"Interpreting the law", what does that mean to the Supreme Court

[Neil D]

[:"green"] Mr. Bush has said he wants to nominate someone in the mold of Antonin Scalia and Clarence Thomas -- a Supreme Court justice who will interpret the law, not make it. But what exactly does that mean? [/]

[Bravus]

Shane does a really nice job of explaining the distinction between an 'originalist' and... something else! The notion of 'activist judges' who 'legislate from the bench' is one of the najor bugbears of the right, and Scalia and Thomas are given as examples of 'strict constructionists' who decide issues based on the constitution... I openly admit this is not an area I understand well, so I hope Shane will weigh in (and you might want to search the forum for old posts by him containing the word 'originalist'). For some reason it does appear to be a synonym for 'conservative', at least in the right-wing base, so...

[Dr. Shane]

An orginalist looks to find the intent of the Constitution, a law in question or Ammendments to the Constitution. "Ideally", and I put quotation marks around it because it is realy idealistic perhaps more so than realistic, a judge's political preference will not affect his or her ruling in a case. They are to look at the intent of the people that wrote a law or document in question. Being a judge isn't to be a political position.

Let's look at the hot issue of abortion. The right to abortion springs from the right to privacy. The Third and Fourth Ammendments in the Bill of Rights provide a limitted right to privacy even though the word "privacy" is not used. The Third Ammendment prohibits the government from forcing a private citizen from housing soldiers against their will and the Forth Ammendment prohibits searches and seizures without due process.

Now abortion was not an issue that the founding fathers had to deal with. The people in the country were quite religious at the time and the government wanted the population to grow. So they did not address abortion in the Bill of Rights, the Federalist Papers or any debate recorded at the time. So a strict constructionalist or orginalist will read the various papers written by the founders and state legislatures at the time of the Bill of Rights and try to form the mindset of the founders. They (the current justices) have to ask themselves, if the founders would have had to deal with abortion, how would have they dealed with it?

The Ninth Ammendment mentions that just because a right isn't mentioned in the Bill of Rights, doesn't mean it isn't retained by the people. Yet the Tenth Ammendment states that rights not given by the Constitution, not prohibited by it, would remain with the states. So abortion is not a clear cut issue even to a strict constructionalist. Personally, I believe it is an issue to be reserved to the states. I have a hard time believing that had the founders had to deal with the issue, they would have included it in the Bill of Rights (look at how they dealt with slavery).

Liberal activists will argue that the Constitution is a "living document" and can change its meaning as time progresses. That, quite frankly, is scary. That means it doesn't matter what the intent of the people is or was, the Court can do anything it wants.

Conservative activists are not so easy to spot and that is what makes a lot of liberals nerveous. A conservative activist will not come out and say the Constitution is a "living document" to be changed at the whim of any judge. However that is what they do as well. An example there is the Terry Sheivo case when Congress passed a law specifically instructing the court to review her case over again. It was a conservative activist judge that refused to do that - even though it was the specific intention of the law.

The only way to be able to tell if a judge is an orginalist or not is by reviewing his or her record. That is why so many, on both sides, do not like Harriot Meyers. She has no record to review. We don't know how she would rule on anything because she never has ruled on anything. The only thing we have to go on is President Bush's word that he knows her and she is a constuctionalist.

[there buster]

As it happens, the same approaches apply to Biblical exegesis, or any other text.

Does the text mean what the author(s) intended, as far as we are able to discover that meaning, or does it mean what the interpreter wants it to mean.

Both face the same problems. The Bible was addressed to people long ago, in a different time and place. So what does it mean to us today?

That is a three step process I won't go into here.

Times change, and texts don't. The death penalty is a clear case of the difference.

The framers, who used the words, "cruel and unusual punishment," nevertheless prescribed capital punishment. We can debate the merits of capital punishment, but the notion that it's "unconstitutional" simply ignores the Constitution. It may be bad, it may be that it should be banished. But if the Constitution can be used to ban capital punishment, then the Constitution can be made to say whatever we want. And when that becomes a reality, there will be no Constitution to rely on.

We will no longer have the rule of law, but the rule of unelected jusdges, unrestrained by an written law. That's the issue.

[Dr. Shane]

There is a difference. The Constitution as an ammendment process to change it. The Bible doesn't. <img src="/ubbtreads/images/graemlins/smirk.gif" alt="" />

[Neil D]

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An orginalist looks to find the intent of the Constitution, a law in question or Ammendments to the Constitution.

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Isn't this the position that Justice Antonin Scalia takes on the constitution? If so, his perspective and interpretation is pretty limiting...

I recently heard Justice Stephen Breyer on NPR and his view on how the law was interpreted. His interpretation doesn't used that construct of a "Living document", as Shane has put it. Infact, Shane, when you point out-

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Liberal activists will argue that the Constitution is a "living document" and can change its meaning as time progresses. That, quite frankly, is scary. That means it doesn't matter what the intent of the people is or was, the Court can do anything it wants.

