Dueling Twins: Supreme Court
By Breaking All The Rules (SARTRE) (01/13/06)
The Constitution is not neutral. It was designed to take the government off the backs of people. - William O. Douglas
Point:
Judge Alito, Conservatism, and Strict Constructionism
by James Hall from the Left
They say that Judge Alito is a good conservative, a strict constructionist and that makes a good judge for conservatives. The same conservatives that stopped Harriet Miers cold are said to be delighted with Judge Alito because he has a judicial track record that's conservative and is a 'strict constructionist,' whatever that's supposed to mean.
Now strict constructionism fits into a political theory of government that puts judges in their place. It restricts judges from ruling on issues, like abortion and civil rights, not mentioned specifically in the Constitution and especially limits judges finding rights inherent in the Constitution. This is a philosophy for those who like to see their issues written in black and white, see principles as words put down on the page; who distrust shades of grey or the shifting sands of time and change that affect our nation.
Many of these strict constructionists are also originalists-people who believe we ought to be governed by the opinions and the intent of the founding fathers who wrote the Constitution. Ironically, the doctrine of strict constructionism is a recent addition to the political debate. It's first mentioned by candidate Richard M. Nixon as a campaign issue some 30 years ago, as a response to the Supreme Court's rulings on abortion and civil rights.
For most of our nation's judicial history, Supreme Court Justices have interpreted our Constitution according to their lights, not according to a strict construction of the Constitution, whatever that means. Even the basic concept of judicial review, of finding the actions of the other branches of government constitutional or unconstitutional, isn't found in a strict construction of our nation's Constitution. In Marbury v. Madison, the early opinion that created judicial review, the Supreme Court's argument was that judicial review was a concept implicit in the Constitution, not one mentioned literally as a power of the judicial branch.
What keeps our nation whole and healthy was that these interpretations represented the mainstream opinions of Americans. When the interpretations wandered from the mainstream, as it did in the Dred Scott decision that upheld slavery, then civil war became the result. When an extreme court in 1896 upheld the doctrine of 'separate but equal' in Plessy v. Ferguson, then generations of civil strife and the civil rights movement became the result.
There are troubling elements of the Alito nomination that suggest that he is well out of the American mainstream. One is Judge Alito's record of ruling for corporations against the interests of employees, environmentalists, and stockholders. Another is his written comments as a Reagan staffer on undermining Roe v. Wade, the settled law of the land. A third element has been Alito's reluctance to recuse himself from cases where he had an financial interest or a relationship with his sister's law firm. He's also been on record as being against the 'one man, one vote' principle that has been the basis of civil rights in America.
Conservatives should be wary of Alito's view of executive power. In cases before him, Alito has consistently ruled in favor of the executive's power and against the power of Congress to exercise oversight. He's ruled in favor of wire-tapping without warrants, for strip-searching ten- year-old girls, and against Congress's ability to regulate machine guns.
One case where Alito differed from current law is revealing of what the nation would get with his addition to the Supreme Court. In that case, Judge Alito ruled (in a minority opinion of one), that state laws could compel women to notify their husbands of their intent to have an abortion. Judge Alito's written opinion expressed his opinion that such notification would not be a very troubling issue to most women.
At the next level, the Justice that Alito would replace, Sandra Day O'Connor, strenuously disagreed, arguing that marriage does not take a woman's freedom of decision away from her. Moreover, Justice O'Connor noted that in many cases women who were in danger from their spouses would have to make contact with them to comply with the law. For O'Connor and most in the Supreme Court, this was simply too great a burden for the law to require.
This point of view will be lost if and when Justice O'Connor is replaced by Justice Alito.
Judge Alito's legal opinions and written opinions place him well outside the judicial mainstream and the mainstream of American opinion. Americans want judges that reflect their values; not those who fit into the strange procrustean bed that is called 'strict constructionism.' For that reason, the Senate should not give consent to the President's judge.
Counterpoint:
Role of the Supreme Court
This is a country of laws! Or so it is said. If that really was the case, judges would be rightly held in esteem. But what we have is a judiciary hell bent on changing society, in spite of what the law says and means. In order to understand the plight we live under, read carefully the Inherent Autonomy essay - Why Supreme Court Selections are a False Choice. Chief Justice John Marshall relegated individual States to second class municipalities, now Judge Samuel Alito will carry on the ignominious tradition that will elevate the Federal Government to even a higher dominance of legalized tyranny. The selection of Alito will satisfy most of America. Certainly the Democrats have resigned themselves to his ultimate confirmation. The Senate confirmation hearings are hardly the ideological battle blood sport some expected.
