Interpretation and the U.S. Constitution
My view about the U.S. Constitution itself forms the basis for my thoughts about its interpretation. The Constitution is the basic law of the country and defines the powers delegated to government and the protections afforded the rights of the people. The powers are enumerated and limited. The rights are unlimited and reserved to the states and to the people.
With this background the meaning of "originally", "textualist", and "strict constructionist" can be examined, as well as their opposite. The AP story on 8/26/05 entitled Originalist? Constructionist? A Confirmation-Hearing Glossary by Darlene Superville attempts to provide the general public with some of the background on these terms.
For instance the article defines Originalism as a legal philosophy that say the constitution means the same today as it did when it was drafted in the summer of 1787, making no allowances for societal changes, and that the mean can only be changed by amendment. Textualists are those who take the Constitution's words at face value without trying to figure out the drafters' intentions. And strict constructionists stick to the meaning of the words in the Constitution as they were used at that time.
The most recent controversy over eminent domain provides good illustrative material. The court decided that the City of New London, Connecticut could take the private land of some citizens to deliver it to other private parties for the public purpose of improving the city generally and its tax base. The argument revolved around whether this was a justifiable public purpose. The actual text of the constitution in the fifth amendment reads: nor shall private property be taken for public use, without just compensation.
As defined, from an originalist viewpoint public purpose may not be synonymous with public use. If in fact the property to be taken is for a public purpose but private use the original words of the constitution would seem to preclude that. Of importance is that this section limits the power of government. Since government cannot have more powers than are granted to it by the consent of the people, any interpretation which enhances those powers without their consent is tyrannical.
From a textualist or strict constructionist standpoint "public use" would seem to have a face value meaning, and it unlikely that the voters then or now would have equated public use with public purpose. For a court substitute their own words for those accepted and ratified by the people is also tyrannical.
Can the constitution serve its purpose of limiting the power of government and protecting the rights of the people if a single branch of government, the judiciary, is capable and empowered to expanded the powers or limit the rights of the people without their consent? Prima facie, such a position is impossible to defend.
I conclude that when a controversy involves increased powers, the most limited and circumspect interpretation should be made of the constitutional wording, so as to limit the powers of government to only those knowingly granted by the people from whom they derive. In a controversy involving rights, that interpretation which is most liberal in describing the rights of the people should be adopted, as all rights endowed in them by their creator are reserved to them or to the states.
Monday, August 29, 2005
Thursday, August 25, 2005
Why Al-Qaeda Hates Us
As our friends on the left have often pointed out, the terrorist attacks against the U.S. are the result of our wars in Afghanistan and Iraq. If we had not attacked them, they would not be attacking us. Never mind the actual time line: First World Trade Center Attack
African Embassies Attack
USS Cole attack
9/11
US attacks Taliban in Afghanistan
US and coalition enforces Gulf War cease fire violations in Iraq.
So today we read:
Man suspected of sending faxes in the name of al-Qaida arrested
The fax is entitled "Operation Vatican" and "Iraq and the world terrorist attack."
Spanish police have arrested a man suspected of sending faxes in the name of al-Qaida to two media outlets, criticising the Vatican for allegedly supporting war in Iraq and Germany, officials said Thursday.
The suspect, who has Spanish nationality, was arrested Wednesday night in Barcelona, police in Spain's second largest city said.
Well off course this is clear, the Vatican supported the war in Iraq, so like America it must be attacked. Wait, somehow my memory is failing,. Sure, the Pope was a big supporter of the war, praised President Bush for his foresight. Well maybe I am confused, because I also notice today in the Arizona Republic:
Bishop's heavenly decree creates a political purgatory
Aug. 23, 2005 12:00 AM
I contacted the office of Phoenix Bishop Thomas J. Olmsted on Monday to ask for a complete list of the social and political positions that would get a person banned from his churches.
Over the weekend, Olmsted forcefully defended his decision to bar some politicians and public figures from speaking on church property if, in his judgment, they "act in defiance of our fundamental moral principles."
The wording comes from a document produced at the U.S. Conference of Catholic Bishops. Not all bishops are enforcing it with Olmsted's enthusiasm. As he wrote in Sunday's Arizona Republic, "Why would we honor or give a platform to someone who radically disagrees with our fundamental teachings?"
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For example, Gov. Janet Napolitano, who wasn't permitted to speak at a Scottsdale church awhile back because of her support of abortion rights and gay marriage.
"For the Catholic Church to back up its teaching through actions directed at public officials is not something new," the bishop said in Sunday's article.
With that in mind, I asked diocese spokeswoman Mary Jo West if the church had compiled a list of issues that reflect the "fundamental teachings" that the bishop was talking about.
For instance, war.
