[quote]
BostonBarrister wrote:
Race equality IS specifically mentioned in the Constitution.
forlife wrote:
My point was that the Constitution doesn’t specifically guarantee the right of mixed race couples to marry. By your broad definition, because this right isn’t specifically mentioned, any judicial decisions on the matter must be “made up”.
The Constitution cannot cover every contingency, so obviously judges need to interpret its broad principles and apply them to specific cases. Doing so doesn’t mean they are “making things up”.
You might argue that since general language is included on racial equality, specific decisions on mixed race marriage are axiomatic. However, that is an arbitrary line in the sand. [/quote]
You don’t seem to understand what you’re talking about.
There is an obvious difference between applying a principle to a novel situation, and changing the meaning of the principle to suit a new agenda.
For example, in Kyllo v. the United States ( http://www.law.cornell.edu/supct/html/99-8508.ZO.html ) the USSC was confronted with the question of whether government’s use of infrared scanning technology to “look through” the walls of a house constituted a “search” under the meaning of the 4th Amendment. It was novel because the technology obviously didn’t exist at the time the 4th Amendment was passed - so the court had to look to the meaning of the 4th Amendment and decide if it applied. Scalia, writing the majority opinion, held that it was a “search” under the meaning of the 4th Amendment based on what a “search” meant at the time. To quote from note 1 “When the Fourth Amendment was adopted, as now, to “search” meant “[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.” N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989).”
That is the essence of the function of the judiciary. To interpret the law in cases in which it’s not clear what it meant, or how it would apply to novel circumstances.
Now, contrast that to the example of the CA Supreme Court. It took the CA Constitution massively expanded its meaning from what was intended when it was passed. No one even tried to argue that anyone in the entire state of California thought he was passing a right of equality under the law based on sexual orientation when the CA Constitution was passed, or on any subsequent amendment - nor a right of any individual to marriage.
That is making up new meanings for existing law. That is functionally equivalent to passing laws, or amending them - that is usurpation of power by the judiciary.
I’m glad you realize the Constitution can’t cover every contingency - what you need to grasp is that it isn’t supposed to do that, either.
[quote]forlife wrote:
You could make similar arguments based on general language regarding the inalienable right of people to life, liberty, and the pursuit of happiness. How specific does the Constitution have to be before you are willing to grant that judges aren’t “making things up”? [/quote]
Really, there’s a right in the Constitution to pursuit of happiness? Care to cite the section? Hint: You may want to look in another document…
You have the right to life and liberty of course. What you do not have the right to is a set of government benefits.
[quote]
BostonBarrister wrote:
BTW, please feel free to cite one or two specific examples of originalists making stuff up.
forlife wrote:
You’re the one accusing judges (liberal judges, in particular) of making things up. I’m not so presumptious. [/quote]
To quote you from above:
Feel free to cite one or two examples of originalists doing this.
[quote]
forlife wrote:
I don’t believe conservative judges make things up any more than liberal judges do. They simply have a different interpretation of the intent and application of Constitutional law.[/quote]
Activist judges make stuff up all the time - they don’t believe they are bound by the “dead hand” of the meaning of what was actually passed.
ADDENDUM: Former Scalia clerk Ed Whelan helpfully posts a weekly note titled “This Week in Liberal Judicial Activism” (it notes rulings and also talks about judicial confirmation hearings), and talks about what he means by “liberal judicial activism”:
http://bench.nationalreview.com/post/?q=NWMyNzlmOGZhOWQ5YjY0YjNmYmI5MGM5Y2MxMzM3ZDU=
EXCERPT:
[i]Let me offer a few points of explanation of what I mean by the term “liberal judicial activism”:
-
For rulings on questions of constitutional law, I will identify judicial decisions that wrongly override laws or policies that flow from the democratic processes and instead entrench, in the name of the Constitution, liberal policy preferences.
