Deep Decalogue Doo Doo
In one of the cases, the Ten Commandments monument was being given to a courthouse, put in the courthouse by people who had primarily religious motives. It was tension building. It led to dispute about religion -- religious-related dispute. And I thought given the purposes, that falls on the forbidden side.
The other had been a monument on the Texas state capital for about 40 years with about sixteen, seventeen other monuments that had nothing to do with religion. It was labeled the ideals of Texans. It never disturbed anybody. And I thought, well, if that's forbidden is what I wrote, if that's forbidden, people might go around and try to chip Ten Commandments off of public buildings all over the United States. And that, too, would cause a lot of religious dispute.
So, I thought, well, the one falls on the permitted side, the second. And the first falls on the forbidden side because I refer back looking at the consequences in terms of the basic purpose of the religion clauses.
This venerated principle of Establishment Clause jurisprudence was summarized years earlier by my Grandmother as “the squeaky wheel gets the grease....” Or perhaps the Breyer principle should be known by its more modern analogue: “If liberals hate you, well then, you must be bad….”
To my mind, what Justice Breyer describes is mob rule -- or at least the purposeful incitement of the mob -- much more than it is the rule of law. Who you are, or who likes you, or how much folks protest should (if Justice is blind) be beside the point. Also, I don’t recall the Framers attaching either a decibel meter or a weather vane to the Establishment Clause....
Justice Breyer's responses are maddening precisely because we should not have to rely upon his daily readings and measurements to know what the U.S. Constitution means.
posted by E.L. Lipman | 10/19/2005 08:49:00 PM
This very evening, in a post-JAS-debate-barside-afterglow, a handful of local bloggers discussed whether it was good for Miers to be of a political persuasion, namely Republican. “She’ll rule with ‘us,’ was the argument for. The question is: What will we be For in 10 years? Might it be the reverse, in nuance, of what we were be For today?
Perhaps, as implicitly promised, she is (regardless of her Constitutional interpretation, if any) “Pro-Life” and votes, in some fashion, to that end in the first year. When the death penalty rears its head in 5 years, does she reverse her “Pro-Life” stance to vote with the Republicans, or does she trend down a path of disregard toward states’ rights?
Lacking a firm foundation in, well, anything whatsoever, a Miers Supreme Court term could be academically interesting and philosophically agonizing.
Rimpi foretells much in dissecting Breyer, as his may be a style to anticipate from Miers. But further, the next justice will likely be selected by a less conservative President than #43, verily I say, rendering a more liberal judge than Breyer or Kennedy, turning the court decidedly left.
Rimpi, we missed your physical presence and wisdom at this evening’s debate, but are comforted to know we may find you here.
It could also very well be that a Miers term could be uninspiring, but nevertheless, conservative.
When one examines the term "cruel and unusual" in the context of the constitution, it takes a rocket-scientist to dismiss the fact that the public hanging was common place when the founders inked this term. That's the problem with intellectuals... they look to far beyond the plain meaning of words.
It takes a sinister mind, an intellectual mind, like that of Justice Breyer, to look to foreign law to redefine the term "cruel and unsual," apparently because he is unhappy with American's view of the term.
Being conservative on the Court is actually much easier than being liberal. Conservatives, theoretically, have no ideology, so there is no ideology that needs justifying. I could write a one page opinion on the death penalty. Liberals would write a 100 page opinion.
To anticipate that Miers will become Breyer, one will need to detect a strong ideology. Is there one there?
Her philosophy is "I Luv George!" Breyer does also seem to lack any hard core philosophy, as opposed to say, Ginsberg or Scalia. I think it is within that mushy mediocrity that we will see Miers. Or, if there is any wisdom yet in the White House, may we not see it.
If Breyer lacks a philosophy, or loses the one he had, will he become more of a conservative? Who are the ones with the philosophies. Are they the ones on the left.... on the right...Both?
Those voting consistently on the left or the right would seem to know their own minds, have a philosophy. It is the Breyers, perhaps the Miers, of the court that find themselves reversing positions, or splitting hairs as Lance Rimpi notes.
Yes, but should conservatives have a "philosophy?" Isn't having an ideology or a philosophy anti-conservative?
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