Laws they are to govern by."
The whole reason to have a written constitution, like a written contract, is to "lock in" some meaning that can only be changed by proper procedures. Otherwise, why bother?
The object of a written constitution is to bind Congress or judges. Were these agents empowered to change its meaning to something they like better, the point of having a written constitution would be lost.
That the meaning of a written constitution must remain the same until it is properly changed is the essence of originalism. We should follow the original meaning of the text, then, not because we are bound by the "dead hand" of the past, or by our dead ancestors, or in my case by other people's dead ancestors. We should adhere to the original meaning because - right here, right now - we are committed to a written constitution, and the whole reason for putting a constitution in writing is to constrain the behavior of political and judicial actors.
If those actors can change its meaning as they desire and in the absence of a written amendment, the written constitution will have failed in its principal purpose, and our commitment to it rings hollow.
Also hollow would be the claim that persons should obey
Congress or the courts because their actions were authorized or mandated by the Constitution. Judges claim that their rulings are not just their opinions, but come from an independent source called "the Constitution."
If, however, the Constitution means whatever Congress or the courts want it to mean, then this is a lie.
A more accurate statement would be "Obey because WE tell you to," and such a statement is unlikely to be well-received by the public.
On the other hand, where
the text is either vague or deliberately incomplete, there is room for judicial construction that does not contradict the original meaning. Even where the original meaning of a term or passage can be discovered it must still be applied to a particular case or controversy and the process of application will require choice and judgment. Though this makes originalism considerably less confining than its critics assume, the existence of vagueness and the need for judgment does not eliminate the duty to adhere to and apply original meaning in good faith to the extent it can be determined.
The Ninth Amendment and the Privileges and Immunities Clause of the Fourteenth Amendment are as much a part of the text of the Constitution as the Commerce Clause. No inkblot on the document prevents us from discovering their original meaning.
Protecting the unenumerated liberties to which they refer from violation is an essential component of a legitimate law-making system in which the majority is neither allowed to exceed its enumerated powers nor to violate the rights of the individual.
A commitment to adhere to the original meaning of the entire text, not merely the parts one likes, is neither "conservative" nor "liberal" as these terms are used today. Regrettably, in my experience, many liberals and conservatives are quite willing to jettison those portions of the text that do not fit neatly within their philosophical approach, be it the restrictions of enumerated powers on the one hand or unenumerated rights on the other. Either form of "activism" - whether by Courts or by Congress - that conflicts with the original meaning of the Constitution, however, is forbidden by the commitment to preserve, protect, and defend a written constitution that constrains the power of lawmakers.
If 50 million Americans voted for sKerry, that gives me pause to what Americans 10-15 years down the pike will allow to pass.
There could be the possibility that you would have an anti-family trade-off. R-V way is tossed out...and gay marriage is accepted. Either way, no children.
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