Justice Roberts has been confirmed

[WSUCougar]

So says the breaking news

[gottimd]

You mean "reports indicate that....."

That was for Maple Leafs.

[Tekneek]

Business as usual.

[WSUCougar]

I stand corrected.

But this play is not reviewable, FYI.

[rkmsuf]

somehow Julia Roberts needs to be incorporated into a parody thread

[gottimd]

It should have been Oral Roberts so the headlines could read...Oral for Justice.

[Young Drachma]

Chief Justice Roberts. The Roberts court. Wow, this should be an interesting era to see how it all unfolds...

[panerd]

I saw Bill Mahar in an interview with a Democratic California representative ask him about ex-FEMA director Michael Brown. So the representative made a joke about how Brown's only real experience was with horses. Then Mahar (in a rare non-partisan move) immediately brought up that the House and Senate both confirmed him unanimously in like an hour. And he asked him how this was possible. Of course he had no answer.

I see this happening in a few years. The Democrats will be all up in arms about the Supreme Court when they did absolutely nothing to question the choice.

[Young Drachma]

I think I agree that he's not going to be nearly as uncontroversial as people think. This could be the conservative version of the Warren Court for 30 years or so. Unless he dies young.

The real wonder is, who does Bush pick next?

[Tekneek]

So the representative made a joke about how Brown's only real experience was with horses. Then Mahar (in a rare non-partisan move) immediately brought up that the House and Senate both confirmed him unanimously in like an hour. And he asked him how this was possible. Of course he had no answer.

Just like Bush didn't take selecting the FEMA head very seriously, nobody else did either. Rubberstamp...

The Democrats will be all up in arms about the Supreme Court when they did absolutely nothing to question the choice.

They created the problem by not picking their battles carefully. They went to battle over a bunch of little things (relatively speaking), that inevitably caused them to negotiate themselves in a corner which allowed Bush to win the war. I fault them both and call it "business as usual."

[MrBigglesworth]

Then Mahar (in a rare non-partisan move)
Not to threadjack, but Maher can be tough to both D and R guests that he interviews. There are also Democratic ideas that he does like. I'm not saying he is a moderate, but he is not a partisan hack like, say, Hannity.

[st.cronin]

bleh

That was nowhere near as much fun as the Thomas or the Bork confirmations. I want a good fight for the next one - something really outrageous.

[astralhaze]

They created the problem by not picking their battles carefully. They went to battle over a bunch of little things (relatively speaking), that inevitably caused them to negotiate themselves in a corner which allowed Bush to win the war. I fault them both and call it "business as usual."
You assume that they were ever seriously concerned about fighting over it. I think they made a strategic move to hold their cards on Roberts (who is conservative, but not bat shit crazy) and wait to see who replaces O'Connor. Blowing their wad on a fairly acceptable candidate who won't tilt the court much to the right (if at all) would have been a dumb strategy.

I'm fairly certain, moreover, that the only reason 22 Democrats voted against the nomination was to send Bush a message that they will go along with someone like Roberts but not a Janice Rogers type. If he nominates someone similar to Roberts next time out he/she will also be confirmed. If he nominates a hard-right type, they will fight it tooth and nail. The ball is in Bush's court.

[Warhammer]

Everyone forgets that the Senate's role in this is advise and consent, not a vote or anything else. Basically if push came to shove, the president could basically put who he wants up there.

[astralhaze]

You are forgetting the consent part. They do have to be confirmed. He could maybe find a loophole like he did with Bolton, but that would be a very, very unwise move politically.

[Jon]

Everyone forgets that the Senate's role in this is advise and consent, not a vote or anything else. Basically if push came to shove, the president could basically put who he wants up there.

That's not entirely true. Bush can't put whomever he wants into the role without the consent of the Senate. The up or down vote is the consent. If they vote against confirmation, then they do not "consent" to the pick. Even recess appointments have to either be remade so that the Senate can consent or they stop serving.

[Young Drachma]

Especially when you consider that Roberts is replacing a really conservative judge in Rehnquist, it's different than him replacing O'Connor.

Like, you can almost grant that he'll be in the mold of a Rehnquist, by the end of this term. But so what, presumably had he not died, Rehnquist would've been there doing all that anyway.

[Young Drachma]

That's not entirely true. Bush can't put whomever he wants into the role without the consent of the Senate. The up or down vote is the consent. If they vote against confirmation, then they do not "consent" to the pick. Even recess appointments have to either be remade so that the Senate can consent or they stop serving.
Yeah and I believe the only recess appts ever made to the court eventually were confirmed.

[astralhaze]

Especially when you consider that Roberts is replacing a really conservative judge in Rehnquist, it's different than him replacing O'Connor.

Like, you can almost grant that he'll be in the mold of a Rehnquist, by the end of this term. But so what, presumably had he not died, Rehnquist would've been there doing all that anyway.
Exactly. There wasn't much to gain for Democrats by using their fillibuster option and pushing a nuclear showdown on this nomination. O'Conner would often side with the liberal side of the court so it is only common sense to save that potential fight for the next nominee.

