Liberal judges favor no Constitution
By Brian Kirwin | Friday, April 16th, 2010 | PolicyCalifornia law professor Goodwin Liu appears today before the Senate Judiciary Committee, as a nominee for an appeals court judgeship.
Someone needs to ask him if he’d like an America without a Constitution.
Honestly, that’s the America we’d have if those who wrote, supported, advocated and voted for the ratification of the Constitution looked at it the way he does.
Liu has stated that “The question … 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.”
Let’s ask the professor from University of Berkeley (why am I not surprised) a question: Would the Constitution ever have been ratified if those who had ratified it held that view?
Does anyone honestly think they said “Vote for this Constitution. Don’t bother reading it, because what it means will change and we can say it means whatever we want it to mean later?”
I’ve heard Supreme Court Justice Scalia make this point against those who think the Constitution is a “living, breathing document” that changes in meaning from time to time. He argues that no one would’ve ever adopted a Constitution if they thought that what it said was not what it meant.
The founders’ Constitution was quite simple. If you don’t like the law, elect people to change the law. If you want to change the Constitution, amend it.
But holding the view that the Constitution can gain meanings that it never had by following the Berkeley teacher’s idea that what the Constitution actually says can be assumed to mean what it doesn’t say simply because we say so is anti-Constitutional.
And I argue that no Constitution would ever have been ratified if it was understood to mean different things at different times to different people.
What would be the point of having an amendment process at all, if it was the founders’ intent to write a Constitution that changes on its own with each passing era?
That wouldn’t be needed. We’d just need 5 people in robes deciding that something written didn’t mean what it said, and announce that it suddenly meant something else. Done. Finito. Sound the lunch bell.
But, no! The fact that there is a specific amendment process shows that those who passed the Constitution realized that there would be changing circumstances and we might want to change what the Constitution actually says from time to time.
They in no way wrote a document whose words were so insignificant that five appointed Justices could decided that it didn’t mean what it said, and it meant things it didn’t say.
I’ll be watching Liberal Liu, and watching for his reaction to these points.
Because a “living” Constitution is a concept that would’ve killed the Constitution before it was ever born.
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About the author
The right wants to jeer him. The left wants to censor him. Moderates usually want both. Brian Kirwin is a political consultant and public relations strategist in Virginia Beach with a lightning-rod flair. Brian also serves on the VB Arts & Humanities Commission and frequently appears on Hampton Roads theatrical stages, if only to prove that all actors aren’t liberals. Kirwin’s columns stir up debate and hit the political scene with no punches pulled.
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14 Responses to "Liberal judges favor no Constitution"
What a croc. Does anyone really think the founding fathers would have listened to as shallow a thinker as BK? Of course the constitution forms the basis for review, but since cars have replaced horses, we have been to the moon, Europe and the world are within a few hours travel, and tweets and e-mails have replaced the printing press, interpretation is necessary for Legislators, Judges, and the Executive Branch. To deny this is, and to assume you alone knew that the founders thought, is ridiculous. MJB sends!
Mike, you don’t need to assume you know what the founders thought.
All you have to do is notice what was legal and illegal when the founders wrote.
It’s insane to think that the founders considered abortion to be protected by the Constitution while it was illegal in every state the whole time.
You need no mindreading skills, Mike. Just history reading.
Again, you turn things on their head. Five justices don’t overturn the constitution, they review facts in a legal proceeding and judge whether lower court decisions are correct given the facts, the law, prior decisions of the court, precedence, and the constitution. Your statement above…”And I argue that no Constitution would ever have been ratified if it was understood to mean different things at different times to different people…” is absurd on its face as I know that neither you, nor I, have any clue what was in the mind of the founders when the constitution was adopted. But hey, the republicans have been obstructionists on legislation, so why not continue with appointments?
Mike,
We do have a clue as to what was in the founders’ minds, based on what they said, wrote, and did. Problem is that you can’t just take one or two quotes, perhaps out of context, and generalize what they believed. It takes a lot more study.
Of course it does, and that is my point as well. “It takes a lot more study…” and that is what the justices on the Supreme Court do, they study the facts, the law, prior decisions, precedence, and the Constitution, and then they render a decision. Brian’s headline just shows that his goal in life is divisiveness, because that is what political consultants for elections do, they emphasize divisions rather than common ground.
Mike, if you honestly think anyone would’ve ratified a Constitution whose words would change depending on what 5 appointed judges want, you have a deep misunderstanding of what America is.
