Impressions: Chapter 1
I just finished reading chapter 1 of the book Men in Black. In this chapter Levin is upset about some of the past rulings of the Supreme Court. At places I can feel that he is shouting.
He categorizes the justices into two groups: originalists and activists or non-originalists. Originalists look to the text of the constitution and believe that they are bound by them. Non-originalists consider the constitution a document of broad principles and concepts - and so they apply their interpretation of the constitution to make their judgements. Levin expresses utter contempt for non-originalists.
Now, my points of contention...
Since the Constitution of course does not spell out the laws and regulations of every possible case and scenario, how could 'interpretation' be avoided by the justices while handing out a verdict?
Secondly, rules and regulations need to be constantly updated as civilization progresses, correct? Does everyone feel this way? There was a time when slavery, polygamy, and child-marriage were just fine by the law? And of course, the rules of the eighties did not consider the internet, digital copy rights, and nano-technologies. Yes? I understand that updating the laws is the legislative body's responsibility. Still, I feel that this situation / reason also exacts the justices to interpret the Constitution in the context of present-day.
Levin's major problem with the Supreme Court is some of its rulings in the past (chiefly in the 1800's) regarding salvery, racism, and segregation. We are now in the 21st century and those rulings of course look ridiculous now. Who knows? Possibly, some of the present rulings regarding patents, and digital copy rights might look terrible in the 23rd century?
He categorizes the justices into two groups: originalists and activists or non-originalists. Originalists look to the text of the constitution and believe that they are bound by them. Non-originalists consider the constitution a document of broad principles and concepts - and so they apply their interpretation of the constitution to make their judgements. Levin expresses utter contempt for non-originalists.
Now, my points of contention...
Since the Constitution of course does not spell out the laws and regulations of every possible case and scenario, how could 'interpretation' be avoided by the justices while handing out a verdict?
Secondly, rules and regulations need to be constantly updated as civilization progresses, correct? Does everyone feel this way? There was a time when slavery, polygamy, and child-marriage were just fine by the law? And of course, the rules of the eighties did not consider the internet, digital copy rights, and nano-technologies. Yes? I understand that updating the laws is the legislative body's responsibility. Still, I feel that this situation / reason also exacts the justices to interpret the Constitution in the context of present-day.
Levin's major problem with the Supreme Court is some of its rulings in the past (chiefly in the 1800's) regarding salvery, racism, and segregation. We are now in the 21st century and those rulings of course look ridiculous now. Who knows? Possibly, some of the present rulings regarding patents, and digital copy rights might look terrible in the 23rd century?
posted by George | 11:42 PM
14 Comments:
George,
You are correct that the Constitution does not spell out the laws and regulations of every possible case and scenario concerning current issues. What it does spell out (very specifically I must say) are the powers (what the government CAN and CANNOT do) reserved for the state and federal governments, respectively.
One of the main reasons the framers did not go into detail concerning specific issues was they understood that issues change as the culture progresses (and that's the job of the legislative branch), but the powers of the state and federal government should NEVER change hence the reason why they framed the Constitution of the United States of America. So therefore, just as we interpret the Bible in the context of the Bible (it doesn contradict itself), we should interpret the Constitution in the context of the Constitution (definitely not by using laws from other countries - the same would be to consider other religions when interpreting the Bible!).
I hope this makes sense I didn't proof read it.
In other words, when they wrote the Constitution they knew what they were doing, they even included a way to change it (which nobody has any problem with).
The only logical position is to say that the document should be interpreted as written and if it doesn't say what we want(we the people), then we can change it. But go through the process set forth by the document, and if you don't like that process then go through the process to change the process, but don't just allow a few Men In Black to do whatever they want or believe, regardless of what we the people want.
As supreme court justices, they should devote themselves to upholding and defending the Constitution, not determining where they stand on certain issues. If there is ANY question, the case should be given to the legislature to clarify what the people want.
Just my thoughts.
Brian, I am ignorant here: could you please explain the significance of the two people's sides that you have mentioned - that is, Hamilton and Jefferson? Do they each belong to the left and the right?
Another question: why significant differences among states concerning certain laws? I mean, if someone deemed gambling casinoes to be unlawful, for example, why is it not unlawful in all the states? I may be thinking naive, but I feel that there is a lot to be gained from having uniformity in laws and practices throughout the country.
Did you know that it is lawfully permissible in Texas and Louisiana to have an open bottle of booze in your car while driving? That seems awful to me. On the other hand, a doctor practising in Florida may not freely start practising in NY for example - only after they have passed the NY standard exams they are allowed to practise there. Why? After all what you learn in a med school should be good for both NY and Florida - unless the NY people feel that doctors in FL are complete quacks, because of lenient rules in FL; in which case the FL rules need to be tightened to make it up to quality. Right?
Anyway, the bottom line is: when one state finds something to be good or bad for its citizens why is that it is not applied uniformly to all states - not like there are barbarians in N. Dakota or space-age advanced people in NY. Right?
Or am I missing something obvious that silly just-off-the-boat internationals don't get?
George,
Do your homework:
"Since Sept. 1, 2001 when House Bill 5 passed by the Texas legislature became effective, it is illegal to have an open container of alcohol in the passenger area of a car on any public road in Texas. Exempt from this law are buses, limousines, and taxis."
Why even have state governments if they don't do anything? The point is that the Federal government should stay out of the powers reserved for the states. Whatever happen to strength in diversity? Did you ever stop and think that there might have been a reason to the way it was designed?
