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A Liberal Defense of Clarence Thomas
Slate's Dahlia Lithwick had a very interesting column this weekend cautioning her fellow liberals against smearing Justice Clarence Thomas as they mount their defense of Judge Sonia Sotomayor:
The temptation to smack back and argue that we deserve to seat Sotomayor because Thomas was a lousy affirmative-action pick who turned into a third-rate justice is hard to resist. But it's flat wrong. Liberals achieve nothing by suggesting that Thomas' elevation to the high court was preposterous on its face or that his tenure there has been a disgrace....
Claims that Thomas is too stupid to ask questions and in constant peril of embarrassing himself at the court are just not that different than claims that Sotomayor is mediocre. Nobody who has followed Thomas' 18-year career at the Supreme Court believes him to be a dunce or a Scalia clone. Whether you accept Jan Crawford Greenburg's claim that Thomas' constitutional theories are so forceful that they have shaped Scalia's or you believe the more common view that Thomas has a deeply reasoned and consistent judicial philosophy that differs dramatically from those of the court's other conservatives, accusations that he's been a dim bulb are just false. They also reveal that the name-calling that originates now, during the confirmation process, engenders a mythology that can never be erased.
It's nice to see Lithwick make this point (even if she has done a little name-calling of her own). Whether you agree with his opinions or not, Thomas has quite obviously proven himself on the Court. Yet the ridiculous idea that he's less capable than his fellow justices still persists, even among people that ought to know better.
|6.1.09 @ 10:14AM|#
I don't have the time today. But some one who does, like an
enterprising Reason intern, ought to search Lithwick's writings
over the past 10 years and see what she has said about Thomas. I
would be very curious.
Maybe she has been entirely reasonable. But I wouldn't be surprised
if she has called Thomas all of the things that she now condems
when it suited her purpose. Lithwick has rarely exhibited
intellectual integrity in the past. I would be surprised if she is
doing so now. But you never know.
short, fat bastard|6.1.09 @ 10:20AM|#
It's just like high school. John expresses so much disdain for Dahlia that he must be secretly in love with her ;-)
Billy|6.1.09 @ 10:24AM|#
"Whether you accept Jan Crawford Greenburg's claim that Thomas'
constitutional theories are so forceful that they have shaped
Scalia's or you believe the more common view that Thomas has a
deeply reasoned and consistent judicial philosophy that differs
dramatically from those of the court's other conservatives,
accusations that he's been a dim bulb are just false."
I'm going with Ms. Greenburg. She's brilliant.
Paul|6.1.09 @ 10:41AM|#
Thomas, still my favorite of the nine judges. Is he perfect?
Hell no. Show me one that's better.
My favorite anecdote about Thomas was during a talk to a bunch of
young, college journalism students. It was during the height of the
tobacco lawsuits in the 90's. During a qestion and answer session,
students kept asking him the same question, albeit reworded which
basically was:
"You know, like this tobacco thing, how do you deal with a ruling
where you personally feel in your gut something's right or
wrong?"
In frustration, Thomas finally slapped down his papers on the
podium and said "Look, the Supreme court judges have this guide and
we refer to it as The Constitution, and we're supposed to make our
rulings based upon this guide."
I'm not sure if the young journo's 'got it'.
creech|6.1.09 @ 10:42AM|#
How many votes from African-Americans has it cost liberals for their on-going absurd attacks on Justice Thomas?
Xeones|6.1.09 @ 10:47AM|#
How many votes from African-Americans has it cost liberals
for their on-going absurd attacks on Justice Thomas?
At least one or two, i'm sure, but probably no more than that.
|6.1.09 @ 11:09AM|#
I'm sorry but Clarence Thomas is history's most successful recipient of affirmative action, and the biggest argument against it. After the elevation of Sarah Palin I think it's past time we have a new standard: never let Republicans engage in affirmative action. In order to find someone who's not a white male in their own ranks who will be a reliable conservative they have to really scrape the bottom of the barrel.
|6.1.09 @ 11:15AM|#
So Tony advocates a double standard on who can use double
standards.
Only Democrats should be allowed to scrape the bottom of the barrel
to find ideologically reliable minorities!
|6.1.09 @ 11:15AM|#
I've been yo-fucked by Xeones.
