From CNN
This entry was posted on Tuesday, March 25th, 2008 at 10:59 am and is filed under Abortion, Katerina Ivanovna, Law, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.
Just another example of how “vote for the President who will change the Supreme Court” is another political charade.
Henry,
That’s exactly what it’s not.
It does not follow that their decision not to hear this particular case means that the philosophical makeup of the court is an irrelevant concern.
Just another example of how “vote for the President who will change the Supreme Court” is another political charade.
Yes. I hope our fellow Catholics don’t fall for that one again.
It does not follow that their decision not to hear this particular case means that the philosophical makeup of the court is an irrelevant concern.
Well, I don’t think we want to argue from silence here. We can judge, however, by specific actions of the current Court…and so far, there seems to be little desire displayed to make an impact in terms of changing the legal status of abortion.
I suppose I’m curious as to what the “philosophical makeup” of this Court looks like if its not manifest in its response to these individual cases.
Zach
It’s funny. I keep hearing “choose the right president, and the justices will change everything.” Then all kinds of excuses are made for those justicies who were elected under those presidents when they don’t do anything. “Well, it’s the law and all, and they can’t change it.” Well, that’s also true with politicians who think they have to follow the law as it is, too.
Henry, Policraticus,
If Roe v. Wade is to be overturned, we need justices who believe that it was wrongly decided. There is good reason to believe that 4 out of 9 justices currently subscribe to this opinion.
There is also good reason to believe that our two major political parties differ greatly in their respective choices for justices. The Democrats, by and large, choose justices who favor a liberal or expansive understanding of the Constitution – thus they choose justices who see rights hidden in the text. The Republicans, by and large, choose justices who favor some flavor of textualism or originalism -justices that largely agree that the Constitution is silent on abortion. And this judicial philosophy is our only hope for changing the law.
I can provide some good references to support these claims … I will post them later on for anyone who’s interested in seriously changing the law of the land.
As Policratus said, arguing that the decision not to hear this particular case marks a preference on the part of Republican-appointed conservative justices to keep Roe is a stretch.
Among other things, and perhaps we would do well to wait for comments from some of the Catholic lawyers in our midst, it would seem that it might involve a “pick your battles” approach. The court as it stands has four sure pro-abortion votes, four fairly probably anti-abortion votes, and one swing vote that leans pro-abortion (Kennedy). It may well have been that, given that the topic of this particular case, several of the anti-abortion justices felt this was not a good case on which to stage a battle, and the pro-abortion justices knew that things wouldn’t get better for them, and could get worse, if they sought one.
While waiting for the intellectual center of gravity of the supreme court to shift is not the sort of high speed change on which the commentariat thrives, I’m unclear how (aside from seeking to justify one’s existing electoral preferences or simply stick it to “the other side”) one makes that argument that because the conservative minority has not yet made moves to overturn Roe (which they don’t have the numbers to do) that it therefore doesn’t matter if justices are selected by presidents who attempt to choose justices with a judicial philosophy that would result in a Roe overturn, or by presidents who make pro-abortion inclinations one of their primary litmus tests in selecting justices. That just doesn’t make sense.
If I were on the Supreme Court, I would have voted not to hear the case. Why? Because there are currently five votes on the Court to uphold Roe, and the case involved a straightforward application of Roe and Casey. If the Court had heard the case, there would have been no chance of convincing one of the pro-Roe justices to vote to reverse, and so taking the case would only have the effect of reaffirming Roe.
From my perspective, cases like this highlight the importance of Supreme Court nominations.
So basically, people can approve of decisions which those who support abortion might want as well and that is the way one proves they are pro-life? Because it is not “convenient” now to deal with the problem?
So can people vote on such principles for a President who is pro-choice, because they view, even if the SC overrules Roe v Wade, the states will only increase abortion on demand when this is done? So it’s best to vote for Presidents who won’t mess up the SC with judges who will turn everything back to the states?
This demonstrates the ones who decry “relativism” of the people who “pick their battles” by thinking abortion cannot be dealt with until the culture is different — follow the same rules when it is their people making the decisions. Figures.
Henry,
We don’t know which justices, if any, voted to hear the case. My guess is that if any did vote to hear it, they were pro-abortion justices.
As for your hypothetical, if a person did think that overturning Roe would lead to more abortion on demand, that might be a reason to not vote for a Presidential candidate who would appoint justices opposed to Roe. Given an absurd premise, an absurd conclusion will often follow.
The Supreme Court takes cert on about 100 cases a year and denies cert on thousands of cases. Reading anything into the denial of cert other than less than four justices were willing to take a particular case is popular but a poor way of predicting of how the Court will rule in an area of the law in the future. There are many reasons why the members of the Court decline to review a particular case, and most of these reasons have nothing to do with the substance of the case. However I can understand why Catholics longing to vote for pro-abort candidates will eagerly seize upon this case in order to salve their consciences. Happy salving!
BA
Given the status of abortion in our society and the desire for states to increase rights such as marriage rights to gays instead of the reverse, it is not too far fetched to see the situation would only get worse and not better if Roe v Wade is overturned.
Moreover, it is clear that excuses continue to be given for the “great saviors” when they don’t save. The utopian, messianic claims for the Supreme Court fail. It’s funny how people claim Obama has been made into a messiah figure; the SC has been the political messiah which leads many Christians by the nose for years now… and all they get is more death.
Henry,
The current situation is that we have abortion on demand throughout all nine months of pregnancy in every part of the country as a matter of constitutional right. How would the situation get worse if Roe was overturned?
“The current situation is that we have abortion on demand throughout all nine months of pregnancy in every part of the country as a matter of constitutional right.”
Not true. There are many regulations in place which Roe V Wade has allowed to be in place, as well. Example: teenage pregnancies and parental consent laws.
It is difficult to know exactly what will happen, but it is clear, if some states allow abortion and others do not, abortion control will work as well as gun control: not at all. When things are turned into a state issued problem instead of societal, then relativism in morality will become more prevalent. And this could have even more disasters than we can foresee.
There are cultural issues which must be addressed. The Supreme Court is not going to solve them. Even if R v W is demolished, it will do nothing to make abortion illegal. It’s just a shellgame.
Henry,
Given that virtually all regulation of abortion is currently at the state level, and that Roe acts only to _restrict_ the ability of states to pass regulations they otherwise would, it’s hard to see how removing Roe would in any way allow states to open up abortion anymore than they already do.
It’s already the case that abortion is a cross-state-border phenominon, with New York as a massive abortion capital just as it was in the 1830s.
We all understand that you dislike Republicans, and some of your reasons are worthy of respect (it not agreement), but it’s hard to see how this argument makes any sense.
Darwin
Look to gun control situations and how the implementation of them affects such control.
As a different point, you still have not properly understood me if you think things are “Republican vs Democrat” in mentality. Can you get over such a crass dualism and think beyond it? Until you do, your hermeneutics will prevent proper dialogue.
Sigh.
Supreme COurt 101- Do not read massive intentions and views of the Justices in what Writs the Courts denies. Darwin Catholic and McClarey are right on this.
JH
The point is not one is “reading intentions.” One is only pointing out the actions. Or, rather, inaction. And remember inaction can be just as sinful as action. The actions of the SC are of those who do nothing for abortions. That is the action we see. Not intentions. No one mentioned anything about intentions, which we can’t know. But — when people keep saying the solution is with the SC, and the SC choices continue to be ignoring action, one has got to see the solution might not be with the SC after all. And it becomes another “well, wait for another justice to change it” game. A shellgame.
