Wednesday, January 11, 2006


Respect for the Constitution

I like what I've heard so far of Alito's Supreme Court nomination hearings.

Via Powerline here:
"I don't think it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution .... I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world," Judge Alito said.

and here:
ALITO: Well, Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time.

John O adds: The New York Times (registration required) has more:
“The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The Framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time; they wanted them to have the rights of Americans.”

The nominee was, at least implicitly, finding fault with the Supreme Court’s ruling on March 1 that outlawed the execution of killers who were under 18 at the time of their crimes. That opinion, decided by a 5-4 majority, relied in part on the trend of international opinion against the death penalty, especially for youthful offenders.

But Judge Alito said he saw “a host of practical problems” if American jurists are to look overseas.

“You have to decide which countries you’re going to survey,” he said. “And then it’s often difficult to understand exactly what you are to make of foreign court decisions. All countries don’t set up their court systems the same way.” Foreign courts may have greater authority, or have policy-making roles, he said.
His testimony today echoed his response to a question on Wednesday, when he said: “We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution."
(Via Bryan Preston)

Contrast Alito's comments with this:
Thus, Justice Ginsburg defends her use of foreign law on the theory that "U.S. jurists honor the Framer's intent 'to create a more perfect union' if they read our Constitution as belonging to a global 21st Century, not as fixed forever by 18th Century understandings." For Ginsburg, then, the Framers' general desire to achieve a more perfect union provides the pretext for ignoring, whenever convenient, fixed principles, adherence to which the Framers thought would make the union more perfect. Two centuries further down the road of progress than the Framers were, Ginsburg knows that History has gone "global," and that's reason enough to take the Constitution along for the ride.

Justice Breyer (usually regarded as the most moderate of the liberal justices) is, in fact, the most sophisticated Wilsonian-Hegelian of the group. As Professor Rabkin points out, Breyer considers himself free to draw not only on actual foreign court decisions, but also on other materials such as pronouncements of the Council of Europe (a collection of politicians, not judges). To Wilson and Hegel, this would make perfect sense; History is not revealed solely by laws.

Breyer is quite explicit about the nature of his quest. He has written of "the ever-stronger consensus" on protecting basic human rights that now is "near world-wide." Although "formally speaking," each American state still has its own legal system, Breyer contends that "practically speaking" these have merged into a "national" law, while "analogous developments internationally" tend to produce "cross-country results that resemble each other more and more, exhibiting common, if not universal principles in various legal areas." In short, History is producing a great convergence and the role It now assigns our Supreme Court is to nudge the United States along on this path.

But this view raises an obvious question: If History is producing this convergence, why do we need judicial review? Won't the interplay of political forces inevitably produce the inevitable global 21st century outcomes in the United States? For the answer to this question, a variation on the one posed of all forms of historicism by Leo Strauss, we turn again to Wilson. In his writings on the administrative state, Wilson called for a cadre of experts to deal not just with technical issues but with core policy issues, including the distribution of wealth. Such experts were essential because, in Wilson's view, they could see the absolute idea that would mark the end of History far more objectively than mere elected officials.

Today, virtually no one believes that our bureaucrats possess this kind of wisdom and objectivity, but some suggest that our best judges do. Thus, just as Marx placed "the party" at the vanguard of his historical process, modern liberalism flirts with the notion that judges can play that role in theirs. The robed step-children of the Wilson-Hegel marriage who sit on our high court are not quick to demur.
The fundamental problem with liberals is their disdain for our constitutional structure of government. (And, I might add, for democracy.)

On a related note, reading this last pagagraph of the Weekly Standard article reminded me that there actually are elitists in positions of influence in this country who do believe their own judgement is superior and that our bureaucrats do possess special wisdom. Michael Barone:
Here's James Risen, the New York Times reporter who coauthored the paper's December 16 story on NSA surveillance of foreign terrorists, flogging his new book on the Today show. He presents an interesting theory of governance.

Risen: Well, I–I think that during a period from about 2000–from 9/11 through the beginning of the gulf–the war in Iraq, I think what happened was you–we–the checks and balances that normally keep American foreign policy and national security policy towards the center kind of broke down. And you had more of a radicalization of American foreign policy in which the–the–the career professionals were not really given a chance to kind of forge a consensus within the administration. And so you had the–the–the principles–Rumsfeld, Cheney and Tenet and Rice and many others–who were meeting constantly, setting policy and really never allowed the people who understand–the experts who understand the region to have much of a say.

Couric: You suggest there was a lot of power grabbing going on.

So, "the career professionals were not really given a chance to kind of forge a consensus within the administration." Evidently, such consensus-building is how government is supposed to operate. Instead, you had folks like "the principles [sic, presumably transcriber's mistake]—Rumsfeld, Cheney and Tenet and Rice and many others—who were meeting constantly, settling policy, and really never allowed the people who understand—the experts who understand the region to have much of a say.


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