Whose Constitution Is It?

[kg_veteran]

Sowell gets it...

September 14, 2005
Whose Constitution Is It?
By Thomas Sowell

link

A recent headline on the editorial page in the Wall Street Journal read: "John Roberts Deserves a Dignified Hearing." That misstates the issue.

It is not for the sake of this particular nominee to the Supreme Court that Senate confirmation hearings need to be dignified, but for the sake of getting future nominees of the highest caliber, some of whom might otherwise decline to subject themselves to the nationally televised Roman circus and mud-slinging contest that these hearings have too often become.

There needs to be not only some dignity in the confirmation process but also some rationality in discussing legal issues.

With all the confusing controversies about judges and how they interpret the Constitution of the United States, we need to go back to square one and ask: Why do we pay attention to the Constitution in the first place?

There has been much hand-wringing about how or whether we can tell what the "original intent" was among those who wrote the Constitution. But the moral and legal bases for the authority of the Constitution do not rest with those who wrote it. The moral and legal authority of the Constitution comes from those who ratified it -- "we the people" -- not those who wrote it.

The writers of the Constitution themselves understood this.

That is why some of these writers also wrote "The Federalist Papers" to explain to people across the country why they should ratify the Constitution.

Not only did that generation ratify the Constitution, succeeding generations have accepted the Constitution, with whatever amendments they found necessary to add, for more than two centuries. It is the American people who have made the Constitution the law of the land.

Once we understand that, we can see through the silliness of all the learned hand-wringing about what the writers of the Constitution might possibly have meant when they wrote it. What matters is what the people understood those words to mean when they ratified it and amended it. They didn't vote on what was in the back of somebody else's mind.

Much of the Constitution is remarkably simple and straightforward -- certainly as compared to the convoluted reasoning of judges and law professors discussing what is called "Constitutional law," much of which has no basis in that document.

Although some seem to think that abortion is the be-all and end-all question about a judicial nominee, the real question is whether that nominee will follow the law or succumb to the lure of "a living constitution," "evolving standards" and other lofty words meaning judicial power to reshape the law to suit their own personal preferences.

People who talk about a need for "change" in the law are off on a tangent, if not cynically confusing the issue. Nobody denies the need for change. The Constitution itself provides a process for its own amendment.

The real question is who should make those changes -- "we the people" through elected representatives or unelected judges?

Those who think that judges need to update the law have claimed that it is hard to amend the Constitution. But what is the evidence for that? That it hasn't been done very often?

People don't often put on one red shoe and one green shoe. But that doesn't mean that it is hard to do. It just means that they don't want to do it.

To show that it is hard to amend the Constitution, you would first have to show that the public wants it amended more often but somehow just can't seem to get the job done.

There are 27 amendments to the Constitution, which is to say 17 have been added since the original ten in the Bill of Rights. The 13th, 14th, and 15th Amendments were all ratified within 5 years of one another. The 16th and 17th were ratified the same year.

There is far less evidence that the public is dying to amend the Constitution, and just can't do it, than there is that they resent judges amending it by "interpretation."

The fact that judges feel a need to deny doing this suggests the same thing. The time is long overdue to stop repeating shopworn sophistries in defense of lawless judges.

[Rhylan]

I love that guy. I have two of his books. He needs to be on TV once in awhile.

[LRB]

Having judges amend the constitution is just a backdoor way for the few to exercise their will over the many, which is one thing that the constitution expressly wanted to avoid.

[dude1394]

He's absolutely wonderful. I just ordered a couple more from him. His Inside American Education: The Decline, The Deception, The Dogmas (1993) had almost as much effect on me as Atlas Shrugged.

Basic Economics, Race and Culture...such a clear thinker.

[Mavdog]

Sowell is a brilliant writer. In this instance his criticism is misdirected.

the judiciary has been the warriors protecting citizen's individual rights from those rights being eroded by the legislature, and the haven for the weak being taken advantage of by the strong.

an independent judiciary is one of the three legs of american government. we need to maintain that independence.

[LRB]

Having an indepent judiciary does not mean making up laws out of whole clothe.

[kg_veteran]

Originally posted by: Mavdog
Sowell is a brilliant writer. In this instance his criticism is misdirected.

the judiciary has been the warriors protecting citizen's individual rights from those rights being eroded by the legislature, and the haven for the weak being taken advantage of by the strong.

an independent judiciary is one of the three legs of american government. we need to maintain that independence.

No offense, but what a bunch of nonsensical rhetoric.

There is a distinct difference between protecting citizen's individual rights and creating rights and/or changing the law from the bench.

Sowell has it exactly right.

[Mavdog]

Originally posted by: kg_veteran

No offense, but what a bunch of nonsensical rhetoric.

There is a distinct difference between protecting citizen's individual rights and creating rights and/or changing the law from the bench.

Sowell has it exactly right.

I see the "nonsensical rhetoric" eminating from the right. The verbal assault by DeLay, Frist and others is a threat to this independent judiciary.

They are the real threat, not the judges Sowell (and it seems you) want to criticize for merely performing their duty when an issue is brought before them.

[kg_veteran]

If you want to talk about the "verbal assault" by DeLay, Frist and others (whatever that is), then we can talk about that, but it'd be nice for you to provide some specifics about their verbal assault so that I can respond.

As for judges "merely performing their duty," you are wrong. Their duty is to interpret the law, not make it.

[Mavdog]

Originally posted by: kg_veteran
If you want to talk about the "verbal assault" by DeLay, Frist and others (whatever that is), then we can talk about that, but it'd be nice for you to provide some specifics about their verbal assault so that I can respond.

