Meet Goodwin Liu

[JohnStOnge]

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.

[JohnStOnge]

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.

[SeattleGriz]

Prove it.

Prove that they didn't intend it that way.

Because they didn't write it with the words or phrases, "sometimes, maybe, likely, happy feel good" etc?

I of course have nothing. Just trying to be a smartass.

[kalm]

The founders igonorance towards the human genome project, space exploration, RPG's, and that blacks and white's actually descended from the same monkey is all the proof you should need to realize the constitution has to be a work in progress.

[Skjellyfetti]

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

And this case:
http://www.law.umkc.edu/faculty/project ... rbury.HTML" onclick="window.open(this.href);return false;


Also, Federalist 78:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

http://thomas.loc.gov/home/histdox/fed_78.html" onclick="window.open(this.href);return false;

[travelinman67]

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

Thankfully, the judges in the past have not subscribed to your distorted constitutional interpretation, or over the past century they would have followed the "contemporary" sentiment of the day and viewed murder of homosexuals as defensible.



Nice try, Justice Stevens.

[CID1990]

Is this really surprising to anyone?

Would it be possible for Obama to nominate ANYONE who is not a proponent of the "living document" theory of Constitutional scholarship?

I am an opponent of anyone who would radically modify the document. That goes for the anti-fag marriage people as well as the gun control nuts. It already has all of the required language to provide for the needs of this country. Leave it the hell alone. Let's not forget that the Constitution IS NOT a list of our rights. It is a contract that limits what our government can do to us. Period. Anyone who seeks to change that paradigm is already on the short bus and lacking in their understanding of what the Constitution is. Its strength lies in its unchanging nature. It was designed to withstand popular pressure, and thus far it has done so. Although there have been notable amendments, the charater of the document has remained relatively unchanged.

Does anyone really believe that amending the Constitution (or by judicial fiat) changing it in such a way that places ADDITIONAL limits on the government? In which direction do we really want to go?

[Col Hogan]

The founders igonorance towards the human genome project, space exploration, RPG's, and that blacks and white's actually descended from the same monkey is all the proof you should need to realize the constitution has to be a work in progress.

Isn't that why they put a method to amend the Constitution INTO THE DOCUMENT...

And since they went to the effort of putting that method INTO THE DOCUMENT...do you really believed they would accept for one moment, judicial meddling as an acceptable method of governance???

[OL FU]

Prove it.

Prove that they didn't intend it that way.

Does anyone really believe that the founders thought the words they wrote should not mean what they intended but have a different meaning placed upon them by a judge 225 years later based on his own views.


that is simply a stretch that is too big to believe.


If a brilliant legal mind is one that believes it is ok not to understand that the constitution was a contract between the states on how the federal government would interact with the states and the states citizens and therefore should only be amended in the fashion proscribed in that contract but believes that the constitution should be interpreted based upon the views and morality (or lack of it) by judges, then that brilliance is deviant. It is the same deviant brilliance of the managers of Enron. The only difference is we put those deviants in jail when detected.

[OL FU]

There is a right answer. a law that is a moving target, is not a law.

It should not be a matter of whether the positions are liberal or conservative. It should matter what the text intended. For a judge to say what the founders intended is not important is an abomination

What it says is "I know what the constitution should say" Very sad.

So you are going all the way back to Marbury vs. Madison then and arguing that SCOTUS doesn't even have the power of Judisicial Review?

What are we supposed to do when we run across a situation like electronic search and seizure. There's no way the writers of the 4th Amendment thought about infrared cameras in helicopters when they used the word "unreasonable." So does that mean we just have no answer to that situation when it comes up? Or that we need to ask for a state by state referendum to amend the Constitution to deal with that issue?

