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John Vecchione: “Clubbing Judges“
June 18, 2009
Instead of criticizing Sonia Sotomayor for belonging to a women’s organization called the “Belizean Grove”, Republicans should use the opportunity to defend all-female and all-male social clubs.
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David Frum: “Did I Err?“
June 1, 2009
Proponents of the Sotomayor nomination really do want to have it both ways. Here is a nomination made on ethnic diversity grounds. That’s not unprecedented: ticket-balancing is as American as apple pie – or anyway, as Chicagoan as deep-dish pizza. But there is an unpleasant double-game going on here, where what is obvious may never be mentioned.
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Andrew Gelman: “Sotomayor: It’s Not About Race“
May 30, 2009
Michael Kinsley goes over the top with this one: “It’s clear that the one paralyzing fact about Sonia Sotomayor, to Republicans, is the color of her skin. If she weren’t Latino, they would be in full revenge-for-Clarence-Thomas mode.“
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Alex Knepper: “Sotomayor’s Success Argues Against Affirmative Action“
May 29, 2009
Whatever the merits of her judicial philosophy, the life story of Sonia Sotomayor is one that the left quite often assures us simply does not exist. She was an ethnic female born into inner-city poverty in the 1950’s, raised by her mother who worked two jobs. Against these odds, Sotomayor lifted herself up by her own bootstraps and worked her way up to the most esteemed ranks in our nation.
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David Frum: “Sotomayor Not So Diverse After All“
May 28, 2009
I did a broadcast yesterday about Sotomayor for “Marketplace.” Main point: Sonia Sotomayor reaffirms the Supreme Court’s 8 to 1 bias against lawyers with a background in business law.
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David Frum: “Liberal Groups Complain: Sotomayor ‘Not a Major Thinker‘”
May 28, 2009
So reported Politico yesterday: “[S]he is not going to be another Thurgood Marshall… She will not leave an indelible mark on the court, ultimately, the way Earl Warren did or Oliver Wendell Holmes.“
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Jeb Golinkin: “Sotomayor Not in Fact a ‘Bush Nominee’”
May 28, 2009
In an editorial published in the May 21st edition of the Herald Community Newspapers of Long Island, former New York Senator Alfonse D’Amato explained how he and former Democratic Senator Daniel Patrick Moynihan collaborated to nominate Sonia Sotomayor for a seat on the federal bench.
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M. Abramowitz: “Sotomayor: The GOP’s Strategy Could Backfire”
May 28, 2009
“The ‘Empathy’ Nominee,” sneers the Wall Street Journal. A “Reverse Racist [like Obama],” chortles Rush. A “liberal activist who can’t be opposed because she’s a Hispanic ‘she,’” intones Kathryn Lopez. “Maria Sotomayor,” slips Huck PAC. The Right has certainly fallen in line over the nomination of Judge Sotomayor.
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Alex Knepper: “Why Fight Sotomayor?”
May 28, 2009
This is ultimately about sapping President Obama’s precious political capital. It’s about finally, unequivocally putting the left on defense. It’s about forcing the Democratic Party to answer tough questions in front of the American people about the role of the judiciary in American government.
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David Frum: “Watch What You Say”
May 27, 2009
Remember when Bush Press Secretary Ari Fleischer was slammed for supposedly urging Americans to watch what they say? (He didn’t of course – but that’s taken a long time to be recognized.) Now here’s Robert Gibbs delivering the warning for real: “I think it is probably important for anybody involved in this debate to be exceedingly careful with the way in which they’ve decided to describe different aspects of this impending confirmation.”
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Henry Clay: “The Right’s Questions for Sotomayor“
May 27, 2009
Obama seems ready to promote his own revolutionary understanding of our constitutional inheritance. The question for Republicans is how they will confront Sotomayor in a manner consistent with both her and their constitutional responsibilities.
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Meghashyam Mali: “When is a Hispanic Not a Hispanic“
May 27, 2009
Now is a good time to remember another lawyer who, had he been held merely to the same standards of Sonia Sotomayor, may well have been the first Hispanic justice: Miguel Estrada.
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Alex Knepper: “How Not to Fight Sonia Sotomayor“
May 26, 2009
After President Obama’s announcement of Judge Sonia Sotomayor’s appointment, her most bombastic statement is being repeated all across the conservative media: “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” The bait was cast. All over, commentators became victims. Glenn Beck and Rush Limbaugh immediately decried her as a “racist.” Sean Hannity complained about “reverse discrimination.”
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David Frum: “Miranda Warning”
May 26, 2009
Manuel Miranda, the strategic mastermind of uncountable struggles for conservative principle in the courts, issued this statement today on Sonia Sotomayor: “The President has nominated a highly-credentialed judge with an inspiring life story. Regrettably he also tainted the nomination from its start by suggesting that his nominee would judge based on personal feelings and background, or be biased with empathy for particular classes of litigants ….”
