Breyer vs. Scalia
Justice Breyer has a new book out and it's “a full-throated attack” on originalism, (i.e., Justice Scalia), according to Ashby Jones of the WSJ’s law blog. Having read an excerpt of the book, Making Democracy Work, this seems to be gist of the thing:
- The Constitution’s “basic objective [is] creating a workable democratic government”
- Democratic government depends on public acceptance of the Supreme Court’s decisions.
So the big question is: how can the Court maintain public trust? For Breyer, the answer is: don't be slaves to the text of the the Constitution. Rather, the Supreme Court must embrace the “living Constitution” – that's what the Founders really wanted. Take that, Nino Scalia!
Here’s a thought: maybe, just maybe, Americans have historically gone along with Supreme Court decisions because they have believed that the Court is at least trying to follow the Constitution. Does Breyer really think that judges making up the law is the way to inspire public confidence? And does he really think that the Founders spent months sequestered in Philadelphia to produce a document that would be mere window dressing? Just asking.
- Comment (27)
- · Quote
- · UnfollowFollow (4)
- Pages:
- 1
- 2
- Pages:
- 1
- 2
Comments :
Jul '10
Re: Breyer vs. Scalia
The hubris is breath-taking.
Let's face it, most Justices are people of very narrow accomplishment. For the most part, they're voted onto the bench as the least-worst confirmable nominee.
And then, once they don the robe, they believe themselves wiser than Burke, Locke and the entire cadre of intellectually-stunted Founding Fathers.
The judiciary as it is presents a terrible conundrum: we all know it bears a cornucopia of poisoned fruit, but it's impossible, barring a Constitutional amendment, to do much of anything about it.
Jul '10
Re: Breyer vs. Scalia
I am just finishing Robert Bork's "Slouching Towards Gomorrah" (I like to let books marinate for a decade or so). He directly expressed a lot of concern on this point. How will the generally orderly American public react when the liberal/left/elite nature of the modern Court becomes blatantly clear?
His pessimistic take is that we will probably roll over and take whatever they dish out. I'm not so sure. The Courts' legitimacy is moored to obedience to the Constitution. Americans get that in their gut. A portion of the Tea Party movement (largely unremaked upon) is a serious discomfort with judicial rulers like Justice Breyer. We are very close to a tipping point. Don't know where it will go, ut I hope Judge Borkis less than prophetic.
Jun '10
Re: Breyer vs. Scalia
I could've worked for Minnesota's Weights & Measures Division, but I didn't think there was much room for creativity. I guess I was wrong. If I adopted Breyers' approach, I could just regulate Minnesota's gasoline prices by changing the volume of a gallon. I'd be a big hero. Darn, another opportunity missed....
Jul '10
Re: Breyer vs. Scalia
Patrick Shanahan:
His pessimistic take is that we will probably roll over and take whatever they dish out. I'm not so sure. The Courts' legitimacy is moored to obedience to the Constitution. Americans get that in their gut.
I dunno...I think most people already bow to the Court. Many, many times, you'll hear people say that a Court decision declared something to be "unconstitutional", when, in fact, the decision was simple interpretation of a particular statute, having nothing to do with Constitutional issues.
This suggests to me that many people reflexively believe that the Court holds legitimate magisterial power to declare the constitutionality of everything.
Sep '10
Re: Breyer vs. Scalia
The concept of the "Living Constitution" is nothing but a pretty mask for Rule by Judicial Fiat. And the foolishness has been going on for a long time. I can remember my father railing against "[Expletive] judges who legislate from the bench."
The best judge is a conservative judge. Appointing a liberal as a judge is like hiring a kleptomaniac as a bank teller.
Edited on Sep 13, 2010 at 10:57pmSep '10
Re: Breyer vs. Scalia
(*Cough* Elena Kagan *Cough*)
President Eisenhower referred to his appointment of Earl Warren as the "biggest damn-fool mistake I ever made."
John Fox (of PBS) described Warren thus: "No judicial experience, no sign of literary talent, and limited familiarity with Constitutional issues."
Wikipedia states: "[Warren's] opinions were not always clearly written, and his legal logic was often muddled."
Dennis J. Hutchinson adds: "[Warren] was a dull man and a dull judge."
Hmm. Tell us again why you appointed Warren, Ike.
Here's a disturbing thought: Liberal judges legislate from the bench simply because they are too stupid & ignorant to know better.
Edited on Sep 13, 2010 at 9:07pmMay '10
Re: Breyer vs. Scalia
Let us start by calling a spade a spade. The "Living Constitution" metaphor is blatantly dishonest. The Constitution is not growing by itself as living things do. What is growing is the interpretation applied to it judicial imperialists.
We (civil rights activists) need to speak of the "Eternal Constitution" as a counter-metaphor.
Jul '10
Re: Breyer vs. Scalia
"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."
Oathbreaker comes to mind!