As an aside, I think it would be an incredibly wise move for Bush to nominate Alberto Gonzalez. He was confirmed as AG so it would be pretty hard to argue that the same person they confirmed as the top law enforcement official in the country was not qualified to be on the Supreme Court. The downside, of course, is that Gonzalez has some moderate positions on certain issues and the religious right is counting on the Supreme Court nominees being their only concrete payment for supporting Bush so vigorously. Of course, if I were Bush I would sell them down the river, but he's a religious righter himself so he likely won't do it.

[Warhammer]

That's not entirely true. Bush can't put whomever he wants into the role without the consent of the Senate. The up or down vote is the consent. If they vote against confirmation, then they do not "consent" to the pick. Even recess appointments have to either be remade so that the Senate can consent or they stop serving.

Actually, I think this is more of a modern process. I believe, I'll have to go back and check this out, that the Senate can impeach a justice. The consent is very different from the wording elsewhere in the Constitution where it clearly calls for a vote by the appropriate entity, whereas here is is just advise and consent. Consent is not approval. You can consent to do something, but not approve of it.

This basically is a vote to keep things from really getting mucked up where the Senate could get uppity and impeach all of a President's appointees and such.

In a lot of ways, I wish we would go back to exactly the way the Constitution reads... :(

[astralhaze]

Actually, I think this is more of a modern process. I believe, I'll have to go back and check this out, that the Senate can impeach a justice. The consent is very different from the wording elsewhere in the Constitution where it clearly calls for a vote by the appropriate entity, whereas here is is just advise and consent. Consent is not approval. You can consent to do something, but not approve of it.

This basically is a vote to keep things from really getting mucked up where the Senate could get uppity and impeach all of a President's appointees and such.

In a lot of ways, I wish we would go back to exactly the way the Constitution reads... :(
They've always been confirmed by the Senate. Always. Really though, think about what a huge gift it would be to the Democrats if Bush pulled a recess appointment or something with the Supreme Court. '06 is already looking fairly dicey for the GOP. If he did that it could be a bloodbath.

[Young Drachma]

Actually, I think this is more of a modern process. I believe, I'll have to go back and check this out, that the Senate can impeach a justice. The consent is very different from the wording elsewhere in the Constitution where it clearly calls for a vote by the appropriate entity, whereas here is is just advise and consent. Consent is not approval. You can consent to do something, but not approve of it.

This basically is a vote to keep things from really getting mucked up where the Senate could get uppity and impeach all of a President's appointees and such.

In a lot of ways, I wish we would go back to exactly the way the Constitution reads... :(

Historically, they've rejected justice nominees for political reasons. It's something they've reserved the right to do in a number of situations..and given the separation of powers, it's their right. Though only 4 since 1930 have been rejected.

[Warhammer]

My question to a lot of people is this, why has this become such a political issue? This should be about a nominee's qualifications, not about their politics. Look at the democrat vote, it was evenly split! I find it hard to believe that this was anything but a political vote for them. Heck, look at Ginsburg's vote, she was MUCH more politically polarizing than Roberts, yet only 3 republicans voted against her. It was about qualifications then, why isn't it about qualifications now?

[JPhillips]

You do know that Orrin Hatch told Clinton in advance that if he picked Ginsburg he would get a smooth process but if he picked Babbit they wouldn't confirm.

[astralhaze]

My question to a lot of people is this, why has this become such a political issue? This should be about a nominee's qualifications, not about their politics. Look at the democrat vote, it was evenly split! I find it hard to believe that this was anything but a political vote for them. Heck, look at Ginsburg's vote, she was MUCH more politically polarizing than Roberts, yet only 3 republicans voted against her. It was about qualifications then, why isn't it about qualifications now?
Ginsburg replaced Byron White, a liberal who was appointed by President Kennedy. She did not at all change the balance of the court. Roberts didn't either, but as I said previously, I'm fairly certain there was vote shaving on the Democratic side to send a message to Bush that this is as conservative as he can go. The next nomination will either tilt the court decidedly to the right if he nominates a conservative or keep it about the same if he nominates a moderate. The court has not changed much in some time so it is a bit unfair to say that it is only now becoming politicized. It has always been so, it is that only now do the Republicans have a chance to move it from a court that can go either way depending on the issue to one that has a fairly solid conservative majority.

[Warhammer]

But the balance of the court means nothing! It is the President's right to vote for anyone he thinks can do the job. It is not his job to preserve the make-up of the Court.

Heck no one complains about the fact that O'Connor was supposed to be a very conservative appointment who drifted to the center. So wouldn't he replacement just re-establish what was meant to be?

