Monday, October 31, 2005

Alito, and Kennedy

Alito's a fine choice, and everyone is itching for a fight. If we win, which I expect we will for various reasons, and he is confirmed, what then?

Well, then Anthony Kennedy will be the most important man in the United States. The man will have serious difficulty finding the time to turn down invitations to accept honorary degrees, because he can't go to 10,000 graduation ceremonies in one year. He will be swamped with speaking invitations. He will be the honored guest at so many soirees that tuxedo shopping will become his second occupation, because he's wearing them all out. And the funny thing is, all of this attention will come from both the left and the right.

And then the next questions is: what effect will all of this have on our squishy Justice Kennedy? I honestly don't know. The MSM treats the current appointment as the definitive swing in the balance of power toward the right, but I am not so sure. We may have increased the depth, consistency and sheer brainpower of the conservatives on the court, but have we actually swung it anywhere?

Friday, October 21, 2005

More Jefferson

Wow, if this isn't the most elegant case for Originalism, I don't know what is:

Thomas Jefferson:
"The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption--a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible." "Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure."

Jack Rakove - are you listening?

Thursday, June 23, 2005


Prediction: the Ten Commandments rulings to be delivered in the next few days will be a complete victory for originalists, 5-4. Justice O'Connor and Justice Kennedy (the two we worry about in cases like this) will both concur that the "separation of church and state" does not mean that there can be no display of religious symbols or artifacts on government property.

Wednesday, June 8, 2005

More Raich commentary

Oh what a lost opportunity for conservatives! If only Raich had gone the other way!

Imagine this. Raich wins. Voting to let very, very sick people smoke pot: Thomas, O'Connor, Rehnquist, Scalia and Kennedy. Voting to stop very, very sick people from smoking pot: Ginsburg, Breyer, Souter and Stevens.

Think about that for a minute in the context of what is currently going on in the Senate and the MSM regarding Bush's judicial nominees. Think, for a minute, about the text of one of Ted Kennedy's rampages about them. Think, if you will, about any story in the New York Times about, say, William Pryor.

Liberals, the main stream media, university professors, and the like, currently tend to conflate any potential jurist appointed by Bush with a Bible thumping, god fearing monster, who is completely at the mercy of his conservative political agenda.

On the other hand, conservatives who understand the law tend to view those same appointees in terms of their judicial philosophy, not their political philosophy. They point out that it is possible to carry out the law of the land without regard to one's own moral or political beliefs. This has been especially true for Pryor, who has been on record as saying that Roe is a travesty, but is willing to uphold the law of the land.

Now, it is the case that the application of conservative judicial philosophy has tended to produce opinions that concur with conservative moral and political sensibilities. Allowing limitations on abortions, Morrison and Lopez come to mind, but there are many, many others.

In Raich, however, we had a case where the outcome, had it gone as I outlined above, would have been completely at odds with standard, Bible thumping moral and policital sensibilities. Conservatives hate drugs, right?!

So what were the conservatives (Thomas!) doing voting to let people take drugs, when all the liberals on the court voted to make it illegal?! The answer, my friend, is that in this case, the judicial philosophy of the justices were at odds with, and in some cases trumped, the moral and political philosophies of those same jurists.

Forevermore, if Raich had won, every time someone quoted one of Ted Kennedy's speeches about a judicial appointee wanting to turn back the clock on civil rights, or make women second-class citizens, or trod on the already down-trodden, by using the bench to execute their political philosophies, we could say:

"Wait a minute, if conservative jurists are simply using the bench to implement their political philosophies, then what about Raich?"

But it didn't happen. Scalia and Kennedy folded. Scalia folded, apparently, because he viewed federal legislation as being "necessary and proper" to the administration of interstate commerce (of marijuana), as opposed to, say, the issues in Morrison and Lopez. I don't buy it. Kennedy just chickened out, and a pox on him. Well, a pox on both him and Scalia.