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David Frum: “Can Sotomayor Pass the Biden Test?“
May 26, 2009
When President George H. W. Bush nominated Clarence Thomas to the Supreme Court, Sen. Joe Biden had this to say: “I think that the only reason Clarence Thomas is on the Court is because he is black. I don’t believe he could have won had he been white. And the reason is, I think it was a cynical ploy by President Bush.“
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David Frum: “Obnoxious… But in a Good Way?”
May 26, 2009
On the other hand, here’s the possible good news in the Sotomayor nomination: The all-important 5th vote on the Supreme Court is Justice Anthony Kennedy’s. Kennedy has drifted to the left in recent years – in part (it’s gossiped) because of his negative reactions to Antonin Scalia. Maybe what we need is the most personally obnoxious liberal, someone certain to offend and irritate Kennedy – and push him careening back rightward.
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David Frum: “Sotomayor: A Deeply Political Pick“
May 26, 2009
What Obama did not do: pick the most learned or intelligent or wisest lawyer available to him. What he did do: pick the justice he deemed most likely to secure him a demographic constituency in 2008. This is pure Chicagoland politics, using one of the president’s most important powers for the most narrow partisan purposes.
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David Frum: “Sotomayor ‘Not That Smart and Kind of a Bully’ Says Ex-Clerk“
May 4, 2009
In the New Republic, Jeffrey Rosen gives voice to a concern that’s been gathering over one of President Obama’s shortlisted judicial names: “The most consistent concern was that Sotomayor, although an able lawyer, was ‘not that smart and kind of a bully on the bench,’ as one former Second Circuit clerk for another judge put it. ‘She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.’”
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David Frum: “Who is Sonia Sotomayor?“
May 1, 2009
Obama’s new rumored top pick for the Supreme Court says, “Latinos and all minority and women’s groups, despite what part of the country we live in, face enormous challenges in this society. Affirmative action, human rights, and civil liberties permeate our societal discussions.”
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David Frum: “Sotomayor – Centrist?“
May 1, 2009
The claim is advanced that Sotomayor must be a “centrist” because she was appointed to the appelate court by President George HW Bush. Just like David Souter!
WATCH NOW:
Jonathan Turley on Sotomayor: “A Real Lack of Intellectual Depth“
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Judge Sotomayor: “The Courts are Where Policy is Made“
THE BLOGOSPHERE:
David D. Kirkpatrick, “Judge Sotomayor’s Mentor – Part Guide, Part Foil“
New York Times, June 22, 2009
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Manu Raju, “GOP: No Benefit to Court Fight“
Politico, June 22, 2009
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Jess Bravin, “Court Nominee Sotomayor Quits Women-Only Group“
Wall Street Journal, June 20, 2009
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Tom Brune, “Sotomayor’s Views in Speeches Scrutinized“
Newsday, June 20, 2009
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Julie Hirschfeld Davis, “Sotomayor Avoids Firm Answers on Key Issues“
AP, June 18, 2009
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“Poll: Sotomayor Still an Unknown“
CBS News, June 17, 2009
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Tom LoBianco, “Sotomayor Rapped for Ties to Women’s Club“
Washington Times, June 17, 2009
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Charlie Savage, “In ‘03, Hints of Skepticism by Sotomayor on Extended Wiretapping“
New York Times, June 16, 2009
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Jeffrey Deskovic, “Sonia Sotomayor’s ‘Empathy’ Isn’t All Its Cracked Up to Be“
Politico, June 15, 2009
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J. Taylor Rushing, “GOP Letter Asks Sotomayor to Fill in the Blanks“
The Hill, June 10, 2009
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Charlie Savage, “Videos Shed New Light on Sotomayor’s Positions“
The New York Times, June 10, 2009
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Jake Tapper, “GOP on Sotomayor Hearing: What’s the Rush?“
ABCNews Political Punch blog, June 10, 2009
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David M. Herszenhorn, “Hearings on Sotomayor Are Set to Begin on July 13th“
New York Times, June 9, 2009
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Julie Hirschfeld Davis, “Sotomayor Fractures Ankle at New York Airport“
Huffington Post, June 8, 2009
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Jesse J. Holland, “Sotomayor’s Media Rulings: Freelancers Need Not be Compensated for Online Use of Their Work“