[astralhaze]

But the balance of the court means nothing! It is the President's right to vote for anyone he thinks can do the job. It is not his job to preserve the make-up of the Court.
Sure, he has the right to nominate anyone he wants. The Senate doesn't have to confirm them. The balance of the court has always been the paramount issue in the confirmation of Supreme Court justices. Politics has never, ever been divorced from the process in the entire history of the United States. The notion that it isn't is a propaganda invention by the GOP. No more, no less.

Heck no one complains about the fact that O'Connor was supposed to be a very conservative appointment who drifted to the center. So wouldn't he replacement just re-establish what was meant to be?
Really? I've heard plenty of conservatives cautioning Bush not to make the Souter mistake. It's every bit as much about politics to conservatives as it is to liberals.

[JPhillips]

Warhammer: Judged by her times O'Conner was exactly what she was expected to be. She was a strong conservative voice that only seemed moderate as her party moved farther right. I don't think any Reagan staffer would be disappointed in what they got from her.

Of course Bush has the right to nominate whoever he wants. He could nominate Capiscum if he wanted, but he has no right to have his nominee confirmed. Regardless of your position the Constitution makes it clear that the Senate plays a role in the confirmation process. I don't believe for a second that a document based on checks and balances also was supposed to give the executive branch complete freedom in appointing the judicial branch.

The problem is that so many on your side want to have dictatorial powers.

[JeffNights]

Roberts struck me as an almost appeasing choice. I'm a sure fire leftie, yet his confirmation doesnt ruffle any feathers.

[astralhaze]

Roberts struck me as an almost appeasing choice. I'm a sure fire leftie, yet his confirmation doesnt ruffle any feathers.
Indeed. I'm also quite a lib, but he would have received my vote had I been in the Senate. Let's see who the next nominee is.

[Flasch186]

sad that i skimmed all of this simply looking for what JIMG had to say :)

[-Mojo Jojo-]

Warhammer: Judged by her times O'Conner was exactly what she was expected to be. She was a strong conservative voice that only seemed moderate as her party moved farther right. I don't think any Reagan staffer would be disappointed in what they got from her.


I'm not sure that's true. I'm guessing a lot of conservatives were surprised and disappointed by her vote to uphold Roe in Planned Parenthood v. Casey...

[clintl]

Ginsburg replaced Byron White, a liberal who was appointed by President Kennedy.

Byron White was appointed by Kennedy, but he was no liberal. He pretty reliably voted with the conservative wing.

[DaddyTorgo]

in this case i'm going with what my mother always told me: if you don't have anything nice to say, don't say anything at all

[MrBigglesworth]

Indeed. I'm also quite a lib, but he would have received my vote had I been in the Senate. Let's see who the next nominee is.
You mention that you are 'quite a lib', yet you say that you would have voted for Roberts. Why? He holds the exact opposite of most of your views, so why vote for him? He isn't a loon like Rogers-Brown, so I'm not saying he should have been fillibustered, but why vote for him if his judicial views are opposite of the direction you want the country to go? :confused:

[st.cronin]

What exactly are 'liberal' judicial views?

[MrBigglesworth]

What exactly are 'liberal' judicial views?
Certainly this isn't the first time you have been exposed to the difference between conservative and liberal juges, is it?

[st.cronin]

Certainly this isn't the first time you have been exposed to the difference between conservative and liberal juges, is it?

No - but it's my understanding that it's not always the same thing in the judicial arena as in the lawmaking arena.

[Tekneek]

You assume that they were ever seriously concerned about fighting over it. I think they made a strategic move to hold their cards on Roberts (who is conservative, but not bat shit crazy) and wait to see who replaces O'Connor. Blowing their wad on a fairly acceptable candidate who won't tilt the court much to the right (if at all) would have been a dumb strategy.

Of course. I did not mean to make it sound like this was the end of it all. If Bush doesn't go with at least someone like Roberts, all bets are off. They could fairly easily stomach Roberts. My point was that, had they not already been rattling sabres, they could have made it a little tougher on Roberts. Ultimately, though, he came off as a better choice than he seemed at the start.

I'm fairly certain, moreover, that the only reason 22 Democrats voted against the nomination was to send Bush a message that they will go along with someone like Roberts but not a Janice Rogers type.

That is true.

If he nominates someone similar to Roberts next time out he/she will also be confirmed. If he nominates a hard-right type, they will fight it tooth and nail. The ball is in Bush's court.

That is most likely true. I think they would prefer it to be a woman, but might not get hung up on that.

[Warhammer]

You mention that you are 'quite a lib', yet you say that you would have voted for Roberts. Why? He holds the exact opposite of most of your views, so why vote for him? He isn't a loon like Rogers-Brown, so I'm not saying he should have been fillibustered, but why vote for him if his judicial views are opposite of the direction you want the country to go? :confused:

Just because someone holds opposite views does not mean that you do not think he is qualified to be a judge. This is not about what direction you want the country to be taken in!