It’s a cultural issue which needs to be addressed. Making it all a shellgame, saying it will be the next choice which fixes it all, is just sloppy thinking and fails to see how easy it is to be drawn by a carrot. Yet, all we see are excuses for inaction. Strange how these excuses only justify people who vote one way.
Henry,
I understand very well that you don’t like Democrats either. Any dualism you are finding in my remarks is read in.
But I think it would be fair to say that you have a fairly visceral dislike for some of the arguments by which many Catholics who are conservative argue that electing anti-abortion Republicans advances the pro-life cause.
Yes, I’m away the state-to-state differences in gun laws affect the ability of one state to successfully ban guns — but what you don’t seem to be grasping is that when people talk about abolishing Roe “sending abortion back to the states” it does not mean that states will then be able to choose to provide abortion even more freely than they can now. There are currently no SC restrictions that keep states from making abortion as freely available as they want to.
Look, rolling back Roe is no pannecia. It will not, on its own, save one life. And it will take many more years and tireless effort to achieve. It’s not the only aim or the most important aim of the anti-abortion movement. (Using the terminology to try to avoid another fight over what “pro-life” means.) Clearly, more local work at crisis pregnancy centers providing education and alternatives will save more lives and change more minds in the short term.
But unless one wants to argue that it’s good for our law to enshrine murder as a fundamental right, I can’t see how we can _not_ advocating getting rid of Roe and the judicial mentality that spawned it.
it is not too far fetched to see the situation would only get worse and not better if Roe v Wade is overturned.
How?
Just another example of how “vote for the President who will change the Supreme Court” is another political charade.
Not true. What happened here was just that the Supreme Court decided not to hear an appeal from an Arizona state court decision. It doesn’t mean the “Supreme Court allow[ed] abortions for inmates,” as this post’s headline misleadingly says. It means that the Supreme Court didn’t hear the case. That’s all. When the Supreme Court refuses to hear a case, that has absolutely no precedential value; it does NOT mean that the Supreme Court approved what happened in the lower court.
There are all kinds of reasons that the Supreme Court decides not to hear particular cases — if there’s not a “split” among lower courts, that makes Supreme Court review a lot less likely. If there’s some procedural problem with the case, that’s another reason to deny review. Plus, as Donald correctly noted, the Supreme Court only hears about 1 in 100 appeals that are filed, so it’s inevitable that 99% of them will not be heard (which always means that the lower court’s decision remains standing).
Plus, you have to realize what happens behind the scenes here. Even if a conservative or liberal Supreme Court Justices would personally want to review an abortion case, they don’t want to grant cert (meaning, hear the appeal) unless they are pretty sure of winning. In a case like this, that means winning over Justice Kennedy. So it’s entirely possible that Alito, Roberts, Scalia, and Thomas all would have voted to reverse the lower court decision, but that they were too afraid that Kennedy would vote the other way, and so they didn’t want to review the case. And who knows, the liberal Justices might have been thinking the same thing.
The one thing that you absolutely cannot do here — not if you’re even minimally informed about how the Supreme Court works — is claim that this case proves that conservative Supreme Court Justices make no difference. Saying so is as uninformed as saying that Mahony is the Pope. It’s just not a defensible position in any way whatsoever.
Political decisions based upon fear of what might happen if you push for what is right. Yes. That really is the answer.
So all those who are too afraid that McCain will start World War III and it will be a nuclear war are justified in voting against him?
Henry, was that supposed to be an answer to anything that I said? It’s too cryptic to make much sense.
We can judge, however, by specific actions of the current Court…and so far, there seems to be little desire displayed to make an impact in terms of changing the legal status of abortion.
There was a widely-publicized partial birth abortion case, which — thanks to Alito’s replacement of O’Connor — was the Supreme Court’s first-ever opinion upholding a federal ban on an abortion procedure. Look up Gonzales v. Carhart. And check out commentary from pro-choicers, who aren’t as plagued by such unaccountable and indefensible skepticism as to whether Republican-appointed Justices made a difference.
Ah, I think I know what Henry might have been trying to say. Suffice it to say that nothing in Catholic doctrine requires judges to be idiotic Don Quixotes.
Precedence! Precedence!
And equally accurate headline would be “Supreme Court Refuses to Affirm Abortions for Inmates.”
Henry,
You compare abortion regulation to gun control. Suppose that the Supreme Court were to strike down most existing gun regulations as unconstitutional. Do you really think that there would be more regulation of guns in such a situation?
Blackadder
The point is that the differentiation between the states of such regulations allows for a greater black market for arms, a greater affirmation for their sales in one place in excess out of fear for what would happen in another if you don’t have them, etc. The problem is the lack of uniformity in the restrictions creates the means not only for their abuse, but a cause by which people will be afraid not to join in with breaking the spirit of the restrictions for themselves.
Is there any argument that the SC should have granted cert. here? I can’t see one, given the composition of the Court. Kennedy votes with the four liberal justices in abortion cases, unless there is strong public opinion preference to the contrary (e.g Carhart).
There would be no reason for conservative justices to grant cert. in this case even if they want to overturn Roe. They would certainly lose and this would be yet another pro-abortion precedent. It remains to be seen whether Roberts and Alito would in fact vote to overturn Roe if given the chance. That is a point of uncertainty.
Nevertheless, Henry’s claim that “vote for the President who will change the Supreme Court” is another political charade,” is either ignorant or disingenuous. The case doesn’t prove anything one way or the other, and I can’t imagine anybody with any knowledge of the Court’s recent jurisprudence would suggest otherwise.
Henry,
So are you saying that those supporting gun control should favor a decision striking down gun regulations?
I think they should favor a more universal application, however it will be worked out.
SIN OF OMISSION
Ron, as discussed above, there is nothing sinful about refusing to grant cert. (among thousands of cases) to a case in which there was zero prospect for a pro-life majority. There is no reason to give the liberal justices to establish another pro-abortion precedent.
Granting cert. in the case would have been foolish. There are not yet five votes to overturn or substantially gut Roe and its progeny, as others have pointed out,
The Court’s recent decision upholding the constitutionality of the federal PBA ban (referenced by Stuart Buck) is a solid first step in Roe’s eventual demise. Why in the world would the justices who favor overruling Roe wish to jeopardize the gains made with the Gonzales v. Carhart decision by granting cert. in a case where Justice Kennedy almost certainly would have sided with the Court’s proabortion, pro-Roe liberals?
In other words, Feddie, once again, “When our people do nothing it proves they are doing everything.” But that argument is never allowed when others say “It’s not the time we can override Roe V Wade with this politician, therefore, other considerations should also be put into play” when voting. Strange that, isn’t it? That’s exactly the argument being offered by many who support Obama — we can’t override Roe V Wade through political fiat; so first you must change the culture then it can be overruled. Why does it work for one but not the other? Politics. That’s all.
Of course it’s politics. When John Roberts says that he is hunky-dory with Roe, he is doing so out of political necessity. But when Obama says the same thing, he is the antichrist.
Henry,
A President, unlike a Supreme Court justice, can (at least potentially) alter the composition of the Supreme Court. So the analogy is inapt.
As I said before, Henry, nothing in Catholic doctrine requires judges to be morons who take on unnecessary battles that are 1) destined to lose and 2) would only create yet another pro-choice ruling. There’s nothing political or strange about that view; it’s just common sense. Moreover, it’s ignorant to say that this view amounts to, “when our people do nothing, it proves they are doing everything.” Rather, the correct view is, “when our people see a chance to limit Roe, they take it; when they see a case where the pro-life side is destined to lose, they hold their fire, not wishing to create another pro-choice Supreme Court opinion.”
