Tag: originalism

Posted on

“Constructionist” Judges

Some opponents of our permissive abortion laws like to point to “activist” judges who read “new” rights into the constitution, and thereby helped cause the moral decline of America.

I just realized that one problem with this argument is that abortion was not illegal in 1776. It wasn’t. Britain passed some of first anti-abortion laws in 1803, and the U.S. followed, but abortion was a widespread practice of midwives and doctors until the late 19th century, when, as part of a backlash against suffrage, and partly as a humanitarian movement, it was steadily restricted.

Let’s hold the word “widespread” with caution: nobody can know with certainty just how common the practice was.  But we do know the other thing: it was not in any criminal code anywhere until after the Constitution was written.

So if a nominee to the Supreme Court was determined to divest the court of rulings that were not faithful to the vision of constitutional government held by the founding fathers, he might just come to the conclusion that, as in 1776, the state has no business intruding into women’s bodies.

[added May 2008] I suppose Mr. Alito or Mr. Roberts or– God help us– Clarence Thomas– might respond that advances in science and medicine since 1776 have enlarged our understanding of life inside the womb and so on, and therefore justifies a more restrictive ruling on the issue. Well, well, well– isn’t that exactly the argument of those non strict contructionalist judges who believe the Constitution is a living document that needs to be understood in the light of history and science. Maybe, given today’s realities, the 2nd amendment doesn’t make any sense any more.

And maybe now I understand why the Supreme Court hasn’t done anything to stop the use of torture by the U.S. government: in 1776, Trial by Ordeal was not so far removed from normal judicial practice.

[2022-05]

The argument here stands in need of clarification and refinement.  The Supreme Court in Roe vs Wade ruled that no state may infringe upon a right of “privacy” that it held was implicit in the Constitution.  In 2022, the Supreme Court seems ready to say it was incorrect about that: there is no implicit right to privacy.  That’s the actual Constitutional issue.   It’s just clear that many evangelical Christians are under the mistaken belief that abortion was not legal in “the good old days”, before the nation was swept by a tide of immorality and sensualism, drug use, long-haired hippies, and Al Gore.

Posted on

The Dreaded Judge Roberts

For a man with such a reputation, John Roberts took a somewhat ridiculous position at the Senate confirmation hearings on his appointment as Chief Justice of the Supreme Court.

Roberts basically said that he had no over-arching judicial policy. He was a pragmatist. He simply used the methods most appropriate to the case at hand. Therefore, he is unbiased.

On the contrary, by refusing to espouse a particular judicial philosophy, be it “originalist” or “constructionist” or “majoritarian” or whatever, he keeps his options open. If a particular outcome would favor the president’s ability to use torture on those …. what are they? Prisoners of war? No– Bush denies that. Kidnap victims? Whatever– in Guantanamo Bay, then he’ll use it. If he needs a different judicial philosophy to justify arresting 12-year-old girls with French fries, he’ll use that. And if he needs a third philosophy to justify granting gun manufacturers immunity from lawsuits, by golly, he’ll use that. The outcome is always the same: whatever favours conservative political and social policy.

If I were a Senator on the Judiciary Committee, I would have asked this question. Sir, you deny that you have an ideology or a particular philosophical outlook on issues that might come before the Supreme Court. You also deny that it is possible for you to discuss how or why you might rule one way or the other on any particular issue that comes before the court. If you were me, what exactly is it that you would like to know about a candidate for the Supreme Court before voting in favour of his appointment. And how, given that you won’t answer any questions about how you would rule on anything, would we prevent ourselves from appointing a complete idiot to the position?

You mean like Scalia? Or Thomas? Or Rehnquist?

If I had been on the Senate…   this what I would have asked Judge Roberts:

Have you had any contact at all with any poor people in your life?

Given the large number of convictions that have been reversed through DNA testing in the past few years, how can you justify making judgments that make it more difficult– not less– for review of capital cases?

Please describe, if you can, how you made a judgment in favor of “the little guy” at some point or another in your career. You can’t? Not one? Oh– because the “little guy” has never, ever been right in any of the cases you’ve heard…

What can we tell prisoners in Guantanamo Bay to make them feel less upset about being tortured by the good guys, the light of the world, the hope for the future: America?

If you ever travel abroad somewhere, try to imagine something you think you might learn from other people in different cultures? All right– never mind. If you went to Disney Land and it snowed….

I can’t wait to see how conservative Republicans react when the next Democratic president nominates someone to the Supreme Court.

I am sure they will insist that the nominee cannot be asked any specific questions about his or her views on affirmative action, gay marriage, or physician-assisted suicide. No no no. That wouldn’t be right.