« Candidate for AZ governor | Main | US reverses stance on small arms treaty »
Former Justice Souter speaks
Story here.
I can understand that he doesn't seem to like textualism -- stick to the words, that's what was agreed upon -- nor original understanding -- words explained by our best understanding of what they were meant to be. But what he does propose as an interpretative tool is beyond my grasp. Each rephrasing seems to amount to "something else."
"a defense of the need for judges to go beyond the plain text — what he called the “fair-reading model” — and make choices among the competing values embedded in the Constitution. "
I can't see many areas where this is true, unless Article I's grant of power to Congress is seen as in conflict with the Bill of Rights ... but then the Bill of Rights reflects Americans' choice to withhold those powers from Congress, so it really is not in conflict. There's no indication to me that Americans meant for judges to consider "Congress shall make no law" as something for judges to weigh against Article I.
'The “notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly” is not only “simplistic,” he said; it “diminishes us” by failing to acknowledge that the Constitution is not just a set of aphorisms for the country to live by but a “pantheon of values” inevitably in tension with one another."
Same problem.
"A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways."
Not really. Americans destroyed the Federalist Party because it failed to respect the First Amendment. They were pretty clear which way they wanted to have it, to the point where they destroyed the dominant political party of the time.
"The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice."
So between Bill of Rights liberties and, dare I say it, the unenumerated powers of the government, the Court must arbitrate (and in the current day). Heck, and I'd always thought the Bill of Rights had "the better claim," in any age.
He discussed Plessey v. Ferguson, upholding segregation, and Brown v. Board, striking it down, as "the meaning to the justices of the fact of segregation had changed. “The meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own."
Doesn't that mean he accepts that Plessey was right when it was decided, "right here, right now," and became wrong half a century later? I'd rather prefer to think it was wrong and odious from the beginning, for reasons entirely external to the judges.... it just took them half a century to see the light.
Above all else -- beyond "not originalism," where does he say what his method is? It seems to be that everything is balancing, the people foolishly want everything, and we must, out of our greater wisdom, decide what is in their best interest. If what we want coincides with what the Framers wanted... well, that's OK, too.
6 Comments | Leave a comment
A hypocrite and traitor trying to justify his life. He can't do it. There is no justification for his life. He should pray his thanks daily for the tolerance and peaceable nature of others.
He discussed Plessey v. Ferguson, upholding segregation, and Brown v. Board, striking it down, as "the meaning to the justices of the fact of segregation had changed. “The meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own."
Doesn't that mean he accepts that Plessey was right when it was decided, "right here, right now," and became wrong half a century later? I'd rather prefer to think it was wrong and odious from the beginning, for reasons entirely external to the judges.... it just took them half a century to see the light.
It sounds to me like he's trying to make the court look infallible.
Infallible. That's it, isn't it? Because they couldn't be, you know, wrong. That would be just too terrible. Better to be wrong and stubborn about it than admit and change your mind. Because then THEY would be right and you would no longer be superior to THEM.
Now we understand why politicians are paranoid.
The really sickening thing is that even most otherwise good justices (e.g., Scalia) have a horrible reluctance to overturn a previous ruling for the simple reason that it was wrong. Instead, they'll respect a decision such as Cruickshank, Plessy or Dred Scott until the stench gets so bad that even the rats in the basement can't stand it, then engage in the sort of sophistry that formerly was reserved for determining the number of angels that could dance on the head of a pin, in order to reach the exact opposite decision without having to ever suggest that a temporary majority of their "brethren" from a century or more ago might conceivably have erred. Souter merely has the indecency not simply to admit such narcissism, but to champion it.
I shall try once more to explain the court's proper position relative to the Constitution and the LIE that the court can interpret anything.
If you are a believer, this will be easy. If not, then use the terms to apply to your boss.
First, between the Creator and the created, who's the boss? Of course, it is the Creator. Thus the Creator is recognized as the superior (boss) and the created is the subordinate (employee).
So between the Constitution and We the People, who's the boss? Answer: We the People. So We the People are superior to the Constitution and the Constitution is our subordinate.
Next, between the Constitution and the government (legislative, executive, AND judicial branches), who's the boss? Of course the Constitution is the boss and is superior to every part of government that it creates. Without the Constitution, there is no government. And the subordinate has no authority to define the superior. If you think differently, go into work and tell your boss his/her job. Let me know the outcome.
The courts, and especially the supreme court are subordinate to the Constitution and cannot legitimately interpret even a single word of the document. We the People, being the sole superior to the Constitution, decide what it means. The lie of the court's superiority has permeated our society, but that has been done in order to usupr power by those supposed to serve We the People. Not a single letter of the Constitution provides any such authority to the courts. [And of course all inferior courts are further down the chain being under the authority of Congress.]
Blackstone spoke of these things and if our legal education system was worth crap it would include proper teaching in where the authority lies in our system of government. Instead, legal education fails.
From Blackstone:
For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.
Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6
So even Blackstone recognized the We the People hold power over the judges. Whenever We the People disagree with them, they lose. We the People have the final say. Claiming the SC has the final say is a terrible lie and usurps authority never intended to be delegated.
If the court does anything other than what our contract says they can do, they have violated the contract and We the People can demand they be removed. Judges are OUR servants. Judges are NOT our bosses.
I know I'm spitting into the wind but I will continue to teach the truth to everyone who will listen.
RE: The Bill of Rights and the original Constitution
One should note that the premamble of the Bill of Rights make it perfectly clear that the Bill of Rights overrides ALL of the powers delegated by the original Constitution. Latter law supercedes prior law in which the prior law is in conflict but even more explicitly, those who wrote the Bill of Rights said so. Thus when the first says Congress ahll make no law, that is an absolute order that Congress can make absolutely NO LAW, positive, negative, or even neutral. And all this bullshit about governmental interest is another lie. In our system of government, the government has no de facto powers, no inherent powers, no implied powers. Claims to the contrary are made by those unable to comprehend the Constitution as written and those unable to grasp the limited form of government implemented by that Constitution.
The extent of the exceptions in the Bill of Rights escapes those not fully educated in comprehending English. That however does not change the fact, that the Bill of Rights supercedes all governmental powers (esp federal) absolutely.
The judges find it hard to overturn prior decisions because they lack the honor and the integrity of true scientists. In true science, the search is for truth and every law, every theory, every hypothesis is fair game for attack. Judges were sealed in a box during their education and they cannot get out. They fear what is outside their little box.
How would you like to have someone like him deciding a complicated contract case in which you were a party? Let's ignore the simple words of the contract, so laboriously worked out and agreed upon, and jump to the real issues, the aspirations and dreams, the pantheon of values from which he, as the wise and omniscient philosopher-king will select the best outcome. Personally, I'd just as soon have someone with a bone in his nose decide the issues by reading goat entrails.