Fit to Judge

What the Goodwin Liu hearings reveal about the judicial confirmation process

It’s hard to imagine a better dry run for this summer’s battle to replace retiring Supreme Court Justice John Paul Stevens than last Friday’s confirmation hearings for federal appellate court hopeful Goodwin Liu. Nominated by President Barack Obama to fill a vacancy on the federal 9th Circuit Court of Appeals, Liu is something of a dream candidate for the left—and a nightmare for the right.

The 39-year-old son of Taiwanese immigrants, Liu is a Rhodes scholar, a former clerk for Supreme Court Justice Ruth Bader Ginsburg, and a respected law professor at the University of California, Berkeley. He’s also an outspoken champion of what’s commonly known as the “living” Constitution, which is the notion, as Liu has put it, that what matters for judicial decision-making “is not how the Constitution would have been applied at the founding, but rather how it should be applied today...in light of changing needs, conditions and understandings of our society."

In fact, Liu has even argued that a judge’s role shouldn’t be limited to simply protecting individual rights against government infringement, but to guaranteeing positive welfare rights as well. “We have grown used to treating the Fourteenth Amendment as a vehicle for judicial enforcement of negative rights against governmental denial of formal equality,” he wrote in a 2009 essay, “and not for legislative enforcement of positive rights to governmental provision of what is necessary for equal citizenship.”

Unsurprisingly, that approach didn’t sit well with the Judiciary Committee’s Republicans, particularly conservative Sen. Jeff Sessions (R-Ala.), who denounced Liu’s ideas as "the very vanguard of what I would call intellectual judicial activism." For their part, committee Democrats pretended like the Republicans were the only ones who ever played politics over judicial nominees. "I hope they will keep the same open mind kept by Democratic senators," intoned committee chairman Sen. Patrick Leahy (D-Vt).

The truth is that both sides routinely subject their opponents’ judicial candidates to some very harsh scrutiny. And why wouldn’t they? Yet that simple fact recently eluded Slate legal correspondent Dahlia Lithwick, who wrote a strange column alleging that “the national debate about the courts has become so wildly unbalanced in recent years that a whole generation of young progressive law students has watched the teachers they revere sent up as constitutional buffoons.” In contrast, Lithwick asserted, “the brightest lights of the Federalist Society—Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell—are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House.”

While it’s true that conservative hero Clarence Thomas made it onto the high court, that only occurred after a scorched-earth confirmation battle where Thomas was repeatedly demonized. And Lithwick completely—and conveniently—ignored the fact that Senate Judiciary Committee Chairman Joe Biden (D-Del.) kicked off the Thomas hearings by waving around a copy of Richard Epstein’s book Takings: Private Property and the Power of Eminent Domain, and trying to discredit Thomas by linking him to Epstein’s libertarian defense of property rights. As Epstein later told Reason, "I took some pride in the fact that Joe Biden held a copy of Takings...and said that anyone who believes what's in this book is certifiably unqualified to sit in on the Supreme Court. That's a compliment of sorts."

As for Lithwick's "wildly unbalanced" judicial confirmation climate: There's no doubt things can get a little wild in and out of the Senate Judiciary Committee, but the debate itself is quite well balanced. Both sides have repeatedly gone to war on behalf of their respective legal agendas. For Lithwick to argue otherwise is to ignore some of the most famous events in modern legal history.

The most important issue here isn't who's being meaner to the other side's nominees, it's whether a controversial judicial philosophy should keep an otherwise qualified nominee off of the bench. Ironically, Goodwin Liu himself has argued that it should. During the bruising 2005 confirmation battle over future Chief Justice John Roberts, for instance, Liu attacked President George W. Bush for failing to choose “a consensus candidate to replace Justice Sandra Day O’Connor” and instead picking “a conservative thoroughbred who, if confirmed, will likely swing the Court sharply to the right.”

Similarly, Liu testified before the Senate in 2006 that Supreme Court nominee Samuel Alito "envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse" and "where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination."

So it’s hardly shocking that Senate Republicans would now give Liu a taste of his own medicine. Nor should anybody on the right feign surprise when future Republican judicial nominees are treated roughly by liberals.

It’s time for both sides to come clean about the importance of judicial philosophy. That means no more grandstanding about “open minds” and double standards. If Constitutional interpretation matters—and it most certainly does—then senators have an obligation to query each and every nominee about it and vote accordingly. That’s the only way we’ll ever have a real debate about the Constitution and the courts.

Damon W. Root is an associate editor of Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Tony||

    I agree with everything here. I will say that there's a cynical disregard for reality on the right. Both sides are equally "activist" by the right's own definition, but they claim unjustified legitimacy by merely saying that their opinions are what the founders and constitution want. At least the living constitutionalists don't claim to be time traveling mind readers.

  • ||

    Neither do originalists. They simply take the novel position that the Constitution means today what it was understood to mean by the people who ratified it. And then they inquire into that meaning (usually by reference to period sources) and attempt, however imperfectly, to rule accordingly.

    Contrast with the leftist approach of simply making shit up as you go in accordance with your policy preferences.

  • Jeffersonian||

    Which, in the end, means you really don't have a Constitution since you're really just making it up as you go along.

  • MNG||

    Not true, there are textual limits.

    Think of your interpretation of a movie. We might disagree on the import or meaning of several parts, but we can't roam too far from the actual film without becoming laughable.

    Likewise even cases that are catigated by the right as "lawless" like Roe tried mightly to tie their right under textual provisions such as privacy interest protect in the 4th, 9th amendment promises of unenumerated rights, the 'liberty" the 14th and precedent like Pierce, Society of Sisters, Griswold, etc.

  • wayne||

    but we can't roam too far from the actual film without becoming laughable...

    The right of the people to keep and bear arms shall not be infringed

    The city of Washington, DC absolutely prohibits the ownership of guns, and Obama opines that DC's "law" is compatible with the constitution.

