It is tempting to cook everything down to a couple of hot-button issues and apply to John Roberts (or any other nominee for the Supreme Court) a pass/fail test to determine whether or not he should be approved. We have heard a lot of discussion about "originalist" this or "living constitution" that, leading us to believe it's just a matter of figuring out whether this guy is gonna toe the line and be good, or be a renegade on the bench that would rather make new laws than apply the ones we already have.
Well just a minute. It isn't all that simple.
Pull on your hip boots and download an 85-page document linked at Volokh Conspiracy about the Ninth Amendment, which "means what it says."
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars:
The state law rights model,
the residual rights model,
the individual natural rights model,
the collective rights model, and
the federalism model.
This article examines twelve crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strong[ly] support the individual natural rights and federalism models.
Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say.
Got that? Good.
I ain't gonna touch it. That eighty-five pages may as well have been about astronomy. All I want to do is find a politician of good character who will act on my behalf and do the necessary homework to make a good decision.
Wait. Politician of good character strikes me as an oxymoron. Maybe I should go back and start reading and studying for myself.
As if eighty-five pages were not enough, comments have also been turned on. The author is soliciting feedback. Lawyers must eat paper for breakfast instead of cereal.
I love this piece of instructions regarding comments...
And if you think this is the other people's fault -- you're one of the few who sees the world clearly, but fools wrongly view you as a crank, a blowhard, or as someone who overdoes it on the hyperbole -- then you should still rewrite your post before hitting enter. After all, if you're one of the few who sees the world clearly, then surely it's especially important that you frame your arguments in a way that is persuasive and as unalienating as possible, even to fools.
Update Tuesday, August 30
From Legal Fiction by Publius...
Originalism reminds me of what Harold Bloom once said about Edgar Allen Poe. If I’m remembering him correctly, he said that he didn’t really respect Poe but conceded that he might be missing something given the respect that Poe gets from scholars whose opinions he truly respects. I feel that way about originalism. I just feel like I’m missing something. It all seems so uncompelling to me. In my opinion, it’s a flawed theory whose only saving grace is that it’s almost never applied in practice. But there are a lot of wicked smart (say in Boston accent) folks out there who do believe in it – and strongly. That’s what I’m trying to understand.
Good reading and lots more there, via Southern Appeal.
Steve Dillard really likes Clarence Thomas. He quotes Publius:
Justice Thomas is openly hostile to precedent that is inconsistent with the original understanding of the Constitution. Presumably, he would disregard it all if he could gain a majority for his views. Thomas’s jurisprudence may be worthy of debate, but what is not debatable is that Thomas would be uncontrolled by past decisions – and thus by the collective wisdom of the judiciary and its experiences over generations. He would be a bull in the china shop of precedent, breaking anything that got in the way.
I just love it when people trying to be conservative get tangled in their own petard. It reminds me of arguments that begin with "You said..." when the speaker is face to face with me and I am trying to make plain my meaning.
I don't really care what I may have said, even if it is a contradiction to what I am about to say. If I am standing here trying to make myself plain, let's first try to understand today's point, then we can dig around in how I may have changed my mind.
And yes, times change and people can and do change their minds.