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Justice Bryer never refers to this Limbaugh conscript at all. [:"green"]Justice Breyer has two main lines of arguments, "Active Liberty" and the less talked about "Reasonable Legislator", which are connected by the overarching theme of supporting democracy. "Active Liberty" suggests that when the legal air is foggy, emphasizing active participation of the people in decision making should be used to clarify. "Reasonable Legislator" suggests that when a law is ambiguous, a judge should invoke the spirit of a reasonable legislator to determine what he/she likely would intend, even if none of the legislators had anticipated the tricky knot their law tied.[/]

A reviewer of Justice Bryers book says this-

[:"green"] There are potential conflicts in his "reasonable legislator" proposal with other points of view in the book. For example, as Justice Breyer envisions it, "The judge will ask how this person [reasonable legislator] ... would have wanted a court to interpret the statute in light of present circumstances in the particular case" (p. 88). However, one case he discusses is an interesting recent court decision parsing the language and intent of the Federal Arbitration Act of 1925 (p. 91+). Must a judge really need to know the comprehensive historical context of 1925 America and conjure up Babbitt to ask him for guidance on his unspecified, subtle legislative aims? If so, would not this be subject to the same criticism he applies to 'originalist' approaches: "'the more 'originalist' judges cannot appeal to the Framers themselves in support of their interpretive views" (p. 117). Since Justice Breyer acknowledges that "Judges are not expert historians" (p. 126), I have not yet gained a full appreciation of this approach. [/]

I have to acknowledge that after hearing Justice Breyer on NPR and looking at some reviews of his books, I am assured that the Justice system is in good consistant review. Contrary to what the conservative viewpoint is attempting to define as liberal, it behooves one to review ALL of the raw facts and not regurgitated facts...

[Bravus]

I can see those points, and I agree that the role of judges is to interpret (i.e. apply) rather than to make the law. But when does a Constitution pass its use-by date? After 200 years? 500? The law needs to change to some extent to meet new challenges and issues: for example, how does the search-and-seizure amendment apply to web sites hosted offshore? But that process should be by amendment, or by legislation through Congress/parliament, rather than by fiat of judges. It should also not be through a pure 'majority rules' voting procedure between liberal and conservative judges on a particular court.

[there buster]

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The law needs to change to some extent to meet new challenges and issues: for example, how does the search-and-seizure amendment apply to web sites hosted offshore?

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But this is exactly the Biblical issue as well. The Bible doesn't address movies, or the internet.

In both cases, we derive principles from what the original authors intended, and apply them.

If enough people dislike that result, the Constitution can be amended, or even done away with at a Constitutional convention.

And your question can be asked another way. When does a Bible text pass its use by date?

[Dr. Shane]

Scalia and Thomas embrace a form of originalism known as "textualism" It is the conservative form of origianalism that goes only by the words used in a document in order to intrepret it. However one can still be an orginalist and look at the intent of a law or the Constition.

Justice Breyer is obviously not a textualist however he has even strayed from intent by using forgien law to interpret the US Constitution. To understand how objectionable that is, Imagine a referee in a NFL football game making a call and justify it by the rules of the CFL (Canandian Football League). Yet Justice Breyer does not always stray from originalism. He ruled with the originalists on the Court in allowing Texas to keep its display of the Ten Commandments on its capital grounds.

"Active liberty" is a term coined by Justice Breyer himself to describe his judicial philosophy. It seems what he considers to be "active liberty" is intrepretting the Constitution in a way that gives more liberty to citizens so they can participate in government. So, it seems, if he needs to use laws passed by other nations in order to interpret the US Constitution, he will do so. He also favors the proliferation of governmental agencies even though these can limit individuals liberty and ability to participate in government.

Overall, Justice Breyer is a poor example of an originalist. While Scalia and Thomas may be a bit rigid in their textualism, there are more moderate judges that still fall into that catagory.

[Bravus]

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And your question can be asked another way. When does a Bible text pass its use by date?

<hr /></blockquote><font class="post">I thought that as I wrote it, but there's another difference there: the Founders were men, not God. And we have the Holy Spirit to help us in interpreting the Bible - not so much the Constitution (IMO). I think you're right, though - it's about finding and applying the principles to new contexts.

[Neil D]

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Scalia and Thomas embrace a form of originalism known as "textualism" It is the conservative form of origianalism that goes only by the words used in a document in order to intrepret it.

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Scalia's view, called originalism, instructs judges to look to the words of the Constitution and what they meant at the time the document was written. He is critical of those like Breyer, who argue for a more flexible and adaptive interpretation of the Constitution's words.