Needs a good branding. "You just got Xeone'd!" "Give him a good
xeoning.
|6.1.09 @ 11:18AM|#
How many votes from African-Americans has it cost liberals
for their on-going absurd attacks on Justice Thomas?
Three.
|6.1.09 @ 11:21AM|#
"I'm sorry but Clarence Thomas is history's most successful
recipient of affirmative action"
What? Affirmative Action ended in 1991?
From the bottomless well that is Tony's ignorance.
|6.1.09 @ 11:22AM|#
Ooops Thought is read "most recent recipient".
Guess I'm diggin' a little well of my own.
|6.1.09 @ 11:37AM|#
R C Dean,
Apply your own standard. If both Thomas and Sotomayor were white
males who would be considered qualified for the supreme court at
the time of their nomination and who wouldn't?
|6.1.09 @ 11:37AM|#
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Citizen Nothing|6.1.09 @ 11:48AM|#
There goes J sub, always repeating my talking points.
So, the girls this bot keeps hyping, they've only got "big *BOOBS*
online"? Sorry. Virtual boobs are not for me (present company
excepted).
wingnutx|6.1.09 @ 11:49AM|#
If both Thomas and Sotomayor were white males
Then Thomas would be a white guy who dissented in Raich, "If
Congress can regulate this under the Commerce Clause, then it can
regulate virtually anything, and the federal government is no
longer one of limited and enumerated powers."
He'd be absolutely right no matter what color he is.
Xeones|6.1.09 @ 11:52AM|#
He'd be absolutely right no matter what color he
is.
...whereas Sotomayer's insistence that her experience as a
hispanic woman should influence her jurisprudence would just
be CRAZY.
|6.1.09 @ 11:53AM|#
Why doesn't Ms. Lithwick worry about who sits on the high court
of her country, for a change?
Kevin
Shannon Love|6.1.09 @ 11:59AM|#
The real danger for leftist in attacking Thomas is that doing so
reduces the public respect for the Supreme court itself. If Thomas
is an idiot and he got on the Supreme court then that means that
the decisions of the Supreme court deserve less respect. Moreover,
he can't be the only idiot to get seated. If the nomination process
is as deeply flawed as leftist claim, then that means the court
itself is deeply flawed.
Leftist rely heavily on the moral authority of the Supreme court to
avoid the democratic process and impose leftist's policies via
judicial fiat. Their power to do so depends on the willingness of
the electorate to accept the authority of the Supreme court. That
acceptance in turn arises from the respect for the legal skill of
the justices themselves.
MNG|6.1.09 @ 12:01PM|#
Tony, I think you're part right and part wrong. Yes, at the time
he was elevated Thomas was much, much more or an identity pick than
Sotomayer is. But he seems to have turned out to be quite a smart
judge (I think he's wrong on a lot of cases, but the guy is a smart
fellow).
But I'm one of these guys who thinks that just about every Supreme
Court justice I've ever read is a very smart person.
MNG|6.1.09 @ 12:04PM|#
"whereas Sotomayer's insistence that her experience as a
hispanic woman should influence her jurisprudence would just be
CRAZY."
I'm puzzled by this kind of thing. Imagine a Title IX case or such,
certainly being a woman makes it more likely one might have had
experiences that would inform one's decision and the crafting of a
remedy if need be. Just like I imagine being a businessperson would
inform one's decisions on business law matters, or having a career
in the military might inform matters of military and national
security law, etc.
MNG|6.1.09 @ 12:07PM|#
"Leftist rely heavily on the moral authority of the Supreme
court to avoid the democratic process and impose leftist's policies
via judicial fiat."
That's a lot of crazy lazy bullshit right there Shannon. Like "the
right" the "left" is happy to use democratic means or judicial
means to advance their agenda. For example, the right loves it when
the court reads the NLRA, the Endangered Species Act, the Clean
Waters Act, etc., more narrowly or differently than the democratic
legislatures that pass them.
|6.1.09 @ 12:14PM|#
at the time he was elevated Thomas was much, much more or an
identity pick than Sotomayer is.
Really? Really?
|6.1.09 @ 12:16PM|#
For example, the right loves it when the court reads the
NLRA, the Endangered Species Act, the Clean Waters Act, etc., more
narrowly or differently than the democratic legislatures that pass
them.
