What Do You Think About Roberts?
A lot of people are now giving Judge Roberts' opinions a more thorough exam than a proctologist would. Much has been made of his opinion in the French Fry case. The biggest complaint is that he (and the other judges) followed the law rather than ruling with his heart in favor of the 12 year old girl and her mother. The case was not about how stupid the law itself was but rather whether or not her civil rights were violated by being arrested and taken into police custody.
They ruled that her rights were not violated. You can read the opinion here.
Do you want your Judges to rule based on pity or law? I think it is safer to stick with the law. If you don't violate the law, you have a better chance of prevailing when your rights HAVE been violated.
They ruled that her rights were not violated. You can read the opinion here.
Do you want your Judges to rule based on pity or law? I think it is safer to stick with the law. If you don't violate the law, you have a better chance of prevailing when your rights HAVE been violated.
Posted by Rosemary on
07.23.2005
R.I.P. Steven Malcolm Anderson
Minion
of the Week
On first blush, I don't think he's a hack, which is a good thing. Dissapointed? Not really. I never expected Bush to nominate anyone like Dershowitz.
Other than that, his anti-abortion activist wife is worrisome. Not for her views, but her taste.
How could she dress young Jack in that stupid powder-blue short-pants suite. Good for Dancing Jack. I'd have done my best to embarrass my Mom if she dressed me like that too.
"Steven,
Thanks. I await your treatise on the spectra of jurisprudence theory. How many dimensions with it have?
Yours,
Wince"
Dear Tom Hawkson, a.k.a. Wince and Nod:
Thank you!
As to a spectrum on jurisprudence theory, I can see 2 dimensions already:
1) The horizontal or left-right dimension would be that of the "living Constitutionalists" on the left for whom the Constitution means whatever they had for breakfast that morning or whatever fits their agenda at the moment, usually "the Constitution = the New Deal + abortion + affirmative action + whatever else is currently fashionable".
On the right would be "originalists" or "textualists" or "strict constructionists" or "dead/enduring Constitutionalists" (Scalia), or those who at least profess to be one or all of those things.
2) The vertical dimension would be how they tend to interpret the Constitution in terms of individual rights vis-a-vis government powers. At the bottom would be those such as Robert Bork and, to a large extent, Justice Scalia, who see the Constitution as establishing small islands of explicitly stated and very limited individual rights surrounded by an ocean of virtually unlimited government powers.
At the top would be those such as Randy Barnett or, to a large extent, Justice Thomas (and the Justice Kennedy of Lawrence &Garner but not since), who see the Constitution as establishing small islands of explicitly stated and stringently limited government powers surrounded by an ocean of inalienable individual rights, some explicitly stated, the rest implicit in the whole concept of "ordered liberty" and "retained by the people" (Ninth Amendment).
You can guess where I stand on this spectrum."
Wow!
Yeah, what the hell was with that sad suit? That kid is gonna rebel when his teen years come.
What do you think about the decision I linked? Do you think he should have followed his heart or his head?
"Actually Rose, it is the sworn duty of even the lowliest trial judge to uphold the Constitution. Thus an Uncontitutional law should be struck down at the eariest opportunity -- at trial -- and it is the duty of the lawyers on the case (also so sworn) to raise the contitutional issue there. Indeed, often times they are required to do so in order to preserve the issue on appeal."
That is quite true. It is also the sworn duty of every official in the executive branch, from the President on down, and every Senator or Representative in the legislative branch. They are not to pass or sign laws they know or suspect to be un-Constitutional and then pass the buck to the courts. We saw how well that has worked (e.g., F.E.C., Raich, Kelo).
In all three of which Justice Thomas was on the side of individual rights. A reference was made to Judge Roberts and the Takings Clause in the Fifth Amendment. This is extremely ambiguous, for it could mean 1) that he will uphold the rights of property owners against the "environmentalists" (Fabian Socialists) who would love to declare every acre of privately-owned land in America a "wetland" or "natural habitat", and/or 2) that he will fail to uphold property rights by allowing large private businesses to use government to seize property from other private businesses or private homeowners (as in Kelo). In which latter case he would then indeed be the Marxist caricature of a judge who always takes the side of the wealthy.
In that latter case, I had indeed expected Justice Scalia (and probably Rehnquist) to take the side of big business and also of big government, as he had rather consistently done in the past. Instead, he surprised me and took the side of the individual homeowner, Suzette Kelo. He obviously goes with his heart and not with his head, since he has no liking for "fags" or pot-smokers and will toss them in jail on any pretext, but law-abiding property owners he likes. I had expected the "liberals" and Justice Kennedy (who, with Justice Stevens, I had thought of as an individualist conservative or libertarian in the style of President Reagan) to take the side of Ms. Kelo against Herr Pfizer, but instead they drastically disappointed me. This shows how most New Dealers are hypocrites when they claim to be for "the common man" and against big business. Actually, they are for unlimited big government at any cost.
In 1963.
Mine had a little owl embroidered on the pocket.