solaris_219 (![[info]](http://p-stat.livejournal.com/img/userinfo.gif){kind=small} solaris_219) wrote,@ 2005-05-23 12:14:00 |
|
I originally wrote this as a reply to empresskara, who posted some comments from Pat Buchanan over the judicial battle, but alas: my "comment of 6413 characters exceeds the maximum character length of 4300". So it's going to have to be a (semi) full-fledged post here.
I dissent strongly from Pat on this point, both procedurally - q.v. my comments 2005-05-03 - and substantively. See brief comments 2005-03-25 and even briefer, 2005-03-31. I did write at more length about this, but it looks like I never got around to posting it, so I'll have to try to search that commentary out. I also previously posted a link to Buchanan's contemporaneous comments regarding Terri Schaivo, viz.:
I
Since Kara noted that I've written in support of Buchanan's ideas before, let me begin by explaining how I view Pat Buchanan: I broadly agree with Pat on immigration and trade policy. See, e.g., his excellent article No Nationalists on Kemp's Shining Hill, 8-2-2004; cf. my very brash and youthfull comments from last January - I laughed out loud reading this comment again after a year, at how much my writing has, ahem, grown). However, I disagree just as strongly with him over Iraq - his book A Nation Not an Empire makes a very compelling case for why Bush's post-9/11 change to a more neoconservative foreign policy is an aberration, understood in context of America's historic foreign policy, but neither that book nor any of his magazine's articles convince me that this change is anything other than a long-overdue and necessary course correction; cf. Robert Kagan, Of Paradise and Power; Richard Perle, An End to Evil - and on many aspects of social policy, e.g. his views on gays (i.e. homophobia) and, evidently (and surprisingly) his views of the judicial process.
I said "surprising" above, incidentally, because what's truly surprising is that it is the neoconservatives - a group that Pat Buchanan has routinely savaged - who are the most active advocates for using liberal methods - judicial activism, the welfare state et al; q.v. Irwin Steltzer, introductory essay to The Neocon Reader - to their own ends, while it seems to my mind that it is paleoconservatives (of which Buchanan is one) who are more generally associated with strict constructionism, "traditional" conservatism, and GOP-style libertarianism, although Buchanan's American Conservative magazine frequently includes articles which lean decidedly towards "social conservatism", or the "theocons" if you will. Perhaps I have simply misunderstood the term "paleocon".
II
Anyway, on with the show. As I previously wrote - see comments, 2005-04-06 - the role of the Judge, and of the Supreme Court, is to divine how the actual text of the Constitution applies to individual cases. It is absolutely not for the Judge to impute new meaning into the text, to make it better comport with their "own concept of what is fair, decent, and right", as Justice Hugo Black put it (In re Winship, 397 U.S. 358 (1970)), or as Justice George Sutherland put it, "the judicial function is that of interpretation; it does not include the power of [Constitutional] amendment under the guise of interpretation". (West Coast Hotel v. Parrish, 300 U.S. 379 (1937)).
The Constitution, properly (as I see it) understood, is a legal contract between two parties: the American people and their government; it sets forth what government may and may not do. Like any other legal document, the constitution says some things, and doesn't say others, and like any other legal document, if the meaning of that document is yielded by one party to be indefinitely malleable, then it will become no restraint whatsoever on the other. No matter how morally wrong what happened to Terri Schaivo may or may not have been, no matter whether you do or do not feel that the judicial process failed her / her parents / her husband (delete as applicable), no matter any of these things, what was done was legal and constitutional. If you don't agree with what the law says, change the law. If you feel that a right is so important that it should be constitutionally protected, pass and amendment. Executing a retarded minor for murder may be wrong; it may be very stupid. But it is not unconstitutional. Starving a brain-damaged woman to death may be morally wrong; it may be very stupid. But it, too, is not unconstitutional. Terri Schaivo was entitled to the due process of law; she received it, and conservatives who cheered Justice Scalia's dissent in Roper v. Simmons cannot possibly now turn around and criticize the result of Schaivo.
