[lit-ideas] Re: Iran (2), First Front
- From: Robert Paul <robert.paul@xxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Fri, 03 Feb 2006 19:42:10 -0800
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/
Robert Paul
The Reed Institute
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