"Fidelity to the Constitution is paramount, but..."

Damon W. Root | May 20, 2009

The Wall Street Journal reports that the search to replace retiring Supreme Court Justice David Souter is in high gear:

President Barack Obama began interviewing potential Supreme Court candidates Tuesday, while a senior White House official defended the president's stated preference for a nominee who will give the powerless "a fair shake."

White House adviser David Axelrod said the U.S. Constitution, like any document of its vintage, must be subject to interpretation in a modern context.

"Fidelity to the Constitution is paramount, but as with any document that was written no matter how brilliantly centuries ago, it couldn't possibly have anticipated all the questions that would be asked in the 21st century," Mr. Axelrod said.

Liberal activists are no doubt heartened by Axelrod's vision of a Constitution that can twist and stretch to answer "the questions that would be asked in the 21st century." But I don't see how that's any different from what the Bush administration tried to get away with when it came to terrorism policy. Didn't we hear repeatedly over the past seven years that America faced an unprecedented "21st century" threat? That the Constitution isn't "a suicide pact?" Well, if habeas corpus and the Fourth Amendment deserve to be treated as something more than quaint historical oddities, then property rights and economic liberty deserve the same respect. That's the problem with the selective living constitutionalism practiced by the left and by the right. Neither side takes the whole document seriously.

Comments

hmm|5.20.09 @ 11:29AM|#

Didn't see this coming. Then again there was no need to see it coming such a policy has been in place in varying forms for decades as pointed out.

The only way it's ever going to change is when people have their feet held to the fire, and I don't mean figuratively.

Bastardized for the purpose of who ever is in power. The very thing that was trying to be avoided.

Jonas|5.20.09 @ 11:31AM|#

Hmm... the quotation mark and question mark are in the wrong order after 'suicide pact'.

|5.20.09 @ 11:33AM|#

"Well, if habeas corpus and the Fourth Amendment deserve to be treated as something more than quaint historical oddities, then property rights and economic liberty deserve the same respect."

You act as if those things didn't change when we were at war in the past. You may not like it, but nothing Bush did was without historical precident. In fact, Bush's measures look pretty weak when they are compared to things like the Sedition Acts, Japanese internment, Lincoln's suspension of habeaus, and any number of other things.

BakedPenguin|5.20.09 @ 11:37AM|#

Bush's measures look pretty weak when they are compared to things like the Sedition Acts, Japanese internment, Lincoln's suspension of habeaus, and any number of other things.

They all share one thing in common: none of them should have ever taken place

Cal Lipigian|5.20.09 @ 11:37AM|#

No, they're correct. You cannot expect a document that old to be perfectly relevant to today's problems. If only the Framers had had the foresight to put some sort of method in place to amend the document.

|5.20.09 @ 11:40AM|#

That's the problem with the selective living constitutionalism practiced by the left and by the right. Neither side takes the whole document seriously.

Neither do you, Damon. Not with your "anything policy I like or anything I imagine that I want to be in the Ninth Amendment is in the Constitution, but nothing I don't like."

You just have the silliness of pretending that personal political views are located in an unwritten portion without even having a political majority able to enforce that view.

|5.20.09 @ 11:44AM|#

Thanks, Cal. Beat me to it.

|5.20.09 @ 11:46AM|#

"Fidelity to the Constitution is paramount, but as with any document that was written no matter how brilliantly centuries ago, it couldn't possibly have anticipated all the questions that would be asked in the 21st century," Mr. Axelrod said.


This shows the left's ignorance (mendacity?) on one of the greatest achievements of mankind. The constitution was not created to 'solve' any and all questions in life. It was made to mediate the interactions of humans who have differing ideas on how to address the questions that invariably arise.

Xeones|5.20.09 @ 11:48AM|#

"Fidelity to the Constitution is paramount, but as with any document that was written no matter how brilliantly centuries ago, it couldn't possibly have anticipated all the questions that would be asked in the 21st century," Mr. Axelrod said.

Fixed that for you, Axelrod, you fuck.

Jordan|5.20.09 @ 11:54AM|#

Hmm... the quotation mark and question mark are in the wrong order after 'suicide pact'.