When John Roberts says that he is hunky-dory with Roe, he is doing so out of political necessity. But when Obama says the same thing, he is the antichrist.
MM — You know full well the difference between those two situations. Stop being such a partisan hack.
I agree with Third: it is probably MORE accurate to say that the Supreme Court refused to affirm abortions for inmates. Because, given the current make-up of the Court, that’s exactly what hearing the case would have led to.
I wouldn’t have voted to hear the case either. And the reason I would have voted not to hear it is so that it wouldn’t create yet another pro-abortion precedent that would have been applicable nationwide. I guess that makes me “pro-abortion” or “insufficiently pro-life” according to those who want to make political hay out of a fairly routine decision by the Court not to hear a particular case (as Donald notes in his explanation of how certiorari works).
And Zach, Blackadder, et al are correct that this highlights the need to get MORE Justices on the Court who are amenable to overturning Roe. What it most definitely does NOT do is indicate that such efforts are irrelevant.
Yes, more justices on the court deciding not to hear abortion cases is the way to solve all problems. Inaction continues to be proof of action. We get it.
So if Obama says he doesn’t think the courts should be hearing such cases, it would also be proof he is pro-life. Except, of course, you would say otherwise. Yes. Of course.
Got to love having it that anything you do is proof you did something.
Henry, I guess you’d be happy with another 5-4 decision reaffirming once again abortion on demand as the law of the land. The fewer abortion cases the Court hears until a 5th vote to overturn Roe is on board, the better.
I tell you what, since you’re so big on us “amateurs” leaving theology to the “experts”, perhaps you should do the same when it comes to the workings of legal precedence.
Jay
I just love seeing people make it that anything they did is proof they did the right thing. There is nothing they can do wrong. Everything they do will be read as proof it was a pro-life decision. Even non-action.
Anyone without blinders would see the farce this is.
I mean, if they had decided to hear the case, you would all be proclaiming the fact and saying “see how pro-life they are, they are wanting to deal with abortion.” It’s a win-win situation. It’s also proof of a political hack who thinks in terms of party not policy. “It’s my people, so it must be good; therefore, I will read it as good.” But if others did the same thing and not from your chosen party, “I will read it as bad.” Nothing else but that. Again, the farce has been shown for what it is. All the so-called “pro-life” Republicans saying this is a pro-life action are showing their true colors. Republican first, life second. Of course, we knew that already….
What is it… “it profits a man nothing to trade his soul for the whole world… but for… [silence, because of non-action]“
BS. Getting Justices like Roberts and Alito is doing “something”. Electing the type of people committed to appointing such Justices is doing “something”.
Electing people who promise Planned Parenthood that they “will not yield” is moving in the wrong direction.
Anyone without blinders on can see the damned if we do, damned if we don’t farce of a box you’re trying to place people like me in. If the Court votes to hear the case and then reaffirms Roe, what will you say?
You know the Court isn’t ready to overturn Roe with its current makeup. But that doesn’t matter to you as long as you can use this to make a political point.
As for the second half of your comment, you don’t know what you’re talking about. You obviously don’t know how legal precedence works.
Jay
What was it that Roberts said? Oh that’s right, Roe is settled law….
“It profits a man nothing to trade his soul for the whole world… but for… [silence, because of non-action]”
Because Roe is settled law. So was Plessy v. Ferguson. So was Stanford v. Kentucky. So what? “Settled law” can be overturned when you have a majority in place that deems such a change in the law should take place. But, yeah, you’d have been real happy when Roberts’ nomination was killed in the Senate because he said otherwise about Roe.
By the way, here’s more proof that you don’t know what you’re talking about when you ascribe certain motives to people like me regarding how we would have reacted had the Court decided to hear the case. This is a post from 2 years ago. Most of us, unenlighted as we are, DO at least know how to count and know that 4 out of 9 ain’t a majority.
It’s not doing nothing when you try not to make the situation worse before you can make it better. And it’s not “silence because of non-action” when the action you are taking is to remove the impediment to righting the wrong.
But again, you’re not interested in understanding the workings of legal precedence or in the fact that what you’re advocating will only make matters worse. You’re just interested in making political hay. You’re just interested in “Gotcha” and “I told you so”.
So the “it’s settled law” statements really mean nothing. Got it. Settled law is used to justify laws when they are unjust, as long as it isn’t the laws we want removed. Even if the law goes against pro-life principles such as laws allowing the use of capital punishment. We got to accept them because they are settled laws. But other times, it just means — “who cares about the law” and settled doesn’t really mean settled. The same people who argue against the court making law by decision will support it after all. But they will use the “legal precedent” card to hide under when it suits them — ie, the decisions they want which go against morality.
“It profits a man nothing to trade his soul for the whole world… but for… [silence, because of non-action]”
Whatever, Henry. Just as you called Dave Hartline an “amateur” on theological matters the other day, you’ve proven yourself an “amateur” on this particular subject, and I have no interest in discussing this further with those who are, purposefully or not, being obtuse.
Jay
I wouldn’t even call myself an amateur in legal matters. But I would say you are looking at it within a limited perspective and that is the problem. You are looking at the question within the lines of political expediency, not truth. Nor morality. To me, it seems very Machiavellian.
Your own arguments could have also justified Richard Rich. I mean, he knew he couldn’t take on Cromwell, so it was best to follow the system and the law of England, too… St Thomas More’s rejection of the injustice didn’t do any good, did it? Of course…
“It profits a man nothing to trade his soul for the whole world… but for… [silence, because of non-action]”
You need to brush up on your St. Thomas More and his views on working within the law. Because you’ve got your analogy exactly backasswards.
I’ve got some books you can borrow if you’d like.
And THAT is my final word in this discussion.
Jay
That didn’t answer the point. St Thomas More made it clear that there is a point when claims of law do not match the higher calling and truth. He was asked to “give in” and follow the “rule of law.” He didn’t.
He was willing to give much leeway with the law, but in the end, he didn’t say, “Well, I can’t convince them to disagree with Henry, so it is time to go with the flow. I will change things later.”
“It profits a man nothing to trade his soul for the whole world… but for… [silence, because of non-action]”
St Thomas More, Socrates — fools, because they put principle ahead of political calculations. Of course, both worked to a limited degree within the law. No one has said otherwise. But both point out that there is an end to the legal argument, when it becomes invalid, and one must act — even if people say you are a fool for doing what is right.
“It profits a man nothing to trade his soul for the whole world… but for… [silence, because of non-action]”
Yes, more justices on the court deciding not to hear abortion cases is the way to solve all problems. Inaction continues to be proof of action.
Again, Catholic teaching doesn’t require you to be a moron who thinks that 4 anti-Roe Justices on the Supreme Court should be ridiculed for not reversing Roe. You know how to count at least up to 9, right? 4 out of 9 is not a majority. But guess what: 5 out of 9 is a majority. So if the next President had the chance to replace Stevens with a conservative Justice, that would make 5 anti-Roe votes. Then there would be no need for the rest of the conservative Justices (Alito, Roberts, Scalia, Thomas) to hold back for fear that Kennedy would be feeling like a liberal that year.
Perhaps I should have made this a bit more clear, just for the sake of people who know absolutely nothing about the law: 1) The Supreme Court has 9 Justices, not 7. 2) The Supreme Court decides cases by majority votes. 3) As a result, the Supreme Court takes action only when 5 Justices vote for a particular outcome.
