Skip to comments.Justice Breyer's troubling 'constitutionalism'
Posted on 10/28/2001 8:18:24 AM PST by Willie GreenEdited on 04/13/2004 2:02:17 AM PDT by Jim Robinson. [history]
To be or not to be. A constitutionalist, that is. It's the supreme question Supreme Court Justice Stephen Breyer is answering these days. And wholly unsatisfactorily for a person in his position, I might add. Pity that the good justice has chosen to fall squarely into the not-to-be column. And grave concerns every American should hold considering the less-than-lucid "rationale" he cites.
(Excerpt) Read more at pittsburghlive.com ...
In reply to Dan from Michigan's posts:
Long-"Gun Crazy"-Constitutional... (article against individual ownership of weapons, against original intent, and against related limits upon government, by Andrew Herz)
Under First: The New Consensus... (rebuttal article by Don B Kates and Randy E. Barnett)
David Barton wrote an excellent book, Original Intent, The Courts, the Constitution, & Religion, I believe that a series of such books for each of the Amendments in the Bill of Rights, and/or an original intent dictionary for the Bill of Rights, need(s) to be published, to help secure the Founding Fathers' and Framers' original intent and make it more easily available to the public, as well as common knowledge in the culture.
Much of the public is unaware of the importance of both original intent and enumeration of powers --- and how these basics of American jurisprudence are fundamental to limiting the powers of government. It is unfortunate that these basic concepts are not taught along with the "checks and balances of federalism," in our classrooms. And it is also unfortunate that these basic concepts are not now refreshments to, or included in, articles in the rare and elusive "conservative print media."
Because original intent and enumeration of powers are our peaceful checks against the whole of the three parts of the federal government, the legislative, executive and judicial branches --- and against the government becoming corrupt and tyrannical through its failure to adhere.
To make a word mean other than its creator's defined intent, may be used for humor. But to make the language mean other than the Framers' use, is to render the rule of law meaning---less and a path to war.
To have Liberty and a free republic responsive to the rule of law, requires adherence to the law.
But if the law is slippery, because the language suffers (as it has) from "lawyering" such as Mr. Herz's, then the law cannot be adhered to, which in-adherence is the design of authoritarian centrism whereby it achieves ruling power for the ultimate minority --- Clintonism's supremely judgemental committees and their enforcers, the "politically correct 'thought police'" ... and their progeny.*
Then, the protection that is equal for each and all of us before the law, is meaning---less and ignored before such regents of arrogating committees, courtrooms and regimes of socialism.* The scrapped rule of law is replaced by the dialogue, generated in the "politics of the moment," for the benefit of, and by, dialogists such as Mr. Herz, in the model of his worship, William J. Clinton, who "is" our "President."
Furthermore, "to make the language mean other than the Framers' original intent, is to" fabricate a by-pass through "Extra-Constitutional Space" around the right of the people to make the laws through their elected representatives. A right that is obviously at odds with Mr. Herz's allegience to "government by judiciary" and the design of authoritarian centrism.*
From : Government by Judiciary, The Transformation of the Foutheenth Amendment, by Raoul Berger, ©1977. Page 287 ---
Given a Constitution designed to "limit" the exercise of all delegated power ... the admonition contained in the Massachusetts Constitution of 1780, drafted by John Adams and paralleled in a number of early State constitutions, [was] that "A frequent recurrence to the fundamental principles of the constitution ... [is] absolutely necessary to preserve the advantages of liberty and to maintain a free government ... The people ... have a right to require of their law givers and magistrates an exact and constant observance of them."
The author of Government by Judiciary, is a retired Harvard Law School professor. Inside the front jacket of the book: "He writes: 'The Fourteenth Amendment is the case study par excellence [on the] continuing revision of the Constitution under the guise of interpretation.'" For more information on Prof. Berger, here on the Internet:
Profile in Constitutional Courage
The Fourteenth Amendment and the Bill of Rights (re: Government by Judiciary)
A Free Republic page related to original intent and the wording used in the Second Amendment ---
A Free Republic page related to original intent, enumeration of powers, and the wording
used in the Second Amendment ---
And brityank's, Free Republic page, providing as follows ---
*As a "friendly reminder" to Mr. Herz's recruits:
From a December 12, 1999 article, "Sabrin Draws Fire on Gun Control Remarks," originally published in the Newark, NJ Star-Ledger and now posted at Murray Sabrin for U.S. Senate:"Gun control does not lead to an erosion of civil liberties, said Rabbi Eric Yoffie, president of the Union of American Hebrew Congregations, who delivered a speech Saturday urging members of Reform synagogues to launch a campaign for gun control..."
"... he said Sabrin's analogies were inappropriate. 'His fundamental point seems to be that gun registration leads to an undermining of civil liberties. That's a claim utterly without merit,' he said."
The Rabbi's comments certainly disregard the timeless lessons of history. From the National Rifle Association's archives: New research on the Nazi confiscation of registered guns--and execution of gun owners.
Indeed, the organization Jews for the Preservation of Firearms Ownership, is aware of this and responded on March 22, 2000, to Rabbi Eric Yoffie: Jewish Group ... Condemns Reform Rabbi's ... Stance. The same day that "Senator Reed (D-RI) ... introduced S. 2099, The Handgun Safety and Registration Act of 2000. Its stated purpose is: 'To amend the Internal Revenue Code of 1986 to require the registration of handguns, and for other purposes.'"
We only have the rights we can defend, as long as we are able.