Dissenting in Dred Scott v. Sandford, 60 U.S. 393 (1856) - almost universally drecried as the low-water mark of American jurisprudence, both procedurally and substantively - Justice Benjamin Curtis wrote:
To allow the Judge power to legislate - a power specifically reserved by the framers to the Congress - is judicial activism, and it is grossly wrong and foolish, no matter whether pressed into the service of the left - as it frequently is; q.v. Griswold, Roe, Lawrence, Roper, and innumerable others; cf. Editorial, New York Times, 1-26-2005 - or the right, as Pat would have had in Schiavo ex rel Schindler, et al. v. Schiavo, et al..
III
To me, what Pat's comments do is to give apt illustration to Andrew Sullivan's excellent recent cover piece in The New Republic, Crisis of Faith, in which he argues that the divisions within the GOP can be broken down into two groups - conservatives of doubt and conservatives of faith - which produces two fundamentally different kinds of Republican: one which wants to wield government as a tool of their agenda, and one of a more libertarian nature which wants to roll back government. Sullivan's conservatives of faith are those who have pushed the "all or nothing" approach to government business, which has brought us to this juncture.
I am of the latter group, and of the Scalia mindset, which holds that the Constitution says certain things and doesn't say others, and no matter how hard I concentrate, no matter how hard I wish for it, new provisions do not appear magically in the text, as they do for Justice Breyer, for example. The Constitution says what it says, and we do not need judges who will abuse their position to support either side's causes - we need judges and Justices who will leave those grand and important public policy debates to the gladiatorial arena across 1st Street from the Court, and who will, in the words of the Oath of a Supreme Court justice, "will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States".
empresskara, who posted some comments from Pat Buchanan over the judicial battle, but alas: my "comment of 6413 characters exceeds the maximum character length of 4300". So it's going to have to be a (semi) full-fledged post here.I dissent strongly from Pat on this point, both procedurally - q.v. my comments 2005-05-03 - and substantively. See brief comments 2005-03-25 and even briefer, 2005-03-31. I did write at more length about this, but it looks like I never got around to posting it, so I'll have to try to search that commentary out. I also previously posted a link to Buchanan's contemporaneous comments regarding Terri Schaivo, viz.:
...Conservatives are hypocrites, they charge. The Right opposes judicial activism and preaches states' rights. But in Terri's case, the Right clamored for judicial activism and rejected states' rights.
But this is absurd. The judicial activist in Terri's case is Greer, who sentenced a brain-damaged woman to death by starvation and dehydration. If this is not judicial activism, in violation of a citizen's right to life, due process of law, and not to be subjected to cruel and unusual punishment, what is?
Since Kara noted that I've written in support of Buchanan's ideas before, let me begin by explaining how I view Pat Buchanan: I broadly agree with Pat on immigration and trade policy. See, e.g., his excellent article No Nationalists on Kemp's Shining Hill, 8-2-2004; cf. my very brash and youthfull comments from last January - I laughed out loud reading this comment again after a year, at how much my writing has, ahem, grown). However, I disagree just as strongly with him over Iraq - his book A Nation Not an Empire makes a very compelling case for why Bush's post-9/11 change to a more neoconservative foreign policy is an aberration, understood in context of America's historic foreign policy, but neither that book nor any of his magazine's articles convince me that this change is anything other than a long-overdue and necessary course correction; cf. Robert Kagan, Of Paradise and Power; Richard Perle, An End to Evil - and on many aspects of social policy, e.g. his views on gays (i.e. homophobia) and, evidently (and surprisingly) his views of the judicial process.
I said "surprising" above, incidentally, because what's truly surprising is that it is the neoconservatives - a group that Pat Buchanan has routinely savaged - who are the most active advocates for using liberal methods - judicial activism, the welfare state et al; q.v. Irwin Steltzer, introductory essay to The Neocon Reader - to their own ends, while it seems to my mind that it is paleoconservatives (of which Buchanan is one) who are more generally associated with strict constructionism, "traditional" conservatism, and GOP-style libertarianism, although Buchanan's American Conservative magazine frequently includes articles which lean decidedly towards "social conservatism", or the "theocons" if you will. Perhaps I have simply misunderstood the term "paleocon".