Ok, my book having arrived and having read the material covered I now feel qualified to stick in my two cents.
First, I think it is important that we provide a link to the text of the constitution and the amendments here. Much of what we're discussing hinges on these documents and it might save some trouble if people reference articles and sections so that the rest of us can see for ourselves.
I feel that George's initial question, "How could 'interpretation' be avoided while handing out a verdict?" is a crucial one. I don't think anyone would disagree that some level of interpretation is required anytime communication is going on. Language is an imperfect medium for conveying thoughts and intentions.
The idea that Levin is trying to promote is that the courts need to always err on the side of narrow interpretations. Laws are relatively easy to change constitutionally and even the constitution has undergone 27 amendments. But rulings handed down by fiat of unelected individuals are extremely difficult to overturn. There is no place for them in the constitution (Article 3 Section 2 Clause 1). We can impeach or refuse to reelect someone who passes laws with which we disagree, but what recourse is there against judges if they veer (left or right) from the will of the people or even (as Levin addresses) become insane?
I tend to agree with Jason that more is spelled out in the constitution than people are willing to credit. Sure, there are some broadly worded phrases into which too much has been read (in my opinion) in the past, but Article 1 Section 8-10 spells out pretty clearly what the Federal government is responsible for and the first 10 Ammendments pretty clearly lay out what the federal government is not to do.
I strongly agree with Levin that the courts have overstepped their bounds in legislating from the bench and that any outdated or unaddressed issues should be taken up by the branch that is supposed to address them (Article 1 Section 8 Clause 18).
However, as a criticism of Levin's book (thus far), I think he blames too much on the justices and not enough on the Federal government. There is a good reason the legislature hasn't been quicker to jump on the courts for broadly interpreting the constitution. An originalist rendering would quickly show that, as Brian said, the state's rights have been grossly abused/usurped by the Feds (e.g. education) as well as the courts and that major overhauls in tiers of unconstitutional laws that have existed for decades might need to be considered.
I have some strong feelings about your comment that states should have enforced identity, George, but I think it's getting a little off-topic for the book and we can address those "offline".
Excellent points, Brian! Well-thought and nicely articulated.
lol... Those are good points, Brian. I might even be forced to admit that Levin is a little partisan in his approach.
I guess the federal power debate is a little too "long running and nuanced" for my simple mind. Even the infamous Article 1 Section 8 Clause 18 seems capable of a fairly straightforward interpretation to me. The powers discussed are those enumerated elsewhere in the Constitution. If people desire the government to assume further responsibilities or to delete existing ones, the changes should be enacted through constitutional amendments by elected representatives.
I'm not exactly sure what the direct relevance of Rehnquist's opinion or NR's staff is to Levin's book, but the Plessy vs. Ferguson and Brown vs. Board cases could be slanted either way on the originalist/unoriginalist scale. Levin's take that Brown vs. Board rightly interpreted the 14th amendment which Plessy vs. Ferguson had miffed seems perfectly legitimate to me.
*sigh* People who base their political philosophy on Wikipedia articles seem to be easily amazed. The text for the court's opinion in Heart of Atlanta vs. US makes a slightly more convincing case for the use of the commerce clause in that decision.
Regardless, as one of the maligned strict constructionists and a political novice (fast becoming a jaded citizen who might give up voting altogether and join the Amish), I think it's silly for people to get upset if the Civil Rights Acts are ruled unconstitutional.
The social climate has changed dramatically since the late 1800s and it wouldn't be too difficult to get some aggregate of them added to the constitution as an amendment. This would give a stable basis on which to judge the constitutionality of laws vs. the whim of the particular magistrate the case comes before that is the standard now.
One comment on bias.
I'm glad we know Levin's bias, then we are able to take what he says with a grain of salt. It would be much worse if the bias wasn't obvious and the writer wrote as if he was without bias (think modern history textbooks).
Kevin and Brian - you guys rock! Your comments show how much superior to mine your intellect is and you have helped me deal with my sin of pride. So thank you for that and for comments that bring in other information about the issue.
Would someone define "strict constructionist"? I've heard it before but always pretended to know what it meant. It would help understand a couple of comments.
John, I used the phrase "strict constructionist" synonymously with the way Levin defines originalist. I assume that is how Brian was using it as well.
Justice Scalia gives a long winded address that deals with a couple salient points to Levin's book. He's coming from the same perspective but seems to find a little more humor in the whole affair. I could like this guy.
Kevin and Everyone,
That is an awesome article! I highly recommend EVERYONE read it at full length. Finally someone says it in plain language and hits the nail right on head. If only I could articulate my thoughts like that. If you are expecting right wing conservative bias, prepare to be surprised. READ IT EVERYONE.
I am just rereading some of the comments to glean some material for tonight's discussion; and I ran into this bit by Kevin:
*sigh* People who base their political philosophy on Wikipedia articles seem to be easily amazed.
Kevin that comment is completely unwarranted. Dude, there is no reason to take a pot shot at Brian simply on the account of using Wikipedia.
I think that Brian is big enough to stand on his own feet, George. My comment doesn't seem too far out of line with the mild banter that had been going on in this thread.
I would be disappointed to learn that offense at my *sigh* was the reason for Brian's sudden silence on here, though. I hope that's not the case, Brian. The Wikipedia bash was actually intended for my brother and not you. I have been much inspired by your wide knowlege in so many of the areas that were addressed in Levin's book. Your expertise was sorely missed at the disscussion meeting we had today.
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