Tuesday, September 13, 2005

Questions for John Roberts

Glenn Harlan Reynolds, professor of law at the University of Tennessee, and blogger of InstaPundit, has an opinion piece in Monday's New York Times, discussing some of the issues of judicial philosophy that are crucial to the discussion of confirming a new Chief Justice of the Supreme Court.

Robert Bork, the lunatic ideologue whose presence on the Supreme Court we only narrowly dodged, describes the 9th Amendment as an "inkblot" with no substantive meaning. In case you don't have the entire Constitution memorized (or handily bookmarked, courtesy of Cornell University's Legal Information Institute), the 9th Amendment says simply, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The meaning is pretty simple: all rights and powers belong to the people except for those which they specifically give to the government, not the other way around. It is nothing less than the cornerstone of freedom in our nation.

The 9th Amendment is also the cornerstone of the "implied right of privacy" in Constitutional arguments ranging from abortion to the right of consenting adults to engage in private sexual conduct without interference from Busybody Big Brother.

Reynolds also poses the question of what limits apply to the government's power in a time of war. Does a declaration of war remove all constraints on executive power, as President Bush seems to believe (even though he hasn't bothered to ask for a declaration of war!)?

I would also like to mention the lead editorial from the September 6 edition of the San Francisco Chronicle, "Ten questions for John Roberts." All ten questions are apt, but I particularly appreciated #3, #5, and #9:

3. Do corporations have the same rights as individuals on matters such as free speech?

5. What is your view on the scope of the Commerce Clause? [Article I, Section 8, paragraph 3]

9. What is your view of "originalism," the concept that the Constitution should be interpreted according to its meaning at the time of ratification?
In the law, a corporation is a "fictitious person." It acts as an independent entity from the individual human beings who control it. The entire purpose of this legal structure is to allow corporations to do things like borrow billions of dollars without leaving the managers and directors personally liable for those debts. However, corporations do not have the same natural interests as actual humans. Even if a corporation has children, the concept of family loyalty is considered more of a bad thing than a good thing. Should a corporation have unfettered freedom to influence the political process? If not, what are the limits?

The Commerce Clause permits Congress to "regulate commerce with foreign nations, and among the several states." Does that enable the Congress to demand that individual states pass mandatory seat-belt laws? Does it enable the Congress to pass a nationwide speed limit, or a nationwide minimum drinking age? Personally, I think that's more than a bit of a stretch. If indeed we need national (rather than state by state) legislation on these matters, we should explicitly amend the Constitution to permit it, rather than making the dubious argument that the drinking age in Fresno somehow affects Kentucky.

The problem with "originalism" and "the original intent of the Framers of the Constitution" is that the original intent of the Framers was quite clear: the words of the Constitution should be the sole reference in interpreting its meaning. That is precisely why the Framers quite intentionally left painfully sparse record of their debates. Any person who holds to the doctrine of "originalism" is unfit to serve on the Supreme Court or any other court in the United States.

With all due humility, I would also like to bring up an entry I placed in this here blog back when we were talking about mere appellate judges: "My Challenge to Bush's Judicial Nominees."

[Note: the New York Times web site requires free registration to view articles.]