    Ha ha ha ha ha ha, yuck yuck yuck yuck.

    A "living constitution" in action. No fucking thanks, I will take the textualists every time.

  • MNG||

    Look wayne, the 2nd amendment is anything but unequivocal in granting an individual right to bear arms in non-militia related fashions. It's hardly plain. It's actually a great example of why interpretation is important.

  • wayne||

    MNG,

    Bullshit. If you are capable of reading English and familiar with the history of America then 2A is quite clear.

    14A reinforces 2A by making it clear that 2A was an individual right for white men but southern states were denying black men that right post civil-war. 14A was butt-fucked by some of your "living document" buddies in Slaughterhouse, of course.

    Beware RC's iron law: me today, you tomorrow.

  • cynical||

    "We might disagree on the import or meaning of several parts, but we can't roam too far from the actual film without becoming laughable."

    I know, dude. Imagine if they asserted that the pight to regulate commerce between the states meant that Congress could force individuals to buy shit from Congresswhores' contributors, or that they could simply shovel shitloads of taxpayer money to protect irresponsible businesses. What kind of retards could believe something so stupid?

  • cynical||

    Or imagine if, despite the Constitution stating that Congress shall pass no law abridging freedom of speech, Congress passed a law that abridged freedom of speech, and nearly half of the sitting justices rationalized that this was acceptable.

  • MNG||

    The actual text of Art. I grants the power to regulate IC commerce (period, no qualifiers or limitations mentioned). Either way "commerce" now has to be interpreted, it was not defined. If buying things involves commerce, then not buying things does to, that may not be the best interpretation, but it is reasonable. Besides, the HCR seems to draw its authority on the taxing clause, another explicit broad grant of power.

    And another explicit clause, the spending clause, justifies the use of taxes, levies and duties "for the general welfare." Congress can decide aiding certain instutitions is in the general welfare. (who else should determine that, activist courts ;)

  • RM||

    If not buying things counts as commerce, then the government can force people to do anything they want.

    On the other hand, I'm not sure how far your imagination stretches if you try to say that buying things doesn't count as commerce.

  • MNG||

    "If not buying things counts as commerce, then the government can force people to do anything they want."

    Of course not, it simply means it can force us to buy things.

  • The Libertarian Guy||

    I am so sick of this line of thinking. The federal government cannot force everyone to buy an auto policy - that is a state mandate, as it should be.

  • JohnD||

    MNG, you are possibly the biggest fool I have ever encounered. Between you and Tony (who are probably the same idiot) their isn't an ounce of logic or commen sense.

  • barfman||

    If buying things involves commerce, then not buying things does to, that may not be the best interpretation, but it is reasonable.

    *barf*

    *barf*

    *baaaarrrrrfffffffff*

  • Jonas||

    Not true, there are textual limits.

    Think of your interpretation of a movie. We might disagree on the import or meaning of several parts, but we can't roam too far from the actual film without becoming laughable.

    Speaking as someone with a (totally worthless) English degree, I can tell you that people can make up whatever the hell kind of shit they want and say it's "based on the text" and no one questions it. I've known people who would literally argue something meant the exact opposite of what it objectively meant and if you point it out to them everyone just says, "Well, you're just espousing different interpretations."

    So don't try to feed me any crap about textual limitations.

  • MNG||

    You should read Stanley fish's article on Faulkner's A Rose for Emily on the limits of interpretation, and the need to be very hesitant to say any one interpretation is definitively right.

  • SIV||

    Our 9th grade Enlish teacher got really pissed when we "interpreted" that story as literal necrophilia.Particularly when several girls who were either clueless, or feigning it, got sick after we explained it to them.There was a lot of actual rolling on the floor laughter, a lot of ewwwwwws! Some overt audible praying and at least one race to hurl in the bathroom.Ah the 1970s of our youth.

  • Chris||

    But there are which are definitively wrong. Some of the shit I've seen the left try and pass is unfuckingbelievable. The founders could never have envisioned modern weapons therefore the 2a is only applicable when speaking about weapons in existence at the time of the founding?

    Get the fuck out of here.

  • MNG||

    Indeed, some interpretations are much less convincing than others. Fish says so in the essay I noted above.

  • MrGuy||

    MNG, you're dumb. Stop spewing your mouth-fecal. Interpret that...

  • ||

    Not true, there are textual limits.

    You have little faith in the demonstrated imagination and inventiveness of judges and politicians.

  • ||

    I'm just wondering how long before we have a Constitutional Amendment offered repealing the Constitution.

  • MrGuy||

    Accoring to MNG, the consitution already has three.

  • Jeffersonian||

    So, Tony, if an African American were found to be living in conditions that were, under any definition, chattle slavery, and the USSC "interpreted" that to be perfectly consistent with the Thirteenth Amendment, you'd be cool with that insofar as it's a "living" document and the Amendment is therefore subject to any meaning a judge might wish to project upon it?

  • MNG||

    Broad interpretations don't mean absurd one directly counter to the text.

  • ||

    So the right to be free from unreasonable searches means the right to have an abortion? Yeah it is right there in the text.

  • MNG||

    Yeah John, that's exactly what Roe argued!

    Have you ever read the opinion?

  • ||

    I went to law school dipshit. And Douglas's opinion says nothing of the sort. He says the right is one of the "penumbras" of the rights that are there. His opinion is embarassing to even abortion supporters. No one has ever bothered to make such an argument again. They just cite Roe as binding and go from there.

  • Mr. FIFY||

    Notice there's no right that specifically applies to men...

  • MNG||

    Hey dipshit that went to law school, Blackmun wrote the court's opinion in roe. You see, people who know their law from right wing blogs and radio don't know this because they are shovel fed the Douglas opinion, which was Griswold goofus.