The recently departed Pope John Paul II vehemently opposed the war in Iraq, saying that the military incursion was not morally or legally justified and that "violence can never resolve the problems of man."
So, the pope opposed the war. No he supported the war. Oh well, not to worry.
Al Qaeda desires to attack the Vatican as a result of the Vatican's support of the war in Iraq. But the Vatican actively opposed the war in Iraq and Pope John Paul was part of a campaign to avert the war before it began.
The conclusion forms in my mind. It is not that Al-Qaeda attacked us because we attacked them. It is not because we make war against them in Iraq and Afghanistan now. It is simply because they are utterly detached from reality, perhaps psychotic would be a better description. We should not be using the hydrogen bomb on them, nor the neutron bomb, nor the bunker buster. What is needed to bring about true peace between us and Al-Qaeda is simply some heavy duty anti-psychotic.
As our friends on the left have often pointed out, the terrorist attacks against the U.S. are the result of our wars in Afghanistan and Iraq. If we had not attacked them, they would not be attacking us. Never mind the actual time line: First World Trade Center Attack
African Embassies Attack
USS Cole attack
9/11
US attacks Taliban in Afghanistan
US and coalition enforces Gulf War cease fire violations in Iraq.
So today we read:
Man suspected of sending faxes in the name of al-Qaida arrested
The fax is entitled "Operation Vatican" and "Iraq and the world terrorist attack."
Spanish police have arrested a man suspected of sending faxes in the name of al-Qaida to two media outlets, criticising the Vatican for allegedly supporting war in Iraq and Germany, officials said Thursday.
The suspect, who has Spanish nationality, was arrested Wednesday night in Barcelona, police in Spain's second largest city said.
Well off course this is clear, the Vatican supported the war in Iraq, so like America it must be attacked. Wait, somehow my memory is failing,. Sure, the Pope was a big supporter of the war, praised President Bush for his foresight. Well maybe I am confused, because I also notice today in the Arizona Republic:
Bishop's heavenly decree creates a political purgatory
Aug. 23, 2005 12:00 AM
I contacted the office of Phoenix Bishop Thomas J. Olmsted on Monday to ask for a complete list of the social and political positions that would get a person banned from his churches.
Over the weekend, Olmsted forcefully defended his decision to bar some politicians and public figures from speaking on church property if, in his judgment, they "act in defiance of our fundamental moral principles."
The wording comes from a document produced at the U.S. Conference of Catholic Bishops. Not all bishops are enforcing it with Olmsted's enthusiasm. As he wrote in Sunday's Arizona Republic, "Why would we honor or give a platform to someone who radically disagrees with our fundamental teachings?"
advertisement
For example, Gov. Janet Napolitano, who wasn't permitted to speak at a Scottsdale church awhile back because of her support of abortion rights and gay marriage.
"For the Catholic Church to back up its teaching through actions directed at public officials is not something new," the bishop said in Sunday's article.
With that in mind, I asked diocese spokeswoman Mary Jo West if the church had compiled a list of issues that reflect the "fundamental teachings" that the bishop was talking about.
For instance, war.
The recently departed Pope John Paul II vehemently opposed the war in Iraq, saying that the military incursion was not morally or legally justified and that "violence can never resolve the problems of man."
So, the pope opposed the war. No he supported the war. Oh well, not to worry.
Al Qaeda desires to attack the Vatican as a result of the Vatican's support of the war in Iraq. But the Vatican actively opposed the war in Iraq and Pope John Paul was part of a campaign to avert the war before it began.
The conclusion forms in my mind. It is not that Al-Qaeda attacked us because we attacked them. It is not because we make war against them in Iraq and Afghanistan now. It is simply because they are utterly detached from reality, perhaps psychotic would be a better description. We should not be using the hydrogen bomb on them, nor the neutron bomb, nor the bunker buster. What is needed to bring about true peace between us and Al-Qaeda is simply some heavy duty anti-psychotic.
Monday, August 22, 2005
predefining History?
In today's New York Times Paul Krugman writes about the prettification of the 2000 Presidential election and suggest that the origins of the war in Iraq will undergo a similar transformation.
Krugman opines: "More broadly, the story of the 2000 election remains deeply disturbing - not just the fact that a man the voters tried to reject ended up as president, but the ugliness of the fight itself. There was an understandable urge to put the story behind us.
But we aren't doing the country a favor when we present recent history in a way that makes our system look better than it is. Sometimes the public needs to hear unpleasant truths, even if those truths make them feel worse about their country.
Not to be coy: election 2000 may be receding into the past, but the Iraq war isn't. As the truth about the origins of that war comes out, there may be a temptation, once again, to prettify the story. The American people deserve better. "
So Krugman writes for a real important MSM outlet and thus deserves close analysis. He begins with the premise that the story of the 2000 election remains deeply disturbing. I don't think I have noticed any evidence of that. I don't think it is the story that is disturbing to anyone. It may be that some democrats are deeply disturbed about the outcome of the election, but not by the story.
