Posted on 03/09/2005 4:56:22 PM PST by jwalburg
Imagine you were asked to protect, uphold, and defend the framfra of the United States of America. Or ask yourself, What if you were appointed to faithfully execute the queenestray of the land?
You'd be forgiven if, before holding up your right hand, you asked, "Uh, what's a framfra?" or "Could you explain what a queenestray is?" After all, you wouldn't want to take an oath that required you to kill puppies or watch Carrot Top movies. Mature, sensible people generally don't agree to obligations they don't understand.
But that is precisely what our elected and appointed leaders are asked to do today. When taking office, they swear an oath to protect, defend, and enforce the Constitution of the United States. Yet it is becoming more and more difficult to say exactly what that means. Sure, on one level, anybody can read what the Constitution says. But, apparently, knowing what it says doesn't necessarily mean we know what it means.
At least, five justices on the Supreme Court don't know what the Constitution means. Earlier this month, as you no doubt heard, the high court outlawed executions of juveniles under the age of 18. The policy of banning juvenile executions may or may not be sound, but the reasoning that got the justices there was — and I want to be delicate here — un-American.
This isn't a reference to anything so exciting as their patriotism. Rather, their reasoning is literally un-American at times. Justice Anthony Kennedy — who seems to be envious of Justice David Souter's status as the most disappointing Republican appointee — writes, "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty."
Why? Why is that proper? I truly have no idea.
Perhaps Justice Ruth Bader Ginsberg knows? In a speech in 2003, Justice Ginsberg openly expressed her hope that America would discard its "Lone Ranger" attitude when it comes to interpreting — get this — our own Constitution.
Justice Sandra Day O'Connor — another perennial contender to unseat Souter in the most disappointing justice category — predicts that we "will find ourselves looking more frequently to the decisions of other constitutional courts." Globalization is creating "one world," she explains, and the future challenge for the court will be to figure out how "our Constitution" "fits into the governing documents of other nations."
Justice Stephen Breyer outdoes them all. He's invoked the rulings of the supreme courts of Zimbabwe and India and the Privy Council of Jamaica to support his rulings. "These are human beings called judges who have problems that are similar to our own," he once said, by way of explaining his philosophy. "Why don't I read what he says if it is similar enough?"
Perhaps because what other judges do and say is of no relevance — human beings though they may be. Perhaps because looking abroad for rulings that support your own predilections suggests that you cannot find precedent here at home to support your case? And just maybe citing foreign courts is a slippery slope from which there is no return. Once you start fishing for convenient rulings from the supreme court of Zimbabwe, it's clear that you will look anywhere and use any rationale to rule as you see fit, regardless of what the law, precedent, or the Constitution actually say.
This is the real problem, and the fishing expeditions for friendly decisions abroad is merely a symptom. We have gotten to a point where — on the major issues of the day — liberal elites and their fellow-traveling justices cannot tolerate the idea that a good law can be unconstitutional or that a bad law can actually be constitutional.
In 1989 Justice Kennedy signed on to a ruling that considered the standards he used this month to be "absurd" and/or "irrelevant." He rejected "the contention that the sentencing practices of other countries are relevant" in 1989. In 2005 he said "it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Kennedy says that times have changed and there's a national consensus for banning juvenile executions. Leaving aside the tendentious math he invokes to find this "consensus" on the issue at the state level, if there's a national consensus, why bring up the "international" consensus against the juvenile death penalty?
The salient fact isn't that times have changed. It's that Kennedy has. He's "grown" in the job, welcome news to the editorialists, academics and European sophisticates he seems so keen to please.
Nonetheless, if the plain meaning of the Constitution can change as Justice Kennedy's mind changes, then the meaning of the Constitution is not to be found in its text or in precedent. It's not even to be found in the opinions of the no doubt Solomonic Jamaican Privy Council. No, the meaning of the Constitution does not exist at all — outside the cranium of whichever justice provides the swing vote. Since what is in Justice Kennedy's mind is unknowable, we're back to the question: How can someone take an oath to defend the Constitution if he doesn't know what the Constitution is? Or are they taking an oath to Justice Kennedy?
Correction: In a recent column I wrote that Howard Dean is "a vocal advocate for gay marriage." He is not. He is officially opposed to gay marriage. But he is a vocal opponent of any attempts to prevent gay marriage. I regret the error.
A mind is a terrible thing to waste.
LOL on his correction. Good column too.
That's the crux of it. We need a serious overhaul, and soon.
spot on!
these are tyrants... they need impeaching..
Great post!
Half the Supreme Court should be impeached over this. And I realize there is an odd number. So go ahead and impeach half of one one of them. Leave the other half of that Justice there as a reminder.
Can you really impeach Supreme Court members? They are evil, but are they incompetent?
Sounds good to me.
jwalburg:
Can you really impeach Supreme Court members?
_____________________________________
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour
It is the job of Congress to impeach them.
9 unlearner
I have to believe that the use of the term "behaviour" in this instance does not pertain only to their morality...or else the founders had to have known that the judge(s) could totally ignore the written constitution as long as they didn't get thrown into jail for some odd reason.
"According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:
"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.''
"Good behaviour" necessarily has to apply to upholding their oath of office...and last I checked, the Constitution of the US did not mention anything about taking into consideration "international law" or international concensus.
"According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:
"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.''
"Good behaviour" necessarily has to apply to upholding their oath of office...and last I checked, the Constitution of the US did not mention anything about taking into consideration "international law" or international concensus.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Declaration of Constitutional Principles
Address:http://www.constitution.org/consprin.htm
The justices could have very easily said that "while we do not agree with the principle of capital punishment in the case of a juvenile, there is nothing in the Constitution that forbids this punishment. We would encourage the legislature of the US Government or the individual states to address this issue CONSTITUTIONALLY, but..."
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.