Posted on 06/01/2003 4:25:21 PM PDT by Jim Robinson
1. What would the Dems do if the Republicans were doing this? Maybe the answer to this question should be our response.
2. Ronald Reagan would already have gotten this issue before the public more effectively than Bush has.
1) Robert Bork
2) Kenneth Starr
3) Ann Coulter
Senator Bingaman sent a 2,000-word obfuscation of his obstruction which I debunked by phone, fax and email.
The Constitution cites seven matters requiring a super majority--and advice and consent is not one of them.
Erin Shaffer
February 14, 2001
Bork, Robert H. The Tempting of America: The Political Seduction of the Law. Touchstone: New York, 1991.
Review by Gregory A. Caldeira in the American Political Science Review (Vol. 85 Issue 3 Sept. 1991. Pages 984-989).
In The Tempting of America, Robert Bork tries to explain why the United States Constitution should be interpreted by the "original understanding" of the people who wrote it and of the people who they had written it for. He feels that too many decisions by the Supreme Court, whether they were right or wrong, are based on the justices view of the policy and not on what is written in the Constitution. The justices tend to rule based on their morals and political views than on constitutional grounds even in some of the most important cases in American history. Bork describes the moment when a judge realizes that his political opinions, his moral values and his view of justice about the case before him is not part of the Constitiution the "moment of temptation". At this point he must choose between his own personal views and the "American form of government". If the judge gives into this temptation, Bork feels that he is ruling in an area where only a legislator should. Bork gives many examples of how justices in the Supreme Court have done ruled based on their own personal convictions and not on anything in the Constitution. To better explain all of this to the reader Bork divided his book into three parts dealing with smaller parts of the larger issue. In Part I, Bork focuses on various Supreme Court decisions that show the politicization of the court and how it has progressed in modern times. Part II deals with the various theories of how judges who deal with constituitonal issues should rule. In Part III, he discusses his own personal experience as President Reagan's nominee to the Supreme Court and all of the battles that occurred due to his nomination and led to his not being confirmed at all.
Many people realize that it is very hard to stay objective when dealing with issues that affect your personal beliefs. Even with this realization, a majority of people think that judges especially those on the Supreme Court should be objective no matter what and rule according to what is written in the Constitution. Some of the most crucial cases, and most controversial as well, though were not based on constitutional grounds whatsoever but the moral and political views of the justices sitting on the Supreme Court at the time. With this in mind, it is hard to figure out what the limits of judicial power truly are and what they should be. Many of the modern judges are considered revisionists, which means that they rule more on their values than on what is written in the Constitution. The time period in which various decisions were made also influence the justices' view. The values fifty years ago are radically different than those of today. This can make a law that was constitutional back then unconstitutional today. These factors have molded various state and federal laws as well as the United Constitution.
Many decisions by the Supreme Court have drastically changed the landscape of the United States. One for instance was Dred Scott vs. Sandford. In this landmark case the Court ruled that even though Dred Scott, a slave, had been taken into a non-slave state and then to non-slave federal territory, was still the property of his owner. Chief Justice Roger Taney wrote in his opinion: "The rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprive of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." Taney had pretty much said that slaveholding was legal anywhere in the United States even in the states and territories where there were laws against it. Taney, a Southerner, used his personal view of how slavery was beneficial to the Southern economy to justify his prejudice against blacks and his decision against giving Dred Scott his freedom. The justice who dissented even noticed that "No particular clause of the Constitution has been referred to ...".
When justices use their own personal values to rule on cases they can overturn a ruling that had been previously made. Brown vs. Board of Education did just that. The Court ruled that the laws that segregated public schools in various states violated the equal protection clause of the fourteenth amendment. In 1896 with the ruling in Plessy vs. Ferguson, segregation was considered legal if all facilities were separate but equal. The decision in the Brown case overturned this long standing statute. While the opinion dealt with the fourteenth amendment it was obvious that there were other issues other than constitutional rights being dealt with. The justices' view that segregation was wrong was the predominant factor in this decision. While Bork did not feel that in itself was wrong, he felt that the opinion should have reflected more of the values of the Constitution than other factors that were more feeble than what they should have been in a case like this. Many landmark decisions have had opinions that were based on some flimsy interpretation of the Constitution. The justices of the Supreme Court should have tried to find a way to balance their personal views with the ideals of the Constitution, if they had, their published opinions of ground-breaking cases could have been more persuasive.
Bork also presents how the way our nation was founded on two conflicting ideas has led to various views on they are to be reconciled. Judges especially have to figure out the medium between tyranny of the majority and tyranny of the minority. There are various understandings of how the judicial branch is supposed to handle this. The "original understanding" is that judges are supposed to apply the Constitution according to the values of the ones who wrote and ratified it. This view is hardly ever used in modern courts because it is considered "outside the mainstream". Some of the objections that Bork presents to the "original understanding" are that the "original understanding" is unknowable, the Consitution must change with society, that there is no valid reason why the living should be ruled by the dead, the Constitution is not law, and that this philosophy involves judges in political choices. Bork feels that these objections though do not override the viability of this philosophy and that the other more popular views are not viable whatsoever.
