September 12, 2008
Today, John S. McCain was a guest on the View, where he has in the past been treated more kindly -- when he was nought but a maverick Republican tweaking President George W. Bush's nose. Now that he is the Republican nominee for president (and leading in nearly all the polls), it's a whole different kettle of horses.
Among the challenging and deranged questions he was asked, the best of the worst came from noted political scholar and seasoned electioneer Whoopi Goldberg, now ensconced in the Rosie O'Donnell memorial deep-analysis chair. During a discussion of the types of federal judges McCain would name, bouncing off of the overly obvious Roe v. Wade "crisis," the following hijinks ensued:
Sir, can you just -- and I don't want to misinterpret what you're saying -- did you say you wanted... strict constitutionalists? Because that -- that --
No, I want people who interpret the Constitution of the United States the way our Founding Fathers envisioned them to do.
Should I be worried about being a slave, we'd be returned to slave -- because certain things happened in the Constitution that you had to change. [Wild cheering from audience]
Alas, McCain did not really respond to Whoopi Goldberg's "question;" he seemed a bit stunned by the audacity of her stupidity, and he just placated her, telling her it was a good point and he understood. He all but patted her head, the way one would a child who was particularly thick.
So we lizards must take up the smart man's burden and explain, in words of few syllables, what is so terribly wrong with Ms. Goldberg's argument... for argument it was; it certainly was not an actual question to which she wanted an answer.
Goldberg, like most liberal Democrats, is confused about judges, John McCain, and the Founding Fathers; she imagines that a judge who is a "strict constitutionalist" -- an expression I confess having never heard before -- wants the Constitution returned to its pristine condition as written in 1787, before even the Bill of Rights was added.
I supposed it's barely possible that there may be a lawyer or law professor somewhere in America who wants such a thing; it's a big country. But certainly such a static thinker would not have been found among the Founding Fathers themselves. We must recall the Founders were rather revolutionary thinkers.
The Founders of our republic never intended the Constitution to remain changeless; that is why they included an elaborate amendment process to change it, which has successfully been invoked 27 times in the last 217 years -- an average of once every eight years (or once every 12 years, if you count the Bill of Rights as a single agony in ten fits).
One of those changes was the Thirteenth Amendment, ratified 143 years ago, which reads in toto:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
As this more-or-less duly enacted amendment* would allay Ms. Goldberg's fears about "being a slave" once more (perhaps she believes she was a slave in a previous life), the only logical explanation is that she thinks the judges that "President" McCain would appoint reject that amendment as marring the original beauty of the Constitution. In fact, I suspect that all hysterical Democrats think that's what "strict constitutionalist" judges believe. It's one of the sure signs of hysterical dementia.
In the real world, however, judicial conservatives and strict constructionists -- terms I am more familiar with than Whoopi Goldberg's term -- have no desire to roll the Constitution back to what it was the day it was ratified in 1789. They don't reject subsequent amendments; but they do insist upon ruling on the basis of what is actually in the Constitution today: the original text, all constitutional amendments that have been ratified, plus the actual words of relevant statutary law. Where none of the above decides the case, then judicial conservatives turn to previous interpretations and understandings of the law from court precedent; this is to resolve ambiguities, contradictions, and countervailing rights or interests.
A judicial conservative asks only that changes in the Constitution come about by the amendment process the Founders carefully enunciated in the document itself.
By stark contrast, the sort of judge supported by Democrats like -- well, like Whoopi Goldberg -- do not rule on what's actually in the Constitution; instead, they rule on the basis of their own personal gut feelings, which they would insert into the Constitution if only they could. Since they can't, however, they pretend it's there anyway and rule according to their whim du jour. That, as I understand it, is the difference between a strict constructionist/judicial conservative and a judicial legislator.
But you know I'm not a lawyer; I'm just playing sea-lawyer here. So if some lawyer who actually knows what he's talking about (unlike me) wants to correct my quickie definition, please feel free. Beldar, Patterico, and XRLQ, this means you!