Don't be surprised, not only the egalitarian suffers from the misapprehension that activist judges serve the progressive evolution of society. The misguided conservatives that believe strict constructionist jurists are the solution to the boundless decay of the nation, also suffer from the delusion of judicial supremacy. Even Originalists that accept the distortion of Marbury v. Madison as the valid foundation of Supreme Court separation of powers suffer from the same affliction. All these judges have one overriding similarity. They are ALL government judges. Genuine traditionalists that remain suspect of the flaws in the U.S. Constitution understand that any judge that rules to superimpose a central government dictate over states' rights are by designation an illicit magistrate. The basic inevitable destruction of the spirit of the 1776 Revolution was accomplished in chambers and dictated in open court. Lovers of government share the same bed and seldom use prophylactics when they consummate their twitted union. They are all addicted to erotic dominant love using the missionary position - always on top.
The notion that keeping our nation whole and healthy by legal interpretations that represents the mainstream opinions of Americans is so nihilistic in its extreme that only a democrat (small d) would accept and advance systemic absurdity as normal human conduct. Courts do not make nations and rarely confer well-being. But what government tribunals excel in doing is fabricating elaborate layers of intentional chaos so that they can become official arbitrators for despotic order. So how is it feasible to express correct concern for public civil liberties, while relying on a suspect judiciary to interpret justice when Supreme Courts are ultimately designed to be superior of any executive king? Judges who serve the monarch are dangerous. No doubt Alito is a government judge. But when did the courts ever rule that the federal government is, by legalized configuration, an illegal and corrupt criminal organization?
The whiny Liberals never plead the case for legitimate secession, they only want to control the mechanisms of an all powerful nanny state. They just get heartburn when a corporate/state envoy is nominated to be an agent for the system. Their vision for social justice requires the forced implementation of State condoned theft to favor factions of their perverted community universe. The idea that independent and autonomous individuals have a natural birthright of sovereign self-determination is so dreadful to the mindset of that precious mainstream that the Supreme Court must be preserved as the decisive power of Solomon. Imperial absolutism need not always come from an emperor. When the union of government merges the sanctions of a Supreme Court with the actions of a Nero, the country burns.
Does that mean that an Alito confirmation needs to be defeated or that the Republic will be restored with jurists that bow to the will of the mob? What is the difference between the insanity that is inevitable from democratic voting and the arrogance from a regal bureaucratic regime headed by a global CEO reporting to an elite board of plutocrat directors? Now come the best argument yet! Alito is accused of being "outside the judicial mainstream and the mainstream of American opinion." Good God, at least HE can still be invoked . . . being outside the judicial mainstream is exactly the argument that wins the case for confirmation! The real problem is he is NOT enough of an Originalist to overturn Judge Marshall! The super-precedent making of Supreme Court supremacy is the first order of business to be overturned.
Appreciate why that will never happen in any court of law is the first step in understanding why the loony left and the wacky right are all part of the same sick political charade. Don't be conned; it's all legal, and business as usual.
James Hall aka SARTRE
Rebuttal:
I can see my debating partner pining away for those heady early years of constitutional bliss, when Indians and women didn’t count and Blacks only counted three-fourths on the census and only White Men of Property (i.e., like himself) were permitted the vote.
Sorry, SARTRE, Marbury v. Madison is not only enshrined in history; it is part and parcel of American jurisprudence. Marbury gave the Supreme Court an act worthy of its name—the supreme power to find laws unconstitutional—and made it a branch of government equal to the powers of Congress and the President, not the weak sibling that some conservatives would have it be now.
Indeed, in an age where the imperial power of the presidency, ala Nixon, is being reasserted, and a Republican-led Congress exercises no executive oversight and licks its Master’s Hand, it’s comforting to imagine that there’s a branch of government that might tell Mr. President ‘no.’
In its proper place, the judicial branch serves as the American conscience, a branch that has been and should be beyond the petty politics of temporary and temporizing politicians. Judges, who serve for life, should be concerned with what is fair, just, and constitutional.
