Skip to comments.Specter's Hostility to Strict Constructionism
Posted on 11/04/2005 3:05:49 PM PST by strategofr
here is an email I sent out as part of the campaign to Stop Specter from gaining the Judiciary Chair:
In the Book, Passion for Truth, By Senator Arlen Specter with Charles Robbins (William Morrow, 2000) Specter explains the key to his thinking about the Supreme Court. (All page numbers cited in this article refer to this book.) Specter states that (p. 331-2) Borks theory essentially held that judges should not make law but should merely follow what was originally intended. In pure philosophical terms, Borks view that the Constitution should be interpreted as it was originally intended appeared to make sense, at least superficially. But the Constitution has turned out to be much more dynamic than that: a living, growing document, responsive to the needs of the nation.
Borks narrow approach is dangerous for constitutional government in America. Without adherence to original intent, Bork said, there was no legitimacy for judicial decisions.
The Constitution has indeed been a living, growing document, responsive to the needs of the nation. Not in the childish manner that Specter conceives, as an excuse for the Supreme Court to invent any law it wants to, but as the founders intended, via the lawful amendment process set forth in the Constitution itself.
In addition, the legislature and executive were moving the U.S in the direction of decency and fairness (Specters lodestones, quoted below) quite nicely before the Supreme Court took over the job on a full time basis. Just before the famous Supreme Court Brown v. Board of Education ruling in 1954, for example, the US Army abolished segregated units---without the Courts help. Before Brown v. Board of Education the Supreme Courts most activist decision was Dred Scott---a decision that unilaterally extended the rights of slave owners and made those rights supercede the law of northern states, effectively making slavery legal there. This was hardly in the interests of decency and fairness as we now understand it, and was one of the causes of the Civil War.
A few pages later (p. 334), Specter gets near to the heart of how Liberals like himself want to use the Supreme Court to transform America. I was troubled by Borks writing and testimony that expanding rights to minorities reduced the rights of majorities. By that thinking, giving a criminal defendant Miranda warnings deprives the police of a confession, which might put a criminal back on the street to harm the majority. While perhaps arithmetically sound, it seemed morally wrong. The [law abiding] majority in a democracy can take care of itself, while individuals and minorities often cannot [referring in the case of Miranda to the minority of people in America that are criminals].
This is about as coherent as can be expected for an argument that supports Liberalism and the Left Wing agenda. However, the notion that it is within the realm of Republican Party thinking is absurd.
Finally, Specter comes to the crux of the matter (p. 337). The story of America is the story of decency and fairness, with the Supreme Court as the guarantor. Robert Bork displayed little grasp of that. After Brown v. Board of Education, nobody could argue in favor of segregated schools. But you dont get to Brown via original intent. You get there via evolving notions of decency and fairness.
Specter, with his background as a lawyer, has promoted himself as something of an expert in this area. Here is an example of his reasoning. Ultimately (p. 339) my view was that original intent cannot guide constitutional law very much. I suggested another standard, quoting Frankfurter, whom Bork had characterized as one of the stars of the Supreme Court. Frankfurter had quoted Cardozo on fundamental values and used the phrase tradition and conscience in his opinion in Rochin v. California, in which the Supreme Court suppressed evidence pumped from the defendants stomach. Again, the story of America and constitutional law is the story of decency. Original intent and legislative talent [the legislature itself], I told Bork, only take you so far, and beyond that you can rely on Cardozo or Frankfurter to effectuate the values and the tradition of the people without being able to pull out a specific constitutional right.
Dont misunderstand me, as a representative of the say anything to reach the Leftist agenda Left, Specter is an effective representative and I understand why Democrats in Pennsylvania consistently vote for him and why the Democratic leadership nationwide supports him. I just do not buy the idea that a person who votes for him to Chair the Judiciary Committee can call himself a Republican.
Oh, Specter, that great authority on Scottish impeachment law.
Hey Arlen, STFU and support the man who prostituted himself to help your win in the Republican primary
That is very interesting. Thank you.
"That is very interesting. Thank you"
Anyone who reads that case competently knows that it turned on the facts, not on the law. The Court found that separation of blacks into separate schools was not "separate but equal," which was the factual finding ofPlessy v. Ferguson because of evidence presented at trial that the separation placed a "stigma of inferiority" on the black children, who were relegated to their own schools.
So, Brown was based on the same constitutional requirement of "equal protection under the law" in the Constitution as was Plessy. The difference, and the necessity for reversal, came from the new facts as applied to the SAME law / Constitution.
I have long known that Specter is a fool on the subject of constitutional law. This is just one more proof of that.
Specter is a democrat, IMHO.
" So, Brown was based on the same constitutional requirement of "equal protection under the law" in the Constitution as was Plessy. The difference, and the necessity for reversal, came from the new facts as applied to the SAME law / Constitution."
Quite interesting. I didn't know that. (But figured out Specter was an idiot other ways.)
The White House, as you know, is interested in having the matter concluded by the end of the year. I do not know that that is realistic. I do not know that that is unrealistic.
What I do know is that we're going to do it right, and we're not necessarily going to do it fast.
If it can be done within the time frame by the end of the year and done properly with an opportunity to review Judge Alito's record and have the kind of hearings that are necessary for this kind of a very, very key position -- you hear it said often, but frankly not too often, that short of a declaration of war, the most important function of the United States Senate is the confirmation of U.S. Supreme court justice for lifetime terms.
They make the decision on the cutting edges of all of the big questions in our society.
As things have evolved, the Congress punts to the court, the executive branch punts to the court. And they have lifetime tenure and independence, and they have come somehow in our society to take on those cutting edge questions. So it is very, very important.
Thks, for the Illumination. :)
"I agree with Judge Bork."
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