What was it that Roberts said? Oh that’s right, Roe is settled law
Only partisan hacks would ignore the context and the literal meaning of Roberts’ words:
* The context: Roberts was speaking to a roomful of Democrats who were looking for any rope with which to hang him. He had to be careful.
*The literal meaning: Roberts did NOT say that he would never vote to reverse Roe; he only said that it was “settled law” at that time, which it was and still is (until a 5th vote to reverse Roe is appointed). That was the literal truth.
Since when is a Catholic judge to be faulted — by people who pat themselves on the back for being pro-lifer, no less — for saying something that was literally true, careful, and circumspect? Catholic doctrine, again, doesn’t require anyone to be a damn fool who shoots off his mouth for no reason and thereby ruins his chances to ever BE in a position to do something about Roe.
Sorry for the insulting language, but there’s really no intellectually honest reason that anyone who allegedly opposes abortion would criticize Roberts (as Henry and MM repeatedly do), especially after Roberts’ statements have been explained on this very blog so many times.
I agree with Jay – you don’t know what you’re talking about Henry. You accuse Darwin of trapped in dualism, but you seem incapable of understanding simple facts about the judicial process, no matter how clearly they are explained to you.
The decision not to grant cert. here is undoubtedly the right decision from an anti-abortion perspective. Conservatives don’t have the votes. End of story. There is no benefit to be derived from creating another SCOTUS pro-abortion precedent.
So heavenly minded he’s no earthly good.
Obviously, a justice who doesn’t acknowledge that an existing law is an existing law would be an idiot. Not to mention that a justice’s personal opinions should NOT matter in judging the merits of a case. A justice who says “well, my Jewish/Christian/Hindu/etc. faith teaches xyz so that’s how I’ll decide” is clearly in the wrong profession. If all people decided cases based on their religious beliefs, things would be Byzantine. Morals come into play when laws are made. A judge or justice is supposed to be neutral. I don’t think you quite understand the task of the judiciary, Henry. Again, personal believes must not matter. Of course, liberals have been muddying it up for decades, so that’s understandable.
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Tell you what, Henry — and MM too, for that matter — I’ll donate $100 to the charity of your choice if you can find a legitimate pro-choice website anywhere on the Internet where any pro-choice person is so dense as to say, “Well, John Roberts said that Roe is settled law, so I guess there’s nothing to worry about, since that means he won’t overturn Roe.”
I don’t think anyone is having any difficulty understanding there are reasons behind not granting cert other than pure malice. A side argument being offered is that legislators are under the contraint of electability and they should not be dismissed as wanting to promote abortion a priori. I think it is relatively weak argument. The charge of ignorance over the political challenges of the courts is ironic though.
M.Z.
I just find it interesting how some people claim prominent pro-life Catholics who have decided, for various reasons, that Obama is the best choice out of the top candidates, that they have sold their soul for Obama… even though the reasoning behind supporting Obama sounds quite familiar to things their critics now provide for others.
In other words, it is not legislators, but voters as well… that are not being given the same charitable reading.
It’s also about the overall sophistry which I find amusing. The same ones who will defend decisions which have grave consequences because it “follows the norms of established law” will be the first ones to admit they want to change the law on abortion via activist judges. Once they admit they want to do that, they admit the “it’s the law” is a sham argument. And that’s why I am not arguing on what is or is not law, but on their own declared purposes and how it shows they are trying to divert us to a side issue (jurisprudence) which isn’t really the point anymore.
Henry — nothing in your last post is true or makes any sense.
1) If someone is against abortion, his reasoning for supporting Roberts/Alito/Thomas/Scalia is that they are obviously doing all they can for the pro-life cause; they’ve already voted for the first-ever Supreme Court decision upholding a federal abortion ban (a decision that you and MM conveniently ignore).
If someone who is against abortion supports Obama, it can only be for OTHER reasons that outweigh Obama’s wholehearted devotion to the protection of abortion.
Therefore, it makes no sense to say that the “reasoning behind supporting Obama sounds quite familiar to things their critics now provide for others.”
2) You say: It’s also about the overall sophistry which I find amusing. The same ones who will defend decisions which have grave consequences because it “follows the norms of established law” will be the first ones to admit they want to change the law on abortion via activist judges.
In truth, the principle in both cases is the same. In the recent Texas death penalty case, it’s a good thing to have judges who don’t bend or ignore all other principles of law just because they see a rapist/murderer that they want to protect. So too, in abortion cases, it would be a good thing to have judges who don’t bend the Constitution (as was done in Roe) just because they see an abortionist that they want to protect.
M.Z.,
You raise some fair points regarding political constraints on legislators vs. political constraints on the Court. But my point is less about “ignorance” over the political constraints on the Court than it is that hearing the case – when it is sure to be decided the wrong way – will only further entrench Roe as the law of the land. In that sense, it was better for the Court not to hear the case.
Overturning precedence is a lot about having the right case reach the Court under the right circumstances. You may have heard the axiom that “Hard/bad cases make bad law” – I am arguing that prudence dictates that you want to present a case for overturning Roe under the best possible circumstances for doing so. Those circumstances don’t currently exist.
I don’t want to get into a debate over the 2nd amendment, but, as an example of what I’m talking about, gun rights advocates, after years of reluctance of taking their case to the Supreme Court, finally found the right case to present to the Court, and are somewhat likely to have their views vindicated by having done so. I’m arguing that such conditions need to exist before we revisit Roe with the Court.
(NOTE: the PBA ban was an example of finding the right kind of case to present to the Court, given (1) the heinousness of the procedure and (2) that we knew how Kennedy would rule based on his dissent in the first PBA case. Planned Parenthood v. Casey was also an example of the right case to present to the Court, and would have led to the overturning of Roe had Kennedy not switched his vote at the last minute. Admittedly, the Casey case also highlights the fact that getting an anti-Roe majority is not a sure thing, and I will happily abandon the Supreme Court strategy and supporting GOP candidates if replacing one of the current pro-Roe Justices with a GOP appointment to the Court doesn’t in fact tip the balance. I’m rather sick of this fight myself.)
I understand that some might see this as “inaction” or as “excuse making”. But I assure you that there is more to my argument than that.
I understand the desire for success and not wanting to tilt at windmills. I (and I think Henry concedes this) believe one could reasonably anticipate that a high court ruling on the merits of the case would have resulted in an adverse ruling. There are however three options: accept the case and hope for the best; decline the case and prevent other harm as in more precedent; or accept the case and have a white martyrdom. The third isn’t really discussed all that much outside of voting. What is interesting is that JPII focuses as much on martyrdom in Veritas Splendor as he does on many other topics. In his writing, he speculates that we will be increasingly called to this white martyrdom. I’m personally not willing yet to adopt this more rigorous position, because the bishops here aren’t articulating it as strongly.
As to my personal view of the judicial strategy, I don’t consider it central to an anti-abortion strategy because I don’t think there are prospects for success. There is a growing minority in conservative legal opinion that views reversing Roe v. Wade to be undesirable despite it being poor case law. Even the PBA decision basically reinforced the abortion case law. Don’t get me wrong. I respect the desires of those advocating the strategy of ‘strict constructionist’ judges; I just don’t think the strategy will pay dividends. Since these things are decided in a vacuum, I know the strategy of the other side isn’t rainbows and lolipops for the unborn.
are not decided in a vacuum that is.
I don’t want strict-constructionist justices/judges, and I don’t know anyone who knows anything about constitutional law who does either.
I want originalist/textualist justices/judges.
