Thanks for Your Candor
NY gubernatorial candidate Eliot Spitzer recently committed candor, advocating an "evolving" Constitution. Here's what he said:
As a citizen, and as the state's lawyer, I believe in an evolving Constitution. A flexible Constitution leaves room for us to consider not merely how the world once was, but how it ought to be.
And there it is. Of course, he misstates the meaning of a strict constructionist approach to constitutional interpretation -- it isn't about considering "how the world once was." Rather, it's about allowing the Constitution to have a fixed meaning, as other legally binding documents do, rather than being eternally "flexible" with a meaning that's dependent on the whims of elite opinion.
When Spitzer argues for a Constitution that allows "us" to "consider . . . how the world . . . ought to be," it's worth asking: Exactly who is "us"? You guessed it -- unelected, unaccountable judges who are beyond the electorate's reach. So if their vision of how the world "ought to be" conflicts with that of 99.9% of Americans'-- well, too bad for the rest of us.
The genius of America's democratic republic is that there are avenues for flexibility and "change," but they come through the political system, where they can be initiated and controlled through the people themselves, acting through their elected representatives.
In Eliot Spitzer's America, judges would be in charge of making the big decisions. Your role as a citizen would be simply to obey. Some democratic republic -- sounds more like an oligarchy to me.
As a citizen, and as the state's lawyer, I believe in an evolving Constitution. A flexible Constitution leaves room for us to consider not merely how the world once was, but how it ought to be.
And there it is. Of course, he misstates the meaning of a strict constructionist approach to constitutional interpretation -- it isn't about considering "how the world once was." Rather, it's about allowing the Constitution to have a fixed meaning, as other legally binding documents do, rather than being eternally "flexible" with a meaning that's dependent on the whims of elite opinion.
When Spitzer argues for a Constitution that allows "us" to "consider . . . how the world . . . ought to be," it's worth asking: Exactly who is "us"? You guessed it -- unelected, unaccountable judges who are beyond the electorate's reach. So if their vision of how the world "ought to be" conflicts with that of 99.9% of Americans'-- well, too bad for the rest of us.
The genius of America's democratic republic is that there are avenues for flexibility and "change," but they come through the political system, where they can be initiated and controlled through the people themselves, acting through their elected representatives.
In Eliot Spitzer's America, judges would be in charge of making the big decisions. Your role as a citizen would be simply to obey. Some democratic republic -- sounds more like an oligarchy to me.
posted by Carol Platt Liebau at 2:34 PM
4 Comments:
Since you are a strict constructionist as well as a brilliant lawyer, I hope you can explain one thing to me:
Where in the Constitution does it say that the President can ignore any law or any part of a law that he doesn't like? Where does it give him the power to issue a "signing statement" and thus ignore the law passed by Congress?
List the laws he has broken and how he broke them. Not the ones you'd like to believe he broke, but the acutal laws he's broken.
Wrabkin, Marshall Art has put the challenge to you. Have you no answer?
Here's a link to the Boston Globe article laying out the 750 laws Bush claims he doesn't have to follow:
http://www.boston.com/news/nation/articles/2006/04/30/bush_challenges_hundreds_of_laws/
If you don't feel like following the link, I'd immediately bring up Bush's statement that he doesn't need warrants to wiretap American citizens in direct opposition to the FISA law. He claims the right to torture, to imprison American citizens indefinitely without trial or even charges. He claims he can classify or declassify documents without following any established classification procedures.
But I'm more interested in the constitutional question here. There is no doubt that Bush believes that a signing statement allows him to redefine a law passed by congress. There's no doubt because he has said this is so.
Without getting into arguments over the legality of this government spying on its citizens -- although I'm sure the same people who were screaming about Clinton's black helicopters trying to take over the world now have no problem with complete and unquestioned presidential authority -- I would like to know how a strict constructionist like Carol can justify this.
I'm not naive here. I do understand that when Scalia and Thomas say they're strict constructionists, it means they will choose to overrule any law Scalia personally doesn't like.
But Carol is no Scalia. She's an honest person and a true scholar. So I'd really like to know the constitutional argument behind the signing statements.
Oh, and Greg? I may, as my wife says, spend far too much time flitting around blogs. But I do actually have other things to do in my life. Sleep, for one. So if Marshall Art asks a question on this blog at ten pm and I haven't answered by five in the morning, it doesn't mean I'm quaking in fear at the demand.
Post a Comment
<< Home