Go John G. Roberts Jr.

[Adrian II]

Carol T. Powers for The New York Times

WASHINGTON, Sept. 15 - "I think the framers, when they used broad language like 'liberty,' like 'due process,' like 'unreasonable' with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages," Judge Roberts said Wednesday.

He said he would consider not only how the framers of the Constitution understood those words, but also how courts have interpreted them and how they apply to evolving societal conditions.

That approach disappointed some conservative legal scholars. ~:handball: ~;)

[Ja'chyra]

Eh, I'm a bit confused Adrian, could you put that in context a bit?

Cheers ~:cheers:

[Adrian II]

Eh, I'm a bit confused Adrian, could you put that in context a bit?

Cheers ~:cheers:Well, we have about three threads going at this moment where Conservative members are defending positions radically different from Judge Roberts.

And cheers to you too, mate ~:cheers:

[Ja'chyra]

Oh, right, fair enough, I tend to skim over the names at the tops of articles and just read the rest. :embarassed:

[English assassin]

Well, making due allowance for the differences between US and UK law, and expressing myself with appropriate lawyerly caution, these "conservative legal scholars" must be morons.

Because here in the UK we have an interpretative rule summed up in the phrase "The Act is always speaking" (rather delphic, that, I admit) which in substance means exactly what Roberts has said. I suspect the US has exactly the same rule too.

Any other approach is pure fantasy for reaosn that are too obvious to be worth stating.

[Kanamori]

I'm too old for these Constitutional debates anymore. :book:

:inquisitive: Pindar?


:hide:

[Adrian II]

I'm too old for these Constitutional debates anymore. :book:

:inquisitive: Pindar?


:hide:Pindar is a Mormon, not a moron.

For the sake of the discussion, let us not introduce other members as 'morons' before they have spoken. That is all very well for Europeans who don't shy away from a bit of a verbal punch-up as part of the proceedings, but this is not Europe...
~;)

[Don Corleone]

If all law is interpretive, what objective standards do we have in our legal system? I'm not making a snide comment, I'd really like to know? Because if all law is subjective, doesn't this establish a priestly class of lawyers to whom all the rest of us are beholden and hopefully we don't get on the wrong side of you?

[Kanamori]

Are you sure, sometimes he asks the silliest questions ~D

If this doesn't evoke a response, surely nothing will.

:thinking2:

[Kanamori]

If all law is interpretive, what objective standards do we have in our legal system? I'm not making a snide comment, I'd really like to know? Because if all law is subjective, doesn't this establish a priestly class of lawyers to whom all the rest of us are beholden and hopefully we don't get on the wrong side of you?

Literal interpretation is as close as it gets to objective. The simple fact is, even that takes interpretation. Unfortuneately, law can't just tell you what it means. This is why they try to make laws as clear as possible and many of our senators were lawyers, or at least went to law school. Lawyers aren't all powerful, though. They rely on everyone else in our economy as much as others rely on them. If all the engineers got together and decided they didn't want us to live in safe places, drive over safe bridges... I understand where you are coming from, but all-powerful is an exaggeration I think.

[Don Corleone]

I don't think they would be all-powerful, but more powerful than all others..... in my mind a legal system where everything is interpretative sets the stage where all are equal but some of us are more equal than others.

[Don Corleone]

To speak to the original point of the thread, I think hardline conservatives are going to have many issues with Justice Roberts (some already have made this known). He's no bow to the religious right, trust me. The fact that he did pro bono work for a homosexual rights case should indicate he's not going to be the Heritage Foundation's poster child. Oddly, I'm actually relieved by this. I have more faith in a man that insists on making up his own mind.

[Kanamori]

There is no way around interpretation in law; law is based on language which requires interpretation to understand. In its most base nature, any communication of ideas requires interpretation.

[Gawain of Orkeny]

Because if all law is subjective, doesn't this establish a priestly class of lawyers to whom all the rest of us are beholden and hopefully we don't get on the wrong side of you?

