Obama Wants Living Constitution Theory For SCOTUS Nominee

Saturday, May 2, AD 2009

With the announced retirement of Supreme Court Justice David Souter President Obama wasted no time in addressing the issue of what he’s looking for to fill this vacancy.  In so many words he clearly stated his desire for an activist judge with an eye towards reengineering America [emphasis and comments mine].

“It is also about how our laws affect the daily realities of people’s lives [meaning he wants a Justice who holds fast to the Living Constitution Theory,ie, an activist judge finding invisible law where none existed], whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”

The following excerpt clearly reveals President Obama’s contempt for legislative history in effect eliminating a potential nominee that adheres to the theory of original intent.

“I will seek someone who understands that justice is not about some abstract legal theory or footnote in a casebook.”

One thing is for sure, it will be an extremist liberal and pro-abortion nominee.

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13 Responses to Obama Wants Living Constitution Theory For SCOTUS Nominee

  • Obama’s nominee is unlikely to be an originalist, and they will certainly uphold Roe. This does not mean, however, that Obama has contempt for legislative history or the judicial record. For starters, it’s justices like Scalia who dislike legislative history (because it’s easy to find support for almost any position in the congressional record). As to the judicial record, upholding Roe at this point is respecting the principal of stare decisis. Originalists care about the original understanding of the Constitution, and less about legislative history and the judicial record.

  • John,

    I’ll take your word on it since you’ll be barristering soon enough!

  • John,

    I forgot to mention that they do use legislative history, but not in all cases.

  • Just to be clear, ‘legislative history’ is a tool of statutory interpretation which involves looking at the Congressional record and statements from bill sponsors, etc. Scalia, as a ‘textualist’, thinks only the text of the statute should matter. Obama’s nominee is more likely to favor ‘legislative history’ than a Scalia-type nominee.

    ‘Original intent’ or originalism has to do with Constitutional interpretation; and the theory of the living constitution (which, imo, all justices adhere to in practice to one degree or another) is another theory of Constitutional interpretation.

  • Stare decisis-“To stand by that which is decided”-when we feel like it.

    Stare Decisis tends to be invoked by judges who like a prior decision and ignored by judges who believe the prior decision was a piece of judicial idiocy. Of course when a court is dealing with constitutional issues stare decisis plays less of a role because the constitution, and the correct interpretation of it, is more important than prior decisions of any court. As Roe amply demonstrates however, too often the tool of Constitutional interpretation used by the Supreme Court and many other courts might rightly be called “making it up as they go along”.

  • The doctrine of stare decisis is of limited value in constitutional matters, since erroneous court decisions cannot be rectified by subsequent legislation. While this judicial doctrine has value, the weight it merits should be inversely proportional to the degree of wrongness and degree of importance of the prior decision to which it would be applied. From the standpoint of actual legal reasoning all that Roe has in its favor is stare decisis, given that its rationale is ridiculously deficient, and that is not much. But for the reasons Don suggests, that will be enough for any Obama appointee who favors abortion rights on policy grounds. He will find the scoundrel’s refuge in stare decisis for sure.

  • As Donald and Mike describe, stare decisis tends to be arbitrarily invoked and ignored depending on the judge and the issue. The post originally read ‘Obama’s contempt for legislative history and the judicial record‘. In response, I was pointing out that Obama’s nominees would be unlikely to show contempt for the judicial record (i.e. stare decisis) with regard to Roe, rather than expressing a more general opinion about the importance of stare decisis.

  • I had never been to this blog until now. Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on… 🙂

  • Katerina,

    You guys have a beautiful set up and have the best theme. We couldn’t’ find another one that was better. You guys chose the best template out there!

    Imitation is a form of flattery you know!


  • Cannot fault anyone for having good taste.

  • Yeah, the reference to “legislative history” doesn’t make sense here. “Legislative history” is a term referring to how Congress enacted a statute — committee reports, House reports, and the like. It’s not a term that refers to the Constitution. And moreover, Scalia (who is at least a “fainthearted originalist,” as he describes himself) is a huge opponent of looking to legislative history . . . his opinion is that Congress enacted whatever is actually in the law, and that it’s dangerous for judges to go beyond the law to look at what some Senate committee might have said that’s different.

  • Obama’s judges will be interested in stare decisis ONLY until they run into a case … such as what happened in Lawrence v. Texas … in which they suddenly decide to overturn precedent.

