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Monday, October 17, 2005--Andis Kaulins [10/17/2005 10:39:00 AM] - Home - About - Our Book
Harriet Miers, the US Supreme Court, Constitutional Originalists and Scaliawags
Gregory Wallance has a take on the most recent nomination to the US Supreme Court at Bloomberg.com titled "Miers's Rigid Legal Views Deserve Rejection" in which he quotes Miers as saying that she would "be true to the founders' vision of the proper role of courts ... and ensure that courts meet their obligations to strictly apply the laws and the Constitution."
Frankly, what Miers stated is something that we would EXPECT from ANY Justice. It does not mean she will join the Scaliawags.
Wallance goes on from there to presume from the words "founder's vision" and "strictly apply" that Miers might ascribe to the originalist doctrine espoused by Justices Scalia and Thomas and that such an originalist interpretation of the US Constitution, if ever ascribed to by the majority of the US Supreme Court, would be a potential disaster for the nation.
We share Wallance's view that additional dogmatic originalists sitting on the US Supreme Court would help to dismember the federal fabric of the union, but we see no evidence that Harriet Miers would join the ranks of the Scaliawags, "who know what's original when they see it", as opposed to the rest of us less clairvoyant ones, who struggle with such issues.
Miers in fact has stated elsewhere that she is "not doctrinaire" and gives every indication that she would be a sensible if strict moderate.
The fact that conservatives are "nervous" about the loyalties of nominee Miers speaks for her. Supreme Court Justices represent ALL of the people, not just selected interested groups, religions or dogmas.
It is also important to distinguish originalist dogma-oriented Justices - where dogmatic thinking is always a sign of intellectual weakness - from Justices who see their job as "deciding cases" and who are not interested in being activist pseudo-legislators. Being liberal or conservative as a judge is never synonymous with "judicial activism" per se, where the latter term applies to judges who decide cases by circling around the existing precedents to suit their own politics.
Besides, we think that the application of originalist thinking to the Constitution would render some issues moot which currently are seen to be "Constitutional" questions. The abortion issue, for example, would be completely moot under "pure" originalist thinking. NOTHING in the original US Constitution has anything to do with abortion, nothing.
Scalia has stated, e.g.: "There is no text in the Constitution that you could reinterpret to create a right to abortion, for example." But a true originalist should also say, which Scalia did not, "and there is no text in the Constitution that you could interpret as denying a right to abortion". When the Constitution was written, abortion was just not a Constitutional issue - originally. Indeed, the movement to outlaw abortions in the United States began in the 1820s at the initiative of the medical profession - i.e. not because of religious considerations and long after the Constitution had been written.
Hence, from an originalist point of view, abortion is NOT a Constitutional issue in terms of the actual PROVISIONS of that document. It is not specifically granted nor is it specifically denied. And this is the great weakness of originalism for many issues. The approach used by Scalia and Thomas is useless for an honest judge, because it leads to these kinds of legal dead ends where, of course, the nation's founders could not foresee the changes which would occur in over 200 years. Originalists use their dogmatic stance to arrive at decisions that THEY themselves politically want, which are then declared to be in concert with the "founders' visions". It is a nice legal scam, but hardly worthy of a Supreme Court Justice.
A true "TRUE originalist" who understood the US Constitution as the document governing the just-created "federal" United States would more correctly be a "federalist" - for he would understand that the US Constitution was intended to be "the supreme (federal) law of the land" and nothing more, and nothing less. Accordingly, although certain rights were granted to the individual States, such State lawmaking, by definition, can not lead to results which contradict the supreme law of the land, whose principles extend over the ENTIRE land. The original makers of the US Constitution CLEARLY INTENDED that the "federal law" inherent in the US Constitution be supreme above that of the States. As Madison wrote: "If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test."
Hence, the abortion issue, e.g. is not really a Constitutional question in terms of the original provisions of that document, but it is a Constitutional question in terms of the federal intent of that document, at least the intent of the makers of that document, who surely would have agreed that the "federal constitutional law", properly applied, would never permit abortion to be legal in one State and to be criminal in another State. The constitutional original intent would in fact demand that there be only ONE rule nationwide under that Constitution. Whether one then bases one's argument on "due process" or "equal protection of the laws" is basically irrelevant as long as the federal INTENT of the founders be carried out. It is not the intent of the US Constitution in its singular provisions which is paramount, but it is the intent of the document as a whole, which is determinative. In this sense, even the LawPundit is an "originalist", but surely not a Scaliawag.
What the Supreme Court then ultimately decides about abortion is then NOT a question of the original Constitutional provisions per se. It is rather a question of the development of law since the writing of that document and a question of the interpretation of individual and societal rights as they have developed over the last more than 200 years under that Constitution. It is a product of new knowledge about life gained since the advance of modern genetics and similar disciplines. Any future US Supreme Court decision on abortion - if it is to withstand the real demands of the age - would have to bring all of those factors to bear on a decision which would have to be comparably modern in its approach, reasoning and holding.
We do not speculate on what the decision in such an abortion case would be, but it would definitely not support the dogmatic extremists in either camp. And that is our "original" thought.
.