  • JMS||

    Worth pointing out that Roe had a companion case, Doe v. Bolton, decided at the same time. I think John may be referring to that.

    TBH, most of the logic in Roe is correct; where I differ from it is that Roe believes that the State has NO interest in a potential life until viability; I would disagree and say that, assuming that there is a right to privacy encompassing medical treatment (which Roe does), that right must be balanced with the State interest in potential life from the moment pregnancy is identified.

    The seven justices who authored or joined opinions in Roe and Doe decided that the State has no interest at all in the first trimester (an arbitrary line which seems to imply judicial legislation) and almost none until viability. It's far more sensible to balance the right to privacy and the state interest in potential life by saying that a state may, if it so chooses, limit abortion to some extent. I would have overturned the very broad Texas ban on abortion in Roe and upheld the narrower limits in Doe.


    Amusingly, btw, it seems likely that the right to privacy in medical treatment 'discovered' in Roe will be a strong precedent for an individual challenging Obamacare (although unlike the states, individuals will have to wait for it to come into effect before challenging it)

  • ||

    Abortion affects Interstate Commerce, so Congress has a vested interest in regulating it. After all, we need future taxpayers to pay for Social Security, et. al. :)

  • Wegie||

    I went to law school dipshit. You mean you went to dipshit law school!

  • Beezard||

    I was raised on houseboat in Spain!

  • Tony||

    And I don't think it's even about broad vs. narrow interpretation--there is no absolute interpretation of much of the language, even language that sounds absolute. Some people just pretend that there is and that it accords with their political beliefs.

  • wayne||

    Yeah, I agree, and it comes from the "living document" activists. Liu, apparently, is one of their shining lights.

  • Tony||

    I'm saying both sides have their preferred interpretation. Only one side cynically claims that all their positions are sanctioned by the constitution to the exclusion of anything else.

  • wayne||

    And I am saying I don't give a shit whether a justice is an R or a D, a libertarian, conservative, or liberal. Obey the fucking law as written. If the country decides they hate the written constitution, then amend it.

    To paraphrase Clinton: amend it, don't bend it!

  • Tony||

    The law is written in English, not ones and zeroes. Any text is subject to interpretation.

  • RM||

    Up to a point, obviously. Violating the basic tenets of grammar is not "interpretation".

  • The Libertarian Guy||

    "only one side"

    Haw!

  • MrGuy||

    ...an African that immigrated to America, or a black American?

  • Brett Knoss||

    The living constetution. Thats great start by ensuring changes made to the constetution thorugh the legal process in light of the events of the civil war are in place for their intended purpose. Overturn slaughterhouse.

  • MrGuy||

    "constetution"

  • ||

    Sen. Jeff Sessions is from Alabama.

  • Kroneborge||

    I think there is a process for changing the living consitution. It's called Amendments

  • MNG||

    Good point, but Constitutions are broad documents allowing quite a bit of room for interpretation.

    I've always been unsatsified with going by how the ratifiers "expected" language to be carried out vs. following only the meaning of the words themselves. You get some goofy results. I'm betting the ratifiers of the 14th didn't ever expect it to apply to Chinamen, but it would seem contrary to the bare meaning of the actual words to not so apply it. So I'm all for saying that when such bare principles are laid down the fact that the ratifiers did not follow the logical extension of such a principle to certain specific cases should be no bar to future interpretations following such logic.

  • ||

    By "quite a bit of room for interpretation", you mean interpreting "interstate commerce" to mean non-interstate non-commerce, as in Obamacare's mandate to buy coverage?

    Or do you mean "eminent domain takings for public purposes" to mean "taking stuff at prices far below market prices and giving them away to a politically connected private party"?

    Or do you mean "Congress shall pass no law" to mean "Congress and states and local governments shall pass lots and lots of laws"

    Or do you mean "shall not infringe" to mean "shall infringe wherever it is politically expedient"

    Or ...

  • The Libertarian Guy||

    Or... bastardizing "promote the general welfare" to mean "give handouts to able-bodies, mentally-competent adults"?

    Or... the "right" to health insurance for twenty-six-year-old "children"?

    Next!

  • MNG||

    The IC grant is a very broad one. The founders could be very specific when they wanted (suits for 20 dollars). In that case there was the simple grant of the power "...to Regulate." No qualifiers, no limitations.

    A broad conception of publi purpose gets you there just fine. See Midkiff, you might not like it but land reform is certainly a public purpose, and one that would involve transfers to private parties. The only limitation I see is that compensation be given.

    Well, you still have to determine what is speech.

  • RM||

    I'm not sure how interstate commerce applies to intrastate commerce, regardless of the lack of other limitations.

  • MNG||

    Because when they are intertwined it would be impossible to effectiely regulate one without the other. Actually you guys know that and are COUNTING on it: you hope that making intrastate commerce off limits to carve out a sphere of less or no regulation. Too cute by half.

  • mr simple||

    That is so disingenuous it is sad if you have actually convinced youself of this to remain a party stooge.

  • Mr. FIFY||

    Try reinterpreting the First Amendment.

  • Louise Slaughter||

    I do that every time I re-introduce the Fairness Doctrine.

  • MNG||

    one can rationally see the fairness doctrine as no infringment on speech as it simply mandates more speech, matching speech, and of the prime political kind the founders probably focused their "understanding" on.

  • AA||

    Or less speech to achieve matching speech. I which case would be silencing speech.

  • MNG||

    If it exactly matches it then there is exactly noo loss in speech. Check mate.

  • The Libertarian Guy||

    Still gives too much power to government regarding speech, MNG. The ONLY way to be fair about it, would be to apply it to every outlet - including print media. But the intellectual cowards who want to control the airwaves - and the internet - give print media a pass.