Anyway, on with the show. As I previously wrote - see comments, 2005-04-06 - the role of the Judge, and of the Supreme Court, is to divine how the actual text of the Constitution applies to individual cases. It is absolutely not for the Judge to impute new meaning into the text, to make it better comport with their "own concept of what is fair, decent, and right", as Justice Hugo Black put it (In re Winship, 397 U.S. 358 (1970)), or as Justice George Sutherland put it, "the judicial function is that of interpretation; it does not include the power of [Constitutional] amendment under the guise of interpretation". (West Coast Hotel v. Parrish, 300 U.S. 379 (1937)).
The Constitution, properly (as I see it) understood, is a legal contract between two parties: the American people and their government; it sets forth what government may and may not do. Like any other legal document, the constitution says some things, and doesn't say others, and like any other legal document, if the meaning of that document is yielded by one party to be indefinitely malleable, then it will become no restraint whatsoever on the other. No matter how morally wrong what happened to Terri Schaivo may or may not have been, no matter whether you do or do not feel that the judicial process failed her / her parents / her husband (delete as applicable), no matter any of these things, what was done was legal and constitutional. If you don't agree with what the law says, change the law. If you feel that a right is so important that it should be constitutionally protected, pass and amendment. Executing a retarded minor for murder may be wrong; it may be very stupid. But it is not unconstitutional. Starving a brain-damaged woman to death may be morally wrong; it may be very stupid. But it, too, is not unconstitutional. Terri Schaivo was entitled to the due process of law; she received it, and conservatives who cheered Justice Scalia's dissent in Roper v. Simmons cannot possibly now turn around and criticize the result of Schaivo.
Dissenting in Dred Scott v. Sandford, 60 U.S. 393 (1856) - almost universally drecried as the low-water mark of American jurisprudence, both procedurally and substantively - Justice Benjamin Curtis wrote:
"Whether such decrees are wise or unwise, whether their subjects are citizens or not, if they are usurpation of power, our rights are both infringed and endangered. They are infringed because the power to decide and act is taken away from the people without their consent. They are endangered because in a constitutional government, every usurpation of pwoer dangerously disorders the whole framework of the state."Once you hand over such power to the judicial branch, you effectively make the court system our improper masters - and this is insanity, whether you are right or left, because it means that nothing will ever be non-partisan again. Cf. remarks of Justice Scalia (RealMedia format), 4/23/2005.
To allow the Judge power to legislate - a power specifically reserved by the framers to the Congress - is judicial activism, and it is grossly wrong and foolish, no matter whether pressed into the service of the left - as it frequently is; q.v. Griswold, Roe, Lawrence, Roper, and innumerable others; cf. Editorial, New York Times, 1-26-2005 - or the right, as Pat would have had in Schiavo ex rel Schindler, et al. v. Schiavo, et al..
To me, what Pat's comments do is to give apt illustration to Andrew Sullivan's excellent recent cover piece in The New Republic, Crisis of Faith, in which he argues that the divisions within the GOP can be broken down into two groups - conservatives of doubt and conservatives of faith - which produces two fundamentally different kinds of Republican: one which wants to wield government as a tool of their agenda, and one of a more libertarian nature which wants to roll back government. Sullivan's conservatives of faith are those who have pushed the "all or nothing" approach to government business, which has brought us to this juncture.
I am of the latter group, and of the Scalia mindset, which holds that the Constitution says certain things and doesn't say others, and no matter how hard I concentrate, no matter how hard I wish for it, new provisions do not appear magically in the text, as they do for Justice Breyer, for example. The Constitution says what it says, and we do not need judges who will abuse their position to support either side's causes - we need judges and Justices who will leave those grand and important public policy debates to the gladiatorial arena across 1st Street from the Court, and who will, in the words of the Oath of a Supreme Court justice, "will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States".