As for judges "merely performing their duty," you are wrong. Their duty is to interpret the law, not make it.

how about:
[quote]
Talking about the judges in the Schiavo case, DeLay issued a statement asserting that "the time will come for the men responsible for this to answer for their behavior." He later said that he wants to "look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president." [Washington Post 4/2/05]

"I am in favor of impeachment," said Tom Coburn’s chief of staff, suggesting "mass impeachment" might be needed. [NYT 4/8/05]

Pat Robertson called federal judges a worse threat to American democracy than “bearded terrorists who fly into buildings,” while James Dobson of Focus on the Family compared jurists to the Ku Klux Klan.

Look up the Constitution Restoration Act of 2005 intorduced by Shelby of Alabama. It was a clear attack on an independent judiciary.

How about Roy Moore and the "Confronting the Judicial War on Faith" events?

The judges duty is to determine the correct application of law as it applies to the case in front of it. Without a case, they don't issue opinions. The opinions are derived from the laws on the books. Claims of judges "mak[ing] law" are merely attempts to cloak disagreement with their findings.

[LRB]

Hmmm so independent judiciary good, independent legislature bad? Does this mean that you're interpreting that the Constitution meant for the judiciary not to have any checks by the legislature? Or that the legislature should be subserviant to the judiciary? Or that the legislature should take no action if it felt that the judiciary was infringing upon it's Constitutionaly granted powers?

And would you still feel this way if the judges were handing down decision like abortions are unconstitional, all people regardless of their faith must say the pledge of allegiance of be placed in jail, or that it's legal to make homosexual sex illegal, or that charging a higher tax % for the rich versus the poor is unconstitutional, or any number of decisions which would go against your liberal views?

[Mavdog]

what?

The concept is for a judiciary that is independent of the legialature, as the judiciary is the "control" on the legislature running roughshod over the contitution, infringing on the rights of the people.

[LRB]

And what control is there over the judiciary to keep it from running roughshod over the constitution and infringing on the rights of the people?

[kg_veteran]

[quote]
Originally posted by: Mavdog
how about:

Talking about the judges in the Schiavo case, DeLay issued a statement asserting that "the time will come for the men responsible for this to answer for their behavior." He later said that he wants to "look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president." [Washington Post 4/2/05]

Those quotes are taken out of context, but my understanding is that he's referring to Florida state judges and justices, not federal judges. Nonetheless, I didn't agree with Bush or federal lawmakers getting involved in the Terry Schiavo case. As much as I disagreed with the result of that case, it should not have been an issue of federal concern. It was an issue of state law.

"I am in favor of impeachment," said Tom Coburn’s chief of staff, suggesting "mass impeachment" might be needed. [NYT 4/8/05]

Again, this comment is taken WAY out of context (I don't know who he's in favor of impeaching). Have you ever heard of a hyperlink?

Pat Robertson called federal judges a worse threat to American democracy than “bearded terrorists who fly into buildings,” while James Dobson of Focus on the Family compared jurists to the Ku Klux Klan.

Look up the Constitution Restoration Act of 2005 intorduced by Shelby of Alabama. It was a clear attack on an independent judiciary.

How about Roy Moore and the "Confronting the Judicial War on Faith" events?

Links? Also, what does any of this have to do with what Sowell said?

The judges duty is to determine the correct application of law as it applies to the case in front of it.

I agree with that. They should apply the law, not create it or change it.

Without a case, they don't issue opinions.

True, but it's sort of naive to suggest that "test cases" aren't used to try and advance political agendas through the courts. Newdow and the Pledge cases are a perfect example of that.

The opinions are derived from the laws on the books.

Is this more of your rhetoric, or do you actually have a clue what you're saying? Point me to what "law on the books" was used when the Supreme Court derived the Roe v. Wade opinion.

If you're trying to say that opinions are derived from a combination of interpretation of statutes and regulations and application of the principle of stare decisis based upon existing caselaw, then you'd be right. That's what's supposed to happen.

Claims of judges "mak[ing] law" are merely attempts to cloak disagreement with their findings.

No. When, for example, the United States Supreme Court creates a "right of privacy" where none exists in the Constitution, that is making law. In fact, it's a judicial amendment to the Constitution.

[Five-ofan]

Just to get a basis of your historical knowledge you know that the power of judicial review is not in the constitution right? It is not necesarrily a bad thing but it started judges down a path of arrogance by John Marshall saying essentially saying someone has to interpret the constitution and we are the most qualified. That wouldnt be that bad of a statement if the case didnt involve James Madison who basically WROTE the constitution. The power of judicial review is actually necesarry but it is the "legislating from the bench that is a problem" BTW as to the law on the books if anything the law now would make abortion illegal if Roe vs Wade was not already in practice. Why you ask? A couple of years ago a bill was passed which made it possible for people who attacked a pregnant woman to be charmed with the homicide of the child if the child died or double homicide if both the mother and the child died. If the unborn is considered a person for the purpose of being murdered than abortion would be illegal too.

[Jeremiah]

...

[kg_veteran]

Originally posted by: Jeremiah

The President. Just because the court says that the law is X, doesn't mean that anyone is going to follow it. The court just interprets the law, it's the President, the police the agencies like the EPA and the prosecutors that actually enforce the law. If they don't enforce it, then what's it matter?

Congress. They can impeach individual justices and they can set the time for when the court meets...or doesn't meet, thus leaving cases on the docket for some time.

Those are nice textbook "checks and balances" answers, but can you remember the last time that the President or executive branch refused to enforce the law as "interpreted" by the Supreme Court? Can you remember the last time a Supreme Court justice was impeached? And what would be the grounds for impeachment? That you disagree with their ruling?

[Five-ofan]

Dont remember it because it was way back in the 1800s and I cant remember which law it was but Andrew Jackson essentially said hey you think thats the law? You go enforce it. Not sure if it was a ruling or a bill from college. That is the closest thing I can think of.