Sola scriptura all over again….. no real sense of tradition. And people wonder why MM mentions Calvinism in connection with US politics.
Once again, a comment that makes no sense.
Do you think that President Bush should be treated as infallible? No? Well, then, if you don’t treat the American President as the equivalent of the Pope, you must be a Calvinist.
Just kidding of course. What I just said was absurd. And so is your comment, for exactly the same reason. America is not the Catholic Church, and it’s not governed in the same way.
Textualism in interpreting a Constitution has absolutely nothing to do with Calvinism. It’s just the normal way of interpreting a document. Thus, if you write a paper, and I quote it later to mean something that you never wrote and never intended, I’ve done something wrong; my job in interpreting your words is to try to reach your true meaning. That’s the same mode of interpretation that people normally use (or try to use) when interpreting a contract, a book, an article, a speech, etc., etc., etc.
To be sure, Catholics have come up with a special context where a sacred text is amplified over the ages by the magisterium/tradition that is supposed to be following God’s leading. But that sort of authoritative re-interpretation doesn’t really have an analogue in other contexts. Nothing about Catholicism requires you to think that the Supreme Court is its own magisterium with the power to remake American society, any more than you have to think that President Bush is infallible.
The comments to this post should remind us all why we need to be elitist when it comes to appointing supreme-court justices. The stakes are simply too high to trust the Constitution to peope who have no real grasp of constitutional law.
I presume you’ll be endorsing Obama, a Havard educated constitutional scholar, over McCain.
If anything, these debates should remind us of how incestuous the academy has become.
Obama is not running for Supreme Court justice, and those advising him on such matters (as well as his public statements) hardly give one confidence that he will do anything but appoint justices who will blatantly distort the Constitution’s original/plain meaning.
Sounds like sola scriptura to me…
That’s because you’re conflating theology with law.
MM — as I pointed out above, saying that a particular view of the Supreme Court is “Calvinist” is just as stupid as saying that it’s “Calvinist” to deny the infallibility of George Bush. Bush is not the Pope, and the Supreme Court is not the magisterium. They are different things. Don’t get them confused.
I take it that folks who oppose the “imperial presidency” are conciliarists who are opposed to the Pope? This is a fun game. If you don’t favor campaign finance reform you’re a simoniac. You favor temporal regulation and punishment? You can take your indulgences and your works-based salvation and shove it.
Good ones, Adam. I can’t believe that MM and Henry are saying all of this in good faith. Especially given what they’ve said elsewhere about not idolizing America, they can’t really think that various branches of the American government deserve such theological deference.
Feddie
So you admit you find a sola scriptura hermeneutic is valid when dealing with non-sacred texts? Stuart, of course, finds no problem either — and thinks it is the normative method for reading texts.
The problem which comes here is that sola scriptura reading is poor hermeneutics, and the problems you have with sola scriptura reading of the sacred is not diminished when you put it into the secular sphere. In fact, to suggest it is the best, normative way to read a text is to call into question Catholic hermeneutic principles.
Sola scriptura assumes, for example, that without tradition, you can get the true “authentic” meaning of the text. But really, without tradition to guide, you only have a subjective reading of the text, influenced by one’s hermeneutic ability which is molded by their philosophical viewpoints. The quest for “historical meaning of the Constitution” is as valid as the quest for the historical Jesus. People convince themselves that their reading is the objective and authentic one, but don’t appreciate how their own hermeneutical lens, influenced by the exterior culture they are involved with (a culture of death, btw) creates a subjective reading of the source. Our frame of mind cannot even think exactly the same as 18th century thinkers, and will always reflect with 21st century viewpoints, no matter how much one tries to close new viewpoints out of their reading.
But even if you could get an “authentic” reading, and think we should therefore follow it, that is a bad idea. It assumes a document created several centuries ago, with a foundation that allowed for great evils (slavery) should continue to dictate how society exists today. And that we must read it within the context of the original thinkers (the context of slavery, of course) and to follow their dictates even if, morally, what was desired and suggested is undesirable. Your unwillingness to see the need for tradition and development and understand how, through centuries, development is important for a document to be living in any sense of the word, indicates how the cultural Protestant sensibility continues to influence your own reading of society as a whole.
***
Nonetheless, I think this is all a bit of a game. I suspect most people know there is no true “authentic” reading. The Supreme Court was put into play to be a reader of the tradition and to be a living source for interpretation. As de Maistre pointed out before, once you put legal issues down on paper, you create difficulties and problems and diverging interpretations automatically form. The Supreme Court is the closest way we have for an authentic interpretation, but that, of course, means the text is read within its own tradition and developed nuanced understanding based upon problems the framers couldn’t even contemplate.
What is going on, imho, is a pretense to justify one’s own political allies as being the only “real candidates” for positions on the court. Of course, this really is a legal relativism which is constituted by the power of votes. “We just need to get enough people who think like me in, and we will get the TRUE meaning (c) out and it will prevent abortion, etc.” Yeah. Right.
The thing which scares me the most is that you might actually believe this and be deluded.
“I can’t beliegve that MM and Henry are saying all of this in good faith.”
I can. Look, they show obvious signs of being, ah, emotionally committed to their arguments. And I happen to know that you and I and Blackadder and Feddie all have elite legal training, and I think we underestimate the degree to which this shapes our approach at our peril. It makes perfect sense to us to say that refusal to carry out an act, which has effect X, is different from carrying out an act which has effect X, is different from effecting X. And that it makes a big difference if X is inevitable anyway. Now maybe you would say that you’re not using legal principles, you’re using moral principles. But casuistry really is a kind of legal art too.
Also, we are all conservative and have had a lot of exposure to economic thinking. Economic thinking is also non-obvious, but its partly what we’re doing here. We’re arguing that Scalia et al. are doing a cost-benefit analysis that has the incidental effect of killing a few babies in Arizona on the margin. You can see how that would get someone hot who wasn’t used to making distinctions and breaking things of this nature down.
Adam
Careful. Be very careful. This idea that MM and I are incapable of breaking things down into distinctions is ludicrous to the extreme. You confuse how YOU break them down as “the only way.” Moreover, you are reading within a very limited viewpoint, ignoring the overarching questions which are being asked. That makes it clear who truly is ignoring the distinctions being addressed.
But I will say — the sophistry I keep seeing from “the lawyers” continues to make me laugh.
It assumes a document created several centuries ago, with a foundation that allowed for great evils (slavery) should continue to dictate how society exists today. And that we must read it within the context of the original thinkers (the context of slavery, of course) and to follow their dictates even if, morally, what was desired and suggested is undesirable.
Henry, there was a Civil War about the slavery issue some years ago, and that was followed by post-War amendments to the Constitution. That issue ain’t coming back.
More importantly, you’ve succinctly articulated the argument for why we shouldn’t have a Constitution at all, not the argument for why the Supreme Court should be allowed to make up new rights under the guise of interpreting the Constitution that we do have.
Which, by the way, is odd. You’re already dissed Catholic judges who don’t read the Constitution to protect abortion; and now you’re dissing the method of constitutional interpretation that would have kept the Supreme Court from protecting abortion. Why exactly are you repeating so many pro-choice talking points here?
“The Supreme Court was put into play,” etc.
By whom was the Supreme Court put into play? By the folks back in the 18th Century. But by your own argument, you aren’t really capable of knowing what the folks back in the 18th Century thought about things like that. You assume that they had your modern and Catholicky view on hermeneutics and the subjectivity of text but its not at all clear to me that they did. If we’re going to go with your easy equation of theology and law, then we have to acknowledge that America in the 18th Cen. AD was a protestant nation.