The Founding Fathers and Framers established the process of enumeration whereby the government is limited to only the powers that are listed in the Constitution, delegated in writing, and therefore, the Framers gingerly wrote the first ten Amendments, our Bill of Rights, in compact wording, in order to preserve all the other, in effect non-enumerated, rights and powers of the people and the States, as confirmed by the Ninth and Tenth Amendments.
The Framers did not want to establish any contrary precedent by which the people might suffer from some future mis- or re- interpretations to the effect that the people could only have those rights mentioned in the Bill ... leaving the people stripped of all others.
For example, if the Second Amendment had stated that "the people had the right to keep and bear Arms for hunting," then a future mis- or re- interpretation might seek to limit gun-owning to only those people willing to be licensed to hunt.
Another example, which helps understand how such consideration weighed on the building of the Second Amendment. In Congress, during the development, Elias Boudinot (New Jersey) proposed this:
A well regulated militia, composed of the body of the people,
being the best security of a free state, the right of the people
to keep and bear arms shall not be infringed; but no person
religiously scrupulous shall be compelled to bear arms.
[See the Annals of Congress; check the Library of Congress.]
But a provision for those being religiously scrupulous, was not included. Because a future mis- or re- interpretation might permit the whims of those people in power, to define a person to be religiously scrupulous and therefore to be disarmed.
(It is interesting to note, however, that the Founding Fathers' and Framers' consideration for those being religiously scrupulous --- though the provision is not mentioned anywhere in the Constitution --- may be seen as a Constitutional basis for such people who are serious in their contientious objection to certain duties of military service.)
In the Second Amendment, the expression "Well Regulated..." was a term of the day in the Colonial era, meaning "well trained to arms." These interchangeable expressions meant: well trained in the safe handling, use, maintenance, storage, and subsequent training of such instructions, regarding weapons in general, not merely firearms. (British troops of the Colonial era, were known as "Regulars" because they were "well trained to Arms," ie. "well Regulated.")
The Clinton Reformation desires to scrap the enumeration of federal powers and wreck the connection between the Constitution, Bill of Rights, and the Founders' and Framers' original intent. Having accomplished that, the Clintonists will have cleared the way for any definition which they can SCRABBLE out of the documents' words.
But here, is an excellent quote found by Freeper, brityank *:
"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
Without our understanding this and being able to remind our representatives and neighbors of this, the Clintonist overthrow of our individual, and Bill of, Rights will obscure in paragraph and sub-paragraph after paragraph of a tax-code-like mountain of federal legislation and judge-made decrees --- our residual "rights" --- which will require a lawyer for you to read and understand any.
Constitutional jurisprudence is way beyond the ambit of a morning radio show. However, the only thing "open" here is not the words of the Constitution, but the mind of Justice Breyer. One can hear the wind whipping through his empty legal skull.
Either the Constitution is the declared will of the people, as expressed in the document and in all the amendments duly adopted by the people to date, or it is not. If it is, it is binding even on the Justices of the Supreme Court. If it is not binding, then we have no Constitution. We merely have some suggestions, which can be changed at any time by a vote of five Justices of the Supreme Court.
This is the sort of horse hockey they teach in most law schools. It is an absolute miracle that, at present, less than a majority of the Court share this destructive view, since the vast majority of lawyers are taught exactly this nonsense in school
Ah, well. Enough of my rant on one of my pet topics.
The (More er Less) Honorable Billybob,
cyberCongressman from Western Carolina
For a clear discussion of the difference between what the US can constitutionally do in wartime with aliens (but NOT with US citizens of foreign extraction), see my book, Manzanar, published in 1988.
In this light, the constitution is clear: if it is in there, we have given the government the right to act in that manner (precisely as stated in the constitution, no further). If it is not in the constitution then the government can make no claim to have any authority whatsoever to regulate that item. Period.
In reading in "modern" situations and then guessing what they think might have been said by the framers about it had they been here now (a tortuous proces where you read words as written and then twist and contort them to implicity support your position, such as the "right" to abortion) these judges specifically ignore the most fundamental concept of our government. In their minds there are no limits to government powers, since the constitution is merely a loose set of guiddelines to be used (or not) as the spirit moves them. It would be wise to fear this type of person.
SCOTUS_List is a "bump list" that I created in The FreeRepublic Bump List Register
I don't believe that names get added to those lists.
Rather, it provide an "index" that you can search for in the "to:" field of the search box. (to:"SCOTUS_List"). Only one person has to mark a thread with a bump-list-index, then anybody else can search for those replies.
You can also bookmark the Bump List Registry page, and click on any of the links for the various lists to view recent replies for those lists.
"Those more literalist judges who emphasize language, history, tradition and precedent cannot justify their practices by claiming that is what the Framers wanted," said Breyer.
So, braying Breyer, why is it that even the Supreme Court bases it's current decisions on the wealth of past case pronouncements? After all, in your (feeble) mind, they shouldn't matter.
I don't believe it is a coincidence. Breyer has embarrassed himself and the entire SCOTUS with this childish tirade.
When judges collapse emotionally into openly espousing their intent to be "givers of laws" instead of "custodians of the Constitution", the charitable thing to do would be to relieve them of the burden of responsibility that is the cause of their dementia.
Those words should be prominently displayed all over America so that no eyes could avoid seeing them and no mind could avoid contemplating the message.
I have a question for Breyer: how should I then interprete and define his position? If the constitution can be so loosely interpreted, then I can loosely interprete his position. Calling him a traitor and a commie is the tip of the iceberg of the consequences of his stupidity.