Liberal vs. Conservative Activist Judges.
Some time back, there was a discussion on here about liberal vs. conservative judges, and I stated that I felt that while I preferred a judge SLIGHTLY to the right of center, I found one further to the right to be the scariest of all possible outcomes.
The responses varied, but in general they seemed to be of the opinion that conservative judges adhered to the law, while liberal judges tended to invent new and different rulings to support their personal views.
In fact, extremists of both sorts tend to do this, to the detriment of this nation, but extremist conservatives (at least, the likes of Antonin Scalia and Clarence Thomas, the two justices President Bush says he most admires) are much more likely to view our basic rights as proceeding from the government, viewing government as parental, to dole out rights as rewards and take them away as punishments.
There is a great article that I found here. It is written by Thom Hartmann, who is admittedly very much in the liberal camp, but who nevertheless makes some very good points about the intentions of the founding fathers and the extent to which people like George Bush, Antonin Scalia and Clarence Thomas are perverting those ideals today.
James Madison and Alexander Hamilton both believed that the Constitution should contain no Bill of Rights, because in enumerating one, they believed that they undermined what they felt was the strongest part of the document, the fact that government had no rights to bestow, that rights belonged to the people.
They were afraid that by including a Bill of Rights, someone would come along at a later date and point to them as evidence that anything NOT in that Bill was therefore NOT a right. In order to combat this, they included the Ninth Amendment, explicitly stating that this was not so.
And yet we have Antonin Scalia telling people "You want new rights? Pass a law!", completely misunderstanding that in our country (as founded) rights do not proceed FROM the government.
The Supreme Court has had a long string of 5-4 votes, generally upholding that the Constitution guarantees rights even when they aren’t explicitly stated, a view which (as I’ve said repeatedly now) is exactly codified in the Ninth Amendment. Now, with the retirement of Sandra Day O’Connor and President Bush set to nominate someone he admires as much as Scalia and Thomas, we may very well end up with a court that goes completely opposite to the original intentions of the Founding Fathers, considering that any right not explicitly granted by the Constitution does not exist.
The Founding Fathers would be so disappointed.
Liam.
posted by Liam at 7/22/2005 03:06:00 AM
6 Comments:
In your opening statement on this rant you state that you consider Scalia and Thomas to be the most dangerous extreme conservative Judges on the Supreme Court. You state that the reason you believe this is because they "dole out rights as rewards and take them away as punishments". I question that, and ask that you sight some examples of their decisions that cause you to believe this way.
Friday, July 22, 2005 9:42:00 AM
In the last paragraph of this rant you state that we may end up with a Court that goes opposite to the original intentions of the founding fathers. I feel the intentions of the Founding Fathers was that the Supreme Court should not make law, but interpret it. If we as a people want something as a right or something to be outlawed, then the elected representatives of the people is the place to go to get it done. That was the original intent of the Founding Fathers, not that the Supreme Court should "find" a right that is not so specified. In a changing world such as ours, the Founding Fathers gave us two ways to change things ie Constitutional Amendments and elected representatives.
Friday, July 22, 2005 9:50:00 AM
OK, for your first question, read the article I linked to. There are a number of good examples in there of things that both Scalia and Thomas have said and done that support (I believe) my position.
A few days ago, I was reading over a web site that listed highlights of each justice's voting records on cases, and last night I couldn't find it again. I tried. I will try again, because I really wanted to document some of what I felt were the more egregious examples.
As to your second comment...
My whole point is that we should not HAVE to pass laws to grant new rights. If you read both the Constitution and the Federalist Papers (which were a sort of "spin campaign" for the new Constitution), you can get a pretty clear picture of what the Founders meant.
I agree that they Supreme Court was not intended to make law, just interpret it. Where we disagree is on what interpret means. I feel very strongly that the Constitution (and particularly Amendment Nine, which I cite often) make it clear that in interpreting the Constitution, it was clear that a very broad brush was intended, in terms of the "inalienable" rights that all people were due.
Don't just trust my quotes, go find a copy of the bill of rights. Read the ninth Amendment and tell me how you think that can coexist with your assertion that a right doesn't exist unless specified. Read the article I linked to, or the Federalist Papers directly, and see if you still have the same opinion of the Founding Fathers.
As I said in the original piece, both Madison and Hamilton argued strongly AGAINST having a "Bill Of Rights", not because they didn't feel we as citizens ought to have rights, but because they were afraid of exactly your position, that people in the future would take the enumeration of SOME rights to indicate that no OTHER rights were intended.
Jefferson, on the other hand, argued that if we didn't have a Bill of Rights, that wouldn't prevent that from happening, it would just put even MORE fundamental rights at risk by people who insisted they weren't in the Constitution and so didn't exist.
It is exceedingly clear to me (although I admit I've only read a few of the Federalist papers) that the clear intent was that rights were inalienable. They were innate to human beings, not something granted by the government. The rights spelled out in the Bill of Rights were only the most basic, most fundamental ones that Jefferson felt the most dangerous to not specify.
A free country isn’t founded on government deciding who is free and what freedoms they have. A free country is founded on the assumption that all freedoms and rights exist, except where the government (with the agreement of the people) limits them for the good of society, just as prohibitions against theft, assault and murder. Turning it around the other way reduces the freedom of the country, reduces the greatness of that free country, and is absolutely in contradiction to the will of the Founding Fathers.
