"Now, the process of selecting someone to replace Justice (David) Souter is among my most serious responsibilities as president, so I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes." --President Barack Obama
What? So now we see the bedrock behind liberalism. Who cares about written law or the Constitution? I just care about how people "feel". Supreme Court justices should forget about the law and use "empathy". I have news for Barry. This is what the legislative branch is for not the Judicial branch. Are you sure that he graduated from Harvard Law School? It is not the function of the court to make new laws based on empathy and feelings. The courts "just" decisions and outcomes do become the law.
"That President Obama has made 'empathy' with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process. Would you want to go into court to appear before a judge with 'empathy' for groups A, B and C, if you were a member of groups X, Y or Z? Nothing could be further from the rule of law." --Hoover Institution economist Thomas Sowell
"There is a reason that Lady Justice wears a blindfold. Justice is supposed to be blind to the race, gender, finances, politics -- and every other 'empathy'-eliciting -- characteristic of those who seek it in good faith." --columnist Carol Platt Liebau
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6 comments:
By including empathy, he is not discarding anything that you treasure in the law. You are just looking for one more thing to criticize.
The two primary schools of thought regarding the constitution offer compelling arguments. Originalists - your school - read each paragraph as though it stands alone and say there is only one true meaning of same. Theoretically, this prevents "wiggle room" and the ability to impose personal beliefs. However, if approached literally, this can lead to nonsensical rulings. "Original Intent" often applied only to white men. Apart from the right to vote, are non-whites and women protected at the same level as Caucasian males? The ERA was rejected. Why would we assume equal standing?
Non-originalists, such as myself, argue that the constitution is to be read as a comprehensive document. Rights, such as privacy, can be found when you add up all of the other rights and prove that if all the others are in place than so too must be privacy. The constitution is a living document in that each subsequent amendment effectively modifies the rest. If the constitution states that 1 + 1 = 2 and 2 + 2 = 4, we can argue that 3 + 3 = 6 whether or not the equation is specified in our hallowed document.
This general topic - the constitution - will be a big one soon, perhaps this week.
Man are you off base on this one. You are totally wrong on how "original intent or strict constructionist" jurists interpret the constitution. They read the constitution in the way the founding fathers meant it to be read. The words in the constitution do have a meaning and fit together, not each paragraph individually.
The 10th amendment states that the Federal Government has only those select powers that have been expressly delegated to them by the sovereign states. All other powers are reserved for the states themselves. Both Jefferson and Madison as Presidents and key contributors to the US Constitution demonstrated the meaning of the 10th amendment in their government policies. Both stood for minimal Federal Governments. Jefferson even stated "that government is best that governs least". The Right to Privacy is something that should be decided at the state level. It is laughable to see the mental hoops you have to jump through to arrive at your conclusions. Those that see the Constitution as a living document substitute their own arrogant elitist beliefs into the meaning of the words. There is a system in place to add things to the constitution and that is the amendment process. It is difficult for a reason. The majority of the founders believed strongly in state's rights. If abortion should be a federal right than have the constitution amended. Until you do it is expressly an issue that should be decided at the state level. The morality of the issue is a seperate question that should not come into play except at the ballot box. Words have meanings and you should not have to contort yourself to come up with the meaning. If the amendments build upon themselves than please point out to me which amendment contains the "right to privacy".
Where your arguments really fall flat on their face is the issues you cite in your second paragraph, non-whites and women. These were specifically addressed in amendments to the Constitution. You don't have to assume anything.
I know you are referring to the 14th amendment, but read it again. Women are not fully enfranchised, even in conjunction with the right to vote, when reading the constitution as a strict constructionist.
I am a "pragmatic Originalist". I give tremendous weight to the original intent, however, I have to give weight to subsequent amendments as they may apply, as well as any conflicting rights that may appear in the constitution.
I am personally opposed to the death penalty. However, I acknowledge that it is constitutional. The penalty was used far and wide throughout the country, for many offenses, in the eighteenth century. The framers had no intention of prohibiting the penalty or they would have simply said so. They meant to prohibit "cruel and unusual" punishment including torture, of course, not a swift death at the end of a rope.
They also probably would have thrown in the word "Christian" or "Christianity" if they felt that we were to be a Christian nation in any manner whatsoever under the law.
I agree that the document can be amended, it is difficult to do so and should be.
I am a "pragmatic Originalist". I give tremendous weight to the original intent, however, I have to give weight to subsequent amendments as they may apply, as well as any conflicting rights that may appear in the constitution.
Again you are being funny, right?
Let's see how big a hole a good lawyer could drive through a "pragmatic Originalist". I pragmatically think that all Cardiologists should have rights better than others.
You really funny this time Mister. You think Constitution means nothing.
Really Doc? SPECIFICALLY, What part of my pragmatic Originalism do you object to? Subsequent amendments are trumped by preceding amendments? What do you do about conflicting rights?
What do you do when a nascent Nazi claims he can disregard the fourth amendment as commander in chief? The commander in chief is not authorized by the constitution to suspend the constitution, is he? If he is, shouldn't he say so?
What do you do when "strict constructionists" site the tenth amendment and forget the preamble imperative to "promote the general Welfare"?
I'd love to hear your specific criticisms, if you have any. Perhaps, first, you'll need to give it some thought.
PS - You can find a copy of the constitution in the World Almanac and Book of Facts I gave you.
Mark - Lets hear your legal opinion:
How come "Houses of Worship" do not have to pay property taxes? This isn't in the constitution anywhere, though some people say taxing them would violate the first amendment.
If that is true, then surely we needn't to provide fire or police protection, or access to utilities and public rights of way. We wouldn't need to give them anything ordinarily provided by revenue from property taxes, correct? If they objected and needed such services, municipalities could make fee arrangements that essentially mirrored property taxes, no?
Why do we subsidize religious institutions like this and how on earth does it pass constitutional muster?
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