Andis Kaulins at Lawpundit parses some of the legal wrangling over Supreme Court nominees. The post is keyed to Miers, but most of it is as relevant to Alito as to the previous nominee.

Some of the bases Kaulins touches that are important to me include:

  • Supreme Court justices primarily are in the business of judging the constitutionality of laws. Whether the laws are fair, or redress the wrong they were intended to cure, is obiter dictum. Deviations from this, as in the case of Brown vs. Board of Ed., are usually bad judicial behavior and have unpredictable consequences (is the education presented to black children better in America overall than it was in 1955?). The bench is the wrong tool to write or enforce laws.
  • “Dogmatic originalists” are bad for the country and just as dangerous as judicial activists, in part because in many cases no one knows what the Founders would have thought about important modern issues. Prayer in schools? They knew what prayer was. Prayer wasn’t a problem to them. But a state-controled and mandatory network of education — that would have made their powdered wigs spin around. Originalists risk falling into the Potter Stewart obscenity trap: “they know it when they see it.” But we don’t all see alike.

    It is also important to distinguish originalist dogma-oriented Justices – where dogmatic thinking is always a sign of intellectual weakness – from Justices who see their job as “deciding cases” and who are not interested in being activist pseudo-legislators. Being liberal or conservative as a judge is never synonymous with “judicial activism” per se, where the latter term applies to judges who decide cases by circling around the existing precedents to suit their own politics.

  • I’d like to think that Supreme Court justices represent all Americans, and are able to interpret the law without jockeying for the special interests of a class, race, gender, whole-wheat-vs.-rye, whatever. But we’ve arrived at a point where more and more of the nine seats seem to be treated as the rightful property of one faction or another. I hate this deliberate balkanization of America, and its expression on the top court. If we worked so hard to tear down the wall between black and white, why have we been so busy since then dividing up the country on other lines?
  • And nine is far too small a number to play quotas with. You can’t distill America’s complexity into nine compartments, without serious overlap. Then you’re into a “Readers Digest” puzzle that will end in a quest for the most qualified lesbian Native American or Alaskan Islander judge under 50 of moderate conservative leanings.

Kaulins’ post is particularly perceptive on the connection between abortion and originalism.

Besides, we think that the application of originalist thinking to the Constitution would render some issues moot which currently are seen to be “Constitutional” questions. The abortion issue, for example, would be completely moot under “pure” originalist thinking. NOTHING in the original US Constitution has anything to do with abortion, nothing.

Scalia has stated, e.g.: “There is no text in the Constitution that you could reinterpret to create a right to abortion, for example.” But a true originalist should also say, which Scalia did not, “and there is no text in the Constitution that you could interpret as denying a right to abortion.” When the Constitution was written, abortion was just not a Constitutional issue – originally. Indeed, the movement to outlaw abortions in the United States began in the 1820s at the initiative of the medical profession – i.e. not because of religious considerations and long after the Constitution had been written.

Hence, from an originalist point of view, abortion is NOT a Constitutional issue in terms of the actual PROVISIONS of that document. It is not specifically granted nor is it specifically denied. And this is the great weakness of originalism for many issues. The approach used by Scalia and Thomas is useless for an honest judge, because it leads to these kinds of legal dead ends where, of course, the nation’s founders could not foresee the changes which would occur in over 200 years. Originalists use their dogmatic stance to arrive at decisions that THEY themselves politically want, which are then declared to be in concert with the “founders’ visions.” It is a nice legal scam, but hardly worthy of a Supreme Court Justice.

A true “TRUE originalist” who understood the US Constitution as the document governing the just-created “federal” United States would more correctly be a “federalist” – for he would understand that the US Constitution was intended to be “the supreme (federal) law of the land” and nothing more, and nothing less. Accordingly, although certain rights were granted to the individual States, such State lawmaking, by definition, can not lead to results which contradict the supreme law of the land, whose principles extend over the ENTIRE land. The original makers of the US Constitution CLEARLY INTENDED that the “federal law” inherent in the US Constitution be supreme above that of the States. As Madison wrote: “If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.”

Hence, the abortion issue, e.g. is not really a Constitutional question in terms of the original provisions of that document, but it is a Constitutional question in terms of the federal intent of that document, at least the intent of the makers of that document, who surely would have agreed that the “federal constitutional law”, properly applied, would never permit abortion to be legal in one State and to be criminal in another State. The constitutional original intent would in fact demand that there be only ONE rule nationwide under that Constitution. Whether one then bases one’s argument on “due process” or “equal protection of the laws” is basically irrelevant as long as the federal INTENT of the founders be carried out. It is not the intent of the US Constitution in its singular provisions which is paramount, but it is the intent of the document as a whole, which is determinative. In this sense, even the LawPundit is an “originalist”, but surely not a Scaliawag.

What the Supreme Court then ultimately decides about abortion is then NOT a question of the original Constitutional provisions per se. It is rather a question of the development of law since the writing of that document and a question of the interpretation of individual and societal rights as they have developed over the last more than 200 years under that Constitution. It is a product of new knowledge about life gained since the advance of modern genetics and similar disciplines. Any future US Supreme Court decision on abortion – if it is to withstand the real demands of the age – would have to bring all of those factors to bear on a decision which would have to be comparably modern in its approach, reasoning and holding.

We do not speculate on what the decision in such an abortion case would be, but it would definitely not support the dogmatic extremists in either camp. And that is our “original” thought.


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