This stupid convention needs to hurry up and die. It's perfectly acceptable as written:

The traditional convention in American English is for commas and periods to be included inside the quotation marks, regardless of whether they are part of the quoted sentence, whereas the British style places them inside or outside the quotation marks according to whether or not the punctuation is part of the quoted phrase. The American rule is derived from typesetting while the British rule is grammatical

|5.20.09 @ 11:56AM|#

Cal Lipigian | May 20, 2009, 11:37am | #

No, they're correct. You cannot expect a document that old to be perfectly relevant to today's problems. If only the Framers had had the foresight to put some sort of method in place to amend the document.

Nick | May 20, 2009, 11:44am | #

Thanks, Cal. Beat me to it.


Ditto. Amazing that this bit of snark needs to be uttered.

But , that is why the left loves the judiciary over and above the other branches. If you stack it with enough 'living document' believers you can force your ideas/ laws on the populace without that messy legislature process getting in the way.

|5.20.09 @ 12:07PM|#

But , that is why the left loves the judiciary over and above the other branches. If you stack it with enough 'living document' believers you can force your ideas/ laws on the populace without that messy legislature process getting in the way.

Yes, this really is a problem of "the left".

Thank God the right doesn't doesn't try and stack the judiciary with ideologues and people who have their own interpretation of the Constitution.

robc|5.20.09 @ 12:14PM|#

John,

Who here hasnt accused FDR and Lincoln of violating the constitution?

robc|5.20.09 @ 12:16PM|#

ChicagoTom,

The "right" doesnt get to put people on the supreme court. You know, counting the GOP as part of the left.

|5.20.09 @ 12:20PM|#

President Barack Obama began interviewing potential Supreme Court candidates Tuesday, while a senior White House official defended the president's stated preference for a nominee who will give the powerless "a fair shake."

If the nominee includes 8 month fetuses in her definition of the powerless who deserve "a fair shake", she'll get eliminated from consideration. She will be asked.

*scrambles away to avoid being pelted*

|5.20.09 @ 12:26PM|#

John Thacker-

That is not what Damon espouses.

The ninth does not stand for welfare rights or collective rights as there no such things. What it does stand for are things like Damon having a right to smoke pot or to travel without having to produce his papers or to keep every dime he earns. Stuff like that.

Mike M.|5.20.09 @ 12:26PM|#

If he really believes the powerless deserve a fair shake, then I fully expect him to pick somebody who doesn't believe in expansive powers of eminent domain.

Nobody in modern America is more powerless than individuals who don't want to turn over their property to government and corporate interests that want it.

Zeb|5.20.09 @ 12:31PM|#

"Jordan | May 20, 2009, 11:54am | #

Hmm... the quotation mark and question mark are in the wrong order after 'suicide pact'.

This stupid convention needs to hurry up and die. It's perfectly acceptable as written:

"

No, you are wrong. Why even bother using quotation marks if they are not going to delineate what is part of the quotation and what is not. Putting the question mark inside or outside of the quotation marks can significantly change the meaning. It is not an arbitrary convention.

|5.20.09 @ 12:32PM|#

You guys are reading this all crabbed. "A fair shake" is literal, not figurative.

They stop shaking when the money stops falling out of your pockets or you lose consciousness, whichever comes last.

Zeb|5.20.09 @ 12:34PM|#

"In fact, Bush's measures look pretty weak when they are compared to things like the Sedition Acts, Japanese internment, Lincoln's suspension of habeaus, and any number of other things."

Which does not make it less wrong.

|5.20.09 @ 12:35PM|#

CT,

The court seems to be one place where the Democrats are clearly worse than the Republicans. The GOP placed Stevens, Souter, Warren, and a number of other moderate-to-liberal justices on the Court. There aren't many examples of the reverse from the other side.

Also, look at how easily Ginsburg and Breyer got through the Senate compared to most Republican presidents' appointees. I think there's something particularly odd about the left's view of the purpose of the Court, and they seem far more concerned about its ideological character than the right is. Even on abortion, the supposed litmus test hasn't resulted in the delegalization of abortion.

This is not to say that the GOP's appointments--whichever way they turn out--have been especially good. They haven't. As with most things, libertarians lose.

|5.20.09 @ 12:40PM|#

This is not to say that the GOP's appointments--whichever way they turn out--have been especially good. They haven't. As with most things, libertarians lose.