Stuart Buck
The slavery issue nonetheless is tied to the reasoning and context of the original document and the framers and what they thought. If you want to follow the “context” of the “original”, then reading other texts, one must know the context DOES include such sins. Even if slavery is later removed — that doesn’t undermine the fact the CONTEXT of the ORIGINAL includes it and must be a part of the hermeneutic if you want to be following the text in the “original frame of mind.” Of course you don’t. But that just proves why you can’t even use “context”; you can’t just ignore the fact that a cultural system is integrated and if you take one aspect and remove it, the impact of that removal would have ramifications the original thinkers didn’t have.
HK, I don’t think you are incapable. I’ve read your theological stuff and I know you are not only capable of a deep and complex understanding in at least that area, but that you actually do possess that deep and complex understanding. But nothing in your background, interests, or in this thread persuades me that you possess a fine-grained understanding of law and constitutionalism. I assume that you are capable of such, given time and study.
Please do not assume that I am making an appeal to authority. My comment was addressed to Mr. Buck, and was to explain why he shouldn’t assume you were being dishonest, the way you assume we are being in your 4:47 PM comment.
Adam
That just proves your sophistry. I didn’t say they had a modern Catholic hermeneutic. I pointed out that this sense of “original” and “textual” reading is odd, and indeed, it is a modern view which didn’t even accord with the time the people are wanting to get back to followed. But it did develop later, in the same way that fundamentalism developed.
What does the slavery issue have to do with whether Scalia and the others must be betraying the pro-life cause when they vote not to hear an Arizona abortion case? I’m having a hard time following the logic.
A: Scalia and the others are betraying the pro-life cause because they voted not to hear an Arizona abortion case.
B: Only because of your implicit assumption that America’s past is stained with the sin of slavery.
A: Damn straight!
All of what you say, Henry, is too vague and abstract to be meaningful, especially when you’ve shown many times that you know so little about the law.
Be specific: In what way does the original Constitution’s limited protection for the international slave trade have anything to do with whether the Supreme Court should, in 1973, have expansively interpreted the Constitution to protect abortion? That’s the key issue here: textualists say that if you look at the Constitution’s original text and meaning, it doesn’t protect abortion, and that should have been what the Supreme Court held. You’re sneering at that position as “Calvinist” and making hand-waving assertions about the “hermeneutic context,” but why exactly are you effectively defending the legitimacy of what the Supreme Court did in Roe?
This idea that MM and I are incapable of breaking things down into distinctions is ludicrous to the extreme.
Not so, given that you both have already shown an inability to tell the difference between Catholic theology and American law.
HK,
fundamentally you are arguing that the Constitution is illegitimate. If so, shouldn’t that give the Supreme Court less authority, not more? The Supreme Court is a creature of the Constitution.
” And I happen to know that you and I and Blackadder and Feddie all have elite legal training, and I think we underestimate the degree to which this shapes our approach at our peril. It makes perfect sense to us to say that refusal to carry out an act, which has effect X, is different from carrying out an act which has effect X, is different from effecting X.”
You were suggesting something with that — trust me, I am capable of reading how you think you have superior logical abilities to make distinctions because of your legal training. You have yet to think outside of the box, and you have failed to appreciate the distinctions and questions being put into the text. They are questioning the fundamental principles you have been trained into; of course, that means you have to get beyond your training — can YOU do it? That is, however, something I am quite well trained in — if we want to discuss “training.” Looking at principles and foundations and the problems inherent in various systems. Can you figure out that the whole point is a criticism of the self-contradictory claims of “conservatives.”
And I have studied in depth the philosophical problems of constitutionism — something, I fear, lawyers are rarely trained in. It’s a deeper question than knowing rules and regulations. It’s asking the deeper questions which enters into the realm of philosophy. It’s clear you haven’t even begun to ask the questions; you only accept various practices as premises.
Adam
If you can’t figure out what slavery has to do with the problems of an originalist/textualist position, then you are beyond my help.
Can you figure out that the whole point is a criticism of the self-contradictory claims of “conservatives.”
You have yet to identify any actual self-contradiction. Just strawmen of your own creation, abstract hand-waving, and fairly elementary misunderstandings of how the Supreme Court works.
Stuart
This is a culture, as I have said, which promoted slavery and defended it with the Constitution. The problem is, the culture which created the Constitution, created a document with some goods, but it doesn’t take a genius to know that it doesn’t give rights to those not born — especially when it didn’t give human rights to those who were born, either.
Now, just because one recognizes a flaw in the Constitution itself is just being honest. And it is why the Constitution as a document is dated and problematic if you are going to rely upon it for 21st century issues.
Now I’m a sophist in addition to being a liar. Movin’ on up!
Look, you don’t understand what I’m saying. You claim that the Supreme Court was put into the Constitution to act as a living oracle of its evolving meaning because of the difficulty of authentic access to the original meaning. That is a claim about an actor (the person or persons who did the putting) and specifically its a claim about their *intention* (their reason for putting the Supreme Court into the Constitution) and *their* understanding of hermeneutics. Since the only people who put anything into the Constitution about the Supreme Court were the 18th century crowd, you are effectively making a claim about your ability to access their worldview and put it into today’s terms. But you have claimed that this cannot be done. Perhaps you misspoke.
And it is why the Constitution as a document is dated and problematic if you are going to rely upon it for 21st century issues.
Then get rid of the Constitution, and adopt a new one. But what you’ve said is NOT an argument for giving the Supreme Court the power to create a right to abortion, which is exactly what your proposed constitutional methodology was used to do in 1973. You do understand that that’s the sort of thing at stake here, right?
If you can’t figure out what slavery has to do . . . then you are beyond my help.
No doubt I am. You claim that originalism is contradicted by slavery. Lets lay it out so you can see why I am so hopeless.
Premise A: The meaning of the language in the Constitution is the public meaning at the time the language was adopted (Originalism).
Premise B: At the time the Constitution was adopted, its language would have been understood to allow slavery and protect (for a period) the slave trade.
Your claim is that A contradicts B. Are you right? Clearly not, unless you adopt an additional premise, Premise C: The Constitution does not and cannot have meant anything that was morally objectionable. But Premise C is incorrect.
There’s an additional implicit premise, Premise D: allowing slavery and protecting (for a period) the slave trade is morally objectionable.
My argument assumes Premise D.
HK, how is it you are so confident you know what I meant? Trust me, I am not asking you to accept what I say merely because I say it. I am making arguments. It sounds to me like you are making an appeal to your authority based on superior training and thinking skills. Trust me, you’ll get farther just making arguments too.
Adam-
FYI: I just added T&S to my blogroll.
Have fun debating with Henry. :)
Feddie,
I like Henry K. I am having fun.
I’m sure you’re already aware of this, but T&S is a Mormon site and most of my cobloggers are dippy liberals. So, uh, full disclosure.
Well, not a majority. A minority. And another minority of rinoid squishes.
I know this is coming in late but Zach, if you want to be a fundamentalist with the constitution why not go the whole hog and be a fundamentalist with religion too?
I don’t want strict-constructionist justices/judges, and I don’t know anyone who knows anything about constitutional law who does either.
I want originalist/textualist justices/judges.
…
I just could not pass this by. why bother with a constitution at all if what you really want is a 21st century reading of an 18th century document that makes the 18th century document lay down the law on abortion and a host of other issues from the 21st century?
Just declare yourself a fundamentalist and get it over with!