I am not arguing that at all. I am not arguing that precedents that increased the power of the federal government way beyond the intention of the constitution should be reversed. We would have a society in chaos. But I am arguing that the bastardization of the constitution should not continue. Certainly, there are issues that the framers could never have imagined and interpretation of the constitution is a requirement. However, when the issue is clearly not in the jurisdiction of the federal government, never was in the jurisdiction of the federal government and never intended to be in the jurisdiction of the federal government, whether in the original document or through amendment, it is totally inappropriate for a judge to obliterate the political process based upon their own moral convictions. And yes, while they may be using their brilliant minds to justify their positiions, they are doing nothing more than saying in my opinion, this is the way people should act, this is what the law should say, I don't care what the constitution says or was intended to say it is wrong and I am changing it. I can guarantee that the framers did not intend for the judiciary to legislate from the bench. And you know that too.

[OL FU]

PS, I don't know if he is related to Lucy but she is hot.

[OL FU]

I bet Travis likes this nomination, in more ways than one.

[houndawg]

The founders igonorance towards the human genome project, space exploration, RPG's, and that blacks and white's actually descended from the same monkey is all the proof you should need to realize the constitution has to be a work in progress.

Game Over.

[OL FU]

The founders igonorance towards the human genome project, space exploration, RPG's, and that blacks and white's actually descended from the same monkey is all the proof you should need to realize the constitution has to be a work in progress.

Game Over.

Only if you want to ruled by judges. No thanks. I prefer the imperfections of representative govenment.

[OL FU]

So you are going all the way back to Marbury vs. Madison then and arguing that SCOTUS doesn't even have the power of Judisicial Review?

What are we supposed to do when we run across a situation like electronic search and seizure. There's no way the writers of the 4th Amendment thought about infrared cameras in helicopters when they used the word "unreasonable." So does that mean we just have no answer to that situation when it comes up? Or that we need to ask for a state by state referendum to amend the Constitution to deal with that issue?

And yes, while they may be using their brilliant minds to justify their positiions, they are doing nothing more than saying in my opinion, this is the way people should act, this is what the law should say, I don't care what the constitution says or was intended to say it is wrong and I am changing it.

AS I said and straight from the horses mouth.

The question that properly guides interpretation is not how the Constitution would have been applied at the Founding, but rather how it should be applied today in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society.

In other words the constitution says what I think it should say.

[native]

Prove that they didn't intend it that way.

Does anyone really believe that the founders thought the words they wrote should not mean what they intended but have a different meaning placed upon them by a judge 225 years later based on his own views.

that is simply a stretch that is too big to believe.

If a brilliant legal mind is one that believes it is ok not to understand that the constitution was a contract between the states on how the federal government would interact with the states and the states citizens and therefore should only be amended in the fashion proscribed in that contract but believes that the constitution should be interpreted based upon the views and morality (or lack of it) by judges, then that brilliance is deviant. It is the same deviant brilliance of the managers of Enron. The only difference is we put those deviants in jail when detected.

Touche, OL FU! One of a series of outstanding posts by you, CID, the Colonel, et al...

Danefan, you are a transparent and sad example of the corrupted liberal legal education assembly line.

[danefan]

Prove that they didn't intend it that way.

Does anyone really believe that the founders thought the words they wrote should not mean what they intended but have a different meaning placed upon them by a judge 225 years later based on his own views.


that is simply a stretch that is too big to believe.


If a brilliant legal mind is one that believes it is ok not to understand that the constitution was a contract between the states on how the federal government would interact with the states and the states citizens and therefore should only be amended in the fashion proscribed in that contract but believes that the constitution should be interpreted based upon the views and morality (or lack of it) by judges, then that brilliance is deviant. It is the same deviant brilliance of the managers of Enron. The only difference is we put those deviants in jail when detected.

I'm confused by your post. If the point of the Consitution, as you state it, is to govern how the feds interact with state citizens, then how is interpreting federal law and the bounds of the consitution not a valid purpose of the bench?

I completely agree with you that there is a line and that sometimes judges cross that line and issue decisions where in fact they should do nothing more than defer to the legislature. However, with that being said, I cannot imagine that the writers of the consitution intended the general language they used to be subject to application to specific factual instances (e.g. my infrared helicopter example) using the context of 1787.

