The American Spectator

Michael L. Hauschild| 5.5.09 @ 8:51AM

I am not going to bet the farm, but I suspect there is in the Hillary camp an intense desire to be named to the Supreme Court vacancy. If one takes the time to examine the dynamic between the Secretary of State and the POTUS that occurred in the primary it becomes reasonable to assume that the juxtaposition of power, despite appearances, is still raging between the camps.
I do not believe that I am alone in my belief that the socialistic whirlpool sucking down the nation will eventually be “discovered” by the electorate. That day of reckoning is rapidly approaching and will be directly proportional to the tax burden assessed to the working Americans, i. e. that sixty percent that actually pay taxes. Some of this will be manifested by IRS mandates, bad and certainly not sung to “tax cut” anthem, but hidden in the devastatingly manifest form of inflation.
The most consummate politician in History is still the philanderer and his organizational skills, abandoned during the last campaign will not be ignored this time. Even Clintons have that “prime time” temporal window of electability, and for Hillary that time is 2012. Her position in an administration maligning every single power base, big business, the upper middle class voter, and the unemployed blue-collar workforce (Union or not) is not compatible with assuming further office. The timing for her defection is nigh and the non-partisan neutral safety of the bench would be a high profile position from which to ride out the storm of tax protests while writing minority opinions. The recent trend of “outing” the statements and thoughts of the Supreme Court justices would give her an insular and “safe” audience needed to “campaign” in a friendly MSM illumination. (Not to mentions the flattering wardrobe change from the pants suit.)
President Obama has a cobra by the tail and the window of opportunity is closing. All the leverage for the nomination nod launch is a resignation over a policy difference, an alienation affront to one of” her” constituencies, or a indignant statement chastising the POTUS for an “abandonment of principles.”
If the economy does not recover the Democratic Party will go south in 2010 and warming the court bench, later resigning to “save the party,” would be a positive résumé bullet point for 2012. The only real obstacles to this scenario is whether she has the political capital to “bully the current pulpit” for the nomination, and the currency to counter the other opportunistic candidates that will surface within the legislative branch and therefore adversarial in her confirmation process.

Faffnir| 5.5.09 @ 9:03AM

I understand that Robert Bork might be available, Mr. Mathews.

Freedom and Whiskey!!!

Bob| 5.5.09 @ 9:18AM

So why do we continue to talk in code words. The truth is that the right wants to overturn Roe, let everyone buy assault rifles and prevent gay marriage and the left wants to have abortion on demand, make sure nobody has guns, and let anyone marry anybody. People want the Constitution to be interpreted in their own image. If it were so easy to tell how the Constitution should be used there would be no such thing as 5-4 decisions. Let's stop using code words here.

JP| 5.5.09 @ 11:23AM

Bob,

I am with you. No more code words. Roe itself is primairily based on Griswald v Conneticut. O'Douglas authored the majority opinion in Griswald, which found a Constitutional protection for artificial contraception for married couples. He famoulsy wrote that this right to birth control (for married couples) was hidden in other admendments as pnemubras which emenated other rights such as birth control. This so called right to privacy was discovered by O'Douglas in much the same way the gnostics of old discovered the true meaning of Christ. It created a new unenumerated right where one never existed before. Everything from Roe to Lawrence came from this new Privacy Right.

I am all for revisited not only Roe but also Griswald. If you are a libertarian like you say you are, return these issues to where they belong -the states. I take it you live in New England. In that case, you have nothing to worry about. Abortion, an gay marriage are safe.

Please do not cloud the issue, however. Roe, Lawrence, and Griswald are all court generated fiats that bypassed the democratic process the Founders established. Gun rights are an enumerated right, which not even the courts can take away -though they may certainly try.

A Cynic| 5.5.09 @ 11:30AM

It is simply astounding that there is even a discussion about which type of individual Obama will select for the Supreme Court.
Consistent with Obama's own words, and here I paraphrase, ".....the constitution speaks volumes about 'negative rights,' but not so much about what the govt. SHOULD be allowed to do."

In other words, Obama - consistent with his Marxist philosphy - really desires a constitution that legally expands the Federal Govt.'s rights above and beyond that enumerated in the Constitution.
The easiest way to accomplish this is to select left wing judges - a la Ruth Bader Ginsburg - who look to foreign legal standards and lean on social justice considerations to CREATE laws that have zero legal basis per the US Constitution.
Obama WILL select an extreme leftist - preferably a Marxist - to be a Supreme Court justice.
Obama does not yet have the power to amend the US Constitution by executive fiat - much to his chagrin; so the next best thing is to invent and create laws based on Marxist philosophy via the Supreme Court.

