"There is always a philosophy for lack of courage."—Albert Camus

Monday, October 03, 2005

Force the Argument on Judges

A debate on constitutionalism is the absolute key to objections about the Miers nomination.

Even if she IS a strong conservative, we will not get the national debate over constitutionalist judges that we want.

If this nomination is made in fear of a fight over someone stronger or more obvious, then it has been made wrongly. The desire for constitutionalist judges is greater now than before. There is no reason to shrink or compromise or sneak through a stealth candidate. We should nominate Luttig or McConnell and build a little national interest.

Question: will the GOP run stronger after waging a tough battle to nominate a top-drawer judicial conservative or after sending up someone Dusty Harry likes? I think we all know the answer.

The Republican party cannot hurt itself by pushing judicial conservatives or by forcing Democrats to attack them. If moving the base is the key, Bush and Co. have made a bad, bad move.

5 comments:

Tlaloc said...

Hunter, let me ask you a question. Do you really want to live by with a strict constituionalist judiciary?

That means a lot of things you'd like but a lot more I suspect you'd have a cow over. Say goodbye to the air force and marines. UN resolutions would become the binding law of our nation. It means the dismemberment of the Patriot act. It means the end of our current interpretation of the 2nd amendment in favor of the original meaning, i.e. muskets. The end of corporate "personhood."

Are you getting the idea? Going by a strict constitutionalist form of judiciary means a huge upheaval to our society and while you may like some of the results I guarantee others will not be to your liking.

Hunter Baker said...

I'm not drawing the same conclusions that you are on this one, T. Big surprise. I think you take originalism to a bizarre literalism.

The Liberal Anonymous said...

I think he's pretty much right, except for the thing about the second amendment.

C'mon, Tlaloc. Private citizens owned cannon back then.

Kathy Hutchins said...

I think he's pretty much right, except for the thing about the second amendment.

No he's not. We had Marines back when the people who wrote the Constitution were still in charge. Corporate law is almost entirely state law, not federal. UN resolutions? He's got some bizarre interpretation of the treaty clause that no one else has ever heard of, I suppose. As far as I understand it (which ain't far, I admit) originalists take a *more* restrictive view of how international agreements are to be negotiated.

Here's the one big change we were hoping for with originalism: a return to a sane federalism, and the continutation of the development of a restrictive view of the Commerce Clause. I don't want to speak for my fellow RCers, but I am not in favor of conservative judges legislating *my* policy preferences from the bench. I am in favor of giving power back to the state legislatures from which it's been stolen for the past 75 years.

Tlaloc said...

"No he's not. We had Marines back when the people who wrote the Constitution were still in charge."

No not as a permanent institution. Yes there was a small contingent of "marines" created in 1775 but the real corps date back to 1798. But more importantly the navy and army are mentioned in the constitution. The marines? Nope.



"Corporate law is almost entirely state law, not federal."

The reading that makes corporations persons is a SCOTUS not state affair. See Santa Clara County v. Southern Pacific Railroad Company (118 U.S. 394).



"UN resolutions? He's got some bizarre interpretation of the treaty clause that no one else has ever heard of, I suppose."

the treaty clause: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Is that really hard for you to parse? "Supreme law of the land" is pretty unambiguous right? You do know we entered into the UN by treaty (ratified in 1945), right? I guess I'm having a hard time seing just how reading the above paragraph and applying it to the hypothetical situation of a strict literalist interpretation of the constitution is so "bizarre."



"As far as I understand it (which ain't far, I admit) originalists take a *more* restrictive view of how international agreements are to be negotiated."

Negotiated doesn't really matter with a treaty that is already ratified, kathykins.



"Here's the one big change we were hoping for with originalism: a return to a sane federalism, and the continutation of the development of a restrictive view of the Commerce Clause."

Both those goals have merit and reasonable arguments for (and against) but to try and enact them by something so insanely drastic as insisting the constitution can't be interpreted in modern terms is downright suicidal.