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I intend to use the term “judicial passivism” for judicial decisions that make the opposite error - that fail to enforce constitutional guarantees. Because the two errors are often related - it’s no surprise that justices and judges who embrace the make-it-up-as-you-go-along approach to inventing rights that aren’t in the Constitution also will ignore rights that are in it - I may occasionally include instances of liberal judicial passivism.
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For rulings on non-constitutional questions, I will identify judicial decisions that implausibly construe legal texts to reach liberal policy results.
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I will not be not probing the subjective motivations of judges. To identify a decision as an instance of liberal judicial activism does not necessarily mean that I am alleging that the judges responsible for the decision have indulged, deliberately or otherwise, their own policy preferences, though I certainly believe that often to be the case. It might instead be that they misconceive the judicial role or that they simply err. In terms of the injury done to American citizens’ power of self-governance, the cause of the error is of little interest.[/i]
To clarify point 1 above, by “wrongly,” he means they don’t follow the original public meaning of the Constitution.
I also offer you a few of his most recent examples:
http://bench.nationalreview.com/post/?q=ZjlkOTNiYjUyYjRiOTBlMGVlNzJkYTZjMmFhNTQyNTg=
http://bench.nationalreview.com/post/?q=ZTlkMjg5ODNhNWNiYWU5ZmU3YTlmZjAzZjUzOGU0ZTk=
http://bench.nationalreview.com/post/?q=MjQ0ZmJlMzhhM2Q1OTI1NWRmM2YzMThlYzMxZWZhNTA=
http://bench.nationalreview.com/post/?q=YjM2ZDIzZDU4ZTM1MjdjYzI1ZGVlNzgzNzZiYWY2ZWY=
http://bench.nationalreview.com/post/?q=N2FiMmZlNDA3MDAyZjI5N2Y2MzA4YmYxOTgxOWYxZmE=
Finally, here is a good normative explanation of why originalism is important and preferred, from Prof. Mike Rappaport of USD Law:
http://therightcoast.blogspot.com/2005/06/normative-basis-of-originalism-by-mike.html
EXCERPT:
[i]Laws that must pass under a strict supermajority rule are apt to be better than laws passed by majority rule. While the specific effects of supermajority rules depend on the type of laws being passed, the circumstances, and the model of the legislative process that one employs, one can make certain generalizations. First, that supermajority rules require the approval of a greater percentage of the legislature operates to protect minority interests from being exploited. Second, the greater support required under supermajority rules also means that laws must in general produce significant public benefits in order to pass. (For other arguments, see the paper.) While supermajority rules don’t make sense in all circumstances, they are desirable when applied to the passage of constitutional norms that will be entrenched against change by ordinary legislative majorities.
The supermajoritarian process for enacting constitutional norms provides a reason why constitutional provisions should be preferred to ordinary statutes passed under majority voting rules: the constitutional norms are likely to be of higher quality than ordinary legislation. The supermajoritarian process also suggests that the Constitution should be given its original meaning: it is only the original meaning of the provisions that would have been reviewed by the participants in the strict supermajoritan process.
Both Brian and the paper he cites to by Andrei Marmor miss this argument. They contend that absent the people consenting to the Constitution which has not occured, there is no reason to treat its original meaning as authoritative unless the Framers had some “special expertise.” But it is not who the Framers were that justifies following their Constitution, it is the supermajoritarian process by which they enacted the Constitution. This process also justifies not following their handiwork when the Constitution has been amended.
This supermajoritarian defense of the Constitution is reinforced by the fact that original meaning interpretation guides and constrains judges. Under the loose interpretive approach favored by Marmor and most liberal academics, there is little to stop the Supreme Court Justices from imposing their own views on the nation. Since this amounts to constitutional amendment by a majority of 9 unelected judges, as opposed to constitutional amendment by a supermajority of elected officials, this process of judicial amendment is far worse than following the original meaning.
In the end, then, originalism is justified because it enforces provisions enacted in a process that suggests they will be desirable and assigns to judges the task of enforcing, not making, the law.[/i]