For all those folks who think that it's OK for our court system to legislate laws out of thin air, please recall the most egregious example of this now accepted practice; the Dred Scott case and Plessi vs. Ferguson (my spelling could be wrong here).
In these cases the Supreme Court basically ESTABLISHED laws that confirmed blacks were property and had zero rights because they were slaves; not even humans.
So much for judicial legislation; of course the Civil War ensued some years later.
While many folks are OK with courts legislating from the bench as long as the decision conform to one's political proclivities, it essentially makes the Constitution moot.
If the Constitution means different things to different people, then is has no meaning at all; it can mean ANYTHING a judge - or any individual -desires it to mean.
Of course, this means we are not a nation of laws but are merely guided by the passions of the day as laid out by robed intellectuals.
The Constitution did lay out a means for amending the Constitution, allowing the people to decide how they wish themselves to be governed.
Judicial legislation removes this right from the people and places it firmly in the hands of the ruling elites.
This is not at all what the founding fathers intended.

Bob| 5.5.09 @ 11:47AM

JP -- I'm with you on this. The only point being that I think both sides are activist. I have trouble with the recent gun decision where the majority opinion completely disregarded the word "militia". I'm not a big proponent of gun control, but I also don't think we should be disregarding words in the Constitution. I do not find a privacy right in the Constitution (even though Sarah Palin did in her debate with Biden). Thus, I also believe that Roe was wrongly decided even though I am firmly libertarian and pro-choice.

That's why I think this whole thing about "strict constructionists" is a bunch of ______....

Ryan| 5.5.09 @ 12:09PM

Bob,

Militia, in context, is you and me. Able-bodied citizens.

The supremes not only got it right, they got it VERY right. "Well-regulated militia," in context, simply means that it's a group of people who know how to use their own guns to defend their homes. "Regulated" didn't mean that it was government controlled, it meant more along the lines of "proper working order."

There wasn't any legislating from the bench on the issue - it was acknowledging a freedom that the people of DC should have had in the first place.

Bob| 5.5.09 @ 12:41PM

Ryan -- when you have to define "well-regulated militia" as an amorphous group of individuals, you are legislating from the bench. If I were to ask you to define a "well-regulated militia", a group of individuals defending their homes without an organizational structure would not be your first definition.

I'm not saying I want gun control -- I don't. But this is a case of legislating from the bench if you are objective and honest with yourself. This, to me, is the same as finding a privacy right in the Constitution.

Hank Archer| 5.5.09 @ 1:45PM

Bob,
You need to study up about militia a bit. Ryan is right, militia means "the people" in their capacity to defend themselves and their communities/country.

Many, like you, are confused about the well-regulated wording as the commonly used meaning of the term regulated has changed over the centuries.

Today most people assume regulate means government control.

The definition the founders meant is still in the dictionary -- to adjust for accurate and proper functioning.

Bob| 5.5.09 @ 2:36PM

Hank, again you are proving my point about legislation from the bench. I did not assume "militia" meant "government control". How do you "adjust for accurate and proper functioning" of a group of people without some sort of organization? Where is the organization when you or I go out to buy a gun? We are buying that gun as an individual, not as a participant in a local militia.

So I agree with your definitions, but the logic escapes me. This is just a further example of reading into the Constitution your personal beliefs and is an example of judicial activism. Like I said, this happens on both sides.

John Navratil| 5.5.09 @ 5:19PM

Bob, Hank, JP,

One doesn't need to regulate from the bench to dispose of the prefatory clause. The statement is "the right of the people to keep and bear Arms, shall not be infringed." "Why" is incidental! "The sky being blue and for our desire to keep it so, the right of the people to keep and bear Arms, shall not be infringed" says the same thing.

If for some reason the "why" becomes at issue, we have a mechanism to amend the Constitution and repeal the Second Amendment. That is the proper way to change the rule.

Bob| 5.5.09 @ 5:49PM

John, the opinion in Heller completely disposed the prefatory clause. If words in the Constitution have no meaning, why are they there? This was a 5-4 decision and could easily have gone the other way. While I agree with an individual right to bear arms personally, I still see this as legislating a specific meaning and disposal of words in the second amendment. If the words are not completely clear -- and ALL of the judges indicated they were not entirely clear, then ANY decision is legislating from the bench no matter which way it went.

tonypal| 5.5.09 @ 5:50PM

Bob:

It's a real stretch to compare the interpretation of the meaning of the individual words in the 2nd amendment to what we commonly refer to as judicial activisim.

