Meet Goodwin Liu

[danefan]

I don't agree with Liu's constitutional law theories, but if he has fudged his questionnaire, that bothers me more.

Justice Breyer wrote a fairly easy-to-understand book about the "living Constitution"called Active Liberty. It's on my bookshelf next to Robert Bork's The Tempting of America.

When Justice Stevens steps down, it will be interesting to see who BHO's next nominee is. The current Solicitor General wants it to beat hell, but she's never ben a judge. Larry Tribe is a bit long in the tooth at this point for the job, and he's never been a judge, either. Maybe one of the Sotomayor also-rans.

It appears that most Republicans think it will be Liu. That's why they are going bannanas after this.

And I agree, if he fudged his questionaire he has issuses.

[OL FU]

That was a poorly worded sentence. Not the first time I have done that.

Judges should absolutely interpret the constitution based on the intent of the words. With respect to issues that were note predicted at the time by the drafters of and voters on the constitution or amendments, judges should certainly have more lattitude but the ultimate interpretation should strive to fit the original intent if possible.

As far as the end all of the discussion, obviously my position isn't that or we would not be having this discussion.

As I said before, whether we want to admit it or not, those that voted and passed the constitution did not want the judiciary to legislate and I personally think doing so should be a crimnial act. I know that sounds harsh, but let's be honest. There are brilliant legal minds in many legal fields that perpetuate fraud everyday. and it happens in corporate board rooms and law offices and unfortunately our federal courts.

OK, I get what you are saying now.

And I can't disagree with what you are saying about fraud. That is certainly true to some extent. I just don't buy the conspiracy theory that all judges who believe the Constitution is a living document are out there trying to legislate from the bench according to their morality standards as some so-called "constitutional experts" have tried to so hard to make us believe. I'm not putting you into that category, just reflecting on some comments I've heard.

I am not a constitutional expert, but feel free to put me in that category

[danefan]

OK, I get what you are saying now.

And I can't disagree with what you are saying about fraud. That is certainly true to some extent. I just don't buy the conspiracy theory that all judges who believe the Constitution is a living document are out there trying to legislate from the bench according to their morality standards as some so-called "constitutional experts" have tried to so hard to make us believe. I'm not putting you into that category, just reflecting on some comments I've heard.

I am not a constitutional expert, but feel free to put me in that category

Neither are most of the people who spout off about activist judges......

[native]

I am not a constitutional expert, but feel free to put me in that category

Neither are most of the people who spout off about activist judges......

The Consitution is like the Bible, in that it belongs to us all, not just the "experts." Even some poor slob without a high school diploma should not be expected to outsource his or her brains, such as they may be.

[OL FU]

I am not a constitutional expert, but feel free to put me in that category

Neither are most of the people who spout off about activist judges......

And I don't think they fact that they are not constitional experts diminishes their complaint one bit. The constitution does not take a lawyer to read and understand. It is doesn't take a constitutional expert to know that when lawmakers pass a bill or write a constitution that they plan on it meaning what it says. This isn't brain surgery or rocket science or difficult legal concept to understand.

And sorry, when lawyers tell me that the words don't mean what they say, I suspect deceit.

[Appaholic]

Sounds like a great judicial candidate that understands the reality of today. the Founder's intended it to be a living document, not fossilized.

They did not intend this kind of "living document" approach. They provided for a method of changing it through public consensus. They did not intend for Judges to change it through fiat. No way they would've endorsed today's "Living Constitution" philosophy.

They intended to provide for the People to change it. They did not intend to allow for Judges to do it.

Exactly. The fact that they provided a method of changing via Amendment Process makes the document as living as it needs to be....

[JohnStOnge]

It's the way it's been for a LONG time, JSO. Since 1803. Blame this guy:

I do blame John Marshall and have since I first read about Marubury vs. Madison and its impact something like 25 years ago. I think that Thomas Jefferson was being prohphetic when he wrote, in referring to that decision, ""The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch," and "The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

I also blame the Congress of the time and even Jefferson for failing to nip the concept in the bud, assert their authority, and slap the Judiciary down right then. The Federalist Papers clearly indicate that the intent was for it to be the weakest of the three branches and that decision laid the foundation for making it arguably the strongest in that it may act unilaterally in total absence of accountability and/or public support to declare the "final word" on a given issue.

But I don't think it's been "that way" since 1803. I think that at first the Judiciary stuck reasonably close to the Constitution and gradually evolved away from that. I think things really got bad in the early part of the 20th Century.

In any case, it's not a good idea. We are supposed to have government by the People and we are allowing an oligarchy of nine totally unaccountable officials say that the Constitution says whatever they want it to say. It really is a situation in which we are not governed by the Constitution. We do not, at this point, have a "Constitutional" government.