Isnt this what we have become? Heck they even dress like priests. Do you think that is a coincedence?

[English assassin]

Because if all law is subjective, doesn't this establish a priestly class of lawyers to whom all the rest of us are beholden and hopefully we don't get on the wrong side of you?

heh heh heh heh....ahem.

My little fantasies aside, I give you Bennion, Statutory interpretation, 4th ed, p762, under "presumption that Updating Construction to be given":



"While [an Act] remains law, it is to be treated as always speaking. Thjis means that in its application on any date, the language of the Act, although necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law."

He also cites judicial warnings that "the court must be very clear that the new situation falls within the parliamentary intention"

This is plain good sense and saves the legislature a lot of time. "Constant formal updating is not practicable" as he notes. There are countless examples in the cases.


If all law is interpretive, what objective standards do we have in our legal system?

Caselaw and precedent. Bennion is now over 1200 pages long. Even judges can't just make this stuff up as it suits them.


For the sake of the discussion, let us not introduce other members as 'morons' before they have spoken

Unless any of our fellow posters are legal commentators in their day jobs I was not directing the word moron at them. I don't at all mind non-lawyers having funny ideas about law (this is not meant to be patronising, I've got funny ideas about all your jobs) but someone who calls himself a legal commentator ought to be able to deal with basic principles of statutory construction. Or at least not be disappointed by a judge who says he will abide by them.

[Don Corleone]

Caselaw and precedent. Bennion is now over 1200 pages long. Even judges can't just make this stuff up as it suits them.

That's all well and good. It at least pays lip service to the idea that judicial decisions should take into account the concerns of the lawmakers at the time they made the law. Great.

Now go read the majority opinion in Kelo v. New London, the case where SCOTUS decided that generating increasing tax revenue was a public good and that municipalities have a right to sieze property from one private party and distribute it to another private party. They don't even make a pretense at trying to jibe with the intent of the Constitution. The Takings Clause of the 5th ammendment is pretty clear. The Supreme Court, in deciding the way it did knew even they couldn't make things jibe with it. So they ignored it and said that they alone decide what's in the public good.

As I see it, resignation to interpretive law means that the non-legally educated laymen, such as myself, has been relegated to serf. I'm forced to endure the arbitrary whims of an aristocracy, the members of the bar association. They aren't even required to tell me what the rules are anymore, because tomorrow, they may interpret a law to mean something different then what they said it meant today when I agreed to it. The sum of the various fanciful language statements made by Justice Stephens, at the end of the day, came to: The law is whatever we say it is which is exactly what I'm terrified of. Laugh at us all you want, declaring all of our basic rights (and property/home is about as basic as they come) to be at the whim of a court that owes nothing to anyone but themselves will not stand. It's a tyranny.

I know this all comes off as 'chicken-little' ramblings to you lawyers, but try for a second to put yourselves outside the magic circle and imagine how terrifying aribtrary legal decision making is to all of us.

If you really think I don't know what I'm talking about, fine, I admit law is not my given field of study. Explain to me, in as straightforward language as you can, how Kelo v. New London jibes with prior precedence OR the intention of the US Constitution at the time of it's authoring.

[Seamus Fermanagh]

The sum of the various fanciful language statements made by Justice Stephens, at the end of the day, came to: The law is whatever we say it is which is exactly what I'm terrified of. Laugh at us all you want, declaring all of our basic rights (and property/home is about as basic as they come) to be at the whim of a court that owes nothing to anyone but themselves will not stand. It's a tyranny.

Don, Eminent Domain is not, now, the whim of the court, but the whim of the government entity in question. Unless prohibited by legislation, the government is now free to condemn any property it chooses under eminent domain, even if the only purpose in that condemnation is to raise tax revenues a few percentage points. Your attempt to redress this in court would then, almost certainly, be denied because of stare decis since the ultimate precedent has been established by the supremes. This decision clearly takes the perspective that government knows best.

