Posted on 09/16/2005 8:06:42 AM PDT by Carry_Okie
Having seen not a little of John Roberts’ job interview before the Senate Judiciary Committee, it isn’t difficult to come away totally disgusted. In my case, that dismay is not for what was asked, but for what was not.
There are important and legitimate questions to be asked of Judge Roberts regarding judicial philosophy that in no case would betray how he might vote on a pending case. This brief list is intended to list such questions and elaborate somewhat on why they are of particular significance.
If Judge Roberts ascribes to full incorporation, there are a number of consequences we can reasonably expect. For example, we would know that the Federal government would be responsible to enforce the Second Amendment against State gun control statutes. We would also know that he would put a Federal standard on what constitutes legitimate public use as well as the just compensation for regulatory takings under the Fifth Amendment. If Judge Roberts ascribes to the original interpretation of the Fourteenth Amendment as elaborated in the Slaughterhouse Cases, then he would be more inclined toward deferring to State powers as proscribed in the Tenth Amendment. Thus this question is a test of Judge Roberts’ commitment to federalism.
The point is: one cannot ascribe to both the broad interpretation of the Fourteenth Amendment privileges and immunities and simultaneously defer to State power per the Tenth. To claim to do so is an oxymoron.
Although this might seem an esoteric question, it is not. During the construction of the Fourteenth Amendment, two railroad lawyers then in Congress, Roscoe Conkling and John A. Bingham, had taken the trouble to omit the word “natural” from the usual legal term “natural persons.” Both of them later admitted that their purpose in the omission was to confer the rights of citizenship to corporations. The railroads managed to get that interpretation out of the Supreme Court via the COURT CLERK, John Chandler Bancroft Davis (a railroad lawyer, former Assistant Secretary of State, a socialist, and quite possibly a Marxist). When he published the ruling in the case, County of Santa Clara (California) v. the Southern Pacific Railroad (118 U.S. 394 (1886)) Mr. Davis inserted his own headnotes (supposedly) quoting Chief Justice Waite prior to issuing his ruling. The note states that the Court was of the unanimous opinion that corporate persons were equivalent to Fourteenth Amendment citizens. That headnote wasn’t a ruling and therefore carried no force of law, nor is there any other record of whether a Court majority (that included several former railroad lawyers) supported such a conclusion. Chief Justice Waite was so sickly that it was unlikely he would have even known of the publication. Worse, there is evidence on the historical record of Mr. Davis having distorted for political effect his reports of a Marxist confab in Europe. In other words, Mr. Davis was not a reliable reporter of fact.
Corporations have limited liability, pooled risk, immortality, and can more easily concentrate capital in the hands of a few than can individuals. They can lavish executive perquisites equivalent to personal income and not a dime of tax need be paid by either. They don’t have to contend with raising children, sickness, old age, inheritance taxes, or plan for retirement. Equal protection of corporations had thus become an unequal playing field intended to benefit the investor class at the expense of small business and private land ownership, something the Founders had rightly feared, being only too familiar with the excesses of the corporations of European royalty. Were corporate charters then subject to State definition, we might then see a competitive market in defining the limits of their responsibilities and exemptions.
During Judge Roberts’ confirmation hearings, we’ve probably heard more about stare decisis than any reasonable person might wish. What is laughable is this sudden leftist penchant for precedent. After fifty years of Supreme Court activism directed to right every wrong, including everything from mandated racism (affirmative action or busing), regulating medical practice (Roe), to a directed attack on religion, NOW they want us not to change anything? As if these rulings of liberal courts had any respect for stare decisis after 150 years!
Given that those rulings which conservatives find so reprehensible are legion and founded in very shaky interpretations of the Constitution, it’s no surprise that they are worried. Especially when one considers how poorly these “remedies” actually worked. Anyone who doesn’t recognize their failure when watching the mayhem in New Orleans isn’t awake. What conservatives want to know is if Judge Roberts has the courage and perspective to know that, in a context of 200 years with the Constitution, these rulings are distorted aberrations in need of correction.
How the Fourteenth Amendment extended the First Amendment establishment clause “protection” to the States when it explicitly regulates only Congress is a total mystery to me. It is an affront to the right of free assembly and free exercise to restrict public prayer.
