Skip to comments.Justice Breyer Takes 'Originalists' to Task In a New Book - 'Active Liberty' ('POS Alert')
Posted on 08/23/2005 5:26:48 AM PDT by harpu
What it is, is; "jurisprudential mysticism" and "more liberal BS"...
"Active Liberty: Interpreting Our Democratic Constitution" explains Justice Breyer's approach and applies it to some of the most divisive topics that come before the court. These include everything from freedom of speech and privacy rights to affirmative action and last June's Ten Commandments cases, which addressed the constitutionality of religious symbols on government property.
(Excerpt) Read more at online.wsj.com ...
Breyer is free to make sure that you aren't
do you have to be a subscriber? I get a log in page from the link.
Funny. The Father of the Constitution said this:
Democracy is the most vile form of government... democracies have ever been spectacles of turbulence and contention: have ever been found incompatible with personal security or the rights of property: and have in general been as short in their lives as they have been violent in their deaths.A man so ignorant of the Constitution as to us the adjective democratic to describe it, should never have been appointed, let alone confirmed, to the Court.
Thank you Protest Warrior
Yep. This is from the print edition:
"...on the current court, only Justice Scalia has issued a legal manifesto, entitled "A Matter of Interpretation: Federal Courts and the Law," which explains his originalist philosophy. Attempts to construe the Constitution as "evolving" merely are cover for judges imposing their views of what the law "ought" to be, rather than what it is, Justice Scalia argued in that 1997 volume.
By contrast, Justice Breyer's "Active Liberty" contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disaregard the "real world" consequences of the decisions they render."
This looking at facts as they "ought" to be and not as they are is the very essence of liberalism, and right at the heart of liberalism's difference from the conservative philosophy.
Our Congress will do nothing to rein in the activism of the judiciary -- that's a given.
But, isn't this book a breach of the "good behavior" standard in Article 3 of the Constitution?
After all, how can a sitting judge write a book that denies the "originalist intent" of the Framers, and still be considered a judge with "good behavior"?
The Judicial Oath, for all Federal Judges and Justices:
"I, _______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States[as originally written] against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
In addition, each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office. Section 8 of the Judiciary Act of 1789, as amended in 1990: "I, __________, 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 (name of position) under the Constitution and laws of the United States. So help me God.
Interesting that he claims the Constitution is democratic. Now many voter initiatives (a truly democratic method with all the positives and negatives that implies) have been struck down by the various circuit courts and the supreme court. Breyer is just using his claims of "democracy" as a thin veil for a "rule by judges".
you got mail!
Wouldn't do any good. They'd place their hand on the Bible (assuming it's still allowed in public), swear their fealty like they actually meant it, then spend the rest of their first day eviscerating the BOR.
Are you describing lawyers or earthworms. Oh wait, I don't mean to insult honest earthworms everywhere.
Heh. Red Wigglers???
Got that one right.
Thank you for the quote by Madison, Justice Breyer could do worse than to read and memorize it. IMO, he should write it on a blackboard 1,000 times. Hell, a million.
Reading the article from WSJ on Breyer's book fills me with a cold rage, silly as that sounds. But it does.
Breyer is taking (what are apparently his beloved) principles of socialism and trying to distort our Constitution into alignment with them. He couldn't be more wrong, nor more evil.
The obvious fact is that the Constitution appoints the legislative body, Congress, to the "activist" role. Not the judicial body. And even the legislative body is bound by the same Constitution to very narrow duties. Unprecedentedly narrow duties for those days, and seemingly for these days.
To me, the entire idea of an "activist" constitution begs the question: Why even have one if it is not meant to bind our leaders to certain behavior? Activism is very well taken care of without such a thing by every government in the world.
Breyer, however, clearly thinks of the Constitution as an essay on utopian goals of democracy and egalitarianism, toward which the Supreme Court is empowered to force the population. Toward the common good, through central planning, to paraphrase his shockingly socialist writing for the Kelo case.
He's very wrong, the Constitution defines the powers of the federal government and defines the relationships to each other of the states. And very litte else.
The point is that our founders were fabricating a country in which the government, while being instituted to protect their freedom, was also limited in its power over the people by a constitution. The people were to be protected *from* their government by that Constitution. And, thus, as your quote points out so elegantly, protected from themselves. From using democracy to vote their rights away, or to vote the rights of others away.
As long as Breyer wishes to use his power to increase the freedom of the individual in America, which our legislature is doing away with as rapidly as ever it can, I am with him. Instead, however, it appears to be his wish to impose on the citizens of America by force his personal ideas of equality. By doing this, he is engaging in nothing less than the destruction of our liberty. That he is doing it in the name of the Constitution takes my breath away.
But at least I now know his mind.
>>>A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government.<<<
Of course, democratic solutions are only acceptable if they result in the implementation of leftwing policy. Democratic moves to ban gay marriage and restrict abortion, for example, can't be tolerated by the likes of Breyer.
What we really need is an Andrew Jackson moment where one or two or both of the other allegedly coequal branches simply defy the Court.