Posted on 10/20/2005 11:05:37 AM PDT by Crackingham
JAN CRAWFORD GREENBURG: Thank you for joining us today, Justice Breyer. Tell us why you decided to write this book.
JUSTICE STEPHEN BREYER: I wanted to write it because I've learned from really Chief Justice Rehnquist, Justice O'Connor, my predecessor Harry Blackmun that there's a tremendous desire for knowledge about the court and how do we actually decide cases? People want to know. It's not the CIA; there's not really a secret. And I wanted to try to help people understand that.
And also, I think there's a misconception. I think that many people believe that we're deciding what's good or bad for Americans. That's not the job of the court in constitutional cases. The job is really to look at the Constitution which sets boundaries, vast space in between those constitutional boundaries. That space is for people to decide for themselves what they want. And we're just policing the far boundaries of that space.
JAN CRAWFORD GREENBURG: Well, now, the way you describe your approach to looking at cases and deciding cases is active liberty, to get more people involved in democracy and in the process. Can you elaborate on that a little bit.
JUSTICE STEPHEN BREYER: I think after eleven years on the court, a judge on our court begins to through a steady diet of constitutional cases see the document as a whole. I think most of us when we look at it, if asked what kind of document is it, would say it is a document that creates democratic political institutions. It's a certain kind of democracy. It's a democracy that protects basic human rights. It assures a degree of equality. It divides power so that no group becomes too powerful: states, federal government, three branches of government. And it insists on a rule of law.
Now I want to show that that isn't just the subject of a 4th of July speech but that those general purposes help us directly decide difficult cases and in particular the democratic part which is at the heart of the institution.
JAN CRAWFORD GREENBURG: Let's apply it. The First Amendment says that Congress shall make no law respecting the establishment of a religion. And you have at times parted ways with some of your more liberal colleagues to allow for more religion in public life we saw in the Ten Commandments. How does active liberty come into play and allow you to reach those results?
JUSTICE STEPHEN BREYER: Well, I wanted to use that in the book really to illustrate the importance of looking back to the basic purpose of the underlying provision. In the case you mentioned the establishment clause of the First Amendment. The religion clauses were designed in significant part to try to temper religious disputes: The social dissension that grows out of the fact that people have different religions.
And it's easy to get a lot of social dispute, tension, dissension, et cetera. But remembering that as a basic purpose, then I would look at the consequences in the particular Ten Commandments case -- that's what I wrote about. That's what I did.
In one of the cases, the Ten Commandments monument was being given to a courthouse, put in the courthouse by people who had primarily religious motives. It was tension building. It led to dispute about religion -- religious-related dispute. And I thought given the purposes, that falls on the forbidden side.
The other had been a monument on the Texas state capital for about 40 years with about sixteen, seventeen other monuments that had nothing to do with religion. It was labeled the ideals of Texans. It never disturbed anybody. And I thought, well, if that's forbidden is what I wrote, if that's forbidden, people might go around and try to chip Ten Commandments off of public buildings all over the United States. And that, too, would cause a lot of religious dispute.
So, I thought, well, the one falls on the permitted side, the second. And the first falls on the forbidden side because I refer back looking at the consequences in terms of the basic purpose of the religion clauses.
Two intellectual morons who have no idea what establishing a religion means.
Well, he summed up his contsitutional theory well: The constitution has a few broad goals, and judges should rule in whatever manner advances those few broad goals. Then, on top of that, he is just a moron, thinking that the establishment cause is just about "reducing tensions".
Gee so glad for this example of the "best minds" that inhabit the current Supreme Court. Gee we REALLY need to dump Miers and go find someone with qualities like THIS guy to put on the court!!!!
So...because some people raised a "dispute" over it, it was therefore unconstitutional?
I wouldn't say he is a moron. He is a very intelligent man.
Twisted, but intelligent.
What about MY tension? Why don't Liberals think about ME?
The First Amendment says that Congress shall make no law respecting the establishment of a religion. And you have at times parted ways with some of your more liberal colleagues to allow for more religion in public life we saw in the Ten Commandments.
How does active liberty come into play and allow you to reach those results?
JUSTICE STEPHEN BREYER:
Well, I wanted to use that in the book really to illustrate the importance of looking back to the basic purpose of the underlying provision.
In the case you mentioned the establishment clause of the First Amendment.
The religion clauses were designed in significant part to try to temper religious disputes: The social dissension that grows out of the fact that people have different religions.
Breyer makes an important point.. -- That legislators shall make no laws favoring specific religions because such laws aggravate religious disputes, instead of tempering them.
Insuring domestic tranquility is indisputably a "basic purpose" of our Constitution.
And it's easy to get a lot of social dispute, tension, dissension, et cetera. But remembering that as a basic purpose, then I would look at the consequences in the particular Ten Commandments case -- that's what I wrote about. That's what I did.
In one of the cases, the Ten Commandments monument was being given to a courthouse, put in the courthouse by people who had primarily religious motives.
It was tension building. It led to dispute about religion -- religious-related dispute.
And I thought given the purposes, that falls on the forbidden side.
Given the facts of that specific case, in which judge Moore in effect admitted he wanted to upset our domestic tranquility for religious reasons, --- Breyer's comment is hard to find fault with, logically..
It's almost never a good thing when judges look to the Preamble as a source of federal power. That pretty much nullifies the 10th amendment.
" --- The religion clauses were designed in significant part to try to temper religious disputes: The social dissension that grows out of the fact that people have different religions. -- "
Breyer makes an important point.. -- That legislators shall make no laws favoring specific religions because such laws aggravate religious disputes, instead of tempering them.
Insuring domestic tranquility is indisputably a "basic purpose" of our Constitution.
inquest wrote:
It's almost never a good thing when judges look to the Preamble as a source of federal power. That pretty much nullifies the 10th amendment.
I don't see Breyers comment as trying to establish a federal power. He's attempting to explain his decision making reasoning based on original intent.
What's indisputable is the court was exercising federal power. The question is whether that exercise of power can be accounted for with the language of the Preamble. My point is that the Preamble is not a source of power, and therefore is almost never an appropriate provision to cite for justifying the existence of a power.
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