  • MNG||

    But the rationale-poublic ownership of the ariwaves-is not there in print media

  • Mr. FIFY||

    There is no way to legislate the length of the day, MNG. Forcing radio or TV (or cable/satellite TV/satellite radio/internet) to divvy up political speech in exact, finite amounts IS a loss of speech.

  • MNG||

    Nonsense, it's the same amount just different content.

  • The Libertarian Guy||

    No, it's using the force of governmental power to require Radio Station X to carry *this* much programming, and *this* much programming...

    It wouldn't work. The FCC would have to monitor 24/7, counting every facet of political thought with stopwatches, just to make sure everyone gets the same amount of time. That is NOT a proper governmental function.

    And print media STILL gets a pass.

  • bigterguy||

    "Congress shall make no law "

    It doesn't say some laws, or good laws, or nice laws it says "NO LAWS" NO FUCKING LAWS

    "..abridging the freedom of speech"

  • MNG||

    OK, NO LAWS. Infringing speech.

    Now what is speech? Political pamphlets? Nude dancing? Wearing an arm band to school? Giving money to make a commercial?

    See, even in one of the most absolutist clauses room for interpretation abounds.

  • ||

    Yes.
    Maybe.
    Yes.
    Yes.

    Next?

  • AA||

    I don't think dancing is "speech." But the rest are. And dancing naked on ones private property should not be "illegal."

  • ||

    I don't think (nude) dancing is "speech."

    The answer is "it depends." Is it part of a larger performance? Is it designed to speak a particular message in a very obtuse manner? Is it part of a protest?

    It's usually a purely commercial activity, one that shouldn't be restricted nonetheless.

  • MNG||

    You think it is not speech, and our good ol wingnut JW thinks maybe. See, we're learning together how interpretation is necessary...

  • Robespierre||

    Actually, MNG, we're learning that any crypto-statist (like yourself) can show the myriad creative ways to interpret any dumbass thing they want from any Article or Amendment that gets in the way.

    You're an object lesson! Highfive!

    It's instructive to note, though there are a scant few exceptions, that anyone generally trying to 'interpret' an Article or Amendment is trying to wring some extra regulation from it that was previously unintended.

    Example:"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    Now, how many times has a legislator (or increasingly in these days of extra-constitutionalism, a president or judge) tried to interpret the First Amendment to take away limits on speech?

    "Hey! That guy just said the president is a fascist. He might have even more inappropriate names he wants use and we need to get out of his way. You know what we need to do? We need a law that gives him even greater latitude in his speech! BRILLIANT!"

    As for your "Fairness" Doctrine, what were to happen if one station aired an all conservative political line-up? If that's what gets the ratings and advertisers, why should they change? Oh. That's right. The "Fairness" Doctrine would mandate 'equal time' to an opposing view. Which means some of that speech is going to be curtailed, regardless of the wishes of the listeneers, the broadcasters and the advertisers.

    "Nonsense, it's the same amount just different content." -MNG

    Here you! Drink your 12 oz. can of Coke! What you don't like Coke, you'd rather have a 12oz. can of Pepsi? Well, too bad. Same amount, different content...

    Why on Earth would you cede such authority and responsibility to politicians and bureaucrats? Oh, right. You're a crypto-statist. Well, not so 'crypto' I guess.

  • RM||

    Isn't speaking on the radio speech? I mean, it IS called speaking for a reason. I think?

  • AA||

    If you are keeping someone from saying something in order to make speech "equal" to some politicians liking, you are loosing speech. King me.

  • MNG||

    You are losing one type of speech and mandating an equal time of another. No net loss. I win.

  • AA||

    You forgot about the listeners. What if they don't want to hear the side that will be gaining speech at the expense of the other side losing their right to speech? where is thier right to listen to what they want? Free listening rights! Looks like I just took game 7.

  • ||

    one can rationally see the fairness doctrine as no infringment on speech

    Really? the institutions being forced to air certain speech as no speech rights themsleves? Interesting theory.

    You have no problem forcing a radio sation, whose owners are vehehmently pro-choice, to air spots from rabid, fundamentalist pro-life groups? It's all good that a TV station whose owners are ardent Obama suporters must run Romney ads?

    Sounds like it's the antithesis of speech rights, being forced, under the threat of being deprived of your property, to underwrite your opponent's speech. Sounds vaguely Chavez-like.

  • ||

    See, we're learning together how interpretation is necessary...

    It's only neccessary if you have to interpret something that is not explcitly speech. You really have trouble with nuance, don't you?

    Is walkikng down the street a form of speech?

  • Wegie||

    Wow, you really did go to dipshit law school.

  • ||

    There are only 24 hours in a day. for any given media outlet, if you mandate an increase in the time allotted for one political viewpoint, you necessarily mandate a decrease in the time allotted for the opposing viewpoint. You are therefore infringing on the speech supporting the latter viewpoint.

  • Michael Ejercito||

    You get some goofy results. I'm betting the ratifiers of the 14th didn't ever expect it to apply to Chinamen, but it would seem contrary to the bare meaning of the actual words to not so apply it. So I'm all for saying that when such bare principles are laid down the fact that the ratifiers did not follow the logical extension of such a principle to certain specific cases should be no bar to future interpretations following such logic.


    As long as it sticks to using the original public understanding of the Constitution and its amendments as the foundation.

    Interpreting the First Amendment to protect the content of television and radio broadcast, the Second Amendment to protect possession of semiautomatic pistols, the Fourth Amendment to regulate searches and seizures of high rise apartments, and the Eighth Amendment to prohibit electroshock torture as punishment for crimes, is consistent with the original public understanding of the amendments.

  • MNG||

    Do you think the ratifiers of the 14th "understood" that the logic of equal protection of the law mean Asians must be similarly warranted such rights?

  • Michael Ejercito||

    Do you think the ratifiers of the 14th "understood" that the logic of equal protection of the law mean Asians must be similarly warranted such rights?


