9/30/2005

Working with the Constitution
Filed under: General — nobrainer @ 8:09 am

The brief bus ride to work brought to my ears a part of an NPR segment about how a Supreme Court justice should view the law of the land. Breyer recently wrote a book about the need to consider the Constitution as an evolving document. Justice Scalia disagrees. Instead, he argues, that interpretations based on current situations make the Court too politically driven. Breyer counters that the Framers left the written words to be vague so that the document could come to life.

My feeling is that Breyer is incorrect. Clearly I’m no scholar of the law or Constitution. However, writing highly detailed and very specific legislation often causes more problems. The Framers knew that and built a broad framework — a framework built to allow new and unforseeable questions to be answered based on the best guess of the intent of the Framers — not on the political climate of the times.

Your thoughts?

collapse tyler Says:
September 30th, 2005 at 9:38 am

Wow, Nobrainer, I’ve gotta say….I would have thought you’d be the LAST person to support a liberal interpretation of the Constitution. I totally had you pegged for a strict constructionist.

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collapse ZaMoose Says:
September 30th, 2005 at 10:18 am

Tyler:
He’s saying he doesn’t agree with Breyer.

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collapse tyler Says:
September 30th, 2005 at 11:54 am

Oops! That’s the last time I’m gonna comment on a blog post without having some coffee first!

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collapse nobrainer Says:
September 30th, 2005 at 12:00 pm

It’s ok. I found about 5 typos that were committed post-coffee ingestion. Those have since been fixed, but I fear I’ll find more later.

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collapse Lawtonfunk Says:
September 30th, 2005 at 1:14 pm

I can’t type just after I finish my coffee because I have to go to the bathroom.

Nice post.

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collapse Evan Says:
September 30th, 2005 at 1:34 pm

I disagree with you Nobrainer. To say the forefathers were so farseeing that their words and ideas are beyond question is a fallacy. Argumentum ad verecundiam or appeal to authority. Things change over time. Would you want to be driving the same car your grandfather purchased in the 1950’s? Yeah, Ford made a good car back then but it’s not exactly the most fit and able machine to be speeding around our highways with anymore. The first thing I’d do is add several seat belts and take out the plate glass. Though the framers of our constitution were exceedingly intelligent, they were not perfect. You have to be able to adapt with an ever-changing landscape.

I agree with the “if it ain’t broke, don’t fix it” position. But you have to balance that with “if it is broken don’t pretend it’s not.”

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collapse nobrainer Says:
September 30th, 2005 at 2:42 pm

Certainly the Constitutional compass needs a solid thump from time to time to get it pointed back in the right direction. Indeed, the Constitution allows itself to be modified via amendments… a direct admission of the founders that they were smart enough to know they didn’t know everything.

I find it reprehensible to think that justices will judge in a way to do what’s best for society, in their opinion, instead of applying written law. Recently I saw comments from one of the justices who feared Bush’s next pick wouldn’t do enough to advance women’s and civil rights. I guess I missed the Women’s Bill of Rights somehow.

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collapse Evan Says:
September 30th, 2005 at 3:36 pm

You’re confusing me…

You said, “Breyer recently wrote a book about the need to consider the Constitution as an evolving document.”

Then go on to say, “My feeling is that Breyer is incorrect.”

Then go back and say, “Certainly the Constitutional compass needs a solid thump from time to time to get it pointed back in the right direction.”

So which is it? Or were you just saying that you prefer vague wording to leave wiggle room in interpretation and thereby keep the supreme court on its toes?

“I find it reprehensible to think that justices will judge in a way to do what’s best for society, in their opinion, instead of applying written law.”

If you are in support of the wiggle room, then what else are the justices going to do when interpreting?? I mean they have to base their decisions on a lot of things but in the end, personal philosophies and opinions are going to play a part–especially if there is vague language.

Until we create some sort of judging robot, we’re going to deal with judge’s opinions because they’re humans. Better to have a mix of opinions than a dominant one across the board. There’s no universal yard stick to measure objectivity and regardless of what one judge says, someone’s going to interpret it as leaning one way or another. The forefathers were smart to make sure nine individuals sat in the Supreme Court. I wouldn’t mind if that number jumped up to 11 or 17–I have a thing for prme numbers.

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collapse Lawtonfunk Says:
September 30th, 2005 at 4:19 pm

One argument of the Supreme Court overstepping their bounds is their interpretation of a “Right of Privacy.”

Taken from another web site:

Even though the “Constitution does not explicitly mention any right of privacy” the court found support for a constitutional right of privacy in the First Amendment, Fourth Amendment, Fifth Amendment, Ninth Amendment, and Fourteenth Amendment. The court found this “right of privacy” to be “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Amendment I - Freedom of Religion, Press, Expression. Ratified 12/15/1791. Note
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
_
The Amendments:
_______________________________________
Amendment IV - Search and seizure. Ratified 12/15/1791.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
________________________________________
Amendment V - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
________________________________________
Amendment IX - Construction of Constitution. Ratified 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
________________________________________

Amendment XIV - Citizenship rights. Ratified 7/9/1868. Note History
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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collapse nobrainer Says:
September 30th, 2005 at 7:17 pm

Dammit. As soon as I posted this morning, I knew I was going to be painted into a corner of ignorance from my own, poorly thought out material. However, there just hasn’t been much back and forth in the comment section lately, so what the hell?

I realize, now, I haven’t really thought about what kind of justice is a good one. I’ll keep thinking about it.

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collapse brad Says:
September 30th, 2005 at 7:50 pm

In the words of Nelson:

Ha haaaa

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