Example, the SCOTUS last year "punted" the case of the Pledge of Allegiance in the classroom. The SCOTUS ruled that the case should never have gotten to them because (forgive me, but I forget my legalese) the person who brought the case did not have custody of the child, therefore the case should never have been ruled on before. The court was not ruling on the issue of whether or not the Pledge is constituional or not, because a lower court should have thrown the case out because the father did not have custody and had no legal right to bring the case to court! Now, an activist court would have ignored that simple fact (as the lower courts of the 9th Circuit, I believe that is the circuit on the west coast, should have done!) and made a ruling as they see fit. An activist court does not rule based upon whim, or how they feel the law should read, but rather on how the law is currently written.

Judges should be able to rule based upon the merits of the case, not a ruling based upon their agenda. That is why both Ginsburg and Roberts chose not to give their positions on issues that might come before the court, because THEIR stance on an issue really does not matter, what matters is the merit of each individual case.

[MrBigglesworth]

...An activist court does not rule based upon whim, or how they feel the law should read, but rather on how the law is currently written.

Judges should be able to rule based upon the merits of the case, not a ruling based upon their agenda.
Judges don't just have "an agenda", they have fundamental differences in how they view the Constitution. Things like the right to privacy being in the Constitution, or the meaning of the Second Amendment, or women's control over their bodies, etc. These differences don't neccessarily come from an agenda, but on principles.

That is why both Ginsburg and Roberts chose not to give their positions on issues that might come before the court, because THEIR stance on an issue really does not matter, what matters is the merit of each individual case.
No, Ginsburg and Roberts chose not to give their positions because they were shoo-ins for being voted in and didn't want to say more than they absolutely had to to avoid saying something stupid. To see the logical fallacy of that position, consider that every single other Justice on the SC has their positions known on those issues that have come before the SC in their majority decisions or dissents. Does that mean that, since their opinion is already known, that the other Justices have to recuse themselves?

[Warhammer]

Judges don't just have "an agenda", they have fundamental differences in how they view the Constitution. Things like the right to privacy being in the Constitution, or the meaning of the Second Amendment, or women's control over their bodies, etc. These differences don't neccessarily come from an agenda, but on principles.

I'm not sure if I agree with the last part. I can understand that can apply to abortion, since the issue there is whether or not the child is protected under the Constitution, etc. I can understand that. However, if we were to be true to the Founding Fathers original intent, the SC judges would be as strict as possible as they were trying to limit the power of the federal government. In other words, there are very few places where the Constitution can and should be liberally applied.

No, Ginsburg and Roberts chose not to give their positions because they were shoo-ins for being voted in and didn't want to say more than they absolutely had to to avoid saying something stupid. To see the logical fallacy of that position, consider that every single other Justice on the SC has their positions known on those issues that have come before the SC in their majority decisions or dissents. Does that mean that, since their opinion is already known, that the other Justices have to recuse themselves?

I do agree they should recuse themselves. This opens themselves up to a whole litenany of issues. However, bear in mind that cases are not all equal. Just because a judge ruled one way in one right to work case, does not mean that he will judge the same way in another one because the pertinent issues may differ, nor should he be obligated to. However, in the case where a judge has a stated belief or agenda, you do have to consider that the judge might be ruling in part based upon his/her privately held beliefs.

Separate note, it appears I was wrong about the Senate votes on SC justices, but I was unable to find any voting records about SC justices before 1960.

[MrBigglesworth]

However, if we were to be true to the Founding Fathers original intent, the SC judges would be as strict as possible as they were trying to limit the power of the federal government. In other words, there are very few places where the Constitution can and should be liberally applied.
That's another area where liberal and conservative judges differ. The 'original intent' of the framers was to create a more centralized government than the one that they had under the Articles of Confederation, so the framers didn't really have limiting the power of the feds on their mind.

[Warhammer]

That's another area where liberal and conservative judges differ. The 'original intent' of the framers was to create a more centralized government than the one that they had under the Articles of Confederation, so the framers didn't really have limiting the power of the feds on their mind.

They wanted a stronger federal government, but believed they had to put limits on the power of that government. Hence the bit about all powers not specifically listed in the Constitution for the Federal government falls to the states. In addition, that is why they created the Bill of Rights to further limit the power of the Federal government.

[ISiddiqui]

However, if we were to be true to the Founding Fathers original intentThat brings up of the question of whether the original intent has any merit. Scalia would argue the text is the only thing that matters and basing judicial decisions on intent is flawed. It also brings up the question of WHICH Founding Father do you want to base your view on? Madison and Hamilton were both founding fathers, but had vastly different views on the what the document both of them wrong meant! How are we, so divorced from those debates supposed to find the 'original intent' if they couldn't agree?

[John Galt]

That brings up of the question of whether the original intent has any merit. Scalia would argue the text is the only thing that matters and basing judicial decisions on intent is flawed. It also brings up the question of WHICH Founding Father do you want to base your view on? Madison and Hamilton were both founding fathers, but had vastly different views on the what the document both of them wrong meant! How are we, so divorced from those debates supposed to find the 'original intent' if they couldn't agree?