Adam
Thinking that we need something new and not just rely upon the Constitution does not deny that, for the time being, the Constitution is what we have. And with that, we must be honest and look to methodological concerns, and point out that “originalist” and “textualist” ideologies are modern, protestant fundamentalist categories being put into use in a new context. It is indeed a self-defeating proposition because of this. But yet, if one brackets off the fact that it is modern and used its methodology seriously, the point I make out is that you must take into account a society which allowed people to be property and therefore you can’t say the Constitution is against making people property, which is why you can’t use the Constitution itself and its “original context” to support an anti-abortion position.
Henry –
why you can’t use the Constitution itself and its “original context” to support an anti-abortion position.
This is just bafflingly obtuse. (That’s why I occasionally criticize your writing — incoherent writing is a sign of incoherent thinking.) The point is that if a judge properly interprets the original meaning and text of the Constitution, he won’t come up with a decision like Roe — inventing a new right to abortion. The fact that the original Constitution allowed slavery has absolutely nothing to do with this point. It’s not as if an originalist judge would ever look at the Constitution and say, “Well, this document originally protected the slave trade until 1808; therefore, when I interpret the 14th Amendment adopted in 1868, I have to find that ‘due process’ means ‘abortion.’”
If one looks at the original text and context, the original text and context allows people to be considered property, and property to be treated as their owners would like. In this regard, anti-abortion legislation does go against the original context; of course, changing things from a later context will have an effect on the whole, and thus is no longer the original context; this just shows the big problem being ignored: claiming to be originalist is a slogan, not a reality. Everyone modifies and reinterprets the text using modern, not “original” contexts.
And it is nice that you let us know what you think of St Mark (and Plotinus, famous for incoherent writing). Incoherent thinkers they must have been… Obviously, ad hominems are a dime a dozen, and demonstrate fallacious ways of thinking. And that is exactly what you have just done.
Maybe your argument springs from yet another elementary misunderstanding. Nothing about Roe — either for or against — was based on the original Constitution, i.e., the main body of the Constitution in which the slave trade was protected until 1808. Nothing. Roe was about the 14th Amendment, which was adopted in 1868 after the Civil War. And guess what: You simply cannot tar the post-Civil War Amendments by claiming that they protected slavery. They did precisely the opposite.
So the argument in Roe was that because the 14th Amendment prohibited states from inhibiting life/liberty without due process of law, that meant “no abortion bans.”
Faced with that argument, an originalist judge would say, “Nope. That’s not what the text means. That’s not what anyone who ratified the 14th Amendment in 1868 thought they were ratifying.”
But it’s precisely the kind of judge that you’re praising — one who adopts a more “nuanced understanding” for modern times — who says, “Well, who cares what anyone thought in 1868; I think abortion is really a kind of ‘liberty,’ and it’s really not fair for the state to interfere with that ‘liberty,’ and therefore I’m going to vote for a new abortion right.”
If one looks at the original text and context, the original text and context allows people to be considered property, and property to be treated as their owners would like.
Again, you have no idea what you’re talking about. Roe was about the 14th Amendment, which most certainly did not treat people as property; quite the opposite.
We are talking about the Constitution… not just one Ammendment. We are talking about the program of reading the Constitution. We are talking about first principles. This, of course, is beyond you.
I will end it here, Stuart. If you think that means “you win” then have your victory. You continue to show yourself unreasonable and continue to demonstrate inability to rational discourse. You are not dealing with what is actually said, and think you proved something. We are talking about the Constitution (as a whole) and what you get out of it from an “originalist” perspective. A perspective which is pure nonsense as any good course in hermeneutics would teach you.
“You can’t use the Constitution itself . . . to support an anti-abortion position.”
So? Look, the vast majority of us originalists don’t claim that the Constitution forbids abortion. We claim that the Constitution doesn’t create a *right* to abortion. Those are wildly different propositions.
And those originalists who do claim that the Constitution forbids abortion rely on the Reconstruction amendments, which were all about rejecting the view that people can be property.
I’m not even sure what your point is here: Scalia, et al., were wrong not to hear an Arizona prison abortion case because before it was amended the Constitution allowed slavery? The hermeneutical nuance that can explain that is one hell of a nuance.
Yay, we win!
:)
Once again, you have no idea what you’re talking about. One of the most elementary facts about American constitutional law is that the Constitution was radically changed by the post Civil War amendments. You can’t ignore those amendments and pretend that originalism means looking only at the 1789 version of the Constitution. Nor can you pretend that Roe was about anything other than the 14th Amendment.
We are talking about the Constitution (as a whole) and what you get out of it from an “originalist” perspective.
And once again, from an originalist perspective, Roe would never have happened. Whereas the constitutional methodology that you praise DID cause Roe. Are you a pro-choicer? If not, why are you praising the one thing that caused Roe?
sbuck, What’s the “original context” and how on earth do you know that your take on abortion is included in it if the constitution and the bill of rights does not explicitly contain your take on abortion?
Seems to me that what you are doing is you are cheering for the “originalist / textualist” approach on the one hand – which would presumably leave the field of abortion entirely outside of the constitutional purview thus allowing any law of any kind on abortion to be either supported or struck down at the whim of the supreme court (and exactly how would that help you with your anti-abortion stance?) – or you are cheering for a 21st century theistic context to be applied to the constitution in which case Henry’s point is entirely valid; specifically you are a fundamentalist who anachronistically applies your own context like a cold metal stamp to the constitution to make it conform to your anti-abortion stance.
You can’t yearn for the good old says of the founding fathers on the one hand and also yearn for a hypermodern literalism on the other and remain a person with a coherent and consistent argument against abortion based entirely on the ‘right application of the constitution’.
I’m increasingly of the view that the pool of Supreme Court justices should be from Senators and other politicians. Go ahead and put Moynihan and Hatch on the court. The law was made for man, not man for the law. Maybe we could get away from pretending that Roe v. Wade was decided because certain members of the court couldn’t read, and it will of course be reversed be men who can read. You have to love appeals to perspicuity and elitism in the same arguements.
There is no place for abortion in the Constitution – that’s the only issue at hand. A justice doesn’t even have to be pro-life to see that. You shouldn’t argue with Henry, he thinks if a justice rules on something with a result that’s ‘not Catholic’ it makes him a bad judge and a minion of the Culture of Death (TM). He doesn’t see/agree that judges are supposed to be neutral. If a ruling has nothing to do with abortion or the death penalty per se, according to Henry the judge would still have to bring in the morality question. It’s a double error – a) it’s not about abortion/death penalty and b) the private views of justices should be irrelevant anyway. I don’t know what Henry wants – apparently he is fond of monarchy – but it’s quite clear he doesn’t accept the premises of our legal system. That’s his deal, it’s just absurd to tar justices for doing what they are supposed to do.
Moynihan died 5 years ago, that’d be rather grizzly.
Gerald Augustinus, Isn’t the issue “how does one interpret the constitution” because surely one must interpret it.
From what I have seen Henry is arguing that a living interpretive body – the Supreme Court in this case – is absolutely necessary to any human enterprise that interprets a founding/foundational document. This means that in order to read the constitution with understanding one must read it in a living tradition of interpretation – case law and legal precedent as interpreted by the Supreme Court.
This is a parallel case with the Church’s role in reading scripture. The Church has Sacred Tradition in the place of case law and legal precedent and the Church has the Magisterium in the place of the Supreme Court. This is how Catholics read and understand sacred scripture. We read it in the living context of a living body – in our case the living body is the Church itself. One can never read scripture truthfully by merely seeking to dive into the past and drag back an ‘original context’ from which one could accurately read and apply scripture to 21st century issues; an approach like that is what our separated brethren have been pursuing since 1517 and they have not succeeded yet. So I ask why would we want to approach the constitution of the USA using a principle that is essentially a legal/constitutional version of sola scriptura when we know that sola scriptura cannot serve us well.