I wonder if Whoopi Goldberg reads Big Lizards? Nah; can't picture it.
* Yes, I know that some or all rebellious Southern states had not been readmitted to the Union and Congress when the 13th Amendment was ratified; tough. They may have gotten the short end of the totem pole, but they buttered their own petard, and now they can smoke it.
Hatched by Dafydd on this day, September 12, 2008, at the time of 9:21 PM
TrackBack URL for this hissing: http://biglizards.net/mt3.36/earendiltrack.cgi/3241
The following hissed in response by: Frank Laughter
Your footnote about the rebellious Southern states:
No matter if some states were not in the Union to ratify the 13th Amendment. They accepted re-admission under the Constitution as it then existed and so de facto approved the 13th.
The above hissed in response by: Frank Laughter at September 13, 2008 4:41 AM
The following hissed in response by: nk
It depends on which judges you are talking about.
"Liberal" judges, such as Douglas, had a certain social policy and read the Constitution broadly in order to implement it.
"Strict constructionists", such as Rehnquist, also had a certain social policy and read the Constitution strictly to give its provisions as narrow an effect as possible.
Judges in the mold of of Thomas and Roberts read the Constitution fairly to give all fair and reasonable meaning to its provisions without going beyond those provisions.
The above hissed in response by: nk at September 13, 2008 5:40 AM
The following hissed in response by: nk
There is a fourth category, which I hesitated to post because it is the Reagan appointees, which I call "statist". They do read the Constitution fairly but then they apply a balancing test -- the right vs. the importance of the governmental interest -- and the government mostly wins.
The above hissed in response by: nk at September 13, 2008 5:52 AM
The following hissed in response by: Fritz
Dafydd, explaining constructionists and judges is sort of like flogging one of those horses in your kettle after it has been cooked for several hours. Those of us who have the ability to understand you already knew, and people like Whoopi don't have the capacity to understand no matter how many times it is explained to them.
The following hissed in response by: GW
Your definitions are fine. If you are soliting lawyer-thoughts, I did a post on topic a few weeks ago, The Supreme Court, Originalism, Judicial Activism & America's Future. The real canard is that originalists want to roll back rights while activist courts defend them. That turns reality on its head.
The above hissed in response by: GW at September 13, 2008 10:53 AM
The following hissed in response by: GW
Your definitions are fine. If you are soliting lawyer-thoughts, I did a post on topic a few weeks ago, The Supreme Court, Originalism, Judicial Activism & America's Future. The real canard is the claim that originalists want to roll back rights while activist courts defend them. That turns reality on its head.
The above hissed in response by: GW at September 13, 2008 10:54 AM
The following hissed in response by: eliXelx
"Answer NOT a fool according to his folly" Thus ends one chapter of Proverbs.
"Answer a fool according to his folly" Thus starts The Very Next Chapter.
The Rabbis said: "there are no contradictions in the Bible." How then did they explain this very obvious contradiction?
There is no contradiction! Sometimes the fools are family, as, for example, a wife or a brother or a child who might ask a foolish question which we answer with love.
And then there´s Whoopi Goldberg to whose foolishness John McCain, quite rightly, did not deign to reply!
But that is not the point that is important!
What is germane here is that there are some documents of such living essence to the commonwealth that the constant discussion and referencing and interpreting of them is a vital component of their continuing validity.
Long Live the Constitution! May it guide the judges, rather than the judges guide it!
The following hissed in response by: Mikey
Activist justices gave us the decision in Plessey v Ferguson, upholding the concept of 'separate but equal', and that decision was made after the 13th, 14th, and 15th amendments were passed.
Think about that.
The following hissed in response by: David M
The Thunder Run has linked to this post in the - Web Reconnaissance for 09/15/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
The above hissed in response by: David M at September 15, 2008 9:57 AM
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