Saturday, October 08, 2005
Words To Live By
So I thought I'd quote from Justice Jackson writing for the majority in West Virginia State Board of Education v. Barnette:
Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support. Without promise of a limiting Bill of Rights, it is [p637] doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.If we really did support the underlying tenets of our constitution, we would not be fighting as fiercely over so much. But segments of our society on both the right and the left don't. There is more support for deciding the Bill of Rights out of existence on the left right now, which is a pretty poor commentary on the state of our society.
The subject now before us exemplifies this principle. Free public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction. If it is to impose any ideological discipline, however, each party or denomination must seek to control, or, failing that, to weaken, the influence of the educational system. Observance of the limitations of the Constitution will not weaken government in the field appropriate for its exercise.
The recent trend in the Supreme Court to elevate its own ideas over the actual written text of the Constitution is what is causing this bitter war over Supreme Court nominees. People are profoundly uneasy, and are correct to be uneasy.
I doubt a Justice Breyer would ever write such words. Would a Justice Miers? That is the question, and it is a relevant question. To me it is the only relevant question. I also believe it is a question which can be fairly asked by Congress of a nominee. There is nothing wrong with asking a nominee if he or she believes that the text of the Constitution controls or whether a case can be decided on a principle presumed to lie behind the text of the Constitution even if such a decision would then contradict the text of the Constitution.
Justice Breyer has explicitly written that he falls into the second camp. He believes that the "purpose" of the First Amendment allows him to ignore the explicit written text of it. I believe that five justices who follow Justice Breyer's principles can overthrow the Constitution. So this is the only litmus test that I believe can be imposed upon a nominee. Does the nominee believe that the text of the Constitution is the highest law of the land?
If the answer is no, I say the nominee should not be confirmed. At least 80% of the citizens of the United States agree with me. If either the Republican party or the Democratic party would take a stand on that one issue, they would win the day.
It's all about stagecraft, now, each sideing legitimizing the obfuscation to as to get 'their' candidate confirmed.
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