(BTW - as I mentioned above, I'm not by any means a Constitutional scholar. JJ is much better versed then I for sure. My "study" is limited to the opinions I formed in law school, which is undoubtedly based on limited information).

[danefan]

Danefan, you are a transparent and sad example of the corrupted liberal legal education assembly line.

Please explain to me how my legal education was corrupted. And before you do so I'd like to see your credentials for making such a generalized and assinine comment.

[OL FU]

Does anyone really believe that the founders thought the words they wrote should not mean what they intended but have a different meaning placed upon them by a judge 225 years later based on his own views.


that is simply a stretch that is too big to believe.


If a brilliant legal mind is one that believes it is ok not to understand that the constitution was a contract between the states on how the federal government would interact with the states and the states citizens and therefore should only be amended in the fashion proscribed in that contract but believes that the constitution should be interpreted based upon the views and morality (or lack of it) by judges, then that brilliance is deviant. It is the same deviant brilliance of the managers of Enron. The only difference is we put those deviants in jail when detected.

I'm confused by your post. If the point of the Consitution, as you state it, is to govern how the feds interact with state citizens, then how is interpreting federal law and the bounds of the consitution not a valid purpose of the bench?

I completely agree with you that there is a line and that sometimes judges cross that line and issue decisions where in fact they should do nothing more than defer to the legislature. However, with that being said, I cannot imagine that the writers of the consitution intended the general language they used to be subject to application to specific factual instances (e.g. my infrared helicopter example) using the context of 1787.

(BTW - as I mentioned above, I'm not by any means a Constitutional scholar. JJ is much better versed then I for sure. My "study" is limited to the opinions I formed in law school, which is undoubtedly based on limited information).

As I said in a subsequent post I am not disputing judicial interpretation of the constitution and I certainly realize that there are issues today not imagined by the writers of the constitution or the amendments. I do dispute with ferocity the position that a judge should not interpret the constitution based on the intent of the words. To do otherwise negates the original compact between the states and dimishes the ultimate law of the land to nothing more than the political views of a group of judges.

Side note - as you can see this is one of the issues that I am most passionate about. While I have political views I won't rage on about taxes, or health care or whatever. In fact, if I saw the constitution as many activist judges do as a means to implement a political agenda, I would celebrate activism. I am pro-abortion but anti Roe versus Wade. I am pro-gay marriage but can't find anything in the words or intent of the constitution that hints at that being a constitutional right. It is my opinion that if we can't rely on the words and the intent of the words of the document that determines how we are to be governed and simply place the meaning of that document at the whim of justices, then as JOS said, we have no constitution.

[danefan]

I'm confused by your post. If the point of the Consitution, as you state it, is to govern how the feds interact with state citizens, then how is interpreting federal law and the bounds of the consitution not a valid purpose of the bench?

I completely agree with you that there is a line and that sometimes judges cross that line and issue decisions where in fact they should do nothing more than defer to the legislature. However, with that being said, I cannot imagine that the writers of the consitution intended the general language they used to be subject to application to specific factual instances (e.g. my infrared helicopter example) using the context of 1787.

(BTW - as I mentioned above, I'm not by any means a Constitutional scholar. JJ is much better versed then I for sure. My "study" is limited to the opinions I formed in law school, which is undoubtedly based on limited information).

As I said in a subsequent post I am not disputing judicial interpretation of the constitution and I certainly realize that there are issues today not imagined by the writers of the constitution or the amendments. I do dispute with ferocity the position that a judge should not interpret the constitution based on the intent of the words. To do otherwise negates the original compact between the states and dimishes the ultimate law of the land to nothing more than the political views of a group of judges.