    This Weekly Standard piece from a while back explains the left’s new-found affinity for stare decisis:

    THE HEARINGS on John Roberts’s and Sam Alito’s nominations to the Supreme Court featured a Latin phrase most people hear only in connection with Supreme Court confirmations: stare decisis. Stare decisis is the legal doctrine holding that in general, an issue once decided should stay decided, and not be revisited.

    Nowadays, it is liberals, not conservatives, who talk about stare decisis in committee hearings, generally in the context of abortion. Oddly, though, it’s also liberals who want nominees to agree that the Constitution is a “living document.”

    How is it that liberals have become, simultaneously, the champions of both fidelity to precedent and an ever-changing Constitution?

    Part of the answer, of course, is that the left’s commitment to stare decisis is selective. Many of the Supreme Court’s iconic liberal decisions overruled prior case law. Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence’s violation of that principle.

    When liberals talk about a “living Constitution,” what they really mean is a leftward-marching Constitution. Liberals – especially those of an age to be senators – have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: “conservative” precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct. To liberals, that probably seemed more like inevitability than inconsistency.

  • Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on… 🙂

    We had the ‘Kubrick’ theme for the first five months, but Kubrick doesn’t have the sidebar on individual posts. This made navigation less convenient and, as it turns out, meant the sitemeter was only catching about 40% of the visits. This format was the easiest to transition to from Kubrick. Plus, as Tito said, it looks good and there’s nothing wrong with flattery through imitation from time to time.

On These Slippery Slopes

Wednesday, October 29, AD 2008

We seem to be teetering on the edge, and there is fear that a President Obama will push us over into the long descent into the night. Those of us who value life and cling (bitterly or not) to our religion are, if not terrified, at least horrified at what Obama intends to do in office. Pass the Freedom of Choice Act, an attempt to legitimize abortion across the board. Make a national health insurance fund that is more appropriately labeled as health care. Raise taxes on the rich and give tax credits and refunds to the poor (definitions of “rich” and “poor” still pending) in order to “spread the wealth around.” Focus on Afghanistan to the detriment of Iraq and, in general, the War on Terror.

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9 Responses to On These Slippery Slopes

  • Spot on. People forget that we live in a republican (turning more democratic) nation where the representatives are obsessed with catering to the popular will. Sure, our elected leaders have mucked things up, but they have been aided and abetted by the people who have put them into power. It’s not enough to elect the right people – that will happen, but we have to make sure the people voting understand why they are the right people.

    It’s a hard road, but especially for those of us who are Burkean in political bent, we have to appreciate that there’s a broader culture that has to be transformed, and we can’t expect certain ballot box results to make everything better.

  • I largely agree.

    Our cultural cesspool is a product of the people who have embraced abortion, the gay agenda, contraception, divorce, etc. However, a great deal of this has been imposed on the people by the judiciary. The culture of death has won most of its important victories through the courts, and public opinion changes to reflect the courts–which function as an oligarchy in this country.

    Personally, I doubt that 50% of the country would actually favor FOCA. For example, recent polls show 90+% of the population wanting some restriction on abortion. More than 80% wanted significant restrictions on abortion.

    A majority of Americans are conservative on social issues, but they’ve been tricked by sound bites (“Right to choose,” “Roe v. Wade”, Separation of Church and State”) that they are willing to accept things like FOCA even though they don’t agree.

  • Very good. It’s been our own inaction, complacent attitudes and desire to “go along to get along” that have gotten us to where we’re at.

    I recently read a post that claimed Catholicism is always counter cultural. Kinda makes sense if it’s realized that the culture will be secular and oriented towards the material world. We can’t all be Mother Teresa but can strive to be more than we are.

  • Blaming ourselves and working on ourselves is part of the battle. We certainly need to practice our faith, pass it on to our children, and evangelize those around us through example and dialogue.

    The other part of it will be more difficult. The courts have played a significant role in changing attitudes in this great nation of ours. We are one or two more justices away from possibly turning over Roe v. Wade. With Obama as president we certainly will lose that opportunity.

    That is why we need to hit prayer really hard from here until November 4. Throw in some fasting to purify our souls and we may possibly change hearts and minds through the grace of God.

    We lose then this is what Ryan was saying about God chastizing us. We will reap what we have sown as a nation as a President Obama further embeds the culture of death upon American society.

    Ora pro nobis.

