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View Diary: Alito lacks support (411 comments)

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  •  Many fine leagl minds (none)
    disagree with you, thankfully.

    Happy New Year, Impeach Bush

    by coigue on Wed Jan 04, 2006 at 05:46:03 PM PST

    [ Parent ]

    •  I know, but many agree with me (none)
      and luckily for me SCOTUS is trending my way.

      But here's a question for a "living constitutionalist."  If the Constitution changes meaning with the times, isn't it reasonable to assume that in the war time the Constitution may have a different and more narrow meaning than otherwise?  After all, the living Constitution theory espouses the notion that the COnstitution has no fixed meaning and that it meaning must correspond to the times.  (I disagree with that proposition, but you apparently do not).

      And if you disagree that the Constitution may shrink during war time, then what exactly does "living breathing document" mean?  Or is it just a cover for the theory of "I get to enact through the courts that which I could not win in the legislature?"

      •  Living, breathing (none)
        means that it takes into account the fact that issues that may not be valid (or even conceived of) when the Constitution was drafted can be discussed in the context of the document that was written in a intentionally minimalist but flexible way. Some things will not be (should not be) affected by it, true.

        But frankly I think that examples abound of both conservative and liberal justices using 'judicial activism' when they  champion their ideological and moral issues under the cloak of constitutionalism.

        Happy New Year, Impeach Bush

        by coigue on Wed Jan 04, 2006 at 08:09:22 PM PST

        [ Parent ]

        •  Well I am sure that (none)
          phones and phone taps and terrorists flying planes into buildings wasn't conceived of in the late 1700s.  How does that inform your interpretation of the constitution?
          •  Ok (none)
            Wiretapping=unreasonable search

            I say NOT flexible

            terrorists + planes....just another attack at war...how it is done doesn't really matter

            Happy New Year, Impeach Bush

            by coigue on Wed Jan 04, 2006 at 08:46:23 PM PST

            [ Parent ]

            •  Why? (none)
              Doesn't definition of "reasonable" change with times?  After all, the constitution doesn't prohibit "warrantless searches" only "unreasonable searches."  Now, because I believe in constitutional statism, I believe that the ratifiers meant unreasonable to mean warrantless in all except truly emergent circumstances.  But if you buy "living constitution" then "unreasonable" can change meaning, can't it?
              •  I see your point. (none)
                ...and I won't fall into the trap of thinking that no liberal judge with a liberal President in wartime would not make that leap. It's always a danger.

                In fact...emergent can also change meaning.

                But in reality, that's not what we mean by calling the constitution a living document. It's about the SCOTUS being part of the process. Precedent, Stare decisis, building a case slowly and conservatively. Scotus does that and needs to do that. But I emphasise slowly, with precedent.

                Scalia wants time to stop, for us to remain culturally as we were when the constitution was ratified ...and some have argued that original intent is more manipulatable than the Constitution as written.

                Happy New Year, Impeach Bush

                by coigue on Wed Jan 04, 2006 at 09:54:16 PM PST

                [ Parent ]

          •  What I fail to understand is (none)
            why someone such as yourself refuses to see that Conservative judges can be very activist when their pet issues are at stake.

            Good strong constitutional arguments are just that...they don't have ideology. Scalia and Alioto are very ideological. Scalia can even be dogmatic at times. That is not a good basis for law. Now I will give you Roe...it was activist, and the result has been a mess. Good law  is like good science, it has to be built slowly, brick by brick, with patience.  Roe skipped a few bricks. It is still right and moral, but disfunctional....and that is unfortunate, even tragic, for many women.

            Happy New Year, Impeach Bush

            by coigue on Wed Jan 04, 2006 at 08:55:40 PM PST

            [ Parent ]

            •  Oh of course (none)
              conservative judges can be activist as much as liberals can be.  Conservatives don't have a corner on being straight laced.  

              That's why I don't defend conservative outcomes just conservative ideology (i.e., that the Constitution is static and must be interpreted as ratifiers intended).

               

              •  I don't think the conservative ideology is as (none)
                strict as you think it is. In fact, I doubt it exists more for conservative judges than for liberal ones.

                Only, conservative politicians use it as a political football (like the (R)s calling those judges that sided with Michael Sciavo activists, when clearly they were upholding Florida law).

                All I am saying is....just because it's a conservative judge, don't assume they will be strict constructionists....I don't think Alito will be, based on his history.

                Happy New Year, Impeach Bush

                by coigue on Wed Jan 04, 2006 at 09:33:38 PM PST

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                •  I think he will be better than SOC (none)
                  who was a disaster of a justice.  She ahs no guiding philosophy of anything except what she feels is "fair"
                  •  Alito (none)
                    Has also said he believes the liberty clause of the 14th amendment provides a right to privacy.  At least if you believe Specter.  Of course, he'll be asked this in his confirmation just like Roberts, so we'll get to here in his own words.

                    But, regardless, you can continue either admit that Roberts, unlike you, believes in a right to privacy as afforded by the liberty clause of the 14th amendment or you can call him a liar.  Under oath.  Those are your choices and I suspect you'll be presented with the same choice for Alito.  Not a happy place for a strict constructionist such as yourself, but them's the breaks.

                    "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                    by manyoso on Wed Jan 04, 2006 at 10:06:01 PM PST

                    [ Parent ]

                  •  SOC is a conservative (none)

                    Happy New Year, Impeach Bush

                    by coigue on Wed Jan 04, 2006 at 10:12:59 PM PST

                    [ Parent ]

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