Huffington Post, June 5, 2009
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Michael D. Shear, “Sotomayor’s Senate Questionnaire Expected at 2pm“
The Washington Post’s 44: The Obama Presidency Blog, June 4, 2009
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Naftali Bendavid, “Reid, Hispanic Leaders Stoke Support for Sotomayor“
Wall Street Journal’s Washington Wire, June 4, 2009
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Ashby Jones, “Does Sonia Sotomayor Have the Write Stuff?“
Wall Street Journal’s Law Blog, June 4, 2009
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Kathy Kiely, “Poll: Public Would Reverse Sotomayor Ruling“
The Oval, June 3, 2009
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Mike Allen, “Dems Push for Sotomayor Vote Before August Recess“
Mike Allen’s Playbook, June 3, 2009
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Michael A. Fletcher, Shailagh Murray, “Sotomayor Prepares to Meet with Key Senators“
Washington Post, June 2, 2009
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Editorial, “The Franchise for Felons“
Washington Times, May 29, 2009
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Raymond Hernandez, David W. Chen, “Nominee’s Links with Advocates Fuel Her Critics“
The New York Times, May 29, 2009
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Josh Gerstein, “White House Urged to Address ‘Racist’ Charge“
Politico, May 29, 2009
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Jo Becker, Adam Liptak, “Sotomayor’s Blunt Style Raises Issue of Temperament“
The New York Times, May 28, 2009
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Kenneth P. Vogel, “Sonia Sotomayor: No Empathy for Campaign Cash“
Politico, May 28, 2009
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Walter Alarkon, “White House Confident on Sotomayor’s Abortion Views“
The Hill, May 28, 2009
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Alexander Bolton, “Kyl: September Vote Likely for Sotomayor“
The Hill, May 28, 2009
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Michael O’Brien, “First GOP Senator Pledges Vote Against Sotomayor“
The Hill’s Briefing Room Blog, May 28, 2009
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Charlie Savage, “On Sotomayor, Some Abortion Rights Backers Are Uneasy“
The New York, Times, May 27, 2009
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Ronald Cass, “Judge Sotomayor’s Identity Problem“
RealClearPolitics.com, May 27, 2009
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Editorial, “Oppose ‘Empathy’, Defend the Law“
Investor’s Business Daily, May 26, 2009
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Jeffrey Rosen, “What’s a Liberal Justice Now?“
The New York Times Magazine, May 26, 2009
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George F. Will, “Identity Justice: Obama’s Conventional Choice“
Washington Post, May 26, 2009
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Jay Ambrose, “An Excursion Into Stereotypes“
Orange County Register, May 26, 2009
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Richard A. Epstein, “The Sotomayor Nomination: The Hidden Costs of Presidential Empathy“
Forbes, May 26, 2009
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Walter Olson, “Obama’s Wise Latina“
Forbes, May 26, 2009
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Orin Kerr, “Law Professors Opposing Supreme Court Nominations“
Volokh Conspiracy, May 26, 2009
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“Sotomayor and Chief Justice John Roberts preside over the GW Law Moot Court competition“
C-SPAN, February 8, 2006
GoramFirefly // Jun 15, 2009 at 11:05 pm
part 2 or 2″(Be honest, though… your best guess… do you really believe that either the Justices of the time let alone the congressmen, Senators, Governors, state representatives and executives, the President… that any truly saw Marbury vs. Madison for the threat it was to become, that they envisioned a time when Justices would simply exchange their will for that of the duly elected (and at the time appointed Senators) representatives of the People rather than simply “fill in the blanks?”)”I’m really confused by your position here. Threat? Judicial review is a threat? If the Court did not have this power, than, as an example, President Obama and the Democratic Congress, could write and pass a law instructing the Army to bust into peoples homes, search through their private papers (without a warrant), confiscate their guns and the Supreme Court could do nothing about it; regardless of what the Constitution says. There would be no legal recourse. Judicial review is the only power that the Supreme Court has to declare unconstitutional laws unconstitutional.
GoramFirefly // Jun 15, 2009 at 11:11 pm
Barker13:In retrospect, are you really upset that Supreme Court has the power of judicial review or are you more concerned about the way in which they got it?