Most Americans understand that maintaining religious independence requires matters of faith be immune from government influence. The difficulty in accommodating religious freedom isn't the private exercise of personal faith; it is the influence religious values can exert upon matters of policy that affect people who don't share those religious beliefs.
Religious conservatives don't seem to understand that when their beliefs affect public policy, people who do not share those beliefs rightly feel that their freedom has been restricted. Resulting laws can exert strong influences upon the age of consent, marriage, child rearing, divorce, education, or the conduct of businesses (such as TV censorship versus porn, or whether to license bathhouses).
Secular voters consequently confuse legitimate concerns about the fiscal cost of moral decay with dogmatic religious beliefs, discounting such concerns as religious conceit. Thus any effort to impose uniform moral standards in public policy, nationwide, will be fraught with conflict unless all individuals hold the same beliefs.
No problem! Current government policy is to "educate" children from pre-school to after-school allowing totally debauched TV to cover everything else. They'll make sure the little urchins think all alike.
You don't want that for your kids?
Our federal system was designed to balance the need for a unified nation with accommodating variety in community standards, often reflecting various religious practices. The Constitution limited the Federal government from intruding in local affairs, thus allowing a State or community to adopt local ordinances reflecting particular beliefs. Quakers were dominant in Pennsylvania, Catholics in Maryland, Protestants in New England, and so on. More distinctive religious sects seeking near total autonomy such as the Amish, Mennonites, Shakers, Oneida, or Amana formed fairly isolated communities further a field.
That federal ethic started to break down when the courts interpreted the 14th Amendment equal protection clause as superseding other Constitutional limits on Federal power (particularly States rights and individual property rights). Although it may have been a good thing for racial equality (at first), the consequences are slowly evolving into religious oppression.
Nowhere has government intervention into religious freedom been more intense than in issues concerning homosexuals. The Bible has numerous obvious provisions declaring homosexual practice an abomination. As cases charging "discrimination in places of public accommodation" progress through the courts, we are not far from 14th Amendment equal protection being interpreted such that any effort to restrict the activities of homosexuals is considered illegal. Such a ruling might be enforced against a church with the threat of loss of tax-exempt status.
So much for a nation founded in religious freedom. Note the role the 14th and 16th Amendments play in bringing Federal power to bear. It is selectively enforced uniformity.
This Federally enforced "uniform diversity" has made society both more mobile and culturally dispersed, making it more difficult to maintain a group holding strong beliefs over succeeding generations. Remnant groups end up isolated, issuing defensive pronouncements that irritate the secular public who would prefer that the "Fundies" kept to themselves. Unfortunately, such isn't allowed.
America was a haven for religious communities long before the Constitution was written. Since that time, the United States has shown openness to diverse religious beliefs unique in history. The only way to resolve cultural distinctions over religion is to re-institute Federalism citing the right of free association as pre-existing almost all other American law. Respecting that principle, people who prefer moral licentiousness should be free to congregate. Those who seek to restore the free exercise of religion and make a public matter of it should then be able to do so as well. The social and fiscal results of the different communities would speak volumes about the relative merits of these opposing moral standards, as California's fiscal crisis so eloquently demonstrates.
Emphasis upon free association is only a start. Putting enforcement of the equal protection clause and income tax regulations in their proper relationship with property rights and States' rights is also critically important, and not just to religious freedom.
Islam is unique among the world’s major religions in that it is also a detailed political ideology governing every facet of both public and private life, including causes for military action. The founders of this country NEVER anticipated that conflict when they wrote the First Amendment. Of course, they never anticipated the Church of Euthanasia either.
There must be limits to free association; whether inculcated suicide by suffocation or suicide bombers. Thus when free association is used as a cover to commit crimes, whether sedition or psychologically coercive suicide, we are confronted with the prospect of making exception concerning free exercise, which is again yet another argument in favor of the flexibility afforded under federalism. It will be a test of our ability as a nation to make distinctions upon individual behavior that may do more to transform an ancient religion for the better than all the soldiers in the Middle East.