I think you are blurring the difference between originalism and textualism a bit. Scalia, for example, usually (but not always) defends the original understanding of the text. Another textualist could argue that the original meaning of the words is not as important and has the same problems as searching for the original intent.

Originalism is also hard to pin down because of the differing constitutional views at the time. Especially in areas where there is no clear text (what does "privileges and immunities" entail?) or areas where progress has changed things a bit (abortion, cruel and unusual punishment, etc.), any originalist interpretation is suspect. It is more like reading tea leaves than literal reading of the constitution. There are certainly areas where the text seems to have been lost a bit (federalism being a prime example), but in the areas most people object to (abortion, privacy, etc.), the text and original intent are wide open to interpretation. Concepts like "substantive due process" and "priviliges and immunities" are far from clear and don't give much insight into what rights are actually protected by the Constitution.

Saying you want a judge who just interprets the Constitution (and is not an activist) is really saying nothing at all. Intrepretation gives wide berth to many views and "activism" is usually just a matter of perspective.

[ISiddiqui]

I think you are blurring the difference between originalism and textualism a bit. Scalia, for example, usually (but not always) defends the original understanding of the text. Another textualist could argue that the original meaning of the words is not as important and has the same problems as searching for the original intent.Well Scalia in his book, "A Matter of Interpretation" seems to consider Orginalism as a species of Textualism. It's more like textualism using the original meaning of the words. I don't think Scalia has any use for the arguments made at the Constitutional Convention.

[Warhammer]

I disagree in many areas the Constitution is quite clear. Here is the Preamble:

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Right there, the government is established to form a more perfect union (vis a vis the Articles of Confederation), establish justice, provide for the common defense (US Armed Forces), promote the general welfare (schools, postal roads, etc.), and protect our liberties.

Article I is pretty cut and dry. It establishes the Congress, who is eligible for election, and what powers Congress has.

Article II covers the executive branch and details the election of the president, who can vote, etc.

Article III covers the Supreme Court and what they are over and what cases they preside over.

Article IV covers the states and citizenship of the states and applies the rights of the citizen in one state apply in the new state, etc. Also that the Feds will protect the states, etc.

Article V covers the establishment of new amendments to the Constitution.

Article VI establishes the national debt, establishes that religion shall not be a test for fitness for government service, and that the Constitution is the supreme law of the land.

Article VII details when the Constitution will go into effect.

So in the basic Constitution, everything is cut and dry. It is very simple, it specifically spells out what the powers of each branch of the government are. So where is do most of the questions about laws come up? Under the amendments, let's look at those next.

[Warhammer]

Saying you want a judge who just interprets the Constitution (and is not an activist) is really saying nothing at all. Intrepretation gives wide berth to many views and "activism" is usually just a matter of perspective.

Actually, I want a justice who takes the Constitution at face value. Not one that reads between the lines. That is a strict Constructionist.

[digamma]

Actually, I want a justice who takes the Constitution at face value. Not one that reads between the lines. That is a strict Constructionist.
You've just read between the lines in the preamble--specifically the "general welfare" statement. We could have a several page thread on what that means.

[John Galt]

Actually, I want a justice who takes the Constitution at face value. Not one that reads between the lines. That is a strict Constructionist.

But you seem to think that 1) there is an obvious face value meaning to the relevant parts of the Constitution, 2) liberals don't think they are following the meaning of the Constitution, and 3) that face value would even make sense.

I think all three of those assumptions is problematic.

For example, as to 1) - there is the "privileges and immunities" clause. In the 14th Amendment, the clause reads:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

What is the face value of that? What are the privileges and immunities of citizens of the U.S.? The clause has been made a "nullity" by the Supreme Court, but some prominent libertarians have argued that it supports most of our basic liberties (including privacy). How can you argue it doesn't say that?

As to 2), I won't offer an example. I will just say that "activist" is an easy label to apply, but it really doesn't mean anything. Almost every judge believes they are properly applying the law.

As to 3) - the best examples are probably the free speech clause and the equal protection clause.

The first amendment says "Congress shall make no law ... abridging the freedom of speech." Does that mean people can say whatever they want? Treason is ok? Fraud is ok? Threats are ok? Of course not, but at "face value," you would conclude that the constitution protects a right to defraud people.

The 14th amendment says "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." What does that mean? Does that mean that if my house is robbed and my neighbor's isn't, I have not been equally protected? Does that mean that we are all entitled to the same government benefits? Why aren't felons allowed to vote under the equal protection clause?

The questions are endless and meaning is far from clear. When people say "read the Constituion at face value," what they really mean is "read the Constitution the way I read it."

