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Miscellaneous thoughts and ramblings
Monday, November 07, 2005
On Constructionist Justices
Just a great. simple piece on what Conservatives are looking for in the judiciary.



When conservatives say that we want "conservative" judges, or "strict constructionist" or "constitutionalist" judges, what we mean is pretty simple: We want judges who won't make stuff up. We want judges who won't view the Constitution as a mirror in which, at every turn, they see reflected their own opinions and policy preferences. We want judges who will play it straight, read the Constitutional or statutory text (our text, not foreign ones, which the court has relied on in cases like last session's Roper v. Simmons , which held execution of juveniles to be unconstitutional), and apply it as fairly as they can to the individual case before them.

If that were all, liberals would be left with little to say. But there is one thing more: The corollary of the proposition that judges shouldn't make up stuff that isn't in the Constitution or laws is that judges also don't have the discretion to ignore language that is in the Constitution or the laws. Thus, the interstate commerce clause must be recognized as a limitation on Congress's power to regulate the economy, as Judge Roberts noted in the case of the "hapless toad." The Fourteenth Amendment's guarantee of equal protection of the laws can't be ignored every time a public university wants to prefer some applicants over others, based on race. And the Second Amendment's guarantee of the right to keep and bear arms can't be treated as if it got repealed somewhere along the way.

It is in connection with such issues that liberals often argue that conservative judges are really just as "activist" as liberal judges, if not more so. This is based on the observation that conservatives sometimes hold statutes unconstitutional because, for example, they exceed the constitutional limits on federal power. But again, liberals overlook a fundamental asymmetry: It is activist to import something into the Constitution that is not written there, based on one's own policy preferences. It is not activist to apply and enforce the Constitution as it is written. That, on the contrary, is the duty of every state and federal judge.

That's the most beautiful thing I've ever read in my whole life. I may print it out and put it under my pillow. Thanks, Nomad.
Hear Hear!!

Damn, that's good.
Again, its amazing how conservatives think that it is the duty of justices "to apply and enforce the Constitution as it is written" but that this only applies when they agree with the decision.

Avoiding the whole abortion issue (which is what this is really about), we can look at something like the death penalty to provide an interesting counterpoint. In the 1960s and 1970s the Supreme Court held that in certain circumstances the death penalty was a violation of the Eight Amendment ("cruel and unusual punishment") effectively leading to a moratorium on executions in the United States.

Conservative decried the "activist judges" who were "importing something into the Constitution that wasn't there."

The idea of what construes cruel and unusual punishment is entirely a matter of opinion. People (and judges) who are opposed to the death penalty certainly see it as cruel and unusual punishment, while those who support it believe that it is not cruel and unusual. Since the conservative point of view is to support the death penalty, this interpretation of the Constitution allowing executions suits their fancy and therefore they do not see it as "activist."

Those who oppose the death penalty see this as activism of the worst kind. Not only does the justice system deprive criminals of their right to freedom (and appropriately so, of course), but now the activist Judges are saying its ok for the states to kill someone, and that this is not cruel and unusual punishment.

The Xth Amendment states that "powers not delegated to the United States....are reserved to the States." Since what construes cruel and unusual punishment is subject to interpretation, the prohibition against its infliction is a power delegated to the United States (e.g the Supreme Court) by the Eighth Amendment.

Conservatives are happy that the Supreme Court currently does not (in most cases) see the death penalty as cruel and unusual punishment, and therefore this activist stance is allowed to stand.
"Again, its amazing how conservatives think that it is the duty of justices "to apply and enforce the Constitution as it is written" but that this only applies when they agree with the decision."

Uh, WRONG. Think very carefully before you attempt to put thoughts into MY head- or anyone's, for that matter. What you construe to be a "fact" is in fact merely a liberal talking point. I know no conservative who thinks the way you postulate. Think you know what I feel about the death penalty? No, you do not. And you do not know how "conservatives" feel either. As you demonstrate in that post.
I think that the clause Wanderer cites in the 8th ammendment leaves plenty of room for interpretation, and I think a reasonable judicial opinion could find that killing somebody is cruel and/or unusual. So, I guess I don't fall into the vat into which he attempts to place conservatives either.

Outside of Constitutional issues, I would be in favor of the death penalty on the grounds that I think retribution is a legitimate objective of criminal justice. However, I'm not satisfied that the burden of proof is sufficient to prevent innocent people from being put to death, and until it becomes such, I'm in favor of a moratorium.

But, again, on Constitutional grounds, I think Wanderer has a good point. It's just unfortunate that he mischaracterizes the conservative view to the extent he does.
My apologies for putting words into people's mouths but I do believe it is a mainstream conservative point of view to support the death penalty. If you would like me to find poll data to support this assertion I think it would be relatively easy to do so. If I'm wrong about this, please enlighten me.

My point is actually very simple.

If you are conservative and a liberal judge is doing something you don't like then you say they are "activist". The opposite is true as well, so if you are liberal and a conservative judge is doing something you don't like, then you also say they are being "activist". Like it or not, this is what it comes down to - the rest is rhetoric.

This crap about "defending the Constitution" and that conservative judges "enforce the Constitution" is all about perception and semantics and works both ways. Since law is open to interpretation, there is a conservative and liberal take on every issue, there are no universal truths. Judges who faithfully interpret the Constitution based on precedent and an intelligent assessment of what they think the Framers intended are OK by my book. I can disagree with the ethical/political/religious slant they bring into their assessment, but I don't think they are "making stuff up" provided they back it up with sound jurisprudence. Whatever slant they bring is part of the diversity of America, and it is also why there are nine judges, because no issue is ever that clear cut that there can't be varying interpretations of the same Constitutional text.

There have been brilliant conservative jurists as there have been brilliant liberal jurists. To say that one or the other applies or enforces the Constitution any less zealously is simply fallacious.

Speaking of semantics, Nomad you and I basically have the same user name... :)
It is the mainstream point of view for conservatives to support the Constitution. Please bring forth any objective poll data that supports anything otherwise. And by the way, mainstream media is demonstrably and by their own admission not objective, so don't bring anything from there. It is not about perception and semantics. It IS about APPLYING the constitution. It is not about INTERPRETING the constitution. And that is not a semantic issue; the two words are extraordinarily clear in this application. A judge that "interprets" the constitution has no business on the bench. We need judges that APPLY the constitution. Whether I, or anyone else for that matter, like it. It's a strong document and a good one, so long as its intent is not tampered with.
In order to apply something, you need to interpret it. Come on now. This is entirely a semantic argument.

I agree with you that conservative judges support the Constitution just as do liberal judges. I never stated that they don't. They are sworn to do so by their oath of office, and they all do it to the best of their ability (I hope). Conservative judges bring in their slant as do liberal judges. Both of them "defend the Constitution," "apply it", whatever... the point is that they all bring their particular point of view in and do their defending and applying based on their reading of the document. You might not like the way liberal judges do it (or you might like it, I don't want to put words in your mouth again), but the bottom line is that there is bias from both sides of the political-judicial spectrum and it has nothing to do with applying, interpreting, defending or whatever you want to call it.
No, it is not a semantic argument.Please find a dictionary and look up the terms "apply" and "interpret" The constitution is written in english. No interpretation is required. It remains only to apply the principles it contains.

You stated earlier, and I quote:

"If you are conservative and a liberal judge is doing something you don't like then you say they are "activist". The opposite is true as well, so if you are liberal and a conservative judge is doing something you don't like, then you also say they are being "activist"."

Not true.

Here's the way it usually happens: A liberal justice "interprets" the constitution to mean something that it does not,(as often as not, citing the law of another country as the basis for his/her decision!!!!) and conservatives are annoyed because they have trust in the document and choose NOT to see it submit to the will of an activist judge. On the other hand, a conservative justice chooses to apply the law in a way consistent with the constitution, and liberals are annoyed because they dislike the document, and because they want to rewrite it to suit their whim. Find a conservative who believes the constitution is a "living" document. If you do, wash off his makeup, he's a liberal underneath.

There is no slant in applying the law. Interpreting the law, on the other hand, defines slant.
Judges should be objective, period. Arbitrariness undermines the rule of law.

Wanderer - apparenty your point is that judges cannot be totally objective and/or conservatives don't really want judges who are totally objective. I disagree on both counts. I think a politically crafty judge can come up with support for any decision, but the ideal judge uses only the text of the law and precedent to reach a decision, or if the text of the law and precedent are insufficient, an honest attempt to act on behalf of the framers rather than himself. Yes, there is some subjectivity in there, but the lesser the better.

I think that conservatives really do want judges that are totally objective because they have read the Constitution and its values are consistent with their own. Not always (free speech comes to mind), but most of the big things - limitations on government, the right to bear arms, protection against illegal search and seizure, etc.

Now, to be fair, there are plenty of Constitutional questions to which the answer is not plain. However, we must promote objectivity in finding the answers. Certainly the nomination process is politically charged, but we should encourage judges to be apolitical and stay true to the text of the law and precedent. Any bias that shows through should be that of the framer.
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