barker13 // Jun 16, 2009 at 3:12 pm
Re: GoramFirefly; 11:02 PM –”…for the Supreme Court to declare a properly enacted piece of legislation as unconstitional, that they should have to have at least 6 justices declare it so. No more 5-4 decisions.”Yes. At least six. Perhaps seven. “And that it would only take 66 votes of the senate to amend the Constitution.”No. You’re caught up in a false premise. The Senate wouldn’t be “amending” the Constitution. The Senate would be overriding the Court’s “interpretation” and thus from my democratic perspective the Senate would be refusing to allow the COURT to “amend” the Constitution.But you know what, GF… let’s look at it from your perspective. If you equate a Senate refusal to “confirm” a Supreme Court decision as an effective “amendment” of the Constitution, than logically you must also look upon the Courts original ruling as – in the same sense – “amending” the Constitution.So… if we’re not going to be sticklers (*HUMOROUS SNICKER*) for relying ONLY upon the stated Constitutional Amendment process for… er… amending (i.e. changing) the Constitution, left with a choice of giving unreviewable/unreversible power to 6 appointed unaccountable officials in black robes or 67 accountable, democratically elected Senators… I’ll go with the Senators.”Okay, realize that before, during and even after Marbury, the legislature and executive branches, at that time, had a way of making their intent known. As you have already said, they could have amended the Constitution to either take away the power of judicial review from the Supreme Court or add some compromise language as you suggest. That they did not do so, is telling.”"Telling…???” Perhaps. You’re free to read any lesson you’d like from this history. For what it’s worth, I’m guessing the failure came more from inattention and irresponsibility than from policy preference, however… the “whys” are irrelevant to the central point that since the Constitution does not give the power of Judicial Review to the Supreme Court nor can an airtight case (or even a winning case beyond a reasonable doubt) be made that this was the CLEAR intent of the Founders… then this being so the Congress retains the Constitutional Authority to limit and even take away the Court’s self-assumed (though abetted by past Congresses) power of Judicial Review.(In line with that last paragraph, allow me to stress that no Congress can tie the hands of a successive Congress aside from the Constitutional Amendment process.)”We all know that the Founders set up a Constitutional Republic, detailing in that Constitution the limited powers of the government (the government being executive and legislative branches). The judiciary is clearly intended to be a check on the excesses of that government….”Hmm. I thought that was the 2nd Amendment…(*GRIN*) (Just throwing in a bit of levity…)”…i.e. legislating outside the bounds of the Constitution.”No. Not in the sense you mean, not in the sense of “amending” the Constitution.Com’on… be honest… that’s what you’re talking about. Oh, sure, you’re not against the Court creating fig leaf “constitutional justifications” for their actions when they “amend” the Constitution as originally ratified and understood, but in the final analysis you’re fine and dandy with six Supreme Court Justices being able to replace the policy wisdom of 535 democratically elected representatives and a Chief Executive with that of… er… themselves.Hey, no doubt you consider this “pragmatism.” Me? I consider it virally undemocratic and antithetical to a Republican form of government.”So, it follows that the judiciary, must have an inherent power to declare laws unconstitutional.”"No. And I’ve just explained why. (*SHRUG*)BILL
barker13 // Jun 16, 2009 at 3:31 pm
* Continuing…”According to Madison’s notes of the Constitutional Convention…”Sorry. Madison’s notes are of course of interest, but they authorize nothing. They have no… er… standing in the sense of being legally binding.”Delegate James Wilson wanted the Court to have even more power. Wilson argued that the Court should be able to strike down any UNJUST (not just unconstitutional) federal or state legislation.”OK. (*SHRUG*) Point is… he didn’t get his way. What he wanted didn’t make its way into the Constitution as ratified.”Also, over half of the original 13 states also had some form of judicial review in their respective constitutions.”Fine and dandy! (*SMILE*) Then for those states… judicial review was the legal rule. For the “under half” who didn’t have some form of judicial review in their respective constitutions I say then that those states didn’t have constitutional review. And as for the Federal Constitution… (*SMILE*)… how many times do we have to agree that Judicial Review just ain’t there…???”In regards to the Federalist Papers…”(*BUZZ!!!*) Again… I thought we were clear on this… (*SIGH*)… there’s “The Constitution” and then there’s… er… “NOT the Constitution.” (*WINK*)”…even the Anti-Federalists…”(*BUZZ!!!*) Ditto. (*WINK*)”Keep in mind, of course, the Constitution, as written was, ratified. The Anti-Federalists lost.”(*SMILE*) Yes… I do keep this in mind. Thing is… whether Federalist “winner” or Anti-Federalist “loser,” we’re left with… the Constitution is… er… the Constitution. Writing which AREN’T the Constitution… er… aren’t.”Given all this, even after Marbury, many saw judicial review as a power inherent to the Supreme Court”Fine. Nevertheless… it isn’t. Sorry, GF, but I’ll stick with the actual text of the Constitution and it’s CLEAR, unarguable intent, not what “many saw.”Listen. You helped make my argument for me. The Founders KNEW that over half the states had some degree of judicial review spelled out in their state constitutions. They knew the arguments pro and con. For whatever reason they chose – deliberately chose from what I can see and from what a reasonable person would naturally infer from the sources YOU cite – that there was either not the desire or at least not enough desire, enough VOTES amongst the Delegates – to make Judicial Review a part of our federal Constitution.BILL
barker13 // Jun 16, 2009 at 3:55 pm