An excellent approach to interpreting federal statutes and the Constitution with an eye toward promoting the rights of citizens to participate meaningfully in the process of governing themselves is using Bryers approach. In close situations of interpretation, Breyer recommends focusing on accomplishing the purpose of the legislation at issue and candidly assessing the likely consequences of the various interpretations under consideration. He pursuasively criticizes the competing approach, which by and large neglects these considerations in favor of arcane and amorphous rules of construction that would never have occured to the Legislature that enacted the law in the first place.

The thought that the framers and ratifiers of the Constitution collectively desired that their views regarding interpreting this great document would reach out from their graves to bind succeeding generations forever is a concervative viewpoint adhearing inflexibly to the text of the constitution . It is far more plausible to believe the framers would have intended the broad principles they laid down to be interpreted in the context of the present.

[Dr. Shane]

It is not the courts role to promote "the rights of citizens to participate meaningfully". The courts are to protect the rights given to the people by the law. That is it. It isn't any more complicated.

The people can give themselves additional rights by ammending the Constitution. For example, those of us that believe the Constitution does not provide the right to an abortion will point out that the people can give themselves that right by ammending the Constitution. It is not the role of a judge to grant a right to the people that is not granted by the Constitution.

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The thought that the framers and ratifiers of the Constitution collectively desired that their views regarding interpreting this great document would reach out from their graves to bind succeeding generations forever is a concervative viewpoint adhearing inflexibly to the text of the constitution .

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The idea that all the founders agreed on any one thing is a bit far fetched. Thomas Jefferson didn't even believe it was the court's role to decide whether or not a law was constitutional. James Madison believed public funding for building roads and canals was unconstitutional while Alexander Hamilton believed it to be the propper role of the federal government. However they all agreed on the ammendment process for the Constitution. When the Constitution becomes outdated, the people can ammend it to serve a more modern society.

[Neil D]

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It is not the role of a judge to grant a right to the people that is not granted by the Constitution.

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It's nine judges, not one, Shane....And what makes you think that they are not doing interpreting the law according to the broad principles that the framers have established?

The core value of the Constitution is "the people's ability to govern themselves and participate in the functioning of their political culture" thru the interpretation of law. "A government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively." By the justices doing thier job of interpretating the law accordingly, they make our lives more enriched by govening ourselves. Isn't that what you want, to govern yourself, rather than be govern by political interests that influence State laws for thier own political purposes?

Breyer agrees that the Constitution's democratic purposes demand judicial modesty and restraint. But he also regards them as representing "a source of judicial authority and an interpretive aid to more effective protection" of both individual freedoms and democratic participation. In other words, judges should consider how different readings will affect American democracy and, all things being equal, choose interpretations that make it function more effectively.

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The idea that all the founders agreed on any one thing is a bit far fetched.

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Never said that they agreed on any one thing. What I said was that thier decisions would "bind succeeding generations forever is a concervative viewpoint adhearing inflexibly to the text of the constitution . It is far more plausible to believe the framers would have intended the broad principles they laid down to be interpreted in the context of the present. "

Examples of this are already in the Amendments of the Constitution itself...Due to time, I will leave this up to you to find.

[Dr. Shane]

There are clearly different judicial philosophies. Originalism garentees the rights of the people that are provided by the Constitution. There are conservative groups within originalism that will go by the text only and more morderate originalists that will go beyond the text to look for intent. Hoever there are both "liberal" and "conservative" judges that are originalists. One doesn't have to be conservative to be an originalist.

Justice Breyer and many other judges are not oringinalists as they believe in using standards beyond the words or intent of the founders or lawmakers.

Let me give a brief example of where this could lead. A given state could pass a Sunday Law which mandates everyone to honor Sunday. When this law is challenged an activist judge could ignore the language in the First Ammendment and the intent of the founders and rule that since the law does not enorse any specific Sunday-keeping church, it is not unconstitutional. That is possible.

A real life example is the ruling of emeninant domain. The Constituition allows the government to take private property for public use like roads, schools or even parking. The Supreme Court has ruled that public use now includes increased tax revenues. So if you own some property that Wal-Mart wants to build on, the city can take it from you and sell it to Wal-Mart because Wal-Mart will pay more taxes than you and their taxes are for public use. That is clearly not what the founders intended when they allowed for the government to take private property for public use. Public use doesn't mean the government takes it to sell it to another party in the private sector.

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The core value of the Constitution is "the people's ability to govern themselves and participate in the functioning of their political culture" thru the interpretation of law.

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Please provide the sources of such quotes. In the context written it appears this is a quote from the Constitution itself.

[Neil D]

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Originalism garentees the rights of the people that are provided by the Constitution.

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Not necessarily.