  • “Make a national health insurance fund that is more appropriately labeled as health care. Raise taxes on the rich and give tax credits and refunds to the poor (definitions of “rich” and “poor” still pending) in order to “spread the wealth around.” Focus on Afghanistan to the detriment of Iraq and, in general, the War on Terror.”

    Sounds good and Catholic to me!

    BTW, Ryan, just what is Bush’s so-called “War on Terror” and how does it square with the Culture of Life?

  • I’m always confused when government social programs are cast as advancing Catholic social teachings. Jesus instructed us to feed the hungry, clothe the naked, etc. He didn’t instruct us to lay all responsibility at the feet of the government.

  • With a population of 98% meat eaters and 10 billion slaughtered each year, it sure is a culture of death. Our vote choice is like arsenic or cyanide.

  • Mark,

    1) The Devil is in the details. I don’t have a problem with the government providing health care for the needy, per se, but I do have a problem when the government wants to offer blanket protection to everyone. We can’t pay for this financially, so we’ll pay in other ways, such as time, as in long waiting lists for scarce resources. It isn’t the intent that I disagree with as far as health care goes; the implementation, however, is lacking. Same with the raising the taxes to give handouts to the poor. When historically, doing such a thing has only left more people poor and unemployed, is that really helping the poor? Again, it isn’t intent, but implementation.

    2) Bush’s so-called “War on Terror” is really a global police effort attempting to crack down on trans-national, violent radicals who set bombs and kill civilians in order to try to topple nations and governments. Whether his War on Terror squares with the Culture of Life depends on a number of issues. Does the US have the right to punish criminals that have committed crimes against the US when the criminals themselves are on foreign soil? If so, does the US have the right to send military units into foreign nations for the purpose of detaining these criminals? If so, does the US have the right to exercise lethal force against these criminals, which are wholly unrepentant and use lethal force themselves?

    The War on Terror squares with the culture of life, I believe, when falling within the Just War Doctrine. Do I think that it has remained within those constraints? We know that it was just to go after Al Qaeda and the Taliban. The threat posed by those groups is grave, severe, and lasting. The other conditions, though? We seem to have a reasonable chance for success, provided that we fight seriously, and not just in our spare time with our spare change. We know that no other means works–we’ve tried for years to negotiate with these people, and that has brought us nothing but grief. We can’t just ignore them because they won’t ignore us. So when the options essentially boil down to: be placid and allow them to continue to suicide bomb us, or take action and destroy these radical groups, the choice seems clear to me. A government has a duty to protect its citizens (when those citizens aren’t themselves violating law), and the intent to destroy Al Qaeda and end its radical terrorism is justified. Now, are we causing greater harm than if we had let the situation lie? From what I’ve read and seen in the news, the answer appears, to me at least, to be negative.

    What about the war in Iraq? After long consideration, I eventually concluded that we were not justified in going into Iraq. We had the option of letting Hussein rot, and from what I could tell, that would not have left us in a position of grave and lasting harm. But that point is moot. What we have to focus on now is what we do now that we’re in Iraq. We can’t go back in time and unmake the decision to go into Iraq, so need to figure out how to leave without making matters worse. We seem to have weathered the storm fairly well, and Iraq seems to be headed towards stability. Not perfect peace by any means, but stability. But here I would use the Just War Doctrine again: the damage of us leaving before Iraq has reached a stable point far outweighs the damage of staying. It is a certainty that an unstable Iraq will send the whole area up in flames. A region-wide conflict would inflict severe and lasting damage, perhaps even embroil us in a much greater war.

    So, a long answer to a short question, I know. But let me sum up my thoughts: Bush’s War on Terror sometimes squares with the culture of life, sometimes doesn’t. We know that his implementation of this global effort is far, far, far from perfect. Catholic voices definitely need to speak out against those parts–unnecessary warfare, torture, etc–that are squarely contrary to the culture of life. But because the whole plan has flaws doesn’t mean we toss it for a worse one. And I personally believe that Obama’s plan is a worse one.

    That doesn’t mean that I agree with what McCain will do, but as I should have mentioned in my post, McCain himself is a compromise. The choice is between voting for someone who is 0% pro-life, and 55% pro-life (numbers made up, so don’t fact check me on them). We want a 100% pro-life candidate, but we find ourselves forced to compromise to the 55% (assuming we wish to vote for one of the two main candidates). So even with McCain, we will reap what we sow.

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