The term "judicial activism" has a very specific meaning. It refers to the notion of the court as some sort of quasi-legislature and the idea of pre-determined out comes, not an individual Justice's interpretation of a few words. The line of cases from Griswold to Roe is only one of many egregious examples of Justices having pre-determined outcomes in mind, then flailing about to concoct an opinion consistent with said outcome.

The Kelo decision from a few years ago is another prime example, whereby 5 law school graduates rewrote the takings clause of the 5th amendment, replacing the word "use" with the word "purpose." That is an enormous abuse of one's position as a Supreme Court Justice and is a true example of judicial activism, whereby the plain meaning of the Constitution was ignored and essentially replaced with language that suited the whims of 5 arrogant men and women.

We've also seen those same five law school grads ignore approximately 700 years of precedent to confer habeas corpus rights on enemy combatants engaged in a terrorist war against the US. Again, judicial activism not because of an interpretation of Article One, Section 9, but due to a desire of activist judges to rewrite the Constitution in order that it conform with their own personal values.

John Navratil| 5.5.09 @ 7:52PM

Bob,

All the words in the Constitution have meaning. Not all state what the rules are. The preamble explains why the founders wrote the Constitution but doesn't provide for any rule-making, at all. Should the Constitution, itself, become moot if our union is perfect, tranquil, defended, free and the general welfare promoted?

The big question before Heller was whether the Second Amendment was conditioned on the requirement for a militia and, since we now have a standing army, was the Second Amendment moot? Heller reaffirmed the declaration contained within the amendment and disposed, as you have noted, of the prefatory clause.

It is historically noted that the founders didn't contemplate a standing army and were not disposed to establishing one. George III had one and they didn't much like it. It's presence found itself into the Constitution in the form a protecting from the billeting of the army in private houses. That said, the founders could have said "until we have a standing army, thereby obviating a militia, the right of the people to keep and bear arms shall not be infringed", but did not.

The Constitution was intended to read by everyone and wasn't written in code. When the reason for a provision of the Constitution opposes the will of the people, the people are free to change the document itself, although that process wasn't intended to be easy.

John Navratil| 5.5.09 @ 7:57PM

Bob,

I missed your second point about a 5-4 decision....

While the decisions may be split, the effect isn't. Reasonable people disagree about lots of things. The rules provided are intended to ensure a decision is reached.

The system is created and operated by fallible men. Wrong results have been obtained. But it is not, by definition, judicial activism when results are not unanimous.

bob Montgomery| 5.5.09 @ 8:48PM

The point is, Obama can't leave anybody out or the nomination will be a sham, a failure. He HAS to appoint a gay, black, homeless, illegal immigrant single mom who believes in Jihad. It has to be TOTAL EMPATHY and the only way for a human being to be that is to BE THAT.

Bob| 5.6.09 @ 9:20AM

John, while I have a background in business and economics, I am not a lawyer, and you make some very good points. I read Heller as a lay person, not a legal expert. I've read both the majority and minority opinions. The 5-4 decision was primarily based on the issue of a "militia". It is obvious to me that ideology played a role in the decision from the language used in the opinions. But it is not the ideology of "strict constructionists", it seems to be the ideology of "individual rights". Again, as a lay person, I like the decision, but as a logician, I can't get past the conclusion that the decision was based on an ideological reading of the Constitution, not the actual words there. The construction of the majority opinion was quite tortured while the construction of the minority opinion was fairly straightforward.

That's why I come to the conclusion that both sides are "activist" in nature. Again, I am not a legal expert but have a real aversion to most lawyers.

Mike K.| 5.6.09 @ 9:37AM

Bob,

The majority opinion in DC v. Heller DID NOT disregard the word "militia" - read the decision. It is available in PDF format on the SCOTUS web site. One the first page they state:
"1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28."

Bob| 5.6.09 @ 9:57AM

Mike, of course I read that, but it results in an argument that the prefatory clause is generally unrelated to the second part. Why would anyone put together a sentence where the parts are unrelated? Furthermore, part (b) never addresses the combination of words "well-regulated militia". Basically, it says that people need guns in their homes in case a militia is necessary. To me, that doesn't comport with "well-regulated".

If my framework is that I believe in individual gun rights, I would make this argument. If my framework is that I must take the words of the Constitution literally, then I would make the minority opinion. I just see this as judicial activism to support my underlying position.

By my logic, anything that requires a tortured justification like this must be based upon one's underlying ideology and thus is, by definition, judicial activism. I saw the same judicial activism in the Bush v. Gore decision. I would maintain that you cannot, no matter which side you are on, separate ideology from contentious decisions and thus both sides engage in judicial activism.