Thus, however unlikely it will be in practice, a reactionary community can now condemn the trailer park full of "po' white trash" down by the river in favor of a planned community with golf links. A huge revenue boost "benefiting" the community, and who wants those riff-raff in our fine community anyway! On the other side of the coin, a happy socialist city council have the tool they need. So a couple of stately old downtown manses can easily be condemned in favor of a high-rise housing project for the poor, since that would be a clear benefit to the greater public.

Don's point may be a hint "chicken little," but until Kelo v New London, everybody thought eminent domain condemnations for private use would be limited to transportation (railroads) that DIRECTLY serve a clear and broad public function. You see, the problem is that interpretations can build precedence on each other, and not always in ways that can be forseen.

Seamus

[PanzerJaeger]

I would wager that Judge Roberts has been instructed to try and give the democrats what they want to hear. As long as he gets approved, the "conservative legal scholars" will just have to take his words for what they are.. butter.

[Pindar]

I'm too old for these Constitutional debates anymore. :book:

:inquisitive: Pindar?


:hide:

:skull: Have I been summoned from the shadows? :skull:

[KukriKhan]

I think Judge Roberts IS Pindar. Notice how Pindar hadn't posted since the hearings began. Now, on a Saturday, he appears from the mist. ~:joker:

[Byzantine Prince]

I think the scarriest part about that is that Judge Roberts would be a mormon. :hide:

[ICantSpellDawg]

I've noticed quite a bit of religious discrimination shown in the media during these hearings. Some are making the issue of religion into a political minefield. It seems as though anyone who conciders themselves religious should be ineligible for government positions. Roberts status as "Catholic" is being used by his detractors. They believe that this means he is incapable of making reasonable decisions in government due to his belief in things that are unproven. What they don't seem to realize is that the majority of Americans have similar irrational beliefs regarding religion themselves. Should the majority of Americans be exempt from a place in government?

It seems as though if someone calls themselves a practical Catholic, Baptist, Mormon, episcopalian; that this is ok - as long as they dont really buy it. I believe that this shows more confusion than that of devoted religious people, but it is accepted as the way to go. BP, your statment that Pindar would be "scary" to have as a judicial nominee is telling. Pindar is the most well informed patron here and comes down on the side of reason and accountibility more often than most of us put together. Your bias is demonstrative of one that is more widespread than most of us realize. Last year, in the appointment of Rocco Buttiglione in the EU, his detractors used the same arguement and won. I, as an agnostic, was sickened by this due to its unreasonable demand that all involved in beurocracy or governement positions be either agnostic, atheist, or profoundly lapse in their religious convictions. I truely believe that many wish for there to be this kind of a litmus test.

[Byzantine Prince]

Religious politicians will be influenced by their religious morality when they are making decisions. If we take into account a time past when that kind of thing was very widespread and more radical, we would not agree with the principles of that society.

If the press is judging politicians based on their beliefs that says something. It's a positive thing and it shows that society is moving in the right direction.

[ICantSpellDawg]

Religious politicians will be influenced by their religious morality when they are making decisions. If we take into account a time past when that kind of thing was very widespread and more radical, we would not agree with the principles of that society.

If the press is judging politicians based on their beliefs that says something. It's a positive thing and it shows that society is moving in the right direction.


Who would everyone here rather have in a position of power over them (in Senate, Court, etc:

Pindar or Byzantine Prince?

By this standard, Pindar would be exempt from holding imortant office while BP is just their type of candidate.

Make your own judgement.

[Gawain of Orkeny]

Religious politicians will be influenced by their religious morality when they are making decisions. If we take into account a time past when that kind of thing was very widespread and more radical, we would not agree with the principles of that society.

Maybe you havent noticed but your living in it. Oh thats right Im wrong you live in Canada. ~D