Side note - as you can see this is one of the issues that I am most passionate about. While I have political views I won't rage on about taxes, or health care or whatever. In fact, if I saw the constitution as many activist judges do as a means to implement a political agenda, I would celebrate activism. I am pro-abortion but anti Roe versus Wade. I am pro-gay marriage but can't find anything in the words or intent of the constitution that hints at that being a constitutional right. It is my opinion that if we can't rely on the words and the intent of the words of the document that determines how we are to be governed and simply place the meaning of that document at the whim of justices, then as JOS said, we have no constitution.

I know you are passionate about this as I've had this discussion before.
And I believe you have a valid opinion. I just do not think its the end-all-be-all opinion that ends the discussion completely.

As far as the bolded part of your quote, I have the following question. If a judge isn't supposed to interpret the Constitution by looking at the meaning of the words of the Constitution, then what is he/she supposed to do when faced with a situation not specifically provided for in the Constitution?

[OL FU]

As I said in a subsequent post I am not disputing judicial interpretation of the constitution and I certainly realize that there are issues today not imagined by the writers of the constitution or the amendments. I do dispute with ferocity the position that a judge should not interpret the constitution based on the intent of the words. To do otherwise negates the original compact between the states and dimishes the ultimate law of the land to nothing more than the political views of a group of judges.

Side note - as you can see this is one of the issues that I am most passionate about. While I have political views I won't rage on about taxes, or health care or whatever. In fact, if I saw the constitution as many activist judges do as a means to implement a political agenda, I would celebrate activism. I am pro-abortion but anti Roe versus Wade. I am pro-gay marriage but can't find anything in the words or intent of the constitution that hints at that being a constitutional right. It is my opinion that if we can't rely on the words and the intent of the words of the document that determines how we are to be governed and simply place the meaning of that document at the whim of justices, then as JOS said, we have no constitution.

I know you are passionate about this as I've had this discussion before.
And I believe you have a valid opinion. I just do not think its the end-all-be-all opinion that ends the discussion completely.

As far as the bolded part of your quote, I have the following question. If a judge isn't supposed to interpret the Constitution by looking at the meaning of the words of the Constitution, then what is he/she supposed to do when faced with a situation not specifically provided for in the Constitution?

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.

[danefan]

I know you are passionate about this as I've had this discussion before.
And I believe you have a valid opinion. I just do not think its the end-all-be-all opinion that ends the discussion completely.

As far as the bolded part of your quote, I have the following question. If a judge isn't supposed to interpret the Constitution by looking at the meaning of the words of the Constitution, then what is he/she supposed to do when faced with a situation not specifically provided for in the Constitution?

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.

[travelinman67]

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.

Goodwin Liu...

...omitted his participation/comments at numerous "controversial" legal community events when responding to the Senate Confirmation questionaire...

...117 items left out...

...and now has had to submit a fourth revision to his answers...

...yet is being nominated to the Ninth Circuit Court of Appeals...

...though he HAS NEVER SERVED AS A JUDGE BEFORE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

And his only "qualifications" other than being an attorney is that he teaches Law at Berkeley...

...clerked for a radically liberal Supreme Court Justice...

...and has written, stated or participated in numerous events/publications which position him as radically socially liberal.



Conspiracy?

Yeah, no indicae of a conspiracy here, Dane...

[danefan]

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.

Goodwin Liu...

...omitted his participation/comments at numerous "controversial" legal community events when responding to the Senate Confirmation questionaire...

...117 items left out...

...and now has had to submit a fourth revision to his answers...

...yet is being nominated to the Ninth Circuit Court of Appeals...

...though he HAS NEVER SERVED AS A JUDGE BEFORE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

And his only "qualifications" other than being an attorney is that he teaches Law at Berkeley...

...clerked for a radically liberal Supreme Court Justice...

...and has written, stated or participated in numerous events/publications which position him as radically socially liberal.



Conspiracy?

Yeah, no indicae of a conspiracy here, Dane...

What? Did you even read what I wrote?

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

What exactly did you say above to show me any kind of overreaching conspiracy?

[Ivytalk]

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.