Posted on 09/14/2005 12:39:41 AM PDT by konaice
Ok you can agree with Roberts. I'll just agree with the Founding Fathers instead.
I see no contradiction. I am specifically referring not to the Founder's views, but to the Framers of the 14th.
http://www.post-gazette.com/pg/05257/571043.stm
Good find! The full text is less worrisome than the article's excerpts.
ROBERTS: Well, I think it's very important to define these terms. Let's take the originalist approach. I do think that the framers' intent is the guiding principle that should apply.
However, you do need to be very careful and make sure that you're giving appropriate weight to the words that the framers used to embody their intent.
I think of, in particular, the Fourth Amendment and the equal protection clause. There are some who may think they're being originalists who will tell you, Well, the problem they were getting at were the rights of the newly freed slaves. And so that's all that the equal protection clause applies to.
But, in fact, they didn't write the equal protection clause in such narrow terms. They wrote more generally. That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word, so that is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it. That is an originalist view because you're looking at the original intent as expressed in the words that they chose. And their intent was to use broad language, not to use narrow language.
There are some areas where a very strict texturalist approach makes the most sense. Obviously -- the example I gave earlier -- two- thirds means two-thirds. You don't say, Well, their purpose was to apply some super-majority requirement and now that we have more senators, three-fifths will give effect to that intent. Nobody would apply that approach. You stick to the language.
In other areas, the court's precedents dictate the approach. This is not something that is purely a matter of academic exercise. For example, on the Seventh Amendment, the right to a jury trial, the court has been very specific. We have a historical approach there.
The job of a judge is to look at whatever action is and try to analogize it: What would that most be like in 1787? And if you got a jury trial for that, you get one today. And if you didn't, you don't. It's a purely historical approach.
So the approaches do vary. And I don't have an overarching view.
As a matter of fact, I don't think very many judges do. I think a lot of academics do. But the demands of deciding cases and the demands of deciding cases by committee -- either a group of three or a group of nine -- I find with those demands the nuances of academic theory are dispensed with fairly quickly and judges take a more practical and pragmatic approach to trying to reach the best decision consistent with the rule of law.
[...]
ROBERTS: I tend to look at the cases from the bottom up rather than the top down. And I think all good judges focus a lot on the facts. We talk about the law, and that's a great interest for all of us. But I think most cases turn on the facts, so you do have to know those. You have to know the record.
In terms of the application of the law, you begin, obviously, with the precedents before you. There are some cases where everybody's going to be a literalist. If the phrase in the Constitution says two-thirds of the Senate, everybody's a literalist when they interpret that.
Other phrases in the Constitution are broader: unreasonable searches and seizures. You can look at that wording all day and it's not going to give you much progress in deciding whether a particular search is reasonable or not. You have to begin looking at the cases and the precedents, what the framers had in mind when they drafted that provision.
So, yes, it does depend upon the nature of the case before you, I think.
GRAHAM: [...] When the president introduced you to the United States, to the people of the United States, he said you were a strict constructionist. Do you know what he meant by that and why he chose to use those words?
ROBERTS: Well, I hope what he meant by that is somebody who is going to be faithful to the text of the Constitution, to the intent of those who drafted it, while appreciating that sometimes the phrases they used, they were drafting a Constitution for the ages, to secure the blessings of liberty for their posterity. They were looking ahead. And so they often used phrases that they intended to have...
(CROSSTALK)
GRAHAM: Does that term make you feel uncomfortable?
ROBERTS: No.
Roberts has read Holmes and probably Dewey.
You don't have to be 'credentialed' or 'influential' to understand the Constitution. Read it sometime and see for yourself.
One of the Perpetually Pi$$ed Off Unappeasables.
It's been saying the same thing for two days now.
When that one issue is the mass murder of babies, how can one be anything else?
I've read Dewey-and Hobbs and disagree with both.
What about Holmes? Oh, and what about William James? As long as we're talking about Pragmatism. I haven't got as far as Dewey did to reject Hegel yet especially since I see where some of Hegel's views on the state are echoed in Green and our sainted Spencer.
Reading comprehension does not make one an expert.
Being monomaniacal is definitely frustrating.
Because it precludes puerile opinions.
You wrote : "His supporters control the House, the Senate"
Are you sure ? (gang of 14)
Since you and your opinions have become totally irrelevant to me, I must make this my last post to you.
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