But again, I'm not a lawyer....

Stanley| 5.6.09 @ 12:51PM

It's important to remember just who the government is. The Constitution says, "WE The People." Abe Lincoln, who had far less formal education than Sarah Palin, got it right, when he said that government of the people, by the, the people and for the people, shall not perish from the Earth. WE the People are the Government in the USA, and the highest office in the land is that of a certified registered voter. Since We the people are Government, then We regulated ourselves regarding our bearing of arms. As far as Sarah Palin finding a privacy right in her debate with old foot-in-mouth Biden, I challenge you to find in the Constitution, where our "Employees in government service have the right to violate our privacy. Sarah Palin got it right, as she uaually does.

Bob| 5.6.09 @ 12:58PM

Stanley, are you really comparing the intellect of Sarah Palin to Abe Lincoln? Lincoln was a lawyer, you know. Have you ever read anything Palin has written? We've all read Lincoln. Have you ever read the Lincoln-Douglas debates?

The point of a privacy right in the Constitution is that is the justification for Roe. If you believe there is a privacy right in the Constitution then you believe that Roe was correctly decided. I don't even believe that Roe was correctly decided.

Stanley| 5.6.09 @ 1:21PM

Roe vs Wade is a 1973 version of the Dred Scott case, where a human was denied legal personhood, as the unborn has been denied in Roe Vs Wade. The issue I have with the case is not one of privacy of the woman, but of Life of the unborn. Yes I do compare Sarah palin's intellect with that of my home state's favorite son Abe Lincoln. He was a self taught lawyer. I live in Quincy where there was a Lincoln-Douglas debate. I still say Sarah palin has more executive experience than Abe Lincoln when he was elected, as well as she has more excutive experience than harry Truman when he became Vice President.

Bob| 5.6.09 @ 1:35PM

Stanley, I don't care where you stand on life issues, the fact that it was decided federally is that there was deemed to be a privacy right found in the Constitution. That is the issue, not life.

Do you have an example of Sarah Palin's intellect? Perhaps a book she has written, or an interview where she knows something about foreign policy or the Supreme Court? You like her because she is a social conservative, not because she is an intellectual giant like Lincoln.

Stanley| 5.6.09 @ 1:51PM

Writing a book or article or speech does not in and of itself confer wisdom or inteleect. I merely means one is exerciseing their free speech, and press.

One day Ho Chi Minh was asked about the virtues and merits of Marxism. He replied that Karl Marx was a great idealist, BUT he never ran a country. Today Vietnam can't decide whether they are Capitalist-communist or Communist-Capitalist. Yes Karl Marx wrote something, but that doesn't mean he was intellectual.
Sarah Palin doesn't have to write anything to prove she is intellectual. She is red blooded American, and received more votes in November than Hillary did in the Democratis Primary. You didn't think 59,000,000 voted for McCain did you?

Stanley| 5.6.09 @ 2:12PM

You wanted an example of Sarah Palin's foreign policy? She would never curtise a British monarch, or apoligize to europe for America's greatness, or deliver a speech in Turkey where she would deny American being a Judeo-Christian Nation,. She would NEVER bow to a Saudi King and keeper of the Two holy mosque. She would never court the Castro brothers, or shake the hand of a usurper Hugo chavez. She understand the Russian mindset because she grew up in Alaska's Culture of the desendents from when Russia had Alaska. She understands Putin's mind. She would stand firm on North Korea. she would never give the enemies of Israel $900,000,000 and leave vague on rather she supported Israel. Oh and BTW, Lincoln would never bow to a Saudi King either.

Bob| 5.6.09 @ 2:28PM

Stanley -- Sarah didn't even know who was running our military in Afghanistan, much less any other foreign leaders. We will never know how she would behave with a foreign leader unless it is out of ignorance.

Stanley| 5.6.09 @ 3:00PM

OK Bob, Vice President Biden didn't even know who was president in 1929 when the great crash occurred. He said that FDR got on Tv and addressed the nation, even though FDR didn't even take office until 1933, and no president used TV to address the nation until 1939. Biden did invite everyone to Katy's restaurant in DE even though the place has been torned down for 20 years. I'll tell you that Sarah is like Henry Ford, when they questioned his mental compitence. she like Ford, knows where to get the answers, while Biden suffers illusions of hours on end of conversasions with President Bush, which never took place. BTW, the Russian Ambassdor calls Sarah palin a stablizing factor in US/Russian affairs. Isn't the Spectator supposed to be a consevative pub.

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