Or we could start working towards one of the better forms of government, like Monarchy...
Somehow I don't think that Bush would have picked someone who was pro-choice after the Myers debacle.
I've said it before, but so what? If the republicans nominate judges who give pro-lifers what they want -- repeal of Roe v Wade -- the bond between them will be broken, as many pro-lifers, particularly Catholics, will revert to the democrat party on the basis of its perceived greater "compassion" on social issues. Republicans have to keep pro-lifers on the plantation, and the only way to do that is to promise them, but ultimately withhold from them, what they want most.
To this end, the punch-line notion of "strict constructionism" is a fig leaf for their deception. Endlessly gullible pro-lifers interpret the term as a coded affirmation of life values. Republicans encourage their misinterpretation. But "strict constructionism" is another taffy-pull term that means whatever the RNC says it means.
And no, I am not a democrat.
There is a big difference between Kerry and Roberts relative to taking the Eucharist. Kerry as a senator makes laws, and Roberts as a judge construes laws made by Congress when the Court accepts cases on appeal from district and appellate courts below. Conservatives rightly loathe Roe v. Wade because it is judge-made law. Thus, you can't expect Roberts to say that he is going to make law as a Supreme Court justice. In addition, all Supreme Court cases are "settled law" until the Supreme Court itself decides to overturn precedent (or until the legislative branch changes the law). I am being too simplistic here, of course. But this is a complex problem. I, as a lawyer, Catholic, and conservative believe that your expectations concerning Roberts (and Alito) are not realistic.
Maybe. But the most passionate and orthodox Catholic judges on the Court, Scalia and Thomas, ALSO say that 1. If statutes or constitutional amendments were passed legitimizing abortion, Catholic judges would have to enforce them and 2. Lower court judges have to follow superior binding precedent like Roe, even if it doesn't make sense. The only other legitimate course is: resign. But you can't LIE and pretend that the law says what it doesn't say or that superior binding precendent says something it doesn't say.
So...I guess we should deny communion to them, too?
Maybe we should go back to the pre-Pius-X days when communion was a great rarity for all of us.
In the meantime, a Scalia, who would have voted essentially the same way as Roberts and Alito were he a lower court judge, would ALSO vote to overturn Roe if it came up on review on the Supreme Court, where he IS permitted to revisit binding precedent. That's what I'm looking for. Judges who will overturn Roe.
How Roberts would vote if Roe came up again is not obvious. But I seriously doubt he will allow that to happen, given that he is unwilling to overturn precedent without a strong reason. If you have an issue with Roberts, I think it would be his stance on the role of precedence. Let's remember that the Supreme Court rules on whether a law is constitutional, not if it's a bad law.
All I or anyone else can do is hope and pray that President Bush's Supreme Court picks will do the right thing if an abortion case ever comes before them. It would be preferable, of course, if we had a vital Catholic monarchy, but that won't happen until we convert this country to Catholicism -- and I don't know if that will happen before or after our country utterly collapses and somebody (or somebodies) come along pick up the pieces. Let's just say I'm not holding my breath, but in the mean time I'll still drink a toast to the King over the Water.
Let’s talk about “strict constructionism”. The term, as I understand it, means a loyalty to “settled law”, a respect for legal precedent, a generalized reluctance to “overturn”. It goes back as least as far as Richard Nixon, who used it to rally conservative support in 1968, and who subsequently gave those supporters – drum roll, please – Harry Blackmun. Remember him, pro-lifers?
“Strict constructionism” is still the panacea republicans off pro-lifers and conservatives. Their offer is dishonest, because it comes with a nod-wink implication that “strict constructionism” is a Trojan horse for all sorts of pro-life issues, most importantly, the overturning (that word, again) of Roe v Wade. It is no such thing – not to John Roberts, not to Samuel Alito, not to the judiciary committee star chamber, not to George W Bush, and certainly not to any prospective 2008 republican presidential candidate I can think of, including Rick Santorum (who may not even be a senator by then).
If it were 1960, it might make sense for pro-lifers to support “strict constructionist” nominees and the republicans who pimp them. It does not make sense for them to do so now, with new “rights” and “emanating penumbras” having popped up like kudzu, only to be freeze-dried and enshrined as settled law. Why do pro-lifers continue to support them? Partly out of ignorance, partly out of despair, and partly out of sheer gullibility. Encouraged by republican con artists, some believe that they are insiders engaged in a brilliantly stealthy political maneuver to restore to the law a sense of the sacredness of innocent life. In truth, they are being sold a sucker scheme that has been obsolete for the better part of fifty years.
