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Posted by on Jul 18, 2008 in Politics | 6 comments

Barr on SCOTUS

BobBarr2008.jpgBob Barr has penned a promising piece in the Wall Street Journal on the prospect of Supreme Court nominations under the two major party candidates.

The idea of a “living Constitution” long has been popular on the political left. Conservatives routinely dismiss such result-oriented justice, denouncing “judicial activism” and proclaiming their fidelity to “original intent.” However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired.

Judge-made rights are wrong because there is no constitutional warrant behind them. The Constitution leaves most decisions up to the normal political process.

In case any of this sounds familiar, feel free to revisit my previous column on the decay of the Supreme Court. Overly liberal “activist” justices are really not that much different than – to use the words of Congressman Barr – result-oriented conservative judges. A justice truly devoted to the constitution will eventually come to decisions which anger both liberals and conservatives. Barr continues:

However, the Constitution sometimes requires decisions or action by judges – “judicial activism,” if you will – to ensure the country’s fundamental law is followed. Thus, for example, if government improperly restricts free speech – think the McCain-Feingold law’s ban on issue ads – the courts have an obligation to void the law. The same goes for efforts by government to ban firearms ownership, as the Court ruled this term in striking down the District of Columbia gun ban.

Excellent examples. Before you write off Barr as some sort of fringe candidate, give this piece a read and listen to some of the calls he is having with writers. I’m not saying he’s going to be elected president, but he certainly has some positions which both of the dominant two party candidates would do well to look over.

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  • Barr makes a lot of good points about the Supreme Court, especially saying that judicial activism is only in the eye of the opinion giver.

    However, I’m not sure I agree with your point that a justice truly devoted to the constitution would make decisions that anger both liberals and conservatives. By saying that, you seem to suggest that a devotee is a centrist. Maybe sometimes, if you’re a pragmatist (like Sandra Day O’Connor), but there are destined to be some issues where they stand with one side or another, because they feel those stances to be true.

    Also, I would think that you could be devoted to the constitution and not be a centrist.

  • I suppose that depends on the definitions you use. My point has always been that the law is neither liberal nor conservative. Nor is it centrist. It’s just the law. And as such, sometimes things go your way (no matter your political ideology) and sometimes they don’t, so a truly Red-Blue blind, conserv/liberal blind justice would, on occasion, deliver something you didn’t like.

  • runasim

    When people talk about original intent, they should really specify whose original intent they are referring to. It’s not at all the the case that all the FF had the same intent or the same vision.
    Even something as basic as the Bill of Rights, for example, was a hotly debated topic. Some (usually today’s Right) insist that there are no rights other than those specifically named. Others (usually the Left, joined by quite a few pre current crop conservatives) believe that rights are everything not prohibited by law and the Bill of Rights was meant only to emphasize the most crucial ones. They cite those FF like Patrick Henry, who warned against even having such a thing as a Bill of Rights, because they were afraid that it would be misconstrued to mean exactly what some conservatives are now claiming was their intent.

    The arguments about the Constitution and activism are not driven merely by outcome preferences. There are divisions concerning what the intent and the vision for the future of the FF, as a body, really was, since they argued as passionatley among themselves as we argue today.

    It’s a debate involving history, philosophy and Constittonal law, which could have been educational and elucidating if it hadn’t been politicized by the inventon of the quite meaningless term ‘activism’.

    Now that the harm has been done, I don’t see any way back, except to try to have a more pluralistic SC, in background experience as well as ideology.

    Barr, then does not offer a solution to the dilemma, because he, like so many others, claims to have the one and only ‘true’ understanding of the Constitution and the rights we are, or are not, granted under it. On this issue, Barr is merely the latest in a long line of inflexible ideologues.

    BTW, I don’t really understand how an emphasis on personal liberties and non-interferece by government and a restrictive view of Constitutional rights can co-exist in the same political philosphy. It seems to me like wanting the government to stay away here but to come in with arrest warrants blazing there.

  • DLS

    It’s not the way Barr says it is. Liberal judicial activism has been the rule for decades. Trying to return to correct judicial behavior is not “conservative activism” [sic] and those making that ridiculous claim embarrass and disgrace themselves even if they’re too incompetent to realize it.

    An issue where something resembling “activism” in a dispassionate sense would be reasonable would be if two laws were passed at the same time, each one explicitly saying the other is null and void, for example. What is to be done?

    * * *

    “When people talk about original intent, they should really specify whose original intent they are referring to. It’s not at all the the case that all the FF had the same intent or the same vision. ”

    If you want precision, here it is: “Original intent” is what those who wrote the law, and those who ratified the law (truly made it law), intended it to mean.

    That is of course the correct way not only to read and interpret the Constitution but everything else. Those who falsely deny this deserve, as I’ve said, to have a judge one day creatively reinterpret your will, because your wishes as written are silly “orignal intent” and worthless to activists, deserving of contempt, in fact. “Red,” “crimson,” and “scarlet” are old-fashioned and may mean green now.

  • DLS

    “judicial activism”

    That is not the same as extending the Consitutional rationally to things like air travel (not there in the 1700s).

  • runasim

    “If you want precision, here it is: “Original intent” is what those who wrote the law, and those who ratified the law (truly made it law), intended it to mean.”

    Repeating something does not make it any more correct. No matter how many times you say 2+2=5, it still doesn”t add up.

    The Constitution came close to not being ratified because of the controversy over the Bill of Rights. Both Madison and Hamilton were livid , predicting that it would be taken as a limit to rights – exactly as has happened.They then are among those who falsely accuse, distort, and are worthy of contempt..

    WOW. I guess yo’re telling those dishonest and childish FF a thing or two.


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