Douglas Ginsberg was probably as close as we'll ever get, but Reagan choked.

|5.20.09 @ 12:45PM|#

JW,

My God, man, the judge admitted he had partaken of illegal drugs! No one can do that and hold public office. No one.

|5.20.09 @ 12:51PM|#

I think Biden is still using.

Oh, if only that were actually a standard. Just think of all the time and trouble we could save. A government hollowed out from the inside!

|5.20.09 @ 1:01PM|#

I think Biden is still using.

Could be, but I'm still sticking with brain damage.

JB|5.20.09 @ 1:23PM|#

Yup, you know that law against beating the living fuck out of Axelrod? That's outdated and we need judges let me beat the fuck out of him and get away with it.

Obama and all his minions are nothing but walking, talking pieces of shit.

|5.20.09 @ 1:39PM|#

Absolute enforcement of the "Bill of Rights" is the only acceptable action. Period. Anything less is criminal and should be dealt with as such.

ed|5.20.09 @ 1:41PM|#

it couldn't possibly have anticipated all the questions that would be asked in the 21st century

Right, because we humans have evolved so much since then. For instance, today we ride around in cars, whereas the Framers used horses. Also, they didn't have Twinkies and Diet Coke.

Elemenope|5.20.09 @ 1:54PM|#

This shows the left's ignorance (mendacity?) on one of the greatest achievements of mankind.

"There are very good articles in it: & very bad. I do not know which preponderate." (Thomas Jefferson)

"I confess that I do not entirely approve of this Constitution at present; but, sir, I am not sure I shall never approve of it, for, having lived long, I have experienced many instances of being obliged, by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise." (Benjamin Franklin)

The men at the time it was written did not so worship the constitution, and in any case, worship is an untoward orientation to any manuscript. It is of historical import, a great achievement as you say, but far from perfect. And, no, it did not anticipate the problems and travails of governance in the modern world, for it could not.

|5.20.09 @ 1:56PM|#

Whenever someone in power talks about the constitution, it reminds me of this great little exchange from a great episode of Law & Order:

Claire Kincaid: They filed the notice of appeal. All evidence relating to the Mack Rangers should have been excluded.

Jack McCoy: Why, because without it, Greer might've won?

Claire Kincaid: First amendment. The Constitution?

Adam Schiff: Yeah. That pesky thing.

Joel|5.20.09 @ 1:57PM|#

Obama and all his minions are nothing but walking, talking pieces of shit.

Yeah, that's how you can tell them from all the right-wing pieces of shit: They can walk and talk at the same time. Well, except for Kennedy. And Frank. And Pelosi, and...

don\'t quote me on this|5.20.09 @ 2:01PM|#

Putting the question mark inside or outside of the quotation marks can significantly change the meaning. It is not an arbitrary convention.

Yes, you're pretty much right about that. Even the passage Jordan quoted to support the inclusion of the question mark does no such thing.

The traditional convention in American English is for commas and periods to be included inside the quotation marks

Even with the American rule it is only commas and periods that go inside the quotation marks regardless of whether they are part of the quote. Question marks go outside unless they are part of the quote itself. And as the source says, it was a typesetting convention whereas the British rule of always having punctuation outside the quotes is clearly "more grammatical".

|5.20.09 @ 2:17PM|#

JW-

Reagan choked. Or he chickened out. I do not cut him any slack either just because Ginsburg's nomination ensued L'affaire Bork.

Paul|5.20.09 @ 2:29PM|#

Tuesday, while a senior White House official defended the president's stated preference for a nominee who will give the powerless "a fair shake."

Excellent. So a reversal of Kelo will probably first on the block. Glad to hear it.

Paul|5.20.09 @ 2:31PM|#

Liberal activists are no doubt heartened by Axelrod's vision of a Constitution that can twist and stretch to answer "the questions that would be asked in the 21st century."

It's a Lllllllllllllllllllllllllllivingggg Constitution....Wweeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee!

You don't own your property. Property rights have to be "democratized"! Weeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee!

Paul|5.20.09 @ 2:33PM|#

It was made to mediate the interactions of humans who have differing ideas on how to address the questions that invariably arise.