* Continuing…”I’m really confused by your position here.”OK. (This is a rather wide ranging discussion focusing on sophisticated and in a sense specialized (ie legal) reasoning.)”Threat? Judicial review is a threat? If the Court did not have this power, than, as an example, President Obama and the Democratic Congress, could write and pass a law instructing the Army to bust into peoples homes, search through their private papers (without a warrant), confiscate their guns and the Supreme Court could do nothing about it; regardless of what the Constitution says.”Ahh… but here’s another of your blind spots: The Court could just as easily ALLOW such blatantly unconstitutional government actions by ruling to UPHOLD such legislation!See, here’s the problem: You seem to have this idealized view of the Supreme Court – of a majority of six out of nine appointed, unaccountable robed Justices having some sort of ethical/moral/policy “fairness imperative” absent in a majority of 535 democratically elected and democratically accountable representatives plus the President of the United States.(*SHRUG*)Again… I no more “trust” constant majorities of the Supreme Court to do the “right thing” than I do these members of the other two governmental branches. That said, I know whose “job” it is to do what and if “errors” are to be made in deciding what the Constitution actually says and means, I’m far more comfortable with entrusting the democratic branches of government with ultimate judgment (knowing We The People can throw out one bunch and replace them with another – at least in theory) than with trusting six unaccountable appointed Justices with what amounts to “rewrite” power concerning our Constitution.Here… let me try a hierarchy:1) The Constitution can only be changed by Constitutional Amendment;2)…Well, there really is no #2. I don’t want Congress to be allowed to subvert the Constitution nor do I want Judges to be allowed to subvert the Constitution.Ultimately (and I’m being quite serious here) it is up to We The People ourselves to ensure by whatever means necessary our Constitutional liberties and freedoms. The problem is though… rarely are these freedoms nakedly attacked in the sense of the examples you’ve provided. Still, at least in theory, and yes, in practice, We The People is whom “We” must depend upon for our ultimate Constitutional protections.BILL
barker13 // Jun 16, 2009 at 4:06 pm
Re: GoramFirefly; 11:11 PM –”In retrospect, are you really upset that Supreme Court has the power of judicial review or are you more concerned about the way in which they got it?”The later.I mean, even if the Founders had openly and deliberately given the Supreme Court the power of judicial review as we understand it now, as its developed over the last 206 years, I’d still believe that these same Founders had made a mistake by not creating more democratic safeguards against “rouge” Supreme Court rulings, but personal views aside, I’d of course view whatever the Founders actually put in the Constitution as the Law of the Land.Again… to me this isn’t a “policy” debate or an ideological dispute (between partisan political factions revolving around policy issues); rather, my views come out of my identity as a “constitutionalist” and my view of the “rules” as far as intellectually honest understanding and adherence to the Constitution is concerned.The Amendment Process. That’s the proper place for… er… Constitutional Amendment.(*SHRUG*) A Nation of Laws, Not of Men. (*SHRUG*)These aren’t cliches to me; these are ideals to live by.BILL
barker13 // Jun 16, 2009 at 4:14 pm
So… GoramFirefly… although obviously you’re under no obligation, would you be so kind as to satisfy my curiousity by telling me a bit about yourself?Do you have your own blog that you’d be willing to provide a link to?Are you a woman? (My guess… yes.) (*WINK*)Are you an attorney – either practicing or non-practicing?(If not… are you a law student or former law student?)(If not… poli-sci major…???)(*GRIN*)I’m not an attorney. No formal legal training other than a high school class in Constitutional Law back in the days of (*MUMBLE*) J m y Ca t r.My academic background is poli-sci… history… international affairs…(*SHRUG*)How’bout you?BILL
GoramFirefly // Jun 19, 2009 at 4:52 am
Barker13:Sorry it took me so long to respond, but I thought this thread was gone!”No. You’re caught up in a false premise. The Senate wouldn’t be “amending” the Constitution. The Senate would be overriding the Court’s “interpretation” and thus from my democratic perspective the Senate would be refusing to allow the COURT to “amend” the Constitution.”I was responding to your solution of the “problem” of judicial review. To me, it read as if you would have given the power to amend the Constitution soley to the Senate. Now, as to your idea of Senatorial overriding, that would necessitate changing Article III, Section 2 of the Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;…”"But you know what, GF… let’s look at it from your perspective. If you equate a Senate refusal to “confirm” a Supreme Court decision as an effective “amendment” of the Constitution, than logically you must also look upon the Courts original ruling as – in the same sense – “amending” the Constitution.”Since, I don’t consider a Supreme Court decision as an effective “amendment”, then it doesn’t follow.”Telling…???” Perhaps. You’re free to read any lesson you’d like from this history. For what it’s worth, I’m guessing the failure came more from inattention and irresponsibility than from policy preference, however… the “whys” are irrelevant to the central point that since the Constitution does not give the power of Judicial Review to the Supreme Court nor can an airtight case (or even a winning case beyond a reasonable doubt) be made that this was the CLEAR intent of the Founders… then this being so the Congress retains the Constitutional Authority to limit and even take away the Court’s self-assumed (though abetted by past Congresses) power of Judicial Review.”It is telling. They could have certainly argued and changed it. That they didn’t is telling. The history of legal thought at the time supports it and the structure of the Constitution itself implies it. And I’ve already given you what other jurisdictions were doing about it.cont.