I think the key here is the "more narrowly" part. I'd bet
conservatives generally - libertarians certainly - love any branch
of government when the exercise restraint, ie. interpret government
power "more narrowly" on the whole. I don't think it has to do with
which branch, fundementally, rather with one is currently
picking out pocket/trampling our right/wasting money/telling us how
we should live our lives.
|6.1.09 @ 12:19PM|#
MNG,
I don't think Thomas is an idiot, but I can only judge from what
I've read in his opinions (extremist nonsense) and the few times
I've heard him speak (he pontificates adequately on sports
statistics).
MNG|6.1.09 @ 12:20PM|#
domo
Sometimes it pleases conservative justices to read language
narrowly, like when it comes to the NLRA or the ESA, sometimes it
pleases them to read it broadly, like the Commander in Chief powers
of Art II. Don't get me wrong, the left on the court does this all
the time too. My point wasn't that either side tends towards my
narrow or broad, but that neither side seems to prefer the
democratic branches over the judicial one all that much
either...
MNG|6.1.09 @ 12:23PM|#
Clerks write a good deal of all their opinions these days
anyway. The justices are more like editors.
I do think he got his ass handed to him by Alito in the Bong Hits
case. His idea that kids have no first amendment rights because of
the doctrine that teachers served in loco parentis was based on a
goofy fiction (that parents voluntarily transfer their authority
implicitly by consenting to their children going to school) that
Alito demolished.
|6.1.09 @ 12:27PM|#
If both Thomas and Sotomayor were white males who would be
considered qualified for the supreme court at the time of their
nomination and who wouldn't?
As I've posted, Sotomayor is minimally qualified, and therefor
should be confirmed. Ditto for Thomas. I would hope, however, that
our Justices would be better than "minimally qualified"; I have yet
to see anything that makes me think Sotomayor's long tenure (and I
do mean tenure) as a Circuit Court judge has produced an
exceptional portfolio of decisions.
Keep flailing, Tony. You're bound to connect sometime.
|6.1.09 @ 12:32PM|#
MNG, yeah I guess I'd agree with that. Both sides are caught up in their ideological battles. I suppose (while none is perfect) that Thomas is one of the narrowest readers of the constitution on the court though - making him one of my favorites. Though, as someone said above: none of them are close to perfect from a libertarian POV.
|6.1.09 @ 12:35PM|#
"For example, the right loves it when the court reads the NLRA,
the Endangered Species Act, the Clean Waters Act, etc., more
narrowly or differently than the democratic legislatures that pass
them."
But those legilsatures are free to overturn those rulings. Reading
a statute narrowly is completely different than using the
Constitution to strike down a legislative act. In the first case
the legislature is always free to overrule the court and makes its
intentions clear. In the second case the court's word if
final.
Indeed, in many cases where the courts read statutes narrowly, they
are doing so to stop a left shell game rather than a right shell
game. The left loves to get legislatures to pass narrow statutes
only to have courts broaden them beyond recognition and into
meanings that would never have passed the legislature.
|6.1.09 @ 12:44PM|#
The left loves to get legislatures to pass narrow statutes
only to have courts broaden them beyond recognition and into
meanings that would never have passed the
legislature.
John is right, but too often apologists for right forget that they
play the same shell game with abortion, executive power, homeland
security, starting wars, etc. Not that I'm calling you in
particular an apologist, John...
Mike|6.1.09 @ 12:50PM|#
Clarence Thomas kicks ass. He is the most libertarian
high-ranking government official we have had since Barry Goldwater,
and before that, Calvin Coolidge. He has the most well consistent,
originalist constitutional philosophy of any of the justices,
including Scalia.
Was he appointed because he was black? Of course. At the time, it
was believed that the Democrats wouldn't put up much of a fight
because of it. He was going through just fine until Miss "A little
bit nutty and a little bit slutty" Anita Hill gummed up the works.
As it turns out, he has done such a good job that Democrats are
scared to death to let any smart libertarian or conservative
minority get a seat on the Federal appeals court. Ask Miguel
Estrada.
|6.1.09 @ 1:00PM|#
"right forget that they play the same shell game with abortion,
executive power, homeland security, starting wars, etc. Not that
I'm calling you in particular an apologist, John..."
That is true with Homeland Seucrity. The Patriot Act has most
certainly been applied in ways that were not intended. But, those
applications don't seem to be changin under Obama. So, I don't see
how you can say that is the product of the right as much as a
product of both sides.
Seriously, when did the right over use authority to start wars?
Iraq was approved by the Congress. So was Afghanistan. The last
time I can think of a President misusing the approval of Congress
to start a war was Johnson in Vietnam.
|6.1.09 @ 1:11PM|#
The last time I can think of a President misusing the
approval of Congress to start a war was Johnson in
Vietnam.
I'd go with George H.W. Bush in Panama, myself.
|6.1.09 @ 1:18PM|#
"I'd go with George H.W. Bush in Panama, myself."
That is a good one. So is Clinton in Kosovo.
|6.1.09 @ 1:19PM|#
But, those applications don't seem to be changin under
Obama. So, I don't see how you can say that is the product of the
right as much as a product of both sides.
Given the iron law that gov't never gives back power once it has
obtained it, I think it's more than fair to blame the right
primarily for the abuses under the Patriot Act. The left is
culpable as well, but to a lesser degree.
i don't believe congress authorized Iraq, as it has turned out.
What we have is the definition of "war" which was never authorized
as such. Congress authorized the "use of force" - and plenty of
people on the left who voted FOR it have complained about how far
it has gone. It clearly is an overuse of authority - though not as
much of an over-reach as vietnam, in my opinion. Plus, RC Deans
example - thanks buddy.
|6.1.09 @ 1:20PM|#
Clinton in Kosovo: yup, I never said it purely on the right - just that right wingers tend to forget that their own side of the aisle is guilty as well.
|6.1.09 @ 1:34PM|#
What we have is the definition of "war" which was never
authorized as such. Congress authorized the "use of force" - and
plenty of people on the left who voted FOR it have complained about
how far it has gone.
You're letting Congress off the hook way too easy here, domo. They
knew what they were voting for, and their post facto protestations
that Bush went too far are transparent ass-covering.
|6.1.09 @ 1:37PM|#
"i don't believe congress authorized Iraq, as it has turned out.
What we have is the definition of "war" which was never authorized
as such. Congress authorized the "use of force" - and plenty of
people on the left who voted FOR it have complained about how far
it has gone. It clearly is an overuse of authority - though not as
much of an over-reach as vietnam, in my opinion. Plus, RC Deans
example - thanks buddy."
Congress has voted to fund that war every year since its inception.
They could have ended it any time they chose. Each funding
authorization is nothing but an endorsement of its continuation.
Also, if I am not mistaken and I may be, but didn't Bush get extra
funding for the surge? If so Congress was explicitly authorizing an
escalation of the war. Whatever you think of the Iraq war,
responsibility for its existence lies at the feet of both Congress
and the President including the past ones and the current ones.
|6.1.09 @ 1:45PM|#
Each funding authorization is nothing but an endorsement of
its continuation.
Not so. because pulling the funding does not obligate the President
to pull the troops. As a practical matter, perhaps, but not as a
legal matter. Moreover, you dont see republicans making waves about
pulling the funding, as a rule. I dont know why everyone is arguing
with me over minutia, here. The main point, which is that
the GOP complains about overbroad interpretations of
authority while simultaneously committing the same offense
in many areas seems to be completely untouched.
|6.1.09 @ 2:01PM|#
You're letting Congress off the hook way too easy here,
domo.
Entirely possible. I do think that many people voted to authorize
it thinking the conflict would be quick and cheap. If they did that
through gullibility, they are slightly less culpable, than the
people knowingly fabricating the rose-colored forecasts. Either way
they deserve to be tossed out on their ears, though.
|6.1.09 @ 2:11PM|#
domorriagto.
All Congress had to do was put the following sentence into the
yearly DOD Approp bill.
"No funds authorized under this act shall be used in support of
operations in the country of Iraq or in support of Operation Iraqi
freedom after the __ day of ____, 20__. And that would have ended
US involvement in Iraq, period.
MNG|6.1.09 @ 2:14PM|#
"Reading a statute narrowly is completely different than using
the Constitution to strike down a legislative act."
Like striking down a democratically enacted gun control measure
(Heller), or a democratically made decision to throw out a
promotions test (Ricci), or striking down a democratically enacted
eminent domain statute? Come on, you may like those decisions (I
do), but they are examples of the right urging using the
Constitution to overturn the democratic acts of legislatures...
MNG|6.1.09 @ 2:16PM|#
"Clarence Thomas kicks ass. He is the most libertarian
high-ranking government official we have had since Barry Goldwater,
and before that, Calvin Coolidge."
He's a black man, but his tongue is probably black from all the
police ass he licks. If you like the 4th Amendment, the 5th, the
6th or the 8th and you still think Clarence Thomas is a defender of
liberty against government then you have not read many of his
opinions in those areas.
|6.1.09 @ 2:18PM|#
John,
the yearly DOD Approp bill
It would have to go under the yearly "emergency authorization" bill
that is actually used to fund the war. at this point, the yearly
regular spending bill is all routine crap. And as far as including
your sentance in the Emergency bill - sure, but then why bother to
pass the thing in the first place? Because to not approve it means
you "dont support the troops". no one wants that on their
record.
|6.1.09 @ 2:27PM|#
"Like striking down a democratically enacted gun control measure
(Heller),"
That is pure sophestry. No one would argue that measures should be
able to violate the Constitution no matter how democratically they
were enacted. The issue is what does the Constitution mean. You
don't have to read the Constitution very broadly to find that it
protects the right to bear arms. You example proves nothing.
"a democratically made decision to throw out a promotions test
(Ricci)"
Again, just because it is Democratic doesn't make it Consitutional.
Everyone agrees about that. The dispute in that case is the meaning
of due process. It has nothing to do one way or another with the
right of courts to strike down democratically enacted
policies.
"striking down a democratically enacted eminent domain
statute?"
Last I looked, the 5th Amendent said "for a public purpose". If the
emmenent domain is used for a private purpose, it is not legal no
matter how democratically it was enacted.
MNG you are playing a bullshit shell game. Just because someone
argues that the actions of legislatures deserve some deference and
that we are better off not having unelected judges make our
decisions for us, does not mean that legislatures should be free to
disregard the Constitution. The issue is, what does the
Constitution say. In each of the cases you give, conservatives are
agrueing for a direct reading of what it says versus what we wish
it says, which is entirely consistent with their judicial
philosophy.
|6.1.09 @ 2:35PM|#
MNG, I think your original point upthread was stronger - you said that both sides are only too happy to use whatever means to advance their agenda. Then you tried to equivocate and suggest the GOP was undemocratic by overturning statutes. By definition, all statutes are "democratically" enacted - else they would have failed. That doesn't make them constitutional - which is why the constitution created the supreme Court in the first place.
Brandon|6.1.09 @ 3:08PM|#
I'm willing to overlook cases where Thomas and Scalia reach
un-libertarian conclusions because they usually result from an
honest reading of the Constitution. It's silly to expect a faithful
reading of the Constitution to always result in a libertarian
outcome. General fidelity to the Constitution and the rule of law
is more important than the outcome of any one case.
When the others reach un-libertarian conclusions, and even when
they reach libertarian conclusions, it's because they don't give a
hoot what the Constitution says. They just make it up as they go
along.
T|6.1.09 @ 3:26PM|#
I can only judge from what I've read in his opinions
(extremist nonsense)
Contrast with:
If Congress can regulate this under the Commerce Clause, then
it can regulate virtually anything, and the federal government is
no longer one of limited and enumerated powers.
So, the idea of a federal government constrained by the
Constitution is "extremist nonsense". Take a bow, Tony. Then go set
yourself on fire, kthx.
|6.1.09 @ 3:26PM|#
Off topic (slightly) Kennedy is 72 - what are the odds a) Obama
doesn't get re-elected or b) he would appoint a conservative jurist
to maintain the current balance of the court rather than replace
Kennedy with a screaming liberal do gooder?
Kennedy is in good health - but the prospect of 8-12 years of
democrats in the white house makes this a real problem.
MNG|6.1.09 @ 3:27PM|#
domo
I'm making the same point. Both sides read statutes and amendments
broad or narrow to get their policy preferences. John suggested
that the left uses theourts to strike down democratically enacted
legislation, but as the examples I used note the right does this
all the time too. It's just that John and the right think that when
the right does it it's not activism because their side is
"correctly" striking down stuff while the other side is
"incorrectly."
"You don't have to read the Constitution very broadly to find that
it protects the right to bear arms." The 2nd Amendment is anything
BUT clear. You can read it to strike down gun control legislation
or not, but when you do don't pretend you are not striking down
democratically enacted legislation.
"nor shall private property be taken for public use, without just
compensation"
You can certainly read that reasonably to not require a stringent
public purpose/use test. The legislature can certainly argue that
their taking had, ultimately, a public purpose. Maybe they are
wrong, but again, don't act like you aren't striking down a
democratically enacted statute.
"Just because someone argues that the actions of legislatures
deserve some deference and that we are better off not having
unelected judges make our decisions for us, does not mean that
legislatures should be free to disregard the Constitution."
This is just, it's OK when my side does it to reach results I like,
not OK when the other side does it to reach results I do not
like.
MNG|6.1.09 @ 3:30PM|#
"replace Kennedy with a screaming liberal do gooder?"
After all the conservative bitching and moaning about Kennedy being
so liberal it would be poetic justice to have him replaced with an
actual liberal a la Brennan.
|6.1.09 @ 4:14PM|#
The 2nd Amendment is anything BUT clear.
Seems pretty clear to me. What about it do you find confusing,
MNG?
You can certainly read that reasonably to not require a
stringent public purpose/use test.
No, you can't. It says "public use", not public
purpose. Pretending that it has different words
than it actually does is not a reasonable reading.
MNG|6.1.09 @ 4:52PM|#
RC
Basically the Amendment says
Since state militias are really important, the right to bear arms
should not be infringed.
That first part mangles the Amendment making a collective right
reading of it possible...
"No, you can't. It says "public use", not public purpose.
Pretending that it has different words than it actually does is not
a reasonable reading."
John said public purpose, so I was doing him a favor. Besides, it
doesn't say "you can only take land for a public use" it says "no
person shall have land taken from him for a public use without just
compensation."
|6.1.09 @ 4:54PM|#
After all the conservative bitching and moaning about
Kennedy being so liberal it would be poetic justice to have him
replaced with an actual liberal a la Brennan.
Yeah - the bitching annoys me. He voted with Rehnquist more
reliably than any of the others on his court. I think he is
unfairly maligned in this respect. Souter was the real turncoat, of
course, though liberals often try to claim the court moved right
around him.
Sotomayor is not a slam dunk liberal either, by the way. I could
almost see a scenario where 15 years from now, democrats complain
as bitterly about her as republicans do about Souter.
|6.1.09 @ 5:06PM|#
MNG,
Concerning you difficulty in reading ;) I think the purposes are
clear enough. The 2nd amendment was enacted for the purpose stated
- to protect the right to bear arms. Any reading of it which
concludes that the intent was NOT for that purpose stretches
credibility.
The same is true of "public use" in the 5th. The express purpose of
the clause is to protect private property from public takings - a
reading which uses it to make it arbitrarily easy to take property
is perverse indeed. If that were the intent of the author - surely
they would have done better to not write an amendment at all!
Suppose we read the 1st amendment as a "collective right" (a phrase
and concept which is unknown in the constitution, or from writings
from that period) What would that look like?
Maybe you and I would not, in fact, individually have the freedom
to say what we want - that only publications authorized by the
federal government enjoy freedom of speech/press. Chilling indeed.
So much so, that the amendment itself would be construed as
limiting the freedom the protection of which it was enacted to
effect. The same is true of the "collective right" argument against
the 2nd. In my opinion, the ACLU's credibility as an organization
and their effectiveness has suffered much as a result of their
constant and disingenuous propagation of this nonsense.
MNG|6.1.09 @ 5:59PM|#
Domo
If the 1st read something like "Because newspapers are crucial in a
democracy, Congress shall pass no law abridging free speech" then I
could see how someone would think the right only was for the
press.
I agree with Heller actually, and I would incorporate the 2nd to
the states. But I don't pretend that it's so clear cut. A
reasonable person who wants to find a collective rather than
individual right has some things on which to hang that hat.
The libertarian reading of the takings clause is even less clear
cut. It reads "nor shall private property be taken for public use,
without just compensation." It doesn't say "private property can't
be taken for public use" or that "private property can only be
taken for public use" or that "private property cannot be taken
unless for a clearly public use" it says in effect "you can't take
private property for publice use unless you pay the owner a fair
price."
"The express purpose of the clause is to protect private property
from public takings"
That certainly seems wrong, if by express you mean on the face of
the text. As I said it seems much more clearly to be taking
"takings" for granted and making sure that a "just compensation" is
provided in any such case.
BTW-As a judge I would read the takings clause expansively to
protect individuals like Kelo from government. But that's probably
because I have a lot of empathy for the little guy ;)
MNG|6.1.09 @ 6:00PM|#
Also, as a policy (statutory) matter, I would make it hard as
shit for a government to take private property.
I'm just saying the 5th certainly isn't clearly libertarian on
this...
|6.1.09 @ 6:27PM|#
MNG, I agree that the case for the libertarian reading of the
5th is less strong than for the 2nd. Some libertarians wish the
writers of the fifth had left off the words "without just
compensation".
But if I were to expand a broad reading to the logical extreme, I
could parse the 5th thusly:
"nor shall private property be taken for public use, without
just compensation."
Gosh - this must mean that the ONLY reason I have to compensate the
owner is if I intend to take the property for a public use! If the
government wants to take the property for private use, or just for
the hell of it, it's free to do so - as long as they DON'T
justly compensate the owner
No reasonable person would argue that this was the intent of the
clause - therefore I conclude that it's reasonable beyond doubt
that the purpose of the clause is twofold a) to set out that public
use is the only justifiable reason for a taking, and b) that if
that requirement is met, just compensation is mandatory.
I appreciate that you are giving the little guy a break, and im not
even really arguing with your points here - just making the logical
point that many of the twisted readings that have been put forth
over the course of time are pretty far from what was very likely
intended. In fact your statement concerning incorporation is
(naturally) another libertarian complaint, as the process is
entirely fictional from a textual standpoint, having been invented
by the Court to get around enforceing rights it didn't like at the
time. Appalling.
as to your point about the wording of the 2nd compared to the 1st -
fair enough. Please make a reasonable substitution of example using
the 4th, the text of which is much closer to the 2nd. be back
later, pal!
MNG|6.1.09 @ 8:42PM|#
I'm not sure I follow you on the takings clause. I think a
reasonable person could look at just the text and say that the evil
that was trying to be prevented was not government takings of
private property in general, or requiring a strict public use test
for such takings, but takings without just compensation. I don't
know, but I imagine government taking was pretty well settled law
at the time of the Founding, and that what the Founders were mad
about was people not being fairly compensated when takings
occurred. I argue the text itself certainly lends itself to that
reading.
But again to my main point: conservative justices, just like
liberal ones, don't necessarily defer to democratica enactments, if
it furthers preferred policy. There is amazing irony in the
conservative crowd denouncing Sotomayer as an activist and
non-originalist and then immediately pointing to the Ricci case for
example. I abhor affirmative action, but one thing I'm pretty sure
about is that the "original intent" of the Framers of the 14th
didn't bar race conscious government programs (these were the same
guys behind the Freedman's Bureau and other Reconstruction measures
aimed exclusively at black "upliftment").*
* Were I a judge I would strike such programs on 14th grounds, but
then I'm not much of an originalist...
MNG|6.1.09 @ 8:48PM|#
And domo, I don't think the 2nd is much like the 4th. In fact,
the 4th is pretty clear cut in comparison, having two pretty strait
forward provisions that if translated to clear modern English would
be "the right of people to be secure from unreasonable searches and
seizures of shall not be violated and no warrants will issue unless
there is probable cause supported by oath and they have to have a
very particular description of the place and persons to be searched
and seized."
If the 4th were like the 2nd it would be like this "Since good
police are important to society, there shall be no unreasonable
searches and seizures or warrants without probable cause."
It's that "because well regulated militias are important" part that
fucks up the 2nd.
|6.1.09 @ 9:34PM|#
MNG,
You are settiing up a complete false dichotomy whereby one must
either think that the courts have no authority to strike down
statutes or every authority to do so. That is just bullshit and you
know it. The quality of your aruments on this thread were very low.
You just can't bring yourself to admit that the left could be more
guilty of something than the right.
MNG|6.1.09 @ 10:14PM|#
The left does not think that courts have "every authority" to
strike down legislation, at least not much more than the right.
There are many opinions where the leftist judges bemoan the
"judicial activism" of the right wing judges when the latter strike
down statutes.
It's hilarious to hear this trope of the left hating democratically
enacted measures and favoring the courts when, as I've already
noted, other than abortion, the "big cases" on the right (gun
control, affirmative action, eminent domain, campaign finance)
recently have all been about striking down democratically enacted
statutes!
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