Aug '10
Re: Breyer vs. Scalia
David Parsons
Here's a disturbing thought: Liberal judges legislate from the bench simply because they are too stupid & ignorant to know better. · Sep 13 at 8:57pm
Edited on Sep 13 at 09:07 pm
The above comments are partly why Ricochet is a hard habit to break. Indeed, making up law is easier than application within an attempted originalism. Living documentism is to Constitutional originalism as modern art is to Realism. Good innovation builds upon systematic mastery of the classics. (I am now going to get myself in trouble.) I do not think we can return to the erection of edifices of good architecture, industry, law and numerous other achievements necessary for our flourishing until men are politely permitted to order society once again. The female principle does not work in these spheres. I do not know why. It is not intelligence. It is in the realm of a uniquely masculine ordering of human faculties through competition.
Edited on Sep 13, 2010 at 10:19pmAug '10
Re: Breyer vs. Scalia
If the process for adding Amendments wasn't in place, I might have a bit of sympathy for the "living Constitution" nonsense. As is, I can't see how justices expect the public to go along with tortured logic in decisions laid down for the sake of preferred outcomes instead of respect for law.
(Especially now that we're running up against the absurd logical extremes of past decisions, such as the Obamacare individual mandate relying on decades of bad interpretations of the Commerce Clause.)
Aug '10
Re: Breyer vs. Scalia
Kenneth
This suggests to me that many people reflexively believe that the Court holds legitimate magisterial power to declare the constitutionality of everything.
Up to a point. It seems at times like the left is intent on pushing until they find out just how much the American people will take lying down, which is to say, they'll push until the American people stop lying down and taking it. The left is too full of itself to stop before that happens.
Gay Marriage hasn't yet reached the S.C., but it seems like it could be the last straw, if framed as a matter of the left accusing everyone of being the worst kind of bigots merely for maintaining a definition of marriage that virtually everyone accepted all over the world throughout all of human history up until a few years ago.
Aug '10
Re: Breyer vs. Scalia
I think a lot of liberals live in a sufficiently insular world that they're largely unaware of the actual feelings of non-liberals. He probably genuinely expects that most people will find his constitutional attitudes attractive, and within his circle most will. But he may be surprised at the increasing number and political heft of the people who don't.
Sep '10
Re: Breyer vs. Scalia
David Schmitt
I do not think we can return to the erection of edifices of good architecture, industry, law and numerous other achievements necessary for our flourishing until men are politely permitted to order society once again. The female principle does not work in these spheres. I do not know why.
That's a touchy issue, indeed, David. I admire you for even bringing it up. Let's work through it point by point. We are agreed that Socialism is a failure. But the Socialist State is inherently feminine – often described as the "Nanny State." Welfare recipients are said to be "sucking on the government teat." Female metaphors abound. This is because Socialists wish to impose equality on society. And that's a very feminine idea. The Female Mind asks, "Is it fair?" In contrast, the Male Mind asks, "Does it work?" The Male Mind is hardnosed, pragmatic and venerates freedom – the bedrock of Conservatism, which is inherently masculine. The reason (feminine) Socialism fails is because perfect (or even imperfect) equality is an absolutely unattainable chimera – because Life itself is unfair. On the other hand, freedom for all is a worthy, practical goal – something our Founding Fathers understood perfectly.
Edited on Sep 14, 2010 at 1:25amAug '10
Re: Breyer vs. Scalia
Agreed.
David Schmitt
I do not think we can return to the erection of edifices of good architecture, industry, law and numerous other achievements necessary for our flourishing until men are politely permitted to order society once again.
Well, I wouldn't put it the way you do, but I think you're onto something. Not because females can't successfully compete in the public square, but because when too many of us do, we can't help abdicating a role for which women are uniquely qualified and men uniquely unqualified, and that is leadership in the home (the man may be the head of the family, but the woman is the neck, and the neck turns the head whichever way it wants).
The female body is little more than a pod with two udders attached. In the state of nature, it's even expendable in childbirth. Women inherit the unglamorous role of pregnancy, weaning, cleaning up both ends of the mewling, puking infant, and by extension, nursing the elders as they slip into doddering old age. Even women reared to hate this role (1/2)
Edited on Sep 13, 2010 at 11:33pmAug '10
Re: Breyer vs. Scalia
...often find themselves eventually drawn into it through sheer biology.
We may hate ourselves for knuckling under to the "gender stereotype", we may feel put-upon because the family apparently assumes we're going to do the "dirty work" because we're "the girl", we may feel the disuse of very real talents in only handling matters that never leave the house, but in the end, many of us seem not to be able to help the drive to be the primary domestic caretakers.
A mother working full-time in the public sphere has two full-time jobs to accomplish, if not three (if she's also the caregiver for aging relatives). And you know what they say about multitasking: it's doing many jobs at once, all of them more poorly than you'd do them separately.
A woman raised to be properly oriented to her biological role realizes, pace Parsons above, that life is unfair. She also realizes that it takes an exceptional amount of luck, talent, and energy to be accomplished in the public sphere while at the same time fulfilling her natural drives, and that most women can expect to not succeed at both.