GoramFirefly // Jun 19, 2009 at 4:53 am
Barker13:continuing:If Article III, Section 2 is to mean anything it must mean as Chief Justice Marshall said: “The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?This is too extravagant to be maintained.”Remember many of the Framers were still around at the time, they could have pushed to amend the Constitution, they didn’t. Clearly, the majority must have thought that this power was inherent in Art. III, Sec. 2. Justice Marshall continues:”In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?There are many other parts of the constitution which serve to illustrate this subject.It is declared that ‘no tax or duty shall be laid on articles exported from any state.’ Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.The constitution declares that ‘no bill of attainder or ex post facto law shall be passed.’If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavours to preserve?’No person,’ says the constitution, ’shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.’ Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?From these and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”That something was not explicitly stated in the constitution does not mean that there was no intent for it to be there. Take slavery for example, the Constitution did not explicitly use the language of slavery, but the concept was certainly there. Article I, Section 9: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” cont.
GoramFirefly // Jun 19, 2009 at 4:56 am
Barker13:continuing:”No. Not in the sense you mean, not in the sense of “amending” the Constitution.Com’on… be honest… that’s what you’re talking about. Oh, sure, you’re not against the Court creating fig leaf “constitutional justifications” for their actions when they “amend” the Constitution as originally ratified and understood, but in the final analysis you’re fine and dandy with six Supreme Court Justices being able to replace the policy wisdom of 535 democratically elected representatives and a Chief Executive with that of… er… themselves”It is not my position that they are amending the Constitution. They are in fact, looking at what the legislature passes to see if said laws are within the bounds of the Constitution. That is what makes a limited government, limited. I don’t think you understand what a Constitutionally limited government means. If the legislature is free to make any laws with out respect to the Constitution, then the limits of the Constitution are meaningless. The Supreme Court is the check on that. If the “policy wisdom of 535 democratically elected representatives and a Chief Executive with that of… er… themselves” goes counter to the Constitution then yes I am fine with the Supreme Court overturing their “wisdom”. The Constitution is the Supreme Law of the Land and is the limiting factor. Your position would have the legislature overruling the Constitution, for who would tell them otherwise? If not for the Supreme Court determining what is Constitutional, then you would have Congress? You want the same people who make the law, to determine the Constitutional legality of the law they just passed? That makes no sense.”Sorry. Madison’s notes are of course of interest, but they authorize nothing. They have no… er… standing in the sense of being legally binding.”I’m sorry, but I thought you followed the doctrine of Original Intent? If so, than how can you not include the arguments, writings, discussion of the very people that wrote, debated and ultimately ratified the Constitution in your analysis?”Fine. Nevertheless… it isn’t. Sorry, GF, but I’ll stick with the actual text of the Constitution and it’s CLEAR, unarguable intent, not what “many saw.”"Clearly, it is not clear nor unarguable! Your reading of the Constitution just doesn’t make sense. Here are some other examples:There is no specific, explicit clause guaranteeing the “right to vote”.There is no explicit clause that states there is to be a “separation of powers”.There is no explicit right to travel, except for Congressmen. There is nothing in Constitution the directly, explicitly says a defendant must be presumed innocent.Nowhere in the text of Constitution are the words democratic or democracy, so I guess the United States is not a democracy?And, for God sakes, we couldn’t even have an Air Force. The Constitution only explicitly directs the government to raise an Army and Navy. Article I, Section 8:” To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces;”Clearly, if the Framers intended any of these thing, the would have explicitly put them in the Constitution.End.