    What evidence do you have that they did not?

  • Tony||

    So a tie goes to you?

  • MNG||

    Ohhh, the prove the negative!

    I actually do have the many anti-Chinamen laws that stayed pretty unchallenged for decades after ratification.

  • AA||

    By that logic if the constitution was meant to be against Chinamen, it would be there. But it is not. Therefore anti Chinamen laws are unconstitutional. If you take it as it is written, it is unconstitutional to be racist. And any parts that were got overturned the proper way, with an Amendment.

  • AA||

    I mean racist laws are unconstitutional.

  • MNG||

    The opposite. As there is no explicit exemption for chinamen, and there is a bald statement of equal protection, then, whatever else the ratifiers may have thought about the subject, logic compels us to reach that conclusion. Should the conclusion be any different if we had evidence that many ratifiers thought the law would not apply to laws discriminating against chinamen, so that our guessing of their subjective thoughts would override the logical reading of the text?

  • AA||

    Well, I wasn't saying we should try and interpret their thoughts. If the constitution doesn't permit it, you can't do it without an Amendment. Thats why we have a constitution. If we can just go interpreting it differently every other election cycle why have it?

  • Tony||

    How do you know if the constitution permits laws against abortion? Or death by firing squad? (I can think of crueler and more unusual punishments). The whole point is figuring out what it permits and forbids. It's not something determined by a cursory glance at the words, because the words are vague.

    I think this was done deliberately--flexibility is a good thing for a government to have through time.

  • Coeus||

    Not when it's used almost exclusively to limit the rights of its citizens.

  • bigterguy||

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    All persons...any person...any person. Where is it vague? All persons would seem to include ALL PERSONS, not just black, green, white or purple persons, ALL persons.

  • Comrade Zero||

    "ALL PERSONS"

    Yeah, no one's ever had a problem understanding that, huh?

  • MNG||

    Yes, that's my point, but it was decades later that courts thought this applied to anti-Chinamen laws. The text should have trumped the original "understanding" or expectations of application.

  • MNG||

    But some parts of the constitution are negations, so your idea about "not permitting" seems strange. The equal protection clause tells governments they have to appy the law equally. That doesn't "permit" them, it binds and restricts them.

  • Michael Ejercito||

    The opposite. As there is no explicit exemption for chinamen, and there is a bald statement of equal protection, then, whatever else the ratifiers may have thought about the subject, logic compels us to reach that conclusion. Should the conclusion be any different if we had evidence that many ratifiers thought the law would not apply to laws discriminating against chinamen, so that our guessing of their subjective thoughts would override the logical reading of the text?


    Fortunately, we have decades of Supreme Court precedent.

    For one example, we already know that gender discrimination is not held to the same level of scrutiny as racial discrimination ( Minor v. Happersett , Michael M. v. Superior Court )

  • Tony||

    Michael,

    So you're acknowledging that the interpretation of the text has been honed throughout those decades.

  • cynical||

    "Living constitution" in practice means "dead letter". Granted, opposite day language is par for the course with the left.

  • wayne||

    I've always been unsatsified with going by how the ratifiers "expected" language to be carried out vs. following only the meaning of the words themselves...

    So, you are a textualist? I am cool with that.

  • ||

    You said "Chinamen." Resign now.

  • Chad||

    Kroneborge:

    Either the Constitution needs to be flexible in practice, or our interpretation of it does.

    The Constitution is not flexible IN PRACTICE.

    Ergo...

  • Michael Ejercito||

    Either the Constitution needs to be flexible in practice, or our interpretation of it does.

    The Constitution is not flexible IN PRACTICE.


    How so?

    Even with sticking strictly to original public understanding of the Constitution and its amendments, one can reasonably interpret how the Constitution might apply to television broadcasts, or semiautomatic firearms, or searches and seizures in high-rise apartments, or using electroshock torture as punishment for crimes.

  • Tony||

    No, "one" can't reasonably interpret those things. That's what the judicial system is for. Interesting that you bring in cruel and unusual... what the hell are those words supposed to mean? You're saying it should be obvious to any reasonable person? Okay, but the law needs clarity, and that only comes by interpretation and application to reality.

  • Michael Ejercito||

    No, "one" can't reasonably interpret those things. That's what the judicial system is for.


    So how did the judicial system reasonably interpret those things? How could it have interpreted the First Amendment to protect speech broadcast over the radio? Or the Eight Amendment to prohibit electroshock torture as punishment for crimes?

  • Tony||

    Speech and cruel & unusual have both been subject to interpretation over time. I'd say the laws surrounding them roughly adhere to the standards of the average person alive today, interestingly enough.

  • Michael Ejercito||

    Speech and cruel & unusual have both been subject to interpretation over time. I'd say the laws surrounding them roughly adhere to the standards of the average person alive today, interestingly enough.


    Have the basic definitions changed?

  • cynical||

    It's alterable in practice. Few situations are so dire and immediate that must risk all of our freedoms because of a new technology or discovery.

    I'd rather questions of fundamental freedom be left to the considered judgment and agreement of the vast majority of the populace (per the amendment process) than hang on the mental health of nine elderly lawyer-priests for life.

  • ||

    The main purpose of even having a Constitution is so people (citizens mainly, but also government officials) can know ahead of time what the rules of the game are. If these rules can so easily be changed, then it defeats the purpose of even having them. One can argue the amendment process is too time-consuming, but the way the 'living document' interpretation works is that the amendment process becomes completely meaningless except to reinforce an existing re-interpretation.

  • π||

    But amending the Constitution is difficult, and for most of the crazy stuff the right and left want it would be impossible to do.

    There are much easier ways, side-stepping, ignoring, stacking the bench, and the very best of all simply claim the Constitution is alive. Living constitutions are a lot like a Ouija board, you just never know what they're going to say. They do, however, tend to share common ideology with the activist Justices moving pointer around.

