[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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