Posted on 08/12/2005 5:24:37 AM PDT by DoraC
It's amazing how careless so many freepers and other conservatives are in rushing to judgement in favor of Roberts.
He might be terrific (I suspect he'll be a lot better than O'Connor), but the rush to support came in before any solid evidence just on the say-so of well known conservatives (some of whom ironically are having certain doubts now).
Rehnquist is not an originalist, but he doesn't seem to believe in a living constitution either. He is just conservative. So maybe there is some middle ground?
But the Founders dit not intend for a constitution that had to be amended every 5 years either. That is why they used broad language in most of the constitution. And that is why it is so important to look at the spirit of the constitution, rather than only at the word.
Of course the court should only follow precedent when the precedent is correct. But when you don't look at the reasoning of the court and only conclude that the precedent is wrong because the original intent was different, it could lead you down very wrong paths. For example, the Fourteenth Amendment was not directly intended to prohibit segregation or anti-miscegenation laws. However, the Supreme Court strook both down, looking at the spirit of the amendment and the constitution. I wonder what Thomas and Scalia would do in such a case. Were Brown and Loving wrongly decided?
The Founding Fathers may not have intended for the Constitution to be amended, but they immediately realized they had left too many loopholes for the Federal Government to intrude upon the lives of the citizenry, which is why we got the Bill of Rights (Amendments 1 through 10) in quick succession after the Constitution's ratification. When we look at the spirit of the Constitution, we give it that "living, breathing" quality we so despise. We shouldn't look at the spirit, but at the Founders' intent...what exactly did they mean when they wrote (blank)?
In a perfect world, the Rehnquist court would not be saddled by the reasoning used by the Burger court, or the Hugo Black court...they shouldn't! Like I said, circumstances change, and people change. Hugo Black was an avowed anti-Semite...should we consider his reasoning nowadays?
The concept of judicial independence becomes laughable when the Court of 2005 is bound by the reasoning used by the Court in 1850.
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