  • wayne||

    +1

  • ||

    If I were in Congress, I'd grill them all, and I'd most certainly vote against a candidate that I felt wasn't right for the job. Meaning I'd apply my libertarian litmus test.

  • ||

    Liu didn't argue for positive rights through the courts, he said they should come from the democratic process through the legislature. He did say the court should play a role then but it soudned minor to me.

    I watched most of his testimony and he didnt come off as an "activist" liberal judge at all. He clarified all of his "controversial remarks" in the same manner that he did the one abotu positive rights. Once he explained what he meant and put them in context they made sense.

    His remarks abotu Alito don't really seem that bad either if you put it in context. That came at the end of 14 pages of examples of Alito being very deferential to government power. They dont seem so bad then. But Liu still admitted that they were a mistake and overly flowery.

    He was very good, and not because he was able to avoid answering the questions, but because he did and set the record straight. I dont think Ive ever been more impressed by a judges testimony.

  • ||

    You mean, like Obama, he lied, but in a really effective rhetorical style?

    Just guessing how all those promises will turn out if the guy gets a lifetime appointment where he can't be held to anything he said during the confirmation process ...

  • ||

    Im sure he'd be liberal. But he wasnt lying. The lies were done by the people that took his writing out of context. For example, the "right to welfare, health care" etc.. was taken out of context to where the rest of the quote, which was cut out, has him stating that he believed that has to come from the legislature and not the courts. Republican senators tried him on several of these supposed controversial quotes and every time, once they were put in context, its the Senators who ended up looking like fools.

  • The Libertarian Guy||

    There is no such thing as "positive rights".

  • MNG||

    There are such things as positivr rights, to the extent there are any rights.

  • The Libertarian Guy||

    No, MNG, positive rights = made-up bullshit to justify expansion of the welfare rolls. Period.

    There is no right to food, for example. Otherwise, I could pop down to the little burger-and-beer joint in downtown Springfield, MO, and they'd have to give me what I want because I deserve it according to the Constitution. Right?

  • Tony||

    No, but you can get food stamps. Apparently there is a right to food, because the people via their government decided for there to be one. You're saying the right to speech is somehow natural and innate while the right to food is nonexistent? Who says? You would of course say the constitution. But all that means is that more people are necessary to overturn the right to speech than the right to food. All rights exist because people made them exist. There is no "rights field" in the quantum structure of the universe.

  • The Libertarian Guy||

    Okay, then... EVERYTHING is a right. I'm going down to the exotic-car dealership and that fuckin' Lamborghini is coming home with me. Because you said so.

  • Tony||

    Thank you for proving me right once again by engaging in a hysterical straw man. There is not a right to steal cars.

  • The Libertarian Guy||

    Hey, if I have "rights" to food and shelter... why not transportation?

  • Tony||

    TLG,

    Why not transportation? It's effectively the case in most urban areas. It tends to be fee-based, but there's nothing wrong with that, but government did build the infrastructure.

  • Tony||

    I should say all urban areas and all other areas where people live for that matter. Everyone asks their government to build roads for them.

  • .||

    There is not a right to steal cars.

    Why not? You've already said there's a right to steal food, if the theft is done by a large group of people or their representatives.

  • Mr. FIFY||

    Make them fill the tank on their dime before you drive it off the lot... because that "rights field" thing is kinda tricky when it comes to fossil fuels.

  • That One Obama Supporter||

  • MNG||

    Tony scratch deep enough and you usually find the rights come from jeebus.

  • Tony||

    Either Jeebus or just what you're allowed to do in the absence of government, which of course includes eating babies.

  • .||

    Absence of government does not allow one to eat babies anymore than presence of government prevents it. Morality - a concept of which you've more than once demonstrated your utter ignorance and disregard - is what disallows the eating of babies.

  • Tony||

    .,

    And how do you know your neighbor will have your morals?

  • .||

    I don't, but establishing a government is not going to provide him with any either. It is morality and ethics that must validate government - not vice versa.

  • Tony||

    ? But you need government to enforce rules that keep you and your property safe from intrusion, right?

  • Joe C||

    I think the difference is that freedom of speech doesn't require the government or anyone else to do anything for you. The only requirement is that they don't pass a law that limits your ability to speak.

  • MNG||

    A right to food would no more compel any given person to hand his specific food over as would a right against trespass compel any passeryby through the bum off the property.

  • oncogenesis||

    There are such things as positivr rights, to the extent there are any rights.

    That which compels person A to give up resources (money, time, etc.) to person B is not a right.

  • .||

    Likewise, there can be no such thing as a right to violate rights - which is what most positive rights entail.

  • Wegie||

    MNG The Brainless

  • Religious fundamentalist||

    Or evolution, as it would contradict my deeply held beliefs in nonsense.

  • ||

    He doesn't believe in "positive rights", and neither do I. I worded that poorly. He's for a safety net (welfare, health care,etc...), typical liberal stuff, but he thinks that has to come from Congress not the courts.

  • RM||

    Those are indeed positive "rights" as they have to be given to somebody.

  • ||

    There is a difference between a 'right' and public policy (even if many insist on callin it a 'right' for political reasons). Welfare (or national health care) may be considered a disirable policy, but you can't honestly call it a right. You seem to be positing a right not to be taxed for things you don't approve of.

  • Michael Ejercito||

    He’s also an outspoken champion of what’s commonly known as the “living” Constitution, which is the notion, as Liu has put it, that what matters for judicial decision-making “is not how the Constitution would have been applied at the founding, but rather how it should be applied today...in light of changing needs, conditions and understandings of our society."


    And who determines these needs?

    What if someone determined that we "need" to exterminate black people, Jews, or homosexuals? How would Liu interpret the Constitution in light of such a "need"?