Our founders understood that the greatest wrongs are sometimes supported by the majority (consider slavery and segregation as two outstanding examples) of the people. When that wrongful majority controls the electoral process and with it, the other branches of government, who is there to defend the rights of the minority and the helpless but our courts, arguing not for votes, but for justice and equality before the law.
Not every judicial opinion will be what’s right or best for America. But the law is self-correcting and our Constitution inspires us to find the best, fairest outcomes consistent with it. No bad decision, like Dred Scott’s, long survives such a crucible.
But this makes it imperative that we choose judges who are intelligent, thoughtful, and psychologically balanced. Judges with a clear love and appreciation of our nation’s highest constitutional principles and established laws.
Selecting judges with limited intellectual scope and strict political agendas, whether those judges are conservative or liberal, is always a mistake, and creates mediocrities like Clarence Thomas, a fine man but a poor Justice. Our highest court deserves better; our people deserve better; our Constitution deserves better.
This week I hope that the Senate will throw out the litmus tests, both liberal and conservative, and focus on discovering whether Judge Samuel Alito has the kind of fine legal mind and judicial temperament that will do the nation proud. If not, the Senate shouldn’t hesitate to send him back to the president for a better choice.
James Hall, From the Left
Final Word:
As if proof is needed to confirm the inexcusable lack of historic perspective from the flag wavers of central government dominance, the words of Judge Alito set the record straight. When asked by Senator Jeff Sessions regarding the Marbury v. Madison foundational precedent for Supreme Court judicial review, Alito immediately replied that the Marshall decision was NOT enumerated in the U.S. Constitution and was based upon an implied power. Such an interpretation worry of modern day “Federalists” would make Alexander Hamilton proud. The proponents of unqualified federal authority need not be avid Supreme Court primacy exponents, but they surely are habitual central government supremacists. If we are supposed to believe and accept that this is the legacy of a noble American jurisprudence, let the second American Revolution begin!
The depths of personal ignorance and societal denial about the nature of our own history are only superceded by the lust to destroy the unique American experiment in self-governance. The concept of Federalism, the sharing of distinct, defined and limited roles and scope for governmental authority is the basis of the U.S. Constitution. Arbitrary, contrived and manufactured jurisprudence that relies on court ruling to establish the Supreme Court as the final and ultimate authority is un-American to its core. But that is exactly the wish of the mainstream pretenders for the rule of law. The scam of righting legislative and executive wrongs from the bench is the harbinger of a tyranny that resides in black robe Jacobins.
It matters little who is doing the cheerleading - the results are the same. The socialists that want government to be the cradle to grave dispenser of approved existence are eager promoters of intrusive court intervention. Their main concern is to control the votes because they cannot win elections. The Statists that falsely claim to be conservative have become regime change intolerant, because they are unable to run an effective and accountable government. Most the factions and splinter group that make up the spectrum of non political party dualism share the same gruesome collectivism that drive the body politik.
By the measures of today’s legal philosophy of unbridled State Supremacy, the federal courts act as the gatekeeper for the criminal politician class, and when necessary the Supreme Court delivers the law of a godfather. Sam Alito is no don but he is certainly an accomplished jurist. Traditional conservatives will accept his confirmation as the best that can be attained. As an individual, Alito is non-threatening; but as a government judge he could prove to be an executioner. Yet, he is not the focus of the legal dilemma. The aberrant function of the Supreme Court itself and the specious powers it exalts as proper is the issue.
Those who put forth a benchmark that jurists should have fine legal minds and judicial temperament are really saying they must impose the will of government dictates upon the populist masses in a manner that advances the primacy of the central absolutism. For those who seek to desecrate and eliminate States’ Rights from the Federalism model are closet Tories using the tactics of totalitarian democracy.
The sanest among the founding fathers never intended for the Supreme Court to run roughshod over Congress. Also they never desired the judiciary to condone the abolition of the Bill of Rights by a crazed bureaucracy or an executive despot. How far we have come from that original dream is evident in every decision and living expansion of judicial arrogance. Pray that Judge Alito will apply his disposition towards taming the federal beast and use restraint against all attempts to grow the monster.
James Hall – ‘The Right’
Original: http://batr.org/twins/011306.html
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