I understand and sympathize with wanting to put some sort of co-equal check on the courts — and indeed, I agree that the Left has and will continue to game the judiciary to advance its ideological agenda. I likewise agree that left unchecked, they will eventually force the deconstruction of the Constitution itself (Wickard and others have undoubtedly provided inroads for just that strategy) by completely undermining its original aims.
But the question is, how do we affect a culture change with respect to the judiciary — and do so in such a way that don’t require overt political gestures that fly in the face of long-standing legal principles (like, eg., life-time appointments)?
To which I believe the answer is simple: vetting of judges should be based on the relationship they believe exists between the documents it is their role to interpret and imply, and themselves as interpreters.
The primary argument that conservatives, libertarians, and classical liberals need to make — and to popularize — is that an originalist approach to the texts under examination is the only coherent approach to interpreting the law, because the law is, at its most fundamental level, nothing more than the expressed will of a legislature — that is, an intent made manifest in a second-order system, the written word, that is couched in language itself reliant upon legal and social convention to best clarify that intent — what it means, from the perspective of the speech act — in any given context.
In other words, rather than tinker with the legal system itself, make clear to the public what the actual role of the judiciary is — then work to teach them how and why certain relationships between interpreters and texts are fundamentally flawed. Judges are not philosopher kings, and they shouldn’t be allowed, in a system of government that relies on checks and balances and co-equal branches of government, to create their own laws by way of creative interpretation of texts they deem independent of prior intent.
And yet not only does this occur, but it has in fact become the institutional norm in hermeneutics — having been sold by theorists as a way to “democratize” communication, as if democracy, in the realm of determining meaning, is somehow preferable to its logical obverse, which, because it postulates that the individual/s is responsible for creating the message, it is he who is responsible for giving that message its actual meaning — that, far from embracing the democratization of a communication, we preserve individual autonomy by actively resisting the desire to turn the intended meaning of a subject into the consensus meaning of an often politically motivated “interpretive community.”
Everything is language. And if we don’t teach the proper relationships between agency and language, there is simply no reason to believe that changes to the structure of how the judiciary is physically peopled will do anything other than provide a new avenue for politicization.
So it goes.
(thanks to TerryH)
It’s of a piece with the fundamental question that determines just about everything we do: who limits the government? The Supreme Court, being part of our imperfect federal system, needs limits no less than the Congress and the Executive.
I just wish somebody had the balls to stand up and say, “