    They simply take the novel position that the Constitution means today what it was understood to mean by the people who ratified it.


    That is the commonsense position.

  • MNG||

    "That is the commonsense position."

    Because of the commonplaceness of time machines and mind-reading devices...

  • oncogenesis||

    Because there is ample explanatory documentation for all of the text of the Constitution and its Amendments. Don't be an idiot.

  • MNG||

    ample? We have certain persons scribblings here and there, often conflicting and never complete.

  • peachy||

    Simple facts frequently elude Lithwick. Complicated ones, too.

  • Stewart||

    No one is surprised when conservatives are treated roughly by liberals. The amazing part is how liberals manage to promote such fringe candidates and still maintain any credibility.

  • ||

    "that what matters for judicial decision-making “is not how the Constitution would have been applied at the founding, but rather how it should be applied today...in light of changing needs, conditions and understandings of our society."

    Which is another way of saying the Constitution means whatever the government of today says it means. I have a bridge to sell anyone who thinks such a formulation is conducive to protecting the individual from the state.

  • MNG||

    John
    The ratifiers of the 14th wrote a bare assertion of equal protection of the laws, but they almost certainly did not understand that such a principle logically mandates fair treatment of Asians. Later generations with no such similar hangups about Asians follow the logic and apply the clause. That's hardly "whatever the government wants."

  • ||

    Just because the definition has expanded in our favor in some cases, doesn't mean that it will expand forever that way. Ultimately, liberals like Liu and you for that matter just ask the country to trust that you would never do anything wrong.

    No thanks.

  • MNG||

    It's not about expanding to other areas, it's about the logical implications of the clearly stated principle. Equal protection of the laws for all citizens. Chinamen were citizens. Ergo...Just because it seemed unthinkable such applications would occur to the ratifiers doesn't mean jurists should ignore what they actually wrote.

  • ||

    And it is perfectly logical that when we are threatened with terror attacks by non-uniformed foreign soldiers hiding among the population, that the government ought to be able to detain them without trial.

    And the 4th Amendment says "reasonable". And reasonable depends on the circumstances. It is certainly reasonable in a time of war to listen to people's phone calls.

    Two can play that game dumb ass. You honestly seem to think that the only cogent, reasonable interpretation is the one that gives the results you want. It doesn't work that way. Once it is open to free interpretation depending on the fashion of the day and not grounded in a solid meaning, the Constitution can be interpreted give lots of results that you don't like. You are just staggeringly naive and ingnorant.

  • Tony||

    John you're doing nothing but indicting yourself while trying to distract from that by calling names.

    You just used the phrase "depends on the circumstances." What could be more relativistic than that? You are the one who thinks you have the only possible correct interpretation.

  • Tony||

    John you're such a cynic. You're basically saying that our system of government is doomed to failure.

    Because rigidly adhering to what you allege is the only correct interpretation of the constitution (care to tell me what "cruel and unusual" refers to specifically?) is not a guarantee of success either by a long shot.

  • Mr. FIFY||

    It is doomed, if we keep putting in Republicans and Democrats to run our lives for us... or are we just supposed to bend over and trust the current (or future) administration(s) from this point forward?

    "We promise we won't cum in your mouths, America!"

    "Okay, but only if you REALLY REALLY mean it..."

  • George W. Bush||

    Heh heh... they fell for that when I was in office.

  • Bill Clinton||

    Me too!

  • Dick Nixon||

    You wouldn't believe how much shit I got away with... that is, until I didn't.

  • Jimmy Carter||

    Hey, they elected ME, too!

  • Franklin Roosevelt||

    I got you all beat!

  • Abraham Lincoln||

    You ain't got shit.

  • John Adams||

    Ahem, "Alien and Sedition Act"?

    You gentlemen = PWN'd

  • George Washington||

    *sigh*

  • wayne||

    The ratifiers of the 14th wrote a bare assertion of equal protection of the laws, but they almost certainly did not understand that such a principle logically mandates fair treatment of Asians.

    What makes you think the 14th authors considered Asians non-human?

  • Johnny Longtorso||

    Shorter MNG: if you'd allow any flexibility on the grounds that human language isn't 100%, you must allow me the total flexibility to do whatever the Hell I want. Since everything would lead to money changing hands, or not changing hands, eventually, the interstate commerce clause means the people I've attached my massive ego to have total power.

  • Tony||

    "Total flexibility" and "total power" is a straw man and you know it.

    Fucking nuance people. It's good for you.

  • wayne||

    Tony, we have seen your brand of nuance: Total disregard for 2A, a perverted, racist interpretation of 14A whose publicly admitted intent was to disregard 14A.

    Fuck you and your nuance, and your "living document".

  • Tony||

    Hey I don't disregard 2, I just disagree with your interpretation of it (and the SCOTUS's for that matter). There's nothing wrong with having a different interpretation--just don't pretend yours is the only one, because it's simply untrue.

    I have no idea what you're talking about with regard to 14, please elaborate.

  • wayne||

    See alan gura's brief to SCOTUS in McDonald V Chicago and his explanation of the history of the Slaughterhouse decision. The slaughterhouse decision was an intentional subversion of 14A, and the politicians of the time admitted it, but they liked the outcome .

    Sound familiar? Gee, I guess they were "living document" fans too. Because of stare decisis we are stuck, to this day, with the racism of the 19th century. Despite a widely recognized right to bear arms until the 20th century, 2A was whittled away using the precedent of slaughterhouse and we end up where we are today with guys like Tony and MNG unable to understand what 2A means.

    This is a glaring example of why I am a textualist, and why I detest the living document philosophy.

  • MNG||

    "if you'd allow any flexibility on the grounds that human language isn't 100%, you must allow me the total flexibility to do whatever the Hell I want"

    Yeah, because those are the only two possible positions on that continuum, eh Captian Nuance?

