Sunday, July 06, 2008
Audacity, Hope, Etc. (Chapter 3)
Short version, for the front page:
The man’s ideal Supreme Court justice is BREYER.
Vote McCain! PLEASE!
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My first thought after looking at the title of the chapter, but without reading any of it: Oh crap. And I thought the chapter on values was tedious.
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Robert Byrd – Obama’s example of a stalwart defender of the Constitution. Excuse me while I go dry heave for a few minutes.
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I was going to do a big quote from the book here and comment on it, but after thinking about it, I don’t think there is that much to say. So in summary:
Scalia is a strict constructionist. In contrast, Breyer believes we must take “context, history, and the practical outcomes of a decision into account.” In Breyer’s view, the Founders “have told us how to think but are no longer around to tell us what to think” (italics in original).
Obama says he understands conservatives’ respect for the Founders, but Breyer is right. His three reasons are:
1) The Founders could not have anticipated modern technology, therefore the Constitution as written doesn’t really have anything to say about freedom of speech “in the context of the Internet”. So we have to make that part up as we go along.
2) Our understanding of various Constitutional provisions has evolved over time. Due process and equal protection are specifically mentioned.
3) The Founders disagreed among themselves, so it is impossible for a judge two hundred years later to truly divine their intent.
He mentions that there is a faction that believes that because there was so much disagreement among the Founders themselves, they actually had no clear intent, so searching for that intent is a futile and meaningless exercise. He throws us a bone and rejects that argument, but only because:
Maybe I am too steeped in the myth of the founding to reject it entirely. Maybe like those who reject Darwin in favor of intelligent design, I prefer to assume that someone’s at the wheel.
The implication is that if he were to approach it in a completely rational fashion, he would be forced to conclude that the founding of this country was completely devoid of meaning. There is nothing special about our way of life, nothing important in the Constitution - the Republic we have is simply a random choice selected from an infinite set of equivalent choices. Fundamentally, the man admits that he has no understanding at all of what this country is and what makes great. And he wants to be president.
According to Obama, this is the sum total of what the Constitution is for:
What the framework of our Constitution can do is organize the way by which we argue about our future. All of its elaborate machinery – its separation of powers and checks and balances and federalist principles and Bill of Rights – are designed to force us into a conversation, a “deliberative democracy” in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others if their point of view, and building shifting alliances of consent. Because power in our government is so diffuse, the process of making law in America compels us to entertain the possibility that we are not always right and to sometimes change our minds; it challenges us to examine our motives and our interests constantly, and suggests that both our individual and collective judgments are at once legitimate and highly fallible.
Yes, that is what the portion of the Constitution relating to the structure of the government is for – to set up a democratic republic. The rest of it are rules to follow so that the members of that democratic republic don’t have to repeat grave mistakes that have been made before, again and again.
To be a constitutional law professor teaching at the University of Chicago… to be a presidential candidate… and miss that glaring and vital point?
I’m speechless.
Comments
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The Constitution “requires and forces us”
Uhmn, no I don’t think so. Also If I’m not mistaken, there are a number of letters and essays showing more agreements between opposing parties on the language of the Constitution than disagreements. Even though Hamilton opposed the inclusion of the Bill of Rights in the Constituion, he opposed in part because by listing rights it might be used to exclude other rights.toad | 7/7/2008 08:21 AM CDT -
The Constitution can be changed, so if that’s the sort of change he’s after, cool.
Changing the Constitution doesn’t mean we change the meaning of what it meant at the time it was written. It means we change what it LITERALLY says, to be more in keeping with what we want it to say.
He can suggest changes all he wants, but if he doesn’t put those changes to the vote of The People, he’s a tyrant like any other tyrant.
Oh, yeah, DUH.
Mrs. du Toit | 7/8/2008 12:27 PM CDT