As an example of a disturbing element Krugman cites the infamous butterfly ballot. To the best of my memory, this was in a county where all of the election officials were democrats. Is the disturbing part to Krugman that democrats could not pull off a victory when they controlled the mechanism of the election or that they were unable to get the witless voters to comply with their nefarious but complicated scheme?
Krugman proceeds from this premise to conclude that the story of the election has somehow been prettified, and that a similar methodology will be applied to the "origins" of the Iraq war. I am sure the origins of the war are not and cannot be made to be pretty, but Saddam Hussein had something to do with them. He did not have to play along with the game. He could have complied with the sanctions regime and the ceasefire protocols.
Who will be doing the prettifying. Who indeed. I don't expect to see it in the New York Times or any other MSM outlet. Either Krugman is making the argument that the MSM is no longer relevant to the framing of history, or he is suggesting that he and his cohorts at the Times are the ones America deserves better of. Ah truth at last.
In today's New York Times Paul Krugman writes about the prettification of the 2000 Presidential election and suggest that the origins of the war in Iraq will undergo a similar transformation.
Krugman opines: "More broadly, the story of the 2000 election remains deeply disturbing - not just the fact that a man the voters tried to reject ended up as president, but the ugliness of the fight itself. There was an understandable urge to put the story behind us.
But we aren't doing the country a favor when we present recent history in a way that makes our system look better than it is. Sometimes the public needs to hear unpleasant truths, even if those truths make them feel worse about their country.
Not to be coy: election 2000 may be receding into the past, but the Iraq war isn't. As the truth about the origins of that war comes out, there may be a temptation, once again, to prettify the story. The American people deserve better. "
So Krugman writes for a real important MSM outlet and thus deserves close analysis. He begins with the premise that the story of the 2000 election remains deeply disturbing. I don't think I have noticed any evidence of that. I don't think it is the story that is disturbing to anyone. It may be that some democrats are deeply disturbed about the outcome of the election, but not by the story.
As an example of a disturbing element Krugman cites the infamous butterfly ballot. To the best of my memory, this was in a county where all of the election officials were democrats. Is the disturbing part to Krugman that democrats could not pull off a victory when they controlled the mechanism of the election or that they were unable to get the witless voters to comply with their nefarious but complicated scheme?
Krugman proceeds from this premise to conclude that the story of the election has somehow been prettified, and that a similar methodology will be applied to the "origins" of the Iraq war. I am sure the origins of the war are not and cannot be made to be pretty, but Saddam Hussein had something to do with them. He did not have to play along with the game. He could have complied with the sanctions regime and the ceasefire protocols.
Who will be doing the prettifying. Who indeed. I don't expect to see it in the New York Times or any other MSM outlet. Either Krugman is making the argument that the MSM is no longer relevant to the framing of history, or he is suggesting that he and his cohorts at the Times are the ones America deserves better of. Ah truth at last.
Thursday, August 18, 2005
The Assosciated Press Dowdifies Roberts.
Dowdify - To eliminate or alter the meaning of a quotation through selective editing. For Maureen Dowd, New York Times, a polished practitioner.
DAVID ESPO
The Associated PressWednesday, August 17, 2005; 2:58 AM
In material released Monday, Roberts emerged as an attorney serving in the Reagan White House who held views generally in line with those of other conservatives. He was sympathetic to prayer in public schools, dismissive of "comparable worth," referred to the "tragedy of abortion" and took a swipe at the Supreme Court for being too willing to hear multiple appeals from death row inmates.
"Those papers that we have paint a picture of John Roberts as an eager and aggressive advocate of policies that are deeply tinged with the ideology of the far right wing of his party, then and now," Leahy said in his statement.
Espo combines a dowdified quote referring to the tragedy of abortion with Senator Leahy's comment that Robert's views represent view deeply tinged by the ideology of the far right.
But in reducing the entire reference memorandum to the "tragedy of abortion", the entire context is removed. It was however available from the AP the day before:
Associated Press Updated: 9:33 p.m. ET Aug. 16, 2005
WASHINGTON - As a young lawyer in the Reagan White House, Supreme Court nominee John Roberts concluded that a group’s memorial service for aborted fetuses was “an entirely appropriate means of calling attention to the abortion tragedy.”
Roberts wrote the advice in an October 1985 memo after he was asked to review a proposed telegram from President Reagan to the memorial service promoted by the California Pro Life Medical Association.
