[lit-ideas] Re: Iran (2), First Front

  • From: "JUDITH EVANS" <judithevans1@xxxxxxxxxxxxx>
  • To: <lit-ideas@xxxxxxxxxxxxx>
  • Date: Sat, 4 Feb 2006 18:31:03 -0000

Thank you, Robert.

Judy Evans, Cardiff
----- Original Message ----- 
From: "Robert Paul" <robert.paul@xxxxxxxx>
To: <lit-ideas@xxxxxxxxxxxxx>
Sent: Saturday, February 04, 2006 3:42 AM
Subject: [lit-ideas] Re: Iran (2), First Front


> Judy Evans quotes Lawrence:
>
> "Alito indicated this was his opinion regarding the duties of a judge.
> You examine a law in terms of whether it complies with the constitution,
> bill of rights & precedents. You do not voice an opinion based upon your
> beliefs."
>
> and replies:
>
>  > I think perhaps one of the philosophers here will have
>  > something to say about this paragraph (come on, boys!,
>  > I'm sleepy).
>
> A philosopher says (but not as a philosopher) that if that were all
> a judge did, they'd let philosophers do it. 'Strict construction,'
> 'legislating from the bench,' and other buzz phrases, are simply
> political epithets, both in the strict and in the pejorative senses.
> Of course judges, even the Supremes give opinions based on their
> beliefs, very importantly upon their beliefs about the meanings of words.
>
> In Brown vs. Board of Education, the majority opinion begins:
>
>        '(a) The history of the Fourteenth Amendment is inconclusive as
> to its intended effect on public education.
>
>        '(b) The question presented in these cases must be determined,
> not on the basis of conditions existing when the Fourteenth Amendment
> was adopted, but in the light of the full development of public
> education and its present place in American life throughout the Nation.'
>
> In Griswold v. Connecticut, the opinion, in favor of Griswold, who was
> challenging a Connecticut law (which prohibited giving advice on, or
> prescribing, methods of contraception, even to married persons), says,
> in passing, before it gets to the heart of the matter:
>
> 'The association of people is not mentioned in the Constitution nor in
> the Bill of Rights. The right to educate a child in a school of the
> parents' choice—whether public or private or parochial—is also not
> mentioned. Nor is the right to study any particular subject or any
> foreign language. Yet the First Amendment has been construed to include
> certain of those rights.'
>
> 'Construed,' that is, by human beings wrestling with the language of the
> Constitution, and who, in virtue of their prior beliefs about the
> meanings of words and the extensions of concepts, disagree among
> themselves.
>
> Skipping about:
>
> The Fifteenth Amendment, seems to come out of nowhere, from a legal
> point of view. From a sociological (and ideological) point of view, it
> makes sense. But it would only make sense if its supporters believed
> that blacks were human beings with full citizenship, who could (if
> others could) vote. I say, 'if others could,' because intitially, this
> amendment was taken to establish no right: it simply meant, and still,
> strictly speaking, means that no one can be prevented from voting
> because of race or prior conditions of servitude.
>
> That blacks were not human beings in some full sense was a belief held
> by many when this country was founded. Some few no doubt still have such
> a belief. But one cannot have this belief and in good faith support the
> Fifteenth Amendment.
>
> Beliefs matter. To think that the prior beliefs of the Supremes don't
> matter is to see them as robots, not human judges.
>
> For information about SCOTUS, and the Constitution, I'd suggest
>
> www.oyez.org and http://www.law.cornell.edu/anncon/
>
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