Posted on 11/21/2005 7:29:59 AM PST by Irontank
We are being assured that Judge Samuel Alito, like John Roberts, and in contrast to poor Harriet Miers, is superbly qualified for the U.S. Supreme Court. He sounds good to me, but I wonder. Specifically, I wonder what "qualified" means.
The people who insisted that Miers didn't measure up almost made me wonder what "up" means. Interpreting the U.S. Constitution shouldn't be all that difficult. It's written in plain English for ordinarily intelligent people. The only hard part is ridding your mind of all the false interpretations that have confused people about it.
If you search it for something about "the separation of church and state," "freedom of expression," "the right to privacy," or even "democracy," you may be surprised to find it isn't there. We've been told so often that all these things are there somewhere that it's hard to shake the idea they are what it actually says and means. The real trick is to stop reading things into it.
Being a Supreme Court justice shouldn't require much intelligence. And it obviously doesn't, or how could undistinguished people like Sandra Day O'Connor, Anthony Kennedy, and David Souter hold their own on the Court? They are praised because liberals like the way they vote, not for any special legal insight they possess.
If anything, the Court is notable for the number of its members who have been short on common sense. Kennedy is best known for his silly opinion that defining the universe is a constitutional right, and that somehow this right is umbilically related to the right to kill unborn children.
What we really need are justices who can refrain from reading their pet notions into the Constitution. It may seem that this isn't asking much, but the Court has a considerable legacy of nonsense uttered by men who have supposed that judicial robes confer philosophical profundity. The late William Brennan, for example, called the Constitution "a sublime oration on the dignity of man." Oration? Sublime? Dignity? Where on earth did this embarrassingly orotund rhetoric come from?
Justice Stephen Breyer, one of the Court's leading liberals today, avoids the absurdities of Kennedy and Brennan. Nor does he repeat the cliche that the Constitution is a "living document," which always turns out to mean that it can be virtually amended by the judiciary, without the forms of amendment prescribed in the text itself.
Breyer is the subject of a flattering profile by Jeffrey Toobin of THE NEW YORKER. Breyer sounds like a pleasant, reasonable man, and Toobin stresses that he believes the Court should respect the will of the legislative branch, overturning acts of Congress as seldom as possible. In contrast to Antonin Scalia and Clarence Thomas, Toobin observes, he doesn't seek the "original intent" of the Framers of the Constitution.
"The message I'm trying to provide," Breyer says, "is that there is more to the Constitution than a Fourth of July speech. It was a serious objective of the framers that people participate in the political process. If people don't participate, the country can't work."
But the Constitution says nothing about "participating in the political process." These are buzzwords of our own time, never used by the Framers. If popular participation is the whole idea, where does that leave the elitist practice of judicial review?
And by the way, in ascribing this "objective" to the Framers, isn't Breyer just giving his own version of their original intent? How does he know what their intent was, apart from the words they used?
Agreed, the Constitution isn't a Fourth of July speech. Let's just stick to what it actually says. That won't answer every question, but it will take us pretty far, and it may save us from the temptation to answer questions that haven't been asked.
Unfortunately, common sense isn't a subject taught in the law schools, not even our most prestigious law schools. On the contrary, the more clever the lawyer, the more he may delight in reaching excessively clever -- or "counterintuitive" -- conclusions, such as that the Constitution protects abortionists.
Let's not pretend that reading the Constitution is harder than it really is. The Framers' original intent is clear enough, because it's expressed in the words they agreed on, not in musty archives or arcane theories. Most of the problems arise only when lawyers try to substitute modern words for those of the text. The chief "qualification" for a justice should be good sense.
The primary reason why judges have come to rule America is the total degeneration of Americans' familiarity with the Constitution. In the 1850's, thousands of Americans would turn out in person to watch Lincoln and Douglas debate serious constitutional issues...in 2005, those type of debates couldn't compete with American Idol and Desperate Housewives. High schools don't teach the Constitution anymore. Law schools pretend to teach the Constitution but they only really teach law students what the Supreme Court has said the Constitution "really means"...which is usually very different than what it actually says.
You know most Americans when discussing the Constiutution will often preface their opinions by stating "Now, I'm no Constitutional scholar" (who needs to be a "scholar" to be able to read the 18 enumerated powers and know what they mean?) or "I'm no lawyer, but..." Well...I am a lawyer and I can tell you that lawyers learn no special skills that make them better able to read the relatively simple words of the Constitution and know what they mean. I've always believed that lawyers are the worst candidates for the job of judicial review because many lawyers (especially those who think they are brilliant) are incapable of reading simple words and telling you what they mean. I've always believed that, rather than lawyers, we should appoint American historians of the Constitutional Convention and philosophers learned in Cicero, Locke, Montesquieu, etc. for the job of judicial review of the US Constitution. This is the real reason that some founders envisioned lawyers in the Federal Courts performing the job of judicial review...not because their legal skills allow them to uncover deep mystical meanings in the Constitution indiscernable to mere non-lawyers...but because (1), in 1787, lawyers were seen as above the commercial interests of mechanics, merchants and farmers and, thus could be more objective, and (2) lawyers, like Hamilton, were often quasi-gentry and, when not practicing law, were reading Enlightenment philosophy.
We will never end rule by judges until a large enough segment of the American population realizes that there are no hidden meanings in the Constitution discoverable only to Ivy-educated lawyers (many of whom I can assure you are not all that bright). Only when the American people come to understand that the Constitution has been abused and perverted since FDR's New Deal era to give the federal government expansive powers it does not legitimately have...only then, will the political branches, in both the state and federal governments, have the guts to stand up to the Courts and say "you cannot get away with just making things up and then pretending these things are just products of lawyerly interpretations of the Constitution.
That way they can twist it to mean whatever they want it to mean.
Maybe he was thinking of the Declaration of Independence?
the supreme court should be composed of 5 non-judicial types and 4 judicials. with non-judicials, they'd look at a case and go, "how does the constitution apply to this?" probably 90% of their cases would be thrown out. the problem is "qualified" judges look at a case where a man bites dog and sees 47 different ways to rule any direction, citing earlier cases that were just as much not-related to the constitution.
So, Bernard Bailyn for SCOTUS, then?
Very true...I've long believed (as I've posted on here many times) that Scalia has become quite a disappointment...from his implicit criticism of Justice Thomas' refusal to be constrained by bad prior Court decisions...to his acceptance of the doctrine of 14th Amendment incorporation of the BOR against the states...to his Commerce Clause decisions...Scalia is a distant second to Thomas in terms of his fidelity to the words and original meaning of the Constitution
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