“The president’s position is that the fetuses were human beings, or at least cannot be proven not to have been, and accordingly a memorial service would seem an entirely appropriate means of calling attention to the abortion tragedy,” wrote Roberts.
The memorial service came at the end of a three-year battle over how to dispose of some 16,000 fetuses discovered in February 1982 in sealed plastic bags of formaldehyde and stored in a bin outside the California home of a man who had managed a medical laboratory. The then-closed laboratory routinely examined aborted fetuses for clinics and hospitals.
I believe any one unable to recognize the tragedy of abortion represented in 16,000 fetuses could have no moral claim to a seat on a court dedicated to Equal Justice under Law.
Dowdify - To eliminate or alter the meaning of a quotation through selective editing. For Maureen Dowd, New York Times, a polished practitioner.
DAVID ESPO
The Associated PressWednesday, August 17, 2005; 2:58 AM
In material released Monday, Roberts emerged as an attorney serving in the Reagan White House who held views generally in line with those of other conservatives. He was sympathetic to prayer in public schools, dismissive of "comparable worth," referred to the "tragedy of abortion" and took a swipe at the Supreme Court for being too willing to hear multiple appeals from death row inmates.
"Those papers that we have paint a picture of John Roberts as an eager and aggressive advocate of policies that are deeply tinged with the ideology of the far right wing of his party, then and now," Leahy said in his statement.
Espo combines a dowdified quote referring to the tragedy of abortion with Senator Leahy's comment that Robert's views represent view deeply tinged by the ideology of the far right.
But in reducing the entire reference memorandum to the "tragedy of abortion", the entire context is removed. It was however available from the AP the day before:
Associated Press Updated: 9:33 p.m. ET Aug. 16, 2005
WASHINGTON - As a young lawyer in the Reagan White House, Supreme Court nominee John Roberts concluded that a group’s memorial service for aborted fetuses was “an entirely appropriate means of calling attention to the abortion tragedy.”
Roberts wrote the advice in an October 1985 memo after he was asked to review a proposed telegram from President Reagan to the memorial service promoted by the California Pro Life Medical Association.
“The president’s position is that the fetuses were human beings, or at least cannot be proven not to have been, and accordingly a memorial service would seem an entirely appropriate means of calling attention to the abortion tragedy,” wrote Roberts.
The memorial service came at the end of a three-year battle over how to dispose of some 16,000 fetuses discovered in February 1982 in sealed plastic bags of formaldehyde and stored in a bin outside the California home of a man who had managed a medical laboratory. The then-closed laboratory routinely examined aborted fetuses for clinics and hospitals.
I believe any one unable to recognize the tragedy of abortion represented in 16,000 fetuses could have no moral claim to a seat on a court dedicated to Equal Justice under Law.
Wednesday, August 17, 2005
My first blog. I have been following the Roberts nomination. I was interested in Hamdan vs. Rumsfeld when it was handed down on July 15. Interested enough to download the opinion. It was interesting and well written. I put it aside until John Roberts was nominated for the Supreme Court. Roberts? Have I heard of him? Was he involved in Hamdan? I looked at the opinion again. Sure enough, he was one of the judges. Not the senior judge, not one of the opinion writers but one of the judges. Happy coincidence.
Since then I have read a lot of the media stories about him. Just going through today's traffic I came across this story in the Washington Post. "Judge Heard Terrorism Case As He Interviewed For Seat" http://www.washingtonpost.com/wp-dyn/content/article/2005/08/16/AR2005081601561.html
Paragraph one was an eyeopener. "Judge John G. Roberts Jr. was interviewing for a possible Supreme Court nomination with top Bush administration officials at the same time he was presiding over a terrorism case of significant importance to President Bush."
Let us leave aside the obvious error that the interviews did not take place during the court proceedings. It is only hyperbole to say the interviews and the court case were at the same time. What is far more egregious is to say that Roberts presided. He was present, a part of the court panel, but he did not preside. I wonder how Senior Judge Williams feels about his sudden demotion at the hands of the Washington Post.
Since then I have read a lot of the media stories about him. Just going through today's traffic I came across this story in the Washington Post. "Judge Heard Terrorism Case As He Interviewed For Seat" http://www.washingtonpost.com/wp-dyn/content/article/2005/08/16/AR2005081601561.html
Paragraph one was an eyeopener. "Judge John G. Roberts Jr. was interviewing for a possible Supreme Court nomination with top Bush administration officials at the same time he was presiding over a terrorism case of significant importance to President Bush."
Let us leave aside the obvious error that the interviews did not take place during the court proceedings. It is only hyperbole to say the interviews and the court case were at the same time. What is far more egregious is to say that Roberts presided. He was present, a part of the court panel, but he did not preside. I wonder how Senior Judge Williams feels about his sudden demotion at the hands of the Washington Post.
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