Debates from ConfirmThem-dot-com

I posted a harmless little bit of commentary on a thread about JR Brown, and got shot at by “Andrew”. Here it is, for the record, from
16 Kurmudge Posted on October 24th, 2005 at 7:01 pm. About ‘JRB on SDP’.
No matter how much we want the Constitution to be specific enough to protect us from black-robed dictators diving headlong off the cliff before they can even get to the slippery slope, we can’t. Unless we turn the US Constitution into something as detailed as the EC nightmare, there will always be a need for an interpretive court to tell the government to knock it off, which it does well sometimes and less well at others (Kelo).

But how do we really preserve the basic fundamental rights of not being regulated by the government for everything if there is not some kind of recognition that we have inalienable rights not spelled out (because they were so obvious to the founders) in the Constitution, and had been called out just 12 years previously in the Declaration as being liberties endowed by the Creator? When voracious governments of all levels go nuts, someone has to call a halt. Yes, today the SCOTUS is as much at fault as is the legislature, but pretending that there are no natural law liberties is not exactly a way to preserve them.

The problem is not Griswold as described and justified by Harlan (NOT Douglas’ execrable opinion), but that the Court then threw off all barriers and started to act like a permanent Congress in Eisenstadt, Roe, etc. Each time they didn’t like a case, they made something up to justify it. That is STILL not a reason that we don’t have some kinds of “fundamental rights” that flow from our basic right to life liberty, and property. I think that that is where JRB was going, and decided not to get into the debate and the need to explain in one-syllable words the delicate difference between Griswold (some logic) and Roe (utter nonsense, with no pretense at Constitutional justification).

This is still, and will always be, a sort of dialectical balance to yank things back when they go too far off, as Rehnquist, et al did to the Commerce Clause in Lopez and Morrison.
And we STILL don’t know how Miers feels about this, despite all the heated rhetoric in the blogosphere. Time to stop bloviating and wait, make sure that somene on the SJC asks the right questions. If she answers sensibly, that’s all we can ask for unless we are sure she’s lying., Last time I looked, the President gets to make these nominations, and us fussing that he didn’t consult us enough is equally wrong as Chuckie-doll Schumer suggesting that he provide the list off of which the choice is made.
17 Andrew Posted on October 24th, 2005 at 7:10 pm. About ‘JRB on SDP’.
Kurmudge, who tells the British government to knock it off? The British parliament got along perfectly well prior to the Factortame case.

Basically, there are two kinds of judicial review: either the courts strike down only legislation that plainly conflicts with the terms of a constitution, or the courts have carte blanche to enforce what they deem to be the “spirit” of the constitution. Those of you who advocate the latter have two high hurdles: (1) the framers never intentioned such a thing, and (2) other countries have gotten along perfectly well without ANY judicial review, much less the carte blanche type that you advocate.
18 Kurmudge Posted on October 25th, 2005 at 12:22 pm. About ‘JRB on SDP’.

As you very well know, Andrew, the British government operates essentially totally on “political questions” that are, by definition, non-justiciable. And you know that we have a different system. And the issue here is separation of powers, particularly the tendency of the SCOTUS in arrogating for itself a lot more power than most of us who read this blog would believe is proper. I do agree with Black’s comment in his dissent on Griswold, even if I am sympathetic to Harlan’s actual opinion on that case.

But you still don’t address the fundamental question, it seems to me. We cannot spell everything out as the EC bureaucrats in Belgium are determined to do, and it is obvious that Thomas is the only justice who will rail against the unfortunate modern tendency to threat the 10th as a “truism” in his dissent on the term limits case. So we are left with the reality that something still has to be interpreted, and this ends up being in actual practice a push-pull battle to keep the Douglas-Brennan-Stevens-Souter-Ginsburg cabal from making it up as they go along when that irresistible mood strikes to be a Change Agent For Good, and preventing the Kennedy types from getting too enamored of their press clippings and listening to goofy clerks who like to read Swedish laws about “tolerance”.

I categorically reject your notion that the process of judicial review is a digital switch. Over history we went from Gibbons to Slaughterhouse to Darby to Lochner to (yecchh) Wickard to Lopez, etc.- not exactly a straight line of interpretive approach. And I fail to see where, by recognizing the same principles of review as CJ Roberts appears to accept, I am suggesting anything like “carte blanche” to legislate judicially.

Your comment suggests to me that you think that every law allowed to stand under the Commerce Clause that regulates something not directly crossing state lines (in other words, Marshall in Gibbons was dead wrong) is an example of unconstitutional behavior. Maybe, under the most restrictive interpretation of originalism, but that view is a non-starter in the real world, so much so that you won’t find any mainstream conservative seriously saying that the minimum wage laws, for example, can be struck down. The realistic approach was Rehnquist’s in Morrison, it seems to me. If we can maintain and extend that, we will do well. If we can kill Roe (and, please, the principle of “health” exceptions established by Doe and affirmed in Casey) dead once and for all so that the issues could be legislated appropriately, we ought to be delirious.

In practice appellate jurisprudence is a continuum, and we need to keep doing useful things to increase the spring pressure toward the right side. I’m not sure that trashing Miers to promote JRB (a personal favorite, I add) is helpful on that front.


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