Moynihan died 5 years ago…
I suppose that would preclude speculation over him influencing the court for a generation.
He doesn’t see/agree that judges are supposed to be neutral.
Many would argue that politicians are supposed to represent the people who elected them. I personally prefer my judges to be prejudiced toward justice. If neutrality furthers that then neutrality is good. If it is used an excuse to do evil, then it is really all that valuable.
You continue to show yourself unreasonable and continue to demonstrate inability to rational discourse. You are not dealing with what is actually said, and think you proved something. We are talking about the Constitution (as a whole) and what you get out of it from an “originalist” perspective.
Rational discourse when it’s so hard to figure out what the heck you’re even trying to say. As best as I can tell, you’ve said this:
“Originalism as an interpretive method is wrong; the original Constitution protected slavery [never mind that this was radically reversed by the Civil War amendments, I don't care about that and can't explain what effect it had], and therefore you can’t get the Constitution to ban aborton [which no one was arguing for anyway], and anti-abortion legislation somehow goes against the “context” of the Constitution [whatever the heck that's supposed to mean], and I support the Supreme Court as a living interpreter [which is the very thing that led to Roe, but I don't seem to be aware of that], and by the way I have nothing but contempt for the conservatives who have explained why Roe is wrong, and I think they are guilty of sophistry [for what reason, I will never explain].”
The’living, breathing’ Constitutions and its ‘penumbras’ and ‘emanations’ is what got us into the mess in the first place. Justices believing the Constitution to mean whatever they see fit. Justices as legislators. Not to mention the internationalist crap of Dr. Ruth that drags foreign and international laws into the fray. That kind of approach really amounts to pulling stuff out of one’s digestive tract.
Well Gerald Augustinus, if you are convinced that a return to the text of the constitution within its ‘original context’ in a quest to find its ‘original meaning’ will solve the USA’s problems then why not follow that through with your religion too and seek to establish your religion from the text of scripture within its original context so that you can find its original meaning and all will be well with you and God forever more. You could just say “I am fundamentalist” and all will be blessed.
Mind you, if that is where constitutionalism will take you then you are welcome to it. As for me, I shall be content with Sacred Tradition and the Magisterium interpreting Sacred Scripture for my religion and for my civics I will be content with a Court making decisions based on precedent and on contextualised reading that doesn’t merely seek to return to the “original intent in its original context” because in that way lies nothing but arbitrary individualistic outcomes.
Consider this: the USA constitution was written some time in the last quarter of the 18th century by men who had views shaped by the common opinions of their day. Many were slave owners and they saw no constitutional reason to liberate their slaves. In their context slaves were merely property with which they could do as they pleased. They could kill a slave, injure him or her, maybe even rape him or her and so on. Do you really want to return to that “original context” to find the “original meaning” so that you can apply it to 21st century issues such as abortion or free speech etc? If you do then why not join the “Christian Reconstructionists” and try the same thing with the Scriptures; after all, the scriptures are a more foundational document than the constitution could ever hope to be. …
Phil —
I think what’s tripping you up (not to mention Henry and MM) is that you seem to be completely unfamiliar with any of the scholarly debates about American constitutional law. You also have a stereotyped and misguided understanding of what textualism and originalism mean.
No one is denying that the Supreme Court does interpret and apply the Constitution to modern circumstances — in a limited sense. Thus, to take a fairly recent example, the Fourth Amendment bans unreasonable searches and seizures by the government, but it was an open question whether this constitutional provision allowed the local police to go around with heat sensors that could somehow tell if you were growing marijuana on your property. The Supreme Court had to interpret that constitutional provision and try to determine whether those heat sensors were the sort of thing that the Founders’ language should be read to ban.
Scalia wrote the opinion in that case, and he held that the Fourth Amendment DID ban the use of such sensors. Note that Scalia is nothing other than the most famous proponent of textualism. So that should dispel these strawmen arguments that textualism just means going back to the 18th century and refusing to consider anything about modern circumstances.
To the contrary, what textualism means is that while a Supreme Court Justice should apply the text and its principles to modern circumstances, it’s illegitimate to make up a new principle just because he likes it better. The perfect example is abortion. Faced with the argument (in Roe) that “due process of law” means “no abortion laws,” the textualist will say, “That just not what the phrase due process of law means, not now and not then.” The originalist will add, “The exact same people who ratified that 14th Amendment text back in 1868 also passed innumerable laws banning or restricting abortion, and that proves that they would never have read the 14th Amendment to make their own abortion laws illegal.”
The sorts of arguments that you and Henry are making (I assume unwittingly) are PRECISELY the arguments used to justify Roe. Whenever a textualist says, “The 14th Amendment shouldn’t be interpreted to protect abortion, because that’s not what its text or original meaning do,” liberal constitutional scholars and thinkers make precisely your argument: “Oh, my goodness, how retrograde to be limited by a 19th-century understanding of what liberties the Constitution protects.”
Trying to make the Supreme Court a divine magisterium is not only wicked, its incredibly dumb. Here’s just one of the numerous ways the analogy breaks down:
The ‘sola scriptura’ people claim that the Bible is a complete guide to faith and morals. In contrast, no one is claiming that the Constitution says everything that needs to be said about politics, and in fact the principle aim of the Constitution itself is to set up a “political magisterium” to pronounce on political questions. We call it Congress and the President. Most of the substantive portions of the Constitution are amendments that were added as afterthoughts.
Here’s another huge difference: a big part of the controversy between protestants and catholics is about *who* interpretes the Bible, not how. No one seriously argues that when the Pope addresses some moral or ethical question he shouldn’t try to understand biblical text in its original context and meaning, nor that he should over-ride the text if its inconsistent with contemporary beliefs. But this is what the living Constitution folks claim.
Another dis-analogy: The Constitution derives its legitimacy from democratic ratification; that legitimacy is much less as to principles that the Supreme Court simply makes up in a desire to conform to modern morality; therefore, looking to what the Constitution says is more democratically legitimate. Whereas if you believe in the magisterium, the whole point is that biblical truth is not up for democratic debate.
Gerald made a good point above, and it echoes something I said earlier: If you were serious about running the American government as if it were the Catholic Church, you should oppose democratic representation and support the infallibility of George Bush instead. Somehow I don’t think you really want to do that.
sbuck, an originalist would observe that the same people who passed the various amendments that constitute the bill of rights also passed laws regarding the disposition of slaves and their disposal as property. I guess that doesn’t count in your calculus of ‘textualism and originalism’.
Phil — what you say would be relevant if someone went to court with the claim that the original Bill of Rights itself banned slavery. Fortunately, such a claim will never arise, both because there was a Civil War on that subject, and because the US passed a specific constitutional amendment banning slavery. For convenience, I reprint that amendment here:
Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Huh? Are you saying that Congress passed a slave code after ratifying the 13th Amendment? Because that is nuts. It didn’t happen, not even close.
sbuck – Henry has monarchist leanings, so he’s not that crazy about democratic representation. Several Vox Nova bloggers do not share the general consensus of our republic, so there’s really no common ground to argue on. I look at reading their stuff more like visiting an aviary with rarae aves.
Ornithology of their ontology, if you will.
My 12:56 was to Phil at 12:50, not Stuart Buck at 12:55.