[Warhammer]

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

We all know this one. This is pretty cut and dry. The only exception is what constitutes free speech? Is art free speech? Is burning a flag free speech? This does allow some leeway in interpretation in regards to free speech. NOTE: The first part of the amendment Congress shall make no law respecting an establishment of religion that is pretty cut and dry. Congress will make no law that ESTABLISHES religion. To this day, I do not see how this can be disputed. Also, it does not read that there is no separation of church and state.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

No comment here.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Important at the time, mostly irrelevant now.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No illegal seach and seizure.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The double jeopardy clause along with the establishment of private property. Of course, this got thrown out the window earlier this year! However, that said, the phase public use, without just compensation is open to interpretation. What exactly is "public use" and what is "just compensation?" However, given the earlier text of the Constitution, a strictly limited view of "public use" can be determined.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The right to trial by jury. It also implies that a person is innocent until proven guilty.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

The right to trial by jury in economic matters.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The right to bail and no unusual punishment shall be inflicted. What is an unusual punishment?

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

A VERY IMPORTANT CLAUSE! The fact that the Constitution grants/protects certain rights shall not be read as a limit or as a way to deny rights retained by the people. This is the clause that says if I want to jump up and down on a street corner and use a bat to beat my head, I can do it, unless the people decide to pass a law strictly prohibiting this.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Another important clause, this amendment limits the power of the Federal Government with respect to the states. Anything not delegated to the Feds and not given to the Feds by the states, that power lies with the states, OR the people.

Again, everything here is pretty plain. The only real disputes in interpreting the Constitution are the 1st, 5th, and 8th amendments? To prevent any more boredom I am going to stop here and let someone else point out any ambiguities if they want.

[HomerJSimpson]

The questions are endless and meaning is far from clear. When people say "read the Constituion at face value," what they really mean is "read the Constitution the way I read it."


Yup. Is that a problem? All the SCOTUS needs to do is call me before every decision. That would solve all problems, right?

[John Galt]

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

We all know this one. This is pretty cut and dry. The only exception is what constitutes free speech? Is art free speech? Is burning a flag free speech? This does allow some leeway in interpretation in regards to free speech. NOTE: The first part of the amendment Congress shall make no law respecting an establishment of religion that is pretty cut and dry. Congress will make no law that ESTABLISHES religion. To this day, I do not see how this can be disputed. Also, it does not read that there is no separation of church and state.

You have just injected something very different than "face value." The 1st Amendment does NOT say "Congress will make no law that ESTABLISHES religion." It says "Congress shall make no law respecting an establishment of religion." I read that to be very different. "[R]especting an establishment," to me means anything that aids in the establishment of religion, not the actual establishment of religion.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No illegal seach and seizure.

That begs the question - when is a search illegal?

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The right to trial by jury. It also implies that a person is innocent until proven guilty.

I notice you gloss over things like "speedy trial." What is a "speedy trial?" And does having "assistance of counsel" mean it has to be paid for by the state? It didn't until the mid 20th Century. How effective does that counsel have to be? Can they sleep through the trial? How about only parts of the trial? Someone on George W.'s short list said a lawyer sleeping through parts of the trial in a death penalty case was ok since the defendant couldn't prove the lawyer slept through important parts of the trial.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

A VERY IMPORTANT CLAUSE! The fact that the Constitution grants/protects certain rights shall not be read as a limit or as a way to deny rights retained by the people. This is the clause that says if I want to jump up and down on a street corner and use a bat to beat my head, I can do it, unless the people decide to pass a law strictly prohibiting this.

It's funny that you would find this to be a "VERY IMPORTANT CLAUSE" when most people who are identified as strict constructionists have found it to be meaningless. Your reading is not supported by anyone that I know. Those that defend its importance (usually libertarians) argue that it protects those rights which are not specifically enumerated elsewhere. In other words, it may protect privacy and abortion.

Again, everything here is pretty plain. The only real disputes in interpreting the Constitution are the 1st, 5th, and 8th amendments? To prevent any more boredom I am going to stop here and let someone else point out any ambiguities if they want.

Your definition of plain seems bizarre. I've only cherry-picked a few examples, but there is a ton more ambiguity. You are essentially arguing the whole field of Constitutional Law is intellectually bankrupt and worthless. That is a tough argument to defend.

[ISiddiqui]

But you seem to think that 1) there is an obvious face value meaning to the relevant parts of the ConstitutionYep, and that I see is the biggest problem of his argument (and a mistake that a lot of conservatives make). There are some VERY vague parts of the Constitution and I don't see why it should be surprising. Plenty of articles and amendments had to be subject to debate and compromise. A more vague statement can get more 'yes' votes than a clear cut statement that may turn off some (a vague statement makes everything think their interpretation can win out).

Constitutional questions have been debated in hundreds and hundreds of books. If the document was that clear, there would be no need for such debate.

[ISiddiqui]

NOTE: The first part of the amendment Congress shall make no law respecting an establishment of religion that is pretty cut and dry. Congress will make no law that ESTABLISHES religion.Here is one where your argument fails. John Galt articulated an equally plausible reading. Another equally plausible reading is that Congress can make no law addressing (respecting) a church (an establishment of religion). Since it doesn't say 'the establishment of religion', someone can make a very compelling argument that says nothing about a state religion.