GoramFirefly // Jun 19, 2009 at 5:01 am
In general,After writing all that, I sure wish there was a better way commenting on this site. Something along the lines, of I don’t know, a forum type structure.
barker13 // Jun 19, 2009 at 6:14 am
Re: GoramFirefly; wrote 56 minutes ago –Actually, I like this structure; I’ve never been a fan of “forum type” structures. To each his own! (*GRIN*)Hey… to lighten it up a bit… I was watching Seinfeld last night – http://en.wikipedia.org/wiki/The_Couch – and “Elaine” said something which in a nutshell identifies my problem with the Imperial Judiciary.”Poppie” asks her (I’m paraphrasing – can’t remember the exact script) “what gives you the right to abort a baby?”"Elaine” answers (pretty sure this is the exact quote) “Because the Supreme Court says I can.”Note…She doesn’t answer “Because the Constitution gives me that right.”Note… She doesn’t answer “Because The People have voted to give me that Right.”See what I’m getting at, GF? This idea that all that ultimately matters is what six out of nine unaccountable, unelected, Judges decide is… (*SIGH*)… both a terrible idea and one now (unfortunately) deeply ingrained in the American public psyche.Anyway… just a timely aside. (*SHRUG*) Now… back to educating you… (preparing my next post.)(*WINK*) (*GRIN*) (*CHUCKLE*)BILL
barker13 // Jun 19, 2009 at 6:42 am
Re: GoramFirefly; 4:52 AM –”…Article III, Section 2 of the Constitution…”Are you NOW saying this gives the Supreme Court the power of Judicial Review…??? Because… just to remind you… YOU admitted previously that, quote, “There is nothing in the constitution that explicitly authorizes the Supreme Court with the power of judicial review.”(*SHRUG*)(*WINK*)Re: GoramFirefly; 4:53 AM –”If Article III, Section 2 is to mean anything it must mean as Chief Justice Marshall said…”We’re both reading what Marshall said and Marshall said nothing about a majority of the Supreme Court being able to substitute their policy judgments for those of Congress and the President as long as Congress and the President were (are) working within the boundaries of the Constitution and its Amendments as written and as understood and intended to be understood at the time of writing and ratification.GF. Be honest. You’re trying to skirt the issue. (*WINK*) You must be a lawyer or law student. Gotta be! (*GRIN*) You think like one. If one argument doesn’t work, try another. Play the “game,” don’t get caught up in anything so pedestrian as principled Constitutional doctrine. After all… it’s about “winning,” not candor, not “who’s right,” not “what is true,” but rather “what can you prove.” (*WINK*)Hey… I get it. And judging your arguments by your rules I’m quite impressed! You’re skillfully moving “around” the key philosophical Constitutional issue.(Com’on… am I right… do you have legal training…??? Hey… if not.. then I’m REALLY impressed!!!)”It is declared that ‘no tax or duty shall be laid on articles exported from any state.’ Suppose a duty on the export of cotton, of tobacco, or of flour [was levied]; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.”GF. (*SMILE*) You’re repeating the same type arguments you’ve previously made that I’ve previously responded to. But, ok… I’ll bite…Your assumption is that after reading the Constitution and diligently following “original intent, original meaning” the High Court would indeed strike down the law’s unconstitutional tax levy. Well if that was the way the High Court always acted we’d have no disagreement. The problem is, what if the High Court decides to “reinterpret” the Constitution and then rule to uphold what we both agree is unconstitutional Congressional action…??? Your philosophy boils down to… “oh, well… it’s their call.” Sorry… that doesn’t work for me. That’s certainly NOT what the Founders intended or else they’d have in fact (expressly) given the High Court such power.(Again… re-reading through the thread we’ve gone all over this before…) (*SHRUG*)BILL
barker13 // Jun 19, 2009 at 7:04 am
Re: GoramFirefly; 4:56 AM –”If the “policy wisdom of 535 democratically elected representatives and a Chief Executive with that of… er… themselves” goes counter to the Constitution then yes I am fine with the Supreme Court overturing their “wisdom”.”As am I.It’s where the Supreme Court is NOT limiting itself to ruling within the context of the text of the Constitution or where the text is open to “interpretation” the intellectually honest reading of the “intent” of the Founders and/or subsequent Amendment writers that I have a problem.(*WINK*)”The Constitution is the Supreme Law of the Land and is the limiting factor.”Again… we’re agreed. Only I apply this reasoning to all three branches of government… you apply it to only two.