By using your conscript, where the judges only interpret the law, and the law is produced by the legislature, and the legislator is heavily lobbied by lobbiests, you will have the common people being controled indirectly by lobbiest of the country who buy the legislators, and the court hampered by laws that they must interpret only within the those laws that are passed. No preference to historical context, nor what was implied in the context of history, nor just plain common sense. The origionalist construct hampers and enslaves the common people to the will of those who can afford to buy legislation.

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There are conservative groups within originalism that will go by the text only and more morderate originalists that will go beyond the text to look for intent. Hoever there are both "liberal" and "conservative" judges that are originalists. One doesn't have to be conservative to be an originalist.

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Hmmmm...this sounds like your [sp] "hegging your bet"...wiggle room....

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Justice Breyer and many other judges are not oringinalists as they believe in using standards beyond the words or intent of the founders or lawmakers.

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Site example with in the context of their rulings and you will find that they used those same laws as more examples to further explain the founding fathers. Your declaration shows conservative bias that you have swallowed hook line and sinker. So what else is new? :dead-horse:

[there buster]

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and the legislator is heavily lobbied by lobbiests, you will have the common people being controled indirectly by lobbiest of the country who buy the legislators,

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the amount of misinformation in that sentence alone is breathtaking. As one who has actually served as a lobbyist (note sp.), the notion that legislators can be "bought" is just ludicrous. Typically, the ones who are actually "bought" are people like labor activists who run for office.

Lobbyists represent people with a common interest. Since there are competing interests, there are competing lobbyists. And it's far from true that the lobbyist with the largest budget always succeeds. That's a caricature of the actual give-and-take of the truly democratic process.

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the court hampered by laws that they must interpret only within the those laws that are passed.

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"Hampered." there's another doozy. It's like saying Umpires are "hampered" by the rules of baseball. It demonstrates a total misunderstanding of the role of the judiciary. Their job is to apply the rules, not to make them.

Judges like Breyer think they are empowered to determine what the laws should be, according to their own pollcy preferences. Originalists believe they are limited to describing what the law is.

For originalists, when a statute comes in conflict with the original meaning of the Constitution, that statute must go. Not because the statute is evil or wrong, but because the Constitution overrules other laws.

Justice Oliver Wendell Holmes, Jr. described the difference. Someone called out to him, when he was Chief Justice, "Do justice, Mr. Holmes." To which Holmes responded, "Follow the law."

Judges are not empowered to determine what justice is in our society. That power rests with the people, expressed through juries and legislatures.

Judges are simply Umpires, arbiters of the law itself. When they cast off the constraints of the law, they undermine not only their authority, but the authority of the law itself.

[Dr. Shane]

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"Hampered." there's another doozy. It's like saying Umpires are "hampered" by the rules of baseball. It demonstrates a total misunderstanding of the role of the judiciary. Their job is to apply the rules, not to make them.

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<img src="/ubbtreads/images/graemlins/thumbsup.gif" alt="" /> <img src="/ubbtreads/images/graemlins/thumbsup.gif" alt="" /> <img src="/ubbtreads/images/graemlins/thumbsup.gif" alt="" />

[Neil D]

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the amount of misinformation in that sentence alone is breathtaking.

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And the invective reply was equally "breathtaking".

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Lobbyi$t$ repre$ent people with a common intere$t. $ince there are competing intere$t$, there are competing lobbyi$t$.

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the notion that legi$lator$ can be "bought" i$ just ludicrou$.

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As you have confessed to being a lobbiest, they bought you, didn't they?

Hmmmm....SDA teacher, SDA principle, and writer, and now lobbyest...do we see a pattern here???

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It demonstrates a total misunderstanding of the role of the judiciary.

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Misunderstanding????? Whoa there, buddy...Let's look at what you have said...

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Judges are not empowered to determine what justice is in our society.

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Whoa there...Judges and justice have common root words in them...And it includes determining what is right according to the law, aka "justice". So there is ONE misunderstanding.

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Judges like Breyer think they ...

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Since when are YOU empowered to tell us what Justice Breyers thinks???? When did you become omnipotent? Allow me to clue you regarding the giving of regurgitated information...don't. You really have no clue what Judges, let alone Justice Bryers thinks. That's misudnerstanding TWO.

quote a

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It demonstrates a total misunderstanding of the role of the judiciary. Their job is to apply the rules, not to make them.

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quote B

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For originalists, when a statute comes in conflict with the original meaning of the Constitution, that statute must go.

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'A judges role is to apply the rules' [see quote a] or 'to rule it as conforming to the constitution.' [see quote b] As you have explained it, Ed, you have to have it one way or the other. But you show both ways. So, which is it, as you can not have it both ways. What a connudrum! Ed made another misunderstanding...Strike three..YOU ARE OUT!

Oh, and Ed...don't bother replying as I am not interested in carrying a conversation with you, based upon previous so called conversations. Since Shane approved your post, concider me replying to him, since your words seem to reflect his thoughts.

Oh, and Shane, get a better script writer...