    Of course I ACTUALLY argued that in my view there would be limits: 8:43, 8:44 8:46. Are you an actual retard or just highly inebriated when you post?

  • ||

    MNG, Why even have a Constitution? Just do what Britian does. They don't have one. In your view, a judge and by extension the government has the right to do anything that it feels is right given the circumstances. Why bother with the language of the Constitution? If it doesn't mean anything but what a judge says it does, it really isn't necessary anymore.

  • Tony||

    There was never a time when the constitution wasn't subject to interpretation.

    You're not advocating anything but a cynical talking point in favor of conservative political interests.

  • The Libertarian Guy||

    ...said someone who constantly offers cynical talking points in favor of liberal political interests...

  • Mr. FIFY||

    +42.

  • MNG||

    "If it doesn't mean anything but what a judge says it does" Once you get high enough a judge's interpertation, barring amendment, IS the law of the land John. You don't get anything from jumping up and down and yelling about living constitutions: this is true for any judge under any theory.

    Now, again you fall into your caricature. This is now the fifth time I have to say that this view is NOT anything goes. Judges should be bound by defensible interpertations, and as defensible ones are grounded in the text my theory takes the text very seriously as a limiting thing.

  • ||

    MNG you are a lying sack of shit. Any interpretation is defensible. Especially when you allow a few years or decades for the law to evolve. You want to have it both ways. You want to claim there is a constitution but also claim that you can bend it to get the result you want. And on top of that you want to pretend that no one would ever use that power for anything but a good purpose. It is just pathetically dishonest.

  • Tony||

    "Wanting to have it both ways" to one is "nuance" to another. If judges offer insane interpretations they are not taken seriously by other judges. There's a whole system in place to check that kind of behavior, with the text as the core.

    And I don't think MNG would ever say that all interpretations are for the good or even correct. You are characterizing someone's opinion based on how you want to attack it, not on what it actually is.

  • ||

    Which is just another way of saying, "interpretation is good as long as we get our way". John Yoo is a hundred times smarter and more lawyerly than you are. And he interpreted the Constitution as well. If the Constitution doesn't mean anything, the his interpretation is just as good as yours. In fact, probably better since he is a lot smarter than you.

    Again, you are just left saying "but mine is right", which is what you always do on here anyway.

  • Tony||

    No, I have policy preferences just like you--I just don't claim they're the obvious result of an immutable constitution.

  • wayne||

    John is absolutely correct on this. How else do you explain Slaughterhouse?

  • MNG||

    "Any interpretation is defensible"

    Wow John, you really are a relativist!

  • ||

    No. You are MNG. If the document changes with the times and doesn't have a set meaning, then any interpretation is defensible.

    Sometimes I think you are dishonest. But then you write things like this and I realize, you really don't get subtle arguements. Anything beyond appeals to emotion or the most rudementary logic goes right over your head.

  • wayne||

    MNG,

    This is laughable.

    You are berating John for pointing out for pointing out the obvious flaw in the "living document" wing of constitutional scholars as if his position is absurd.

    A few posts earlier you interpreted the commerce clause to mean, "not-commerce = commerce" and said "it is not the best interpretation, but it is a reasonable interpretation".

    If one can conclude that not-commerce = commerce, then one can conclude anything.

  • ||

    Because they want the authority/legitimacy of a fake constitution without the reciprocal responsibility to follow it. I.e., cake and eat it to.

  • ||

    Exactly.

  • ||

    Sounds like that dude might be on to something.

    Lou
    www.anon-web.hitart.com

  • Janice Rogers Brown||

    Um... I guess I won't be on the Court after all? Hellooo... black female here! Black president! Do the math!

  • Zenmaster||

    MNG is funny when I am drunk.

  • Tony||

    Hey, don't I get to be funny? Watch, I'll fling poo!

  • Zenmaster||

    I'm not drunk anymore. Now you're just sad.

  • Ivan||

    If we are going to be intellectually honest we will all have to admit that the constitution is a document that's sole purpose is to limit government. To try to say otherwise is to show your ignorance.

  • Tony||

    That is patently absurd. The Constitution created the government.

  • ||

    That is patently absurd. The Constitution created the government.

    The two are not mutually exclusive. To create a thing does *not* including implicit approval of it growing without bounds. The people who wrote the USC understood 1) government was necessary for the success of the project, 2) unconstrained government was not good, and 3) a degree of future flexibility would be necessary. They addressed all three. One must also realize, the USC applied primarily to the Federal government, not the states at that time.

  • gucci||

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  • ||

    I look at what Liu wrote before he was nominated, and what he has said to the Senate, and I see a gaping chasm. His writings promote a judicial philosophy of judges-as-social-activists, while his testimony is something else entirely.

    To me, that alone disqualifies him from the bench.

  • ||

    His record prior to his nomination is much more credible than anything said during the confirmation hearings just as a politicians voting record is more credible than anything said during the campaign.

  • NomDeWeb||

    I think it's worth pointing out: the Constitution doesn't allow Congress to regulate "interstate commerce"; it allows regulation of "commerce ... among the several states." (and also with Indians, both dot and feather). Pretty clearly, that's a limit on the commerce that can be regulated: only that portion of all commerce that is 'among' etc. I suggest that this ought to be read as more of a limitation upon the powers of the several states to impede such commerce, rather than a grant of power to Congress to do same. Regulate, after all, is distinct from "prohibit" ; and even if it weren't, the stuff being regulated under the text is the commerce, not the goods in commerce themselves.

  • ปลวก||

    They simply take the novel position that the Constitution means today what it was understood to mean by the people who ratified it.

  • RAN||

    I suggest that this ought to be read as more of a limitation upon the powers of the several states to impede such commerce. | ran แรน |

  • Scarpe Nike||

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