The two other main philosophies that are believed today are liberal constitutional revisionism and conservative constitutional revisionism. Both rely on judges making decisions based more on values than constitutional grounds. Bork feels that both are impossible because they involve major moral choices that can not be justified by the Constitution. He feels that those are fatal flaws and that only the "original understanding" theory should be used when dealing with a constitiutional conflict.
Anyone who knows the background of Robert Bork knows that he was President Ronald Reagan's nominee for the Supreme Court in 1987. Almost immediately after his nomination was announced, the backlash against him began. He was deemed a racist, a sexist and a crazy right-wing extremist. In his final part of The Tempting of America he discusses his experiences and his and his opponents justifications of what occurred. While the charges against him were very extreme and that a lot of his opinions had been exaggerated, many took them at face value. This led to him to not be confirmed by the Senate. Bork feels that in hindsight many of his detractors now realize that they were being over-zealous and that he probably should have been confirmed. One would think that he would hold an extraordinarily large grudge against them but it doesn't come off that way in his book.
Bork deals with the idea that judges need to rule by the Constitution and not just by their morals and political views. If they are going to rule that way, they need to find a way to back it up convincingly in the Constitution. According to Bork the only viable theory dealing with the interpretation of the Constitution is the "original understanding" in which the judge rules based on what the framers of the Constitution originally wanted. That view, at least at this juncture in American history, is almost obsolete. The judiciary is ruled by the theories of revisionism where they make decisions based on their personal morality and political alignment. In closing Bork wrote: "Those who made and endorsed our Constitution knew man's nature, and it is to their ideas, rather than to the temptations of utopia, that we must aske that our judges adhere." Whenever a judge is on the brink of succumbing to the temptation, they to step back and re-evaluate if the decision they are about to make is going to based on their personal views or on the United States Constitution.
http://web.syr.edu/~elshaffe/rev1.html
Perhaps he should read it now and then. We need judges who will follow the Constitution, not make law.
Remember Chuckie, the center of the Country is the Founding Fathers and the Constitution, so the Republicans and Dems are both to the left of where we should be.
From everything that I've read, this 1975 example was successful and it was primarily Democrats who lead it and voted for it. It changed the number of votes needed to invoke cloture from 2/3 (66) to 3/5 (60). Current Senators who voted for it include Byrd, Kennedy, Biden, Inoyue, Leahy.
It didn't happen overnight. It took a series of procedural votes over several months. The exact same thing can happen on the proposed filibuster rule change. All that it takes is some guts by the Republicans.
It is said that some Republicans are currently reluctant to try it but given one or more new filibusters, they may change their mind. I suspect that if we see a Supreme retire in July, another filibuster may arise and that just may be the straw that stiffens the Republicans' spines (to quote a mixed metaphor).
All judicial rulings are law. All judges make law, that's their job. We need judges who will make constitutionally sound judicial law rather than judicial law based on questionable and controversial precedents. I know I'm splitting hairs, but it's an important hair to split.
Actually, since we're splitting hairs, let's be exact. Judges interpret laws, in their constitutional role. Only when a judge extends the law (in any direction) according to his or her personal bias do they "make" law.
The essence of a strict constructionist is a determined will to interpret the acts of congress according to the explicit letter and clear intent of the governing document - the constitution itself. For example, there is no explicit "right to privacy" enumerated in the constitution or its amendments, so therefore there is rightfully no federal protection for abortion.
Another example is the use of the words "of the people" in the first and second amendments. In both cases, it clearly means the individual citizens of the United States, but the liberalistas want it to mean citizens with regard to the first amendment, but then to mean the states with regard to the second amendment.
One more point, and then I'll hush. Those powers not enumerated to the federal government in the constitution were explicitly remanded to the states. That's why there is so much "interstate commerce" garbage cited as the basis for federal regulations and laws. The libs are deathly afraid of getting constitutionally literate judges who don't "legislate from the bench" because the courts are the one bastion of (illegitimate) legislative power the libs truly have in their back pocket.
The dynamic tension between the federalism of Hamilton and the dispersed powers of Jefferson is a marvel, yin and yang for Yankees.
The Federalist Papers of Hamilton, Madison and Jay is such carefully cultivated an underlayment for the Constitution it makes clear context and meaning.
Clearly the left uses the courts to achieve socialism when it cannot attain electoral advantage in the executive or intellectual advantage in the legislative.
Auras and penumbras to the contrary notwithstanding, the Constitution of the United States is the bulwark of the Free World--not some hallucination from the ramparts of quota queen Gunier or Ruth Bader-Meinhoff.
And Ann Coulter demonstrates constitutional scholarship beyond All the Perjurer's Men in High Crimes and Misdemeanors, Regnery, 1998.
It is obvious to all beyond the Newspeak of the leftist propaganda machine that constitutionalists are dangerous to the dialectical march of Communism.
The aim of the left from Hitlery to the ACLU, from PETA to People for the American Way, is to rule by diktat, with the Constitution reduced to the meaningless impotence of the Soviet or Cuban or Chinese constitutions.
Here's to Professor Walter E. Williams: "To those who believe in a living constitution let me say, let's you and me play poker and the rules be living."
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