Please, I’m serious, read the Ninth Amendment and the article I linked to, then go spend some time reading the Federalist Papers. Don’t take my word on it. Read what the Founding Fathers themselves said about government in general and our newly formed one in specific. I think you’ll be hard pressed to keep your current view of what they intended.
Liam.
Friday, July 22, 2005 10:41:00 AM
Excuse me, the second to last paragraph should have read:
...such as prohibitions against...
rather than
...just as prohibitions against...
Typo. I really should re-read BEFORE hitting post.
Liam.
Friday, July 22, 2005 10:44:00 AM
Just got through reading the article you referenced by Thomas Hartmann and you're right, he is in the liberal camp. But looking at the things that he presents as facts leave a definate impression that they are his version (read interpretation) of the facts. Firstly, he says that what Bush mean't by his code words of invoking the Dred Scott decision meant that "if Bush is elected in 2004, women who get abortions will probably face criminal prosecutions, and our right to privacy will evaporate.).
Well, no one with an honest thinking of the facts would think that Bush would argue for criminal sentences for a woman who gets an abortion but would instead consider her to be one of the victims. You already stated that the use of the "privacy" rights as applied to abortion is wrong, so you don't agree with him in this instance, by your own writings. Further, when he mentions Scalia he also referenced abortion. When one looks at the rights mentioned in the Constitution and the Bill or Rights, it comes to mind that there are many things people would like to do such as abortion, gay rights, (read same sex marriage) and the right to die. I would add to that beastiality, polygamy, sex with children, and while these, like the first three mentioned are not found in the Constitution or the Bill or Rights, the legislature (our elected officials) had to deal with them on a voting basis. I'm sure you can see that some of the rights wanted by some among us that are not enumerated must be voted on, then why the distinction between the unfavored, unenumerated rights and the favored, unenumerated rights ie some have to be voted on and some others don't. Sure am getting long winded here. Let me stop.
Friday, July 22, 2005 3:13:00 PM
Yes, I did say he was clearly liberal, but he had a lot of good information and convincing (to me, anyway) arguments on the founder's intent, and also on some of the statements made by both Scalia and Thomas. I may not agree with all of his conclusions, but I can read the facts he presents and come to my own.
But I still disagree with the characterization that rights need to be granted. There are certain actions which we, as a society, can agree should not be rights (or rather, that infringing on an inflictor's rights is less odeous than infringing on a victim's rights), and I understand that abortion may fall into this category. Murder certainly does, I think most Americans would agree that your right to life trumps my right to engage in murder. Sex with children does as well. Beastiality... I have a hard time defending it, but also a hard time coming up with who the victim would be whose rights were being infringed (except the animal, but I don't think most people would accept that the Constitution applies to animals, or we've got a hell of a problem in our national slaughterhouses).
But gay marriage laws SHOULD be, at best, at the state level, and perhaps not even there if a reasonable person can consider that unequal treatment under the "equal protection" clauses of the Constitution. I don't agree with anti "right to die" laws, I believe that they infringe on a person's rights. A terminally ill patient should be allowed to die on their own terms, rather than due to the ravages and torture of progressing disease. I have a hard time seeing who the victim is in allowing polygamy, provided that the polygamist is not breaking any promise or vow to their first partner when they marry their second, and does not hide the existance of any partner from any other. That lifestyle isn't for me, but if three of my friends all mutually decide they want to "marry" each other (pledge themselves to each other), I have no problem with that.
My point is that while the effect is the same, I don't like the concept that we have to DECIDE which rights we want to grant. We have to DECIDE which rights we want to revoke, those which are not explicitly revoked must be assumed to exist, and the Supreme Court has the ultimate responsibility of deciding when a revoked priviledge exceeds the authority of the revoking agency, either Federal or State, according to the Constitution.
Which is why, for example, I think the "defense of marriage" amendment is activist in nature, while a finding that marriage laws that exclude same sex couples violates equal protection does not to me feel activist.
What I come down to is wondering "who is the victim" when two men or two women marry each other? Whose rights are being so trampled by this act of pledging themselves to one another that it justifies taking away their rights to make that pledge?
That, to me, is the true "strict Constitutionalist" view. The Constitution says nothing about homosexuality, which definitely makes it not a Federal power, and there isn't to me sufficient violation of anyone's rights (a victim) to justify curtailing that right. Anti gay marriage laws are legislating morality, which comes dangerously close to legislating religious doctrine, because not all religions agree. Just for one example, the anti polygamy laws, which clearly discriminate against certain religions (traditional Mormonism, for example) which practice polygamy.
Legislating morality for its own sake, when there is no victim's rights being infringed upon by the behavior, is contrary to the spirit of freedom on which this country was based. The idea of two men having sex with each other is revolting to me... but then so are some of the acts that men and women do together which are considered at best only mildly kinky these days. All that means is that I should avoid those behaviors. Gay marriage does not mandate that I marry another man, it simply says that if I were to choose to, I shouldn't be prohibited. If I think homosexuality is immoral, I should avoid the behavior, and try to bring up my children to "behave correctly" and avoid those behaviors as well. But I don't believe I have any right to impose my views of right and wrong behavior (in the absence of a victim) on others who do not share my morality.
And I don't think you or anyone else should have that right either.
Liam.
Friday, July 22, 2005 3:51:00 PM
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