(*SHRUG*)”It is not my position that they are amending the Constitution.”So let me get this straight…(*SCRATCHING MY HEAD*)You’re quite comfortable with the concept (and you believe it’s reality) that Congress can (and has) created laws that our unconstitutional in the sense of violating either the text or (via intellectually honest analysis) “original” meaning of the Constitution.Right…??? That’s your position – right? Yet you don’t view the High Court of being capable of doing the same thing…???In other words, to use your own example, if Congress were to pass a law redefining the requirements for charging and finding an American citizen guilty of Treason this would be a clear case of Congress (for all intents and purposes) unconstitutionally “amending” the Constitution. YET… if Congress does so and rather than overturn Congress’ “new and improved” Treason conviction process the High Court says, “OK, fine… it’s obviously in the national interest and btw we “interpret” the Constitution to allow Congress to make this change via simple legislation rather than the Constitutional Amendment process” then that’s just an example of the High Court doing their job… an example of the High Court simply… er… “interpreting” the Constitution? Is this your position? It seems to be! (*CHUCKLE*)”If the legislature is free to make any laws with out respect to the Constitution, then the limits of the Constitution are meaningless.”Yet this same tactic when used by a majority (six members) of the Supreme Court is… fine…??? (*SHRUG*) GF. Love the intellectual round robin with you, but we’re simply going round and round now.* To be continued…BILL
barker13 // Jun 19, 2009 at 9:07 am
Re: GoramFirefly; 4:56 AM (continuing…) –”I’m sorry, but I thought you followed the doctrine of Original Intent? If so, than how can you not include the arguments, writings, discussion of the very people that wrote, debated and ultimately ratified the Constitution in your analysis?”Again, GF, as I’ve previously noted (and as I’m sure you understand), there’s a huge gap between refusing to consider supporting evidence regarding a thesis and allowing what was written or said unofficially to overturn what was actually done officially.”Would’a, could’a, should’a, meant to ain’t the same as “did.” (*WINK*)”There is no specific, explicit clause guaranteeing the “right to vote”.”Article 1, Section 2. We know that “chosen” (by the People of the several States) means via vote.Contrast Article 1, Section 2, to the original Article 1, Section 3 (note – changed by the 17th Amendment), and we clearly see that while the Founders set basic while the Founders (the Constitution) was talking “popular vote” re: the House this was not the case re: the Senate.Oh… and then there’s the Electoral College.Com’on, GF… I’m not trying to “win points” based upon semantic slight of hand – please don’t go that route. Lets stick to basic concepts and where hard evidence is necessary follow my lead and present it, refer to specific Constitutional clauses. (*SHRUG*)”There is no explicit clause that states there is to be a “separation of powers”.”(*SNORT*) There doesn’t need to be; the Separation of Powers is inherent in the document itself… i.e. Articles 1-2-3.(And then of course we have Articles 4 & 5, the Bill of Rights, and succeeding Amendments.)”There is no explicit right to travel, except for Congressmen.”GF. Com’on. You’re being silly. I’m trying to have a reasonable exchange of views with you. (*SIGH*)… but ok… make the case that “travel” isn’t fundamental right, that absent due process of law (quarantine measures to prevent a likely pandemic, martial law, other limited time emergency measures) the Congress could pass a law restricting Americans from ever leaving their homes… from interstate travel… pick a scenario.But, hey, while you’re obviously being ridiculous in terms of “general travel,” the government can clearly limit types of travel without violating the Constitution.(You’ve heard of Cuba… right? Heck… you’ve heard about that who “passport required” thingee which applies to foreign travel and reentry into the U.S.?)GF. In a sense you’re making my case for me. (*WINK*)”There is nothing in Constitution the directly, explicitly says a defendant must be presumed innocent.”No argument there. (*CHUCKLE*) But as you no doubt know, this comes out of the “Common Law.”GF. No one is claiming the Constitution is all-inclusive in the sense of explicitly covering any and all situations and questions which arise, but stipulating this is a far step from saying where the Constitution is less than absolutely specific (and even in cases where it is – which is what I focus on) six unelected, unaccountable Supreme Court Justices legitimately have the power or should have the power to substitute their policy preferences for those of the lawfully elected representatives of the People and the People themselves.”I guess the United States is not a democracy?”(*CLAP-CLAP-CLAP*)You guess right! We’re a Republic with a representative form of government mixed in with cases of direct democracy (state ballot initiatives, along those lines).The Founders (most of them) abhorred the thought of a true “democracy.” (Don’t they still teach this stuff in schools…???)* To be continued…BILL
barker13 // Jun 19, 2009 at 9:12 am
Re: GoramFirefly; 4:56 AM (finishing up…) –”…for God sakes, we couldn’t even have an Air Force.”Congratulations, GF… you’ve just “jumped the shark.”(*CHUCKLE*) (*AMUSED GRIN*) Tell you what… you “rest” on that note and I’ll simply “rest” on the totality of my arguments.All in all… I’ve really enjoyed going back and forth with you, GF. Keep on posting – you’re a positive force here.BILL
barker13 // Jun 20, 2009 at 7:06 am
http://online.wsj.com/article/SB124546141891333435.htmlWell... well… well…BTW, not sure why Frum moved this thread BACK to the front page from it’s former spot as “old news” on cyberpage 5 or 6, but since he did I’m assuming he expects it to be used for “new” Sotomayor posts such as this one.(*SHRUG*)BILL
ChristianMiller // Jun 20, 2009 at 12:43 pm
Who cares?Don’t bother commenting here. If Frum doesn’t like what you say it will be deleted. Only agreement is allowed here,