And that's just one that is 'clear', but not really ;).

[John Galt]

Here is one where your argument fails. John Galt articulated an equally plausible reading. Another equally plausible reading is that Congress can make no law addressing (respecting) a church (an establishment of religion). Since it doesn't say 'the establishment of religion', someone can make a very compelling argument that says nothing about a state religion.

And that's just one that is 'clear', but not really ;).

That's just lawyer talk trying to make things confusing. ;) :D

[ISiddiqui]

LOL!

Another good example (I just thought about) is 11th Amendment jurisprudence. The 11th Amendment says:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.But the Supreme Court, and ESPECIALLY Scalia, has upheld the 11th Amendment as meaning you can't sue the state (unless it consents) even if you live IN the state! It's supposed to be reestablishing soveriegn immunity after Chisholm v. Georgia... but I don't see that in the face of the text.

[Warhammer]

But you seem to think that 1) there is an obvious face value meaning to the relevant parts of the Constitution, 2) liberals don't think they are following the meaning of the Constitution, and 3) that face value would even make sense.

Read my take on the Bill of Rights, there are some wording issues in there which you mention below. However, MOST of what is in there is pretty easy.

I would argue that the second amendment has already been breached. Sure, I might not have a reason to have an assault rifle, but that SHOULD be protected as it is my right to bear arms and that is a weapon. It does not read that I have the right to bear arms except when it is an assault rifle. Hell, by that token, I can also have a nuke. How I would get it is another story, but still...

I think by and large I have proven that the Constitution can be read at face value. The Constitution itself merely establishes the government. It is a pretty easy read.

Your second point assumes that I think all liberal policies are wrong. I don't, only most. You are also assuming that I believe that all activist judges are liberal (they aren't, your earlier post).

Third, most of it does make a lot of sense. Even the just compensation is well worded (albeit open to interpretation) as assigning a value to what just compensation is would open it up to all sorts of abuse!


I think all three of those assumptions is problematic.

For example, as to 1) - there is the "privileges and immunities" clause. In the 14th Amendment, the clause reads:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

What is the face value of that? What are the privileges and immunities of citizens of the U.S.? The clause has been made a "nullity" by the Supreme Court, but some prominent libertarians have argued that it supports most of our basic liberties (including privacy). How can you argue it doesn't say that?

Let me change the wording slighly:

"No State shall make or enforce any law which shall [lessen, diminish, or curtail] the privileges or immunities of citizens of the United States"

What this says is that no State shall make or enforce a law that diminishes the rights and protections of the citizens of the United States under the Constitution (which is where the privileges and immunities are written, Bill of Rights, etc.). This is one of the reasons why people rightly argue that the Patriot Act should be declared unconstitutional.

As to 2), I won't offer an example. I will just say that "activist" is an easy label to apply, but it really doesn't mean anything. Almost every judge believes they are properly applying the all.

I disagree. There are times when we all push the envelope at our job. Whatever that envelope may be. Just like a cop knows that he is using his badge as a shield when he takes out his frustration on a criminal that was fleeing the scene of a crime, etc.

As to 3) - the best examples are probably the free speech clause and the equal protection clause.

The first amendment says "Congress shall make no law ... abridging the freedom of speech." Does that mean people can say whatever they want? Treason is ok? Fraud is ok? Threats are ok? Of course not, but at "face value," you would conclude that the constitution protects a right to defraud people.

The 14th amendment says "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." What does that mean? Does that mean that if my house is robbed and my neighbor's isn't, I have not been equally protected? Does that mean that we are all entitled to the same government benefits? Why aren't felons allowed to vote under the equal protection clause?

First, I have already stated that the 1st amendment is one area that is open to interpretation. I will add this though, your right to do something stops when it infringes on someone else's right to something. For example, murder is wrong because that infringes on another's right to life.

Your argument of the 14th amendment is spoken just as a lawyer would. Otherwise why else would we need lawyers? Anyhow, no you are subject to equal protection of law. The laws apply equally to all citizens. If there is a law on the books for X, it applies equally to me and to my neighbor, regardless of sex, creed, or religion. Felons are not allowed to vote, because elsewhere in the Constitution they are specifically not allowed to vote, and this amendment does not specifically repeal that clause as happens elsewhere in the amendments where they may be in direct conflict with the Constitution or previous amendments.

The questions are endless and meaning is far from clear. When people say "read the Constituion at face value," what they really mean is "read the Constitution the way I read it."