Permalink : Andis Kaulins : 10/17/2005 10:39:00 AM
Harriet Miers, the US Supreme Court, Constitutional Originalists and Scaliawags
Gregory Wallance has a take on the most recent nomination to the US Supreme Court at Bloomberg.com titled "Miers's Rigid Legal Views Deserve Rejection" in which he quotes Miers as saying that she would "be true to the founders' vision of the proper role of courts ... and ensure that courts meet their obligations to strictly apply the laws and the Constitution."
Frankly, what Miers stated is something that we would EXPECT from ANY Justice. It does not mean she will join the Scaliawags.
Wallance goes on from there to presume from the words "founder's vision" and "strictly apply" that Miers might ascribe to the originalist doctrine espoused by Justices Scalia and Thomas and that such an originalist interpretation of the US Constitution, if ever ascribed to by the majority of the US Supreme Court, would be a potential disaster for the nation.
We share Wallance's view that additional dogmatic originalists sitting on the US Supreme Court would help to dismember the federal fabric of the union, but we see no evidence that Harriet Miers would join the ranks of the Scaliawags, "who know what's original when they see it", as opposed to the rest of us less clairvoyant ones, who struggle with such issues.
Miers in fact has stated elsewhere that she is "not doctrinaire" and gives every indication that she would be a sensible if strict moderate.
The fact that conservatives are "nervous" about the loyalties of nominee Miers speaks for her. Supreme Court Justices represent ALL of the people, not just selected interested groups, religions or dogmas.
It is also important to distinguish originalist dogma-oriented Justices - where dogmatic thinking is always a sign of intellectual weakness - from Justices who see their job as "deciding cases" and who are not interested in being activist pseudo-legislators. Being liberal or conservative as a judge is never synonymous with "judicial activism" per se, where the latter term applies to judges who decide cases by circling around the existing precedents to suit their own politics.
Besides, we think that the application of originalist thinking to the Constitution would render some issues moot which currently are seen to be "Constitutional" questions. The abortion issue, for example, would be completely moot under "pure" originalist thinking. NOTHING in the original US Constitution has anything to do with abortion, nothing.
Scalia has stated, e.g.: "There is no text in the Constitution that you could reinterpret to create a right to abortion, for example." But a true originalist should also say, which Scalia did not, "and there is no text in the Constitution that you could interpret as denying a right to abortion". When the Constitution was written, abortion was just not a Constitutional issue - originally. Indeed, the movement to outlaw abortions in the United States began in the 1820s at the initiative of the medical profession - i.e. not because of religious considerations and long after the Constitution had been written.
Hence, from an originalist point of view, abortion is NOT a Constitutional issue in terms of the actual PROVISIONS of that document. It is not specifically granted nor is it specifically denied. And this is the great weakness of originalism for many issues. The approach used by Scalia and Thomas is useless for an honest judge, because it leads to these kinds of legal dead ends where, of course, the nation's founders could not foresee the changes which would occur in over 200 years. Originalists use their dogmatic stance to arrive at decisions that THEY themselves politically want, which are then declared to be in concert with the "founders' visions". It is a nice legal scam, but hardly worthy of a Supreme Court Justice.
A true "TRUE originalist" who understood the US Constitution as the document governing the just-created "federal" United States would more correctly be a "federalist" - for he would understand that the US Constitution was intended to be "the supreme (federal) law of the land" and nothing more, and nothing less. Accordingly, although certain rights were granted to the individual States, such State lawmaking, by definition, can not lead to results which contradict the supreme law of the land, whose principles extend over the ENTIRE land. The original makers of the US Constitution CLEARLY INTENDED that the "federal law" inherent in the US Constitution be supreme above that of the States. As Madison wrote: "If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test."
Hence, the abortion issue, e.g. is not really a Constitutional question in terms of the original provisions of that document, but it is a Constitutional question in terms of the federal intent of that document, at least the intent of the makers of that document, who surely would have agreed that the "federal constitutional law", properly applied, would never permit abortion to be legal in one State and to be criminal in another State. The constitutional original intent would in fact demand that there be only ONE rule nationwide under that Constitution. Whether one then bases one's argument on "due process" or "equal protection of the laws" is basically irrelevant as long as the federal INTENT of the founders be carried out. It is not the intent of the US Constitution in its singular provisions which is paramount, but it is the intent of the document as a whole, which is determinative. In this sense, even the LawPundit is an "originalist", but surely not a Scaliawag.
What the Supreme Court then ultimately decides about abortion is then NOT a question of the original Constitutional provisions per se. It is rather a question of the development of law since the writing of that document and a question of the interpretation of individual and societal rights as they have developed over the last more than 200 years under that Constitution. It is a product of new knowledge about life gained since the advance of modern genetics and similar disciplines. Any future US Supreme Court decision on abortion - if it is to withstand the real demands of the age - would have to bring all of those factors to bear on a decision which would have to be comparably modern in its approach, reasoning and holding.
We do not speculate on what the decision in such an abortion case would be, but it would definitely not support the dogmatic extremists in either camp. And that is our "original" thought.
.
Permalink : Andis Kaulins : 10/17/2005 10:39:00 AM
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