It was a limit on government power. It attempted (and has clearly failed) to create a space where no power existed. An anathema to modern political thought.

Ironic, innit?|5.20.09 @ 3:11PM|#

David Axelrod = Hitler

robc|5.20.09 @ 3:19PM|#

lmnop,

Should have gone with a Patrick Henry quote - he hated the damn thing.

I tend to think his analysis was, eventually, dead on accurate.

That said, BF or TJ wouldnt have just ignored the parts they didnt like, they would have pushed for amendment (feel free to counter with a Louisiana Purchase argument).

Elemenope|5.20.09 @ 3:27PM|#

Should have gone with a Patrick Henry quote - he hated the damn thing.

Quite so.

That said, BF or TJ wouldnt have just ignored the parts they didnt like, they would have pushed for amendment (feel free to counter with a Louisiana Purchase argument).

The star counterexample is the LP, of course, as you pointed out, but I think that amendment when absolutely necessary ought to have been/be the preferred method.

Jordan|5.20.09 @ 3:43PM|#

Putting the question mark inside or outside of the quotation marks can significantly change the meaning. It is not an arbitrary convention.

Yes, you're pretty much right about that. Even the passage Jordan quoted to support the inclusion of the question mark does no such thing.

Actually, I agree with you guys. I misread the question mark as being outside of the quotation marks when it was actually inside.

Abner MacGillicuddy|5.20.09 @ 4:20PM|#

Douglas Ginsberg was probably as close as we'll ever get, but Reagan choked."

Ginsburg almost immediately came under some fire for an entirely different reason when NPR's Nina Totenberg[3] revealed that Ginsburg had used marijuana "on a few occasions" during his student days in the 1960s and while an Assistant Professor at Harvard in the 1970s. In 1991, a similar admission by then-nominee Clarence Thomas that he had used the drug during his law school days had no effect on his nomination. It was Ginsburg's continued use of marijuana after graduation and as a professor that made his indiscretions more serious in the minds of many Senators and members of the public.[4][5]

Due to these allegations, Ginsburg withdrew his name from consideration and remained on the federal appellate bench, where he is still a Judge of the U.S. Court of Appeals for the District of Columbia Circuit. Anthony Kennedy was then nominated and confirmed as the 107th Associate Justice of the Supreme Court.

According to the NYT Ed Meese stated that Ginzberg had his and Reagan's full support.

It was Ginzberg that choked. He was just not up to the Nina NPR Totebag character assassination machine.

Good old Nina Totenberg. On her knees for Bill Clinton but out to sabotage any Republican appointee.

|5.20.09 @ 4:32PM|#

Commenters like Mr. Root love it when they can say "a plague on both their houses," but I see a big difference. If an administration stretches the edges of the Constitution in the course of defending the country from external attack, I'm inclined to give them the benefit of the doubt. But it's a whole 'nother thing to play with it for purely domestic political/ideological reasons, to (e.g.) automatically take the side of the "powerless." Are John and I really the only people around here who see it that way?

MJ|5.21.09 @ 7:08AM|#

"Fidelity to the Constitution is paramount, but..."

...it's really not important at all.

This kind of silly belief that the Constitution does not cover modern situations is how our government came to the absurd conclusion that broadcast media is not covered by freedom of the press. It's a bad faith argument used by scoundrels.

|5.21.09 @ 3:06PM|#

"White House adviser David Axelrod said the U.S. Constitution, like any document of its vintage, must be subject to interpretation in a modern context."

Much like any fucking politicial advisor that wants to modify the Constitution to fit his current needs should be fucking shot using the newest in weaponry. Might I suggest the .338 Lapua round for this piece of shit.

When people who can't even settle on the definition of the word "is," start to adjust the Constitution I think that is grounds for a Revolution. By their own logic laws are not set in stone but living, breathing entities that are to be redefined anytime they have a need to do so. As such the public should likewise redefine what constitutes murder under the law and adjust it to meet todays 21st century questions. Things such as why are you fucking with the Constitution? These types of actions should be immediate grounds for termination not only of office but of citizenship and possibly even life itself. Forgive me if I am wrong but did not every last one of these worthless politicians swear to uphold the Constitution as it stands written? No one asked that they uphold it after making changes they see fit to make. Revolution 2.0 the sooner the better.