(2/2)
Edited on Sep 13, 2010 at 11:55pmSep '10
Re: Breyer vs. Scalia
David Schmitt
I do not think we can return to the erection of ... good architecture ... until men are politely permitted to order society once again.
In Post #13, I addressed David Schmitt in general terms. Now I will be more specific.
To get right to the point: Public architecture has been ruined by the (feminine) Socialist State. There is hardly a public building in America that has not had its facade destroyed by a wheelchair ramp or an external elevator for the handicapped. I say, the loss of Beauty in public places is not worth the benefit. Well, what about the folks in the wheelchairs, you say.
Years ago, I was a member of a social club that met in the cellar of a church. The only entrance to the cellar was a granite stairwell. One of our members was wheelchair-bound. We simply picked him up, wheelchair and all, and carried him down the steps. That is how it is done – on a person to person level, without spending millions in taxpayer money.
The image of a Boy Scout helping an old lady across the street has been dismissed as old-fashioned. Maybe we need that spirit again.
Edited on Sep 14, 2010 at 1:22amAug '10
Re: Breyer vs. Scalia
David Parsons
This is because Socialists wish to impose equality on society. And that's a very feminine idea. The Female Mind asks, "Is it fair?" In contrast, the Male Mind asks, "Does it work?"... perfect (or even imperfect) equality is an absolutely unattainable chimera – because Life itself is unfair.
If you read, for example, Tocqueville's description of the American Female and Jane Austen's works, I think you'll come to realize that the female temperament is perfectly capable of a healthy appreciation of the inherent unfairness of life and also of taking a very hard-nosed attitude towards the exigencies of life, asking first and foremost, "What will work?"
In fact, in "olden times" men used to upbraid women for being too quick to sacrifice fairness to the necessities of life.
What it comes down to is that a woman who accepts the natural limitations of men and women is not going to expect life to be fair, and will be amenable to doing the best of what works. A woman -- or a man, for that matter -- that does not accept the limitations of men and women is going to be constantly tempted by the chimera "fairness".
Edited on Sep 14, 2010 at 12:14amSep '10
Re: Breyer vs. Scalia
Midget Faded Rattlesnake
David Parsons
This is because Socialists wish to impose equality on society. And that's a very feminine idea. The Female Mind asks, "Is it fair?" In contrast, the Male Mind asks, "Does it work?"... perfect (or even imperfect) equality is an absolutely unattainable chimera – because Life itself is unfair.
...I think you'll come to realize that the female temperament is perfectly capable of a healthy appreciation of the inherent unfairness of life and also of taking a very hard-nosed attitude towards the exigencies of life, asking first and foremost, "What will work?"
You're totally right, Midge. My post is somewhat simplistic and, for that, I apologize. I do the best I can within the 200-word limit. Not easy.
Certainly, I have known more than a few rugged, hard-nosed women. My basic point is that the liberal impulse to impose equality on society is essentially a feminine impulse, regardless of the gender of the liberal do-gooder. So it seems rather "out of character" for a man. That's why conservative men tend to view liberal men as "sissies." And let's not even talk about "guys" like Barney Frank...
Sep '10
Re: Breyer vs. Scalia
Midget Faded Rattlesnake
The female body is little more than a pod with two udders attached. In the state of nature, it's even expendable in childbirth. Women inherit the unglamorous role of pregnancy, weaning, cleaning up both ends of the mewling, puking infant, and by extension, nursing the elders as they slip into doddering old age.
That floored me – it really did. I cannot speak for other men, but I have always been astonished by the sheer carnality of a woman's life. It is all about her body, her man's body and her children's bodies. It is all about flesh & blood, and excrement & bodily fluids.
Edited on Sep 14, 2010 at 2:18amI understood all that. But until I read your post, I never saw a woman express the carnality of her life in such stark terms. To your list, I would explicitly add menstruation, invasive sex, and breastfeeding (all of which you undoubtedly meant to imply), which are very much part of a woman's carnal existence.
Sep '10
Re: Breyer vs. Scalia
Considering the fact that Life Is Unfair, the liberal obsession with equality is downright perverse and inevitably counterproductive.
Look at it this way: Being physical attractive is very important to women. But some girls are born homely. They are never going to get a date with the blond surfing god. Is that fair? Hell, no, but what should we do about it?
Here is a (hypothetical) Liberal Solution:
First, pass a bill requiring all high schools to provide escorts for the wallflowers at the dance.
Second, force the local government to use taxpayer money to set up a contract with an expensive male escort service.
Now all the wallflowers have drop-dead-handsome dates. Equality is achieved! Happy, happy, joy, joy. But what about the rest of the girls? They do not have drop-dead-handsome dates. Is that fair? Hell, no. So much for equality.
And therein lies the fatal flaw in all that liberals do. They cannot give an advantage to someone unless they deny that advantage to someone else – or, worse, impose an actual disadvantage on someone. They cannot give to someone without taking away from someone else. The quest for equality is an endless, pointless treadmill.
Edited on Sep 14, 2010 at 2:14am