Friday, September 30, 2005

Judicial Restriant vs. Originalism

I hate to say it but I am opposed to John Roberts. I hope that I am wrong, but until I am proven as such I think the country lost in the trade of Reinquist for Roberts. The reason, judicial philosophy. I do not think that Republicans took seriously the need to find Roberts’s judicial philosophy. I am fairly certain that Roberts will not be a Judicial Activist, but that does not mean he therefore is an Originalist. We cannot mistake Judicial Restraint with an Originalist position. Philologous or James Solis, a friend of mine who will eat me alive for this post, recently said this about Roberts:

I for one was satisfied by the only real answer Roberts could give on the question of his judicial philosophy. When asked if we would be for the little guy of the big guy, Roberts replied, "If the Constitution says that the little wins, then the little guy wins. If the Constitution says that the big guy wins, then the big guy wins."

While it is good he sees the Constitution as the deciding factor, what he does not say is whose view of the Constitution gets to speak. Currently five Justices think the Constitution says city governments can take your land and give it to other private citizens. It is pretty clear that the authors of the Constitution would not have agreed. Currently at least five Justices think the Constitution says people can kill their babies. Five Justices think that the Constitution says putting to death Washington D.C. sniper, who is under 18, is cruel and unusual punishment. What I want to know is Roberts going to view the Constitution through the eyes of precedent or through the eyes of Madison and the other framers. Roberts constantly said that he respected the precedent. He even respected the precedent of Roe v Wade and the privacy cases leading up to it too. I did not see much in his answers to convince me that he is going to stand with Thomas and Scalia and fight for an Originalist interpretation of the Constitution. His view of Restraint will stop him from returning America to the goverment of the Constitution.

Philologous has also suggested that the Senate should not use its "advice and consent" powers to stop a judicial nominee. He effectively quotes Madison. However, we currently have several Justices who base decisions on Foreign Law. If a President put up a nominee who stated they would do such a thing, should the Senate confirm him or her? That is only his/her judicial philosophy? Can the Senate exclude on such bounds? Yes, I believe so. Would Madison? Yes, I bet he would. It does not take long to see in the writings of Washington to see the dangers of foreign encroachments to American sovereignty. Madison’s record as President brings out the same point. The Senate has always been allowed to reject things they believe are wrong in other matters where only consent is asked of the Senate. Treaties for example. Henry Cabot Lodge rightfully led the rejection of Woodrow Wilson’s treaty to end WWI and the League of Nations because it violated American sovereignty. It put the Constitution in jeopardy. The Liberal judicial philosophy of the Constitution as a “living breathing” document and use of foreign courts is the same. It puts the Constitution in jeopardy. The Senate cannot consent to such things.

Now, I freely admit that Roberts will probably not further the damage done by Liberal Judicial Activism in the past, but he also will not undo it. He will not return the power to the states stolen by Federal corruption. He will not return our free speech by striking down Campaign Finance Reform. He will not do many things because he believes more in Judicial Restraint than the Constitution, in my opinion at least.


James Frank SolĂ­s said...

Well, Lee, we'll see about Roberts's originalist credentials. Whatever about these credentials did not come out in the Senate hearings, I believe he has them from other sources.

In whatever case, I do not believe that following foreign law falls under judicial philosophy. I believe it is tantamount to treason and more importantly a rejection of federalism. For my money such a view would remove a nominee from consideration because he rejects the law he is asked to apply, not because he has some philosopy of law.