If the Constitution is to rule, its interpretation must consist of an honest effort to divine the original understanding of each bit of language and to apply the best assessement of that original understanding to the situation at hand. If we don't like the result, we can propose Amending it. Then if we develop enough support to do that it can be Amended. And if we can't develop enough support the effect shouldn't change. And that's the way it SHOULD be. The effect should be stable and difficult to change. Otherwise there is no point in having a Constitution and "Constitution" is just a word judges use to add some kind of aura to what's really just their personal opinions about what's best.

It just amazes me that ANYBODY who believes in government by the People supports this current circumstance because it is totally contrary to the government by the People concept. The Constitution belongs...or should belong...to the People; not the Court. And, again, it should control what Judges to rather than Judges controlling what IT does. And it's insane to vest such power in an institution that has zero accountability. I don't see how anybody can think tremendous power with no accoutability is a good thing.

[danefan]

It's the way it's been for a LONG time, JSO. Since 1803. Blame this guy:

I do blame John Marshall and have since I first read about Marubury vs. Madison and its impact something like 25 years ago. I think that Thomas Jefferson was being prohphetic when he wrote, in referring to that decision, ""The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch," and "The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

I also blame the Congress of the time and even Jefferson for failing to nip the concept in the bud, assert their authority, and slap the Judiciary down right then. The Federalist Papers clearly indicate that the intent was for it to be the weakest of the three branches and that decision laid the foundation for making it arguably the strongest in that it may act unilaterally in total absence of accountability and/or public support to declare the "final word" on a given issue.

But I don't think it's been "that way" since 1803. I think that at first the Judiciary stuck reasonably close to the Constitution and gradually evolved away from that. I think things really got bad in the early part of the 20th Century.

In any case, it's not a good idea. We are supposed to have government by the People and we are allowing an oligarchy of nine totally unaccountable officials say that the Constitution says whatever they want it to say. It really is a situation in which we are not governed by the Constitution. We do not, at this point, have a "Constitutional" government.

If the Constitution is to rule, its interpretation must consist of an honest effort to divine the original understanding of each bit of language and to apply the best assessement of that original understanding to the situation at hand. If we don't like the result, we can propose Amending it. Then if we develop enough support to do that it can be Amended. And if we can't develop enough support the effect shouldn't change. And that's the way it SHOULD be. The effect should be stable and difficult to change. Otherwise there is no point in having a Constitution and "Constitution" is just a word judges use to add some kind of aura to what's really just their personal opinions about what's best.

It just amazes me that ANYBODY who believes in government by the People supports this current circumstance because it is totally contrary to the government by the People concept. The Constitution belongs...or should belong...to the People; not the Court. And, again, it should control what Judges to rather than Judges controlling what IT does. And it's insane to vest such power in an institution that has zero accountability. I don't see how anybody can think tremendous power with no accoutability is a good thing.

You have made valid points John, but unfortunately there is a major counterpoint that you seem to be ignoring. Despite what you say, the Supreme Court and the lower Federal Courts are not without accountability. There is always present 3 ways to effectively overturn anything they do:

1. If the people do not like an interpetation of a current law by a Court, Congress can always amend that law within the bounds of the Constitution;
2. If the people don't like the interpretation of the bounds of the Constitution, they can always amend the Constitution; and
3. Federal Judges and SCOTUS Justices are always subject to impeachment.

This nation's Senator's (and by extension, the people of this Nation) had the oppotunity, with the full backing of Jefferson, to steer the Courts of this country in the direction you so desire. This opportunity was presented with the Impeachment of Justice Samuel Chase. They chose not to do so.

But I refuse to believe that the beauty of the Constitution is in some dusty books from 1787. The beauty of the Constitution, in my eyes, is in the fact that no matter how much power falls into the hands of one branch,in this case the Judicial, the people are the ultimate deciders. There is always accountability. Unfortunately for you, in this case you are in the minority.

[Skjellyfetti]

You have made valid points John, but unfortunately there is a major counterpoint that you seem to be ignoring. Despite what you say, the Supreme Court and the lower Federal Courts are not without accountability. There is always present 3 ways to effectively overturn anything they do:

1. If the people do not like an interpetation of a current law by a Court, Congress can always amend that law within the bounds of the Constitution;
2. If the people don't like the interpretation of the bounds of the Constitution, they can always amend the Constitution; and
3. Federal Judges and SCOTUS Justices are always subject to impeachment.

This nation's Senator's (and by extension, the people of this Nation) had the oppotunity, with the full backing of Jefferson, to steer the Courts of this country in the direction you so desire. This opportunity was presented with the Impeachment of Justice Samuel Chase. They chose not to do so.

