Apr 17 2009

When US judges follow precedents from foreign courts

Category: judgesharmonicminer @ 9:13 am

Greek to Me

Foreign law is entirely irrelevant to the exploration and determination of the Constitution’s meaning, unless. . . well unless you think the Constitution has no real meaning and is a trampoline from which the judges may launch themselves into all manner of argument, investigation, and philosophical debate. If you think it is impossible or simply foolhardly to determine what the Constitution means (and think your job is to look for intriguing ideas, interesting notions, and cultural trends to impose on the populace) then foreign law, or novels for that matter, are perfectly relevant.

But which law? Saudi Arabian on women’s rights? I think Justice Ginsburg would recoil in horror. Irish or Italian law on separation of church and state? Preposterous. It becomes obvious that foreign law soon devolves into a sort of grocery shelf from which individual justices can pluck whatever looks “good” and disregard the rest.

I think I have a novel I’d like Justice Ginsburg to use in her next foray into non-USA sources for jurisprudential input.

Starship Troopers

Or maybe she could just use the Torah, definitely a source of input from a foreign Court.


Oct 07 2008

Welcome, neighbor!

Category: election 2008,judges,Obama,politics,terrorismharmonicminer @ 6:28 pm

We’re letting people who hate us and who have been trained to kill us loose in our nation’s capitol. (much more at the link)

Immediately after it was released this summer, Barack Obama applauded the U.S. Supreme Court’s 5/4 decision in Boumediene v. Bush, which for the first time extended rights under the U.S. Constitution to foreigners captured and held abroad based on their activities abroad. To reach that result, the Supreme Court had to declare unconstitutional a statute passed by Congress with bipartisan support and signed into law by the president which gave these individuals substantive and procedural rights comparable or superior to those we give to our own sons and daughters in uniform. It also had to ignore and/or mischaracterize decades of prior federal precedents holding that such foreigners had no right to claim the U.S. Constitution’s protections through a writ of habeas corpus, essentially extending the protections of the U.S. Constitution to the entire world.

Now as the inevitable consequence of that ruling, seventeen hard-core Islamic jihadists who’d come from their homes in China to train at terrorist camps in Afghanistan, captured there by our armed forces, and held since at Guantanamo Bay, are on the brink of being released this week, not for return to China, but into the general population of our nation’s capital, Washington, D.C.:

Did you get that? We’re letting trained Chinese Islamic extremist trainee killers loose in Washington DC. This is the outcome that is praised by the Left, including Obama and acolytes. They wanted this.


I propose that the government place these, uh, gentlemen in half-way houses in the same neighborhood as the Left leaning Supreme Court judges who made this idiotic decision. Or the neighborhood where the Democrat Senators live who invented Borking, or the Democrat Senators who filibustered the appointment of constructionist judges. Or, my personal favorite, the neighborhood where the ACLU lawyers live, who pushed for this ruling.

Actually, I suppose we can’t blame the Leftists on the Court for voting like “useful idiots“. But Justice Kennedy really ought to know better. So let’s just let the Chinese Islamic terrorist trainees loose in his neighborhood. Maybe that would be a nice place for the halfway house.

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Aug 16 2008

Signals, hopefully not smoke, on judges and other matters

Category: abortion,election 2008,judgesharmonicminer @ 9:07 am

This is an election in which the “values voters” of yore are mostly being ignored.

In recent presidential elections hot-button social issues like abortion and marriage played a prominent role. In 2000 the candidates hotly debated the impact of the next president’s Supreme Court picks on abortion rights as pro-choice activists attempted to galvanize voters with the prospect that George W. Bush’s election would result in limits on or even outlawing of abortion. In 2004 an Ohio state referendum on gay marriage helped turn out religious conservatives who may have put George W. Bush over the top in the decisive state. After the 2004 election, pundits and activists debated the role of “values” voters and Democrats committed to reaching out to these voters in the future.

But this year, the most remarkable thing about the two most prominent social issues,abortion and gay marriage– is how little we have heard about them.

There are several reasons for this, but the main one is John McCain.  McCain, for good or ill, has positioned himself as more “moderate” than “conservative”. Compared to Obama, he is quite conservative, of course, but he is significantly to the left of, say, Ronald Reagan.  He signals that “moderation” in several ways.  He makes noises about maybe selecting a pro-choice running mate.  He takes the occasional, obligatory swipe at big oil.  He talks about “corruption in both parties”.  And he avoids talking much about hot button issues for conservatives, like abortion and gay marriage, because he thinks anything he might say will either offend conservatives, or “moderates”.  Since he believes he can’t please both, he says little.

  Continue reading “Signals, hopefully not smoke, on judges and other matters”

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Jun 27 2008

By A Whisker

Category: constitution,guns,judgesharmonicminer @ 9:02 am

How many people understand that we were one vote from losing the Bill of Rights in the Constitution? That if judges could simply decide the words don’t mean what they say, and what they plainly meant at the time they were written, then the words mean nothing whatsoever, and the law is simply what some black-robed oligarchs decide it means?

Randy Barnett, writing in the Wall Street Journal: News Flash: The Constitution Means What It Says

Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent”, the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent”, or the original principles “underlying” the text, to negate its original public meaning.

Of course, the originalism of both Justices Scalia’s and Stevens’s opinions are in stark contrast with Justice Breyer’s dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or “precedents” that are inconsistent with the original public meaning of the text. This shows why elections matter, especially presidential elections, and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

This all swung on a single vote. Imagine if the vote had been on “free speech” or “freedom of assembly” or “freedom of religion”? A 5-4 ruling would have been terrifying in its implications for our nation. It should be unanimous that the Constitution’s plain wording means what it says.

The Left wants desperately to pack the Court for the next generation during an Obama presidency. To the Left, specific issues they care about are more important than our nation’s fundamental character as a constitutional republic.

So I am happy at the outcome. And I am terrified of what could have been, and may well still be.

hat tip: addisonrd

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Jun 26 2008

Obama agrees with conservative judges?!?! Nah

Category: Uncategorizedharmonicminer @ 6:21 pm

The Supreme Court has decided that the 2nd Amendment to the Constitution DOES apply to individuals, and is not some kind of group right, dependent on membership in a militia, etc.

Unbelievably, Obama claims he agrees!

So, let’s see:  out of the last three major decisions of the Supreme Court, Obama agreed with the “conservatives” in two out of three decisions.  These include both Roberts and Alito, both of whom Obama voted against in the Senate confirmation process.

The court wants Guantanamo inmates to have full habeas corpus rights.  Obama agrees with the left leaning judges.

The court decides not to let states execute child rapists, no matter how egregious the crime.  Obama sides with the “constructionists”, not the left leaning judges.

The court decides that handgun, rifle and shotgun ownership is a constitutional right, and Obama, despite previous posititions he has taken, now says he agrees with the “constructionists”, i.e., that gun ownership is an individual right, not with the left leaning judges (presumably he is still for high levels of restrictions…  he’s not saying much about it right now….  needs to get elected first).

So what can we say this means regarding Obama’s judicial philosophy?  He seems to be agreeing with the judges he voted against, more than he disagrees with them.  Does this mean he would appoint more judges like Roberts and Alito, as opposed to Ginsburg and Souter?

Nah…  it just means he wants to get elected, and will say anything to avoid offending what he regards as key voter groups.

Will the lefty media (meaning nearly all the networks and major newspapers) ask him any hard questions about why he seems to be agreeing with judges he opposed?  You’re kidding, right?

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