Monday, August 08, 2005

An Abandoner Of The Constitution

I am really annoyed by Judges who think their job is to make all public policy decisions. Of course, when it comes to deciding issues that appear facially to be well within the legislature's control, in other words, the subject is not in the Constitution, the "liberal" Judges are much more likely to decide the issue and prevent the legislature from doing its job. I have written on this here.

To summarize, the conservative justice is much more likely to give the legislature or executive more power than the liberal judge (except in economic and takings cases, which are actually in the Constitution), but that power is still subject to the check of the ballot box. If the liberal takes the issue away from the legislature, then the ballot box is not relevant. No matter what the people want, the Judge becomes a super-legislature.

This is exactly what has happened in abortion. Not only does the "right" exist, but the Supreme Court also stands and scrutinizes every rule and regulation, including health laws generally applicable to other doctors, and decides, based on the judge's personal preference, what the law should be. I am not a hard core pro-lifer by any stretch. For the life of me, however, I don't understand how a Judge can get into the minutiae of every abortion law in the country and honestly believe that he hasn't overstepped his role.

What just confuses the hell out of me is how the Leftists justices on the Supreme Court can find rights and rules in the "silence" of the document but not see the words actually in the document itself.

Of course, in recent years, some very fine examples exist. For example, the conservative block found the McCain-Feingold Act unconstitutional because it clearly limited political speech. The first amendment actually uses that word - speech. But the Leftists somehow didn't see it. They would find, however, that a nudie dancer was exercising her "speech"rights. If you've ever been to a nudie club, you know that there isn't any "speech" going up that brass pole.

In Kelo v. New London, the liberals again failed to recognize the limits of government power actually written in the Constitution. That ruling however resulted in the rare return of power to the people. As a result, the backlash has worked to allow many states to act to protect their citizens with new legislation or constitutional amendments limiting eminent domain power.

Justice Stevens, one of the worst offenders, recently spoke publicly on the death penalty in this country. Now, I am not a huge fan of the death penalty, though I do think it is appropriate in some cases. But if there is anything clear from the words of the Constitution it is that the death penalty is constitutional.

The 14th Amendment says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law. . . .
It says, "no state shall deprive a person of life without due process of law;" or to state it in the positive, "a state may deprive a person of life with due process of law."

In fairness to Justice Stevens, he has not claimed yet that the death penalty is unconstitutional, like Potter, Brennan and Marshall all did during their time on the bench. It does seem pretty clear, however, that he uses his political position against the death penalty to find it unconstitutional in practice quite often.

The Court has recently narrowly declared several uses of the death penalty (minors and mentally handicapped) unconstitutional because of a minority or plurality of the states and world's foreign countries chose not to use the penalty under their political system. I agree with these outcomes on public policy grounds. I would not apply the death penalty to the mentally handicapped, and probably not to minors either. As Constitutional law, however, these decisions were activist and poorly reasoned. The Court explicity stated that it was looking at the legislative law in the states and other countries to determine what was Constitutional in other states.

It wasn't always the case that the Leftist judges couldn't read the words in the Constitution, the second amendment aside. Now, only conservatives seem to ever bother to read the document. That means that Congressional power is limited to the powers enumerated in the Constitution. It means speech, especially political speech, cannot be limited (as mostly liberal Hugo Black always said about the first amendment, "no law means no law"). It means eminent domain is limited to "public use" and not "public purpose." And it means the life can be taken by the state with due process of law.

If you want to limit the powers that the state actually has, then get busy politically. But let's not ignore the clear provisions of the Constitution - whether we are limiting government's power, or giving it power we are politically against.

Our personally policy choices shouldn't matter when reading the law as it is. The ballot box and the legislature is where we are to advocate what the law should be.


At 2:38 PM, Blogger spd rdr said...

Interesting piece on page A4 of today's Wall Street Journal (subscription)discussing Robert's time in the Solicitor General office. Here's a taste and I'll email you the rest.

WASHINGTON -- Defenders and critics of Supreme Court nominee John G. Roberts Jr. have been parsing his position on issues such as abortion, civil rights and school prayer. But one issue that has gotten less public scrutiny has been his staunch law-and-order record.

During Judge Roberts's time as principal deputy solicitor general in the administration of George H.W. Bush, his office chose to get involved in dozens of state cases to limit the rights of criminal defendants. The cases backed state prosecutors seeking to preserve convictions won with warrantless searches and confessions obtained without Miranda warnings about the right to remain silent; to dismiss claims by inmates of "cruel and unusual punishments"; and to validate aggressive law-enforcement techniques, such as sobriety checkpoints and "protective sweeps" of crime-infested dwellings.

At 3:20 PM, Blogger KJ said...

Got the e-mail and appreciate it. I will have to review it later and may add a piece on it. I'm busy trying to limit the rights of plaintiffs who have sued my clients right now.

At 6:01 PM, Blogger spd rdr said...

Didn't we already fix it so that plaintiffs who sue The Man have no rights, KJ? Or am I thinking about something else?

At 6:24 PM, Blogger SCOTUS said...

Well, if not, we only have to wait for Justice Roberts to be on the job.

At 7:44 PM, Blogger Cassandra said...

KJ, you fool. Liberals don't have to *keep* reading the Constitution. Its meaning is constantly evolving, so they just keep talking to *each other* to suss out what the latest buzz is about what it means this week. If they need a tie-breaker, they step outside for a Gauloise and dial Phrance.

Silly lawyer...what *possible* interest could they have in static text that hasn't changed for 200 years?

Can't you even try to keep up with the times?


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