But I refuse to believe that the beauty of the Constitution is in some dusty books from 1787. The beauty of the Constitution, in my eyes, is in the fact that no matter how much power falls into the hands of one branch,in this case the Judicial, the people are the ultimate deciders. There is always accountability. Unfortunately for you, in this case you are in the minority.

Great post.

[JohnStOnge]

1. If the people do not like an interpetation of a current law by a Court, Congress can always amend that law within the bounds of the Constitution;
2. If the people don't like the interpretation of the bounds of the Constitution, they can always amend the Constitution; and
3. Federal Judges and SCOTUS Justices are always subject to impeachment.

For 1 and 2 the Court can just interpret whatever the People do to mean what it wants it to mean.

For 3, impeachment can only be for high crimes and misdemeanors. It cannot be for simply obviously departing from what the Constitution requires.

Yeah, the People can amend the Contitution through an arduous process that requires a lot of effort and overwhelming public consenses. But once they do, the Court can still negate anything they've done through a simple majority vote among 9 life term individuals who cannot be removed from office (unless they're guilty of high crimes or misdemeanors).

No. They are not accountable. Accountable means you can be removed from your job for poor performance and that is not the case with Federal judges. And, also, there is no "balance" of powers. It's a whole lot easier to develop a majority of 9 persons than it is to adopt a Constitutional Amendment. Then when you adopt the Amendment the majority of 9 can just "interpret" it the way the want to anyway.

[OL FU]

It just amazes me that ANYBODY who believes in government by the People supports this current circumstance because it is totally contrary to the government by the People concept. .

Because people put their own political agenda over the manner in which we are governed. It is very sad that judges use their "brilliance" and their belief that they know best to distort the law.

[OL FU]

Read this quote in an editorial today.

"Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president -- and benefits our democracy -- to find moderate nominees who can garner some measure of bipartisan support."

Barack Obama
The Audacity of Hope

[Grizalltheway]

Read this quote in an editorial today.

"Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president -- and benefits our democracy -- to find moderate nominees who can garner some measure of bipartisan support."

Barack Obama
The Audacity of Hope

What??? I thought Obama was the next coming of Lenin?!?

[houndawg]

Read this quote in an editorial today.

"Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president -- and benefits our democracy -- to find moderate nominees who can garner some measure of bipartisan support."

Barack Obama
The Audacity of Hope

Does this mean that he isn't going to nominate Angela Davis?

[OL FU]

Read this quote in an editorial today.

"Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president -- and benefits our democracy -- to find moderate nominees who can garner some measure of bipartisan support."

Barack Obama
The Audacity of Hope

Does this mean that he isn't going to nominate Angela Davis?

I think it means why did he nominate Liu who obviously doesn't fit the above quote

[OL FU]

I don't agree with Liu's constitutional law theories, but if he has fudged his questionnaire, that bothers me more.

Justice Breyer wrote a fairly easy-to-understand book about the "living Constitution"called Active Liberty. It's on my bookshelf next to Robert Bork's The Tempting of America.

When Justice Stevens steps down, it will be interesting to see who BHO's next nominee is. The current Solicitor General wants it to beat hell, but she's never ben a judge. Larry Tribe is a bit long in the tooth at this point for the job, and he's never been a judge, either. Maybe one of the Sotomayor also-rans.

BTW, I now have Breyer's book firmly in hand, well actually it is at home and I am not but still it is now on the reading list.

[danefan]

Interesting......

We're supposed to use the Amendment process when you don't like something the Court does...

They did not intend this kind of "living document" approach. They provided for a method of changing it through public consensus. They did not intend for Judges to change it through fiat. No way they would've endorsed today's "Living Constitution" philosophy.

But when the same process is used to support the Court you don't like it.....

Yeah, the People can amend the Contitution through an arduous process that requires a lot of effort and overwhelming public consenses.

[death dealer]

Nothing new. It's the "Living Constitution" doctorine. What it really is is a rationalization for not following the Constitution; for sustaining a situation in which the Judges Control the Constitution rather than the Constitution controlling the Judges. The tail wagging the dog.

And, to me, it means we might as well not even have a Constitution. If the "Living Constitution" outlook prevails (and it does) what's really going on is Judges are just making up the rules as they go along based on their personal/philosophical outlooks. Might as well drop the charade of being a "Constitutional" government and be up front about being, basically, ultimately governed by a Judicial oligarchy.

If and when the Constitution needs to change with the times there is a mechanism for doing that which is also consistent with following the original understanding. It's called the Amendment process. And following that process would mean the effect of the Constitution would only change when there was overwhelming public consensus for changing it. As it is, the effect changes on the whim of a majority among 9 unelected and totally unaccountable life-term appointees.

To me, it's amazing that anybody could think that the "Living Constitution" doctorine is acceptable.

It only gets support when the guy doing the interpretation is on the "correct" side. Same old bullshit, different party. What's good for the goose is rarely good for the gander in D.C.