That is because we have become a litigious society, just like the lawyers want! Seriously, there are very few areas where the meaning is ambiguous. Some areas are ambiguous because we've been told they are, not because people have actually read them. :D

[astralhaze]

You mention that you are 'quite a lib', yet you say that you would have voted for Roberts. Why? He holds the exact opposite of most of your views, so why vote for him? He isn't a loon like Rogers-Brown, so I'm not saying he should have been fillibustered, but why vote for him if his judicial views are opposite of the direction you want the country to go? :confused:
He's replacing Rhenquist and George W. Bush is president. In other words, the change in the court is negligable and with Bush as president, that is about as good as one can hope for. Now, if Roberts had been replacing O'Connor like he was to originally, I would have voted against.

[Warhammer]

You have just injected something very different than "face value." The 1st Amendment does NOT say "Congress will make no law that ESTABLISHES religion." It says "Congress shall make no law respecting an establishment of religion." I read that to be very different. "[R]especting an establishment," to me means anything that aids in the establishment of religion, not the actual establishment of religion.

OK, let's use the definition of respecting...

"Congress shall make no law [honoring, abiding by, observing] an establishment of religion."

Does either one of those meanings change the meaning? No. You are looking at connotations rather than denotations of respecting. You can interpret it in other ways sure, but that is not what it says! You have to read this denotatively because if we read it connotatively the meaning will change repeatedly through the years!

That begs the question - when is a search illegal?

That right, by the 10th amendment is reserved for the states to decide.

I notice you gloss over things like "speedy trial." What is a "speedy trial?" And does having "assistance of counsel" mean it has to be paid for by the state? It didn't until the mid 20th Century. How effective does that counsel have to be? Can they sleep through the trial? How about only parts of the trial? Someone on George W.'s short list said a lawyer sleeping through parts of the trial in a death penalty case was ok since the defendant couldn't prove the lawyer slept through important parts of the trial.

I'll admit I overlooked most of this. Will respond to this part when I get home.

It's funny that you would find this to be a "VERY IMPORTANT CLAUSE" when most people who are identified as strict constructionists have found it to be meaningless. Your reading is not supported by anyone that I know. Those that defend its importance (usually libertarians) argue that it protects those rights which are not specifically enumerated elsewhere. In other words, it may protect privacy and abortion.

I find it is a very important piece that guarantees rights. I could care less WHICH rights fall under protection, but it does protect rights. I think it is a very meaningless clause in law circles because it doesn't generate any money for the lawyers. :D

Your definition of plain seems bizarre. I've only cherry-picked a few examples, but there is a ton more ambiguity. You are essentially arguing the whole field of Constitutional Law is intellectually bankrupt and worthless. That is a tough argument to defend.

The Bill of Rights is hardly cherry picked. I do think that much of Constitutional Law is worthless. I also believe that many other forms of Law are useless. Just like a salesman needs to constantly create markets, so too does the lawyer.

[Raiders Army]

Why do they call them Justices when they mete out Justice? And isn't Justice blind? Why aren't they blind?

[ISiddiqui]

Felons are not allowed to vote, because elsewhere in the Constitution they are specifically not allowed to vote, and this amendment does not specifically repeal that clause as happens elsewhere in the amendments where they may be in direct conflict with the Constitution or previous amendments.You've got things mixed up, the Second Clause of the 14th Amendment only says that those people not entitled to vote because of insurrection or other crime will not count against that state in reducing their representation in the US Congress. It says nothing about whether it is right or not... that part is INFERRED from the words. Ie, it is not clear on the face of the document.

OK, let's use the definition of respecting...

"Congress shall make no law [honoring, abiding by, observing] an establishment of religion."

Does either one of those meanings change the meaning?Uh.. yeah. a law honoring an establishment of religion may indeed be (a LOT) different than a law respecting an establishment. A law 'respecting' an establishment can be any law that leads to establishing.

That right, by the 10th amendment is reserved for the states to decide.It most certainly is NOT! The prohibition against illegal search and seizure is in the federal Constitution, therefore it is the duty of the federal government to decide its meaning. I find that to be clear on the face of the document.

Obviously you have a different view and find something else to be clear on the face of the document.

See how that works (and I wasn't just saying I find it clear just to be different than you, but because IMO, my interpretation seems to be based on the clear language).

--

And its funny how you slag off lawyers since most of the founders... yeah, they were trained in the law. Sorry, I know it deflates your beliefs, but lawyers in law review articles aren't coming up with different interpretations solely to come up with future business, but because they believe that interpretation to be a better one.

[MrBigglesworth]

He's replacing Rhenquist and George W. Bush is president. In other words, the change in the court is negligable and with Bush as president, that is about as good as one can hope for. Now, if Roberts had been replacing O'Connor like he was to originally, I would have voted against.
I guess Democrats aren't principled after all.

[clintl]

A very simple reason why the Constitution cannot be read and interpreted at face value - such a supposition ignores 217 years of evolution of the English language. One of the reasons for the ambiguity and differences of opinion is that not every phrase has quite the same meaning and nuance in contemporary American English as it did in colonial American English. And quite frankly, it's not all that well written in places. The Second Amendment might be the worst written sentence ever in a famous document.