The problems we face in reestablishing rights of free association are not only Constitutional but inherent to the manner in which cases are brought to higher courts, something never defined by any legislative or Constitutional process. Appellate cases only test those questions that are raised at a lower level. We often wait decades for critical interpretations of the Constitution that then fail to weigh conflicting elements of that supreme law of the land. Citing but one part of the document as legally compelling in a court of law, without taking the whole of its provisions into account has perverted the intent of the law beyond recognition. A case citing only the 14th Amendment or the commerce clause might bring very different consequences to the same case when citing the 5th or 10th Amendments. It is not only unjust but also dishonest not to weigh all applicable competing considerations in a court of last resort. Not to clarify the full set of considerations in a ruling violates higher standards than the rule of law.
No matter how true it is that adhering to the religious principles upon which this country was founded produces a happy, productive, and peaceful society, to support political arguments citing religious beliefs does a disservice to socially conservative policy proposals. Such arguments are far more effective in political life when citing only their logical necessity, leaving religious citations to matters of family and faith. People with an abiding sense of faith don't need or want religious direction from public officials. In many ways it trivializes matters of faith. In others, it invites the kind of backlash that has worked to restrict religious freedom.
This is covered above, but I want to see it asked directly.
This is my personal biggie. Treaties and international law in general have become the principal tools of the political left by which effectively to dissolve the Constitution. Treaties are at the root of environmental law which led to regulations that have driven much of our manufacturing capacity and resource development offshore. They are at the root of powers exercised against landowners constraining development to impacted cities. They impact heavily, the price of nearly every good you buy.
It isn’t hard to see how such laws can be very useful toward controlling winners and losers in the marketplace and such is exactly what has transpired. Most such treaties are held at the UN (which, in my opinion, was their principal purpose for convening it in the first place; it sure as hell wasn’t “world peace”).
The Supreme Court has never repudiated a single treaty.
I’ll give but one example, The Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere. This treaty, ratified in 1941 by fraudulent means, authorizes the power for the Federal governmint to control virtually ALL land use, nationwide. It commits LIMITLESS financial resources to save ANY species by only one means: preservation of habitat, even when it is natural (and usually easily reversible) change in that habitat that endangers the species. This treaty is so broad and so powerful that it not only violates the Constitution, it violates natural selection itself.
The Supreme Court has never repudiated a single treaty. I want to know if a Chief Justice Roberts has the integrity and the balls to do it.
My question for Judge Roberts:
"When can you start?"
Sure it is. It takes real effort, kind of like it does to start your own vanity instead of posting to one of the dozens of Judge Roberts' threads.
For later study. Thanks for the thread.
Someone has wwwaaayyy too much time on their hands.
My question: "How do you find the will power to not leap across the table and strangle the last ounce of life out of each of those lowlife inquisitors"?
Is the Second Amendment an individual right or do we start looking for another nominee?
A) Agony
B) Misery
C) Torture
D) All of the above
Apparently you're not asking questions for Judge Roberts to answer, as you seem to have already answered them.
We're working on it, but hopefully some of us very soon will be as impressed with you as you are.
BFLR
Batter Up!
Play Ball!
You write the laws and I'll run them by the constitution!
Apparently, you aren't interested in Judge Roberts' answers because you'll happily take what you'll get.
Souter self.
I'd like to ask Judge Roberts how he maintains his civility and composure.
[If you can keep your head when all about you
Are losing theirs and blaming it on you;
If you can trust yourself when all men doubt you,
But make allowance for their doubting too;
If you can wait and not be tired by waiting,
Or, being lied about, don't deal in lies,
Or, being hated, don't give way to hating,
And yet don't look too good, nor talk too wise]
Actually, I thought the questions were well thought out and address a wide range of constitutional issues not normally seen all in one place. I have copied the post for future reference.
Not sure what happened to my last post. I had intended to quote dmz's response to Carry_Okie's post. I quoted the wrong text. Apologies.
Thanks. I would have spent more time sourcing the points, but I spent yesterday shoveling six tons of gravel oiling my driveway.
Are you the guy with the six fingers on each hand?
Thanks for posting this. Five-course meal for thought.
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