[Sorry, last word, I promise. The situation galls me.]
Strangely enough, strict constructionism was concocted as a phrase by Nixon's men as a means of attracting the votes of mostly southern conservatives who were still aghast at a series of “landmark” civil rights bills that had been written into law. For them, it became code for stopping the progress of civil rights.
Ironically, pro-life lawyers often argue their cases from a civil rights perspective. This is the essence of honesty, but so far it has availed them naught.
Most republicans, in the sixties, opposed civil rights legislation, although many eventually came to vote for it. Barry Goldwater did not, warning that “you can’t legislate morality”. In fact, the more thoughtful legislators and legal scholars of the day worried over what might come out of this new emphasis on “rights”.
Now we know. The “freedom train" has been tootling along for five decades now, and “rightists” of every description have been given luxury accommodations: women, senior citizens, Hispanics, the handicapped, homosexuals, illegal immigrants, even prisoners. But the most needful group of all, the unborn, get nothing except the knife. They cannot vote, you see.
This is precedent we need so badly to preserve?
So Roberts is supposed to quote the Bible in his SC opinions? There's no need to - the Constitution does not allow abortion as it is.
"most needful" - good grief, I am old and doddering, not that there's anything wrong with that.
"neediest"
"Strict construction" was also used by Justice Taney in Scott vs. Sanford, 1857, to rule against Dred Scott's petition for freedom. Jaffe in his book, "Original Intent and the Framers of the Constitution" points out that Taney didn't go to the proper founding document -- the Constitution presumably embodies the rights (and others) specified in the Declaration of Independence (based on the Virginia Declaration of Rights, which in its draft form implicitly abolished slavery ... until Mason got caught putting it in), including life and liberty ... and access to the means of acquiring and possessing private property (well, it's in the Virginia document ...)
Dawn and Jacob, your point is well-taken that the task of Roberts, as of any justice, is not to make law but to judge according to the precedent of "settled law" until the Court itself determines that such a law is unconstitutional. I used to teach law. Vree's language is incautious here, I grant you. Here's what I wrote, quoting and paraphrasing Vree:
"Vree points out that to 'strictly interpret the law,' given the laws we've got, is to uphold Roe. To strike down Roe, we need justices with 'personal political views' who know that abortion is evil, he says, just as racial segregation was evil (though less so), even when it was legal."
Now that can make it sound like Vree is calling for mere Machiavellian partisanship, though I doubt that is quite what he means. Despite the current crisis in the foundations of law, it was generally well understood in the history of jurisprudence that the foundations of positive (human) law -- that is, where the criteria were found for adjudicating between just and unjust human laws, and thereby amending unjust ones -- was in natural law. Belief in natural law has, of course, fallen on hard times of late, and the nomination hearings of Judge Clarence Thomas are about the last time the subject received any public hearing at all. Natural law is not a peculiarly Catholic doctrine, though the Catholic tradition of moral and legal reasoning has been a defender of natural law, and an understanding of natural law is firmly grounded in the American founding and Constitution. It is therefore a matter of natural justice, and not a peculiarly Catholic doctrine, that the deliberate killing of innocent human life is wrong.
The question Vree has in mind, therefore, is what Roberts means when he says that he will not let his personal religious views influence his judgment. He could mean several things; and as Jacob suggests, it is not necessarily clear.
The most hopeful scenario might be that he means that while his explicitly Catholic beliefs would not influence his judgment, this would not prevent his decisios from being influenced by natural law as Catholics would understand it within their (non theological) tradition of legal and moral reasoning. In that case, even setting aside what Vree calls his "personal political views," Roberts would "know that abortion is evil," and presumably take advantage of any opportunity to find Roe unconstitutional.
But it could, and may very likely, mean something much less sanguine, to be more "realistic," as Dawn puts the matter. It could mean something much more along the lines of the positivistic construction of JFK's fact/value bifurcation, when he promised the American electorate in 1960 that his private and personal religious view would not influence his public and civic life. Despite superficial similarities, the two instances could not be more different, because in this latter instance there is no longer any consideration or c
... Despite superficial similarities, the two instances could not be more different, because in this latter instance there is no longer any consideration or conviction of natural law shoring up what has been jettisoned in terms of private faith. What one has instead, as Neuhas once put it, is a "naked public square," from which values have deliberately been excluded -- or, at least, those values that have any residue of a Judeo-Christian patina upon them. In this case, Vree's fears are far more likely to be borne out.
Let’s talk about “strict constructionism”. The term, as I understand it, means a loyalty to “settled law”, a respect for legal precedent, a generalized reluctance to “overturn”. With all due respect, that is not how I understand "strict constructionism", and, frankly, I didn't think anybody understood it that way. (Your understanding, it seems to me, is more like "rigid stare decisis" than strict constructionism.) Constructionism refers to how a law (a constitution being the fundamental law of a jurisdiction) is "construed"; that is, how it is interpreted. Off the top of my head, and loosely speaking, a strict constructionist thinks the principle of interpretation should be that the constitution says what it means and means what it says according to the minds of those who wrote it and ratified it.
Yep, like Mr. Core said, I've always thought of strict constructionist as different from someone who's very stare decisis. You really can't be honestly a strict constructionist and not be pro-life since even liberal jurists admit Roe v Wade is bad law and everyone knows it isn't strictly Constitutional.
So I guess the question is: does precedent trump the Constitution for Roberts and Alito? I don't know. I don't think anyone knows yet. I do think Alito, during his meetings with senators, is somehow making Democratic ones happy as well as Republican ones, which seems metaphysically impossible.
All in all I think there was a lot of irrational exuberance (certainly not exempting myself) over the nominations of Roberts & Alito.
If I am confusing “strict constructionism” and “rigid stare decisis”, then let me ask, in what sense are John Roberts and Samuel Alito “strict constructionists”, especially in the matter of life issues? Both have been described that way, and there is, or was, a clear expectation on the part of pro-life activists that their “strict constructionism” would translate into support for reversing Roe v Wade. I can certainly see a basis for attacking Roe v Wade as being unconstitutional, but neither of them seem to be approaching it that way, for both have declared that Roe v Wade is a matter of “settled law”, and have therefore indicated reluctance to interfere with it. “Strict constructionism” appears to mean whatever the person using the term wants it to mean.
"I can certainly see a basis for attacking Roe v Wade as being unconstitutional, but neither of them seem to be approaching it that way, for both have declared that Roe v Wade is a matter of 'settled law', and have therefore indicated reluctance to interfere with it. 'Strict constructionism' appears to mean whatever the person using the term wants it to mean."
Stare decisis and the principle of "settled law" is at odds with any principle of "strict constructionism," because a truly strict constructionist would be bound by precendent only to the extent it conforms to a strict construction. Thomas, for example, is a true strict constructionist; in upholding precedent, he always rationalizes it in terms of the original Constitutional language. If he can't, then he votes to overrule. Scalia practices a slightly different view, based not on language but on historical values, but it looks much the same in terms of when he upholds precedent and when he overrules. If the new justices take a more Scalian view (and I expect they will), then their acknowledgement that Roe is "settled law" doesn't mean anything other than that it is the current law. "Settled law," unless it is good settled law, gets overruled by strict constructionists; no strict constructionist protects bad law for precedent's sake. Roberts doesn't NEED religious reasons to overturn Roe; he has legal reasons to do that!
I think Vree has succumbed to hysteria; where did Roberts EVER say he wouldn't overturn settled law? There's a HUGE difference between "nothing would prevent me from applying it," and "I won't overrule it."
The Nixon case is inapposite, because the question there was making NEW law, not overruling OLD law. It's only today that strict constructionism has come to mean overturning bad precedent in addition to not creating NEW bad precedent. And Blackmun is a poor example for your argument anyway, because he shocked everyone, including his close friend Warren Burger, with how radical his view in Roe was; nobody saw that coming.
Stop worrying, guys. I count four solidly against Roe if Alito is confirmed. Spencer's smokescreen just created the illusion that the right question (when can "settled law" ever be overturned?) has been asked, when it hadn't. And conservatives aren't worried about losing the religious to the Dems, because the Dems keep coming up with new bad social policy.
Mr. Prejean, you put the best face on the Roberts appointment I've seen so far. I wish I could be as sanguine about it as you appear to be. Thanks for the comment.
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