Mike, I get your advancing tech arguement, but just what do you propose as an advancement to Freedom? What new innovation surpasses safeguards in the Constitution that limit government from denying natural rights to the citizens. What makes right to property outdated? Free speech? What is your living breathing document alternative to freedom of religion? Before you start, a nuclear weapon is not a fire arm.
Republicans were guilty in the past of thinking that they would always be in power. All those years of the Bush family, I understand making that mistake, but an obscene mistake it was. Do you REALLY think Democrats will maintain control forever? If you answer with the obvious realistic,”no”, then I have another question for you. Would you allow a hypothetical President Karl Rove, Dick Cheney, or Sarah Palin with the amount of power THEY would have if they could write off the Costitution as living breathing document that they could just change at whim?
The founding fathers were hardly perfect and I guess the Constiution isn’t either, but it is the BEST PROTECTION for the individual in the world. Being able to change something that important or reinterpret it should be extremely difficult to the point where a serious flaw has become extremely evident to just about everyone.
Just as Republicans sometimes like to pass laws abridging rights in the name of the war on terror, they forget the Democrats will have that same power when they get elected. Are politicians willing to misuse such powers and ill-gotten secrets? Ask Hillary Clinton about Nixon’s Watergate. Then ask Hillary why she and Bill got all those FBI files on REPUBLICAN congressmen when Bill Clinton was our president. Think either Democrats or Republicans can resist illegal wiretapping? Think again.
If a Democrat is willing to misuse eminent domain to give vut rate prime real estate to their special interest buddies and damn the rights of the original owner, then there’s probably a Republican willing to do the same for Republican interests. The answer is to find ways to stop it and abide by our right to property which the Supreme Court REALLY messed up on already with Kelo vs. New London(How is that Pfizer building doing by the way?). The answer is NOT that each side gets their turn when they are in power!
The Constitution is terribly important to the American way of life. Partisanship has no place messing with it.
That Kelo vs. New London decision was an abomination. Congress should have responded with a proposed constitutional amendment that “fixed” that. But where is it? If all the Republicans in the house and the bluedogs supported it, it would at least get through the house. If these people really cared about natural rights, that would have happened.
Well, that is a classic refutation of your own argment. That is, Kelo simply upheld the power of the states to make these decisions, and refused to put the federal court system into this argument. That is, if the people of the state allowed the taking of property, that applied; of course, in Virginia, our constitution did allow it.
Mike, the state Constitution still allows the taking of property like in Kelo. There are proposed amendments, which I have been told will be pushed next year. The purpose of governments, all of them, is to protect the natural rights of people. The Federal constitution already addresses the taking of property and needs clarification since apparently very precise words are needed and original intent cannot be counted on.
I don’t think that it is in Virginia’s constitution. From what I recall, it is only passed law that makes condmnation of property in Virginia for the purpose of development to be illegal. Although, it should be in the state Constitution. My opinion.
My contention Mike, is that the right to property is universal. A natural right and one that should not be violated at any level of government. The Supreme Court did make a mistake by not doing more to prevent denying the right to property just because some developer has his eyes on it and doesn’t care to make a business offer for it.
Next I guess you will say its a States Rights issue and Virginia, if it chooses, should be able to prevent free speech. I just know how big a fan of the Constitution you are these days. It is just old paper written by dead white guys right?
“and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;”
Article VI – Debts, Supremacy, Oaths
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Another one of those classic issues where your right to extend your fist ends at my nose. Point is, I do believe in property rights, and I believe in property obligations as well. If any owner, by their action or inaction, causes blight and loss of economic value to others, then he has forfeited the protection of the law. Far more damage and harm is caused by private owners who neglect their obligations than to those who are harmed the taking of private property for public use.
Property rights is not a “who does more damgage” game. It isn’t about who hit who first or harder. At no time do you “lose protection under the law”. Instead, you are held accountable to it. This is not where you get to decide who loses rights and who remains in some chosen elite class of people with rights. This is where somebody pays for damaging others. You never “lose” your right to property. You are made to compensate or are penalized.
“Blight”, a definition often played fast and loose with by redevlopment authorities, is NOT public use. Public use is to build a road, a school, a court house etc. When the condition of your property is doing damage to the property rights or health of others, you are subject to legal suits, possible prosecution(depending on the situation), fines, and ultimately having your property taken from you to compensate your victims or even as a punitive measure.
That has NOTHING to do with development. When it does, there should be an investigation and criminal prosecution for any attempt at legalizing plunder for the purpose of somebody’s or some corparate entity’s gain.
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