I don’t look forward to an ugly fight about Samuel Alito’s nomination. But I agree with columnist George Will that our country is overdue for a debate about the role of the courts and our expectations of judges. Here is Will’s partisan take:
“This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes — ‘results’ — they, like the result-oriented senators who confirm them, consider desirable? If so, in what sense does the Constitution still constitute the nation?
“This is a debate that the president, who needs a victory, should relish. Will it, as Democrats mournfully say, ‘divide’ the country? Yes. Debates about serious subjects do that. The real reason those Democrats are mournful is that they correctly suspect they are on the losing side of the divide.”
Posted by Phillip Brownlee
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27 Comments
In 3 out of 4 issues pertaining to abortion rights, despite his religious beliefs, he voted in favor of the prochoice side, including striking down a proposed ban against partial birth abortion. Given his record, I’m not sure why the liberals are so dead set against him. Will someone enlighten me please?
I’m really looking forward to this debate. It’s about time the USA either affirms that we are a republic or slide into decay as a democracy.
Dear Damoon,
Its not a question of “abortion rights”. Without reseaching each of the 4 cases, I will answer just from what I’ve heard in the news.
In one of the cases, he decided based on what he considered to be the state’s right to legislate. And in another one he decided based on cases previously decided by the Supreme Court.
If Alito is actually a strict originalist like he seems to be, the extreme right and the extreme left will both be unhappy with some of his decisions. He is going to decide based on the intent of the framers.
Let’s take Roe v Wade as an example. If he had been on the court when this case was decided he probably would not have been able to find a ‘womans-right’ to privacy in the 14th amendment and ruled for Roe. He probably would have deferred to the 10th amendment and allowed the great State of Texas to make what ever abortion laws they wanted.
However, if Texas had had a law allowing abortion and the case was to over turn that law, a strict originalist probably would still defer to the state.
The left hates him because he is an originalist and they won’t be able to advance their agenda bypassing the states and the people. The question is that will be hard to answer is; Will he be willing to overturn prior court decisions. He might not. Hence the right will not be happy.
So its not his past decisions that matter as much as his view of the constitution. The left believes the Constituion is a ‘living document’, its intent can be changed based on the whim of the court. The left is scared to death of a strict originalist-which Alito claims to be.
esod,
Would an originalist interpreter writing, say, in the 1930’s, have arrived at the same reconstruction of the “framers’ intent” as one writing in the present day? And if not, doesn’t this undermine the plausibility of your claim that the sole valid method of constitutional interpretation is this purported ‘originalism’? Isn’t our attempt to reconstruct ‘original intent’ conditioned by our own historical understanding, which changes over time?
In other words, isn’t the standard of ‘original intent’ as much or more of a moving target than other methods of constitutional interpretation, even as it tries to obscure this fact about itself by giving itself the question-begging name of ‘originalism’?
At least the other schools of constitutional interpretation are honest enough to own up to their limitations, which enables them to correct for their biases. But because ‘originalism’ is posited as this unquestionable and absolute standard, it cannot perform this type of reflective self-correction. The only way to correct a mistake in an originalist interpretation is by being ‘more’ originalist, whatever that means. And if ‘originalism’ harbors blind spots, it will never be able to detect them on its own terms.
At best, ‘originalism’ expresses a rigidified understanding of textual and legal meaning that fears, above all else, the slippery slope. At worse, ‘originalism’ is an ideological fiction masquerading as a certainty.
And in the hands of Alito, my fear as a liberal is that the ‘originalism’ he espouses is of the unprincipled, opportunistic variety.
Dear CF,
Very good question! I don’t think so! In a perfect world the ‘original intent’ of the framers would not change. But the interpretation today v the interpretation of 75 years ago is biased by many things, cultural and historical. In the world of the Supreme Court there has been a lot of ‘history’ in the last 75 years!
I wouldn’t characterize many of the decisions as correcting the mistakes of the framers. Obviously constitutional law has to change with the times, but the major changes can be made with amendments rather than liberal interpretation. Major changes that were sorely needed, like womens suffrage, the abolition of slavery and many more were changed by amendments. The Supreme Court was found severely lacking when it had the opportunity to make these changes.
You say:
“At best, ‘originalism’ expresses a rigidified understanding of textual and legal meaning that fears, above all else, the slippery slope. At worse, ‘originalism’ is an ideological fiction masquerading as a certainty.”
I fear that in the real world your cynical opinion of ‘originalism’ might be closer to fact than I care to admit. However, just because man can never be perfect, doesn’t mean we should not try to be the best we can. If democrats and rebublicans would strive to always place originalists on the court then we would have something solid to depend on. As a conservative I would no more want a court made up of Breyers than you would of Thomases.
CF
I meant to address this question, but I forgot:
You asked,
“In other words, isn’t the standard of ‘original intent’ as much or more of a moving target than other methods of constitutional interpretation, even as it tries to obscure this fact about itself by giving itself the question-begging name of ‘originalism’?”
No. I believe the ideal would always try and get as close to original intent as posible.
So, Esod, you oppose Kennedy and Scalia’s interposition into Florida’s election in 2000 (in Bush v Gore) that stopped the recount, because it very clearly violated the 10th amendment that gives states the right to control and run elections?
Even if I agreed with the idea of “original intent,” which I don’t, it’s perfectly obvious that the reich-wing only wants to follow “orginal intent” when it’s in their best interest.
When it’s not, they just tell the constitution to drop dead . . .
Dear Galahad,
This is a very tough question! It was a state law, but it was a national election. The Supreme Court of Florida clearly decided the case poorly, I believe the Supreme Court really didn’t violate original intent as far as the 10th amendment goes, I think they were actually deciding the case according to strict interpretation of the State Law. Maybe a disinction without a difference, maybe not-I’m no expert.
Short term result? We got the right president. Long term? I think bad precedence was set. I believe the Supreme Court should have declined to hear the case. Furthermore I don’t think they actually changed the results with their decision.
As far as it being Kennedy and Scalia that interposed in this case I don’t know that to be a fact, do you?
I am a conservative and very proud of it. When you use perjoritive terms like ‘reich-wing’ it deminishes you.
But can’t you just see Gal, sitting at his little keyboard, gleeful over his brilliant little play on words!!! Reich-wing! Get it?! Whatta maroon.
Actually, I thought Gal was pretty clever.Thanks for the info esod.
Dear Damoon,
Glad to help. Just wondering though, if I couldn’t post without emplying that anyone on the left that disagreed with me was a communist, would you think me clever too?
If you’re a conservative, Esod, why do support George W. Bush?
Conservatives believe in small gov’t, reducing gov’t spending, get “gov’t off our backs,” etc. Georg W. grew gov’t by 30 percent in four years.
Conservatives believe in a balanced budget. They even wanted to pass a constitutional amendment–the balanced budget amendment in 1994. George W. signed a budget that increased the annual deficit every year. National debt as a percentage of GDP is higher than its ever been since right after WW2. Higher than Carter, Reagan, Bush 1, and reversing Clinton’s balanced budget and lowered debt.
Conservatives believe that in protecting Americans first–stop the illegal immigration, protect our shores. George W. has us bogged down in three year quagmire without end in Iraq that makes us less safe to terrorism.
Other than capitalizing on Americans’ fears, I don’t see what the conservatives really stand for anymore. They certainly aren’t putting their money where their mouth is.
BTW, even the CATO Institute is mad as hell at Bush this days.
Bush doesn’t represent anybody, except his ruling cabal and the right-wing shills (Drug-addled Rushbo, Sean, and O’Liely).
Lesser of two evils.
Newt for President!
Libertarians have more of a passion to reduce government intervention into our lives than Republicans, and especially Dems. Libs don’t even pretend to reduce government. Conservatives talk about it, but it’s an after thought. After defense. After corporate welfare. After moral-based laws.
Ah ID,
You are confusing republicans with conservatives.
JOE, it’s hilarious that you’ve attempted to call someone a moron but have no idea how to spell moron. Unless he’s really a maroon.What’s a maroon?
Dear Tracy
You’re obviously to young to remember one of Bugs Bunny’s favorite names to call other characters.
esod, I got the joke. Except you forgot to add “ultra” before maroon.
esod, I try not to side with the left or the right, if you want to be clever like Gal, I have no problem with that.
Dear Damoon,
I suspect that you are a little to the left of center, not much, just a little.
Compared to Esod/Hank, everybody’s left of center . . .
How’re the boys down at the John Birch Society, Hank?
I’m really pretty middle of the road, but I try to have an open mind, so I guess that might qualify me as a “little left of center”.
Hey esod,Depends on where “center” is. I can be way to the right of that pack of anarcho-syndicalists that was here back in the ’60’s, and still be way to the left of you! You seem to have no idea how far left the left wing goes when you refer to the current crop of liberals as left-wing. Of course, some of you right-wingers make Attilla the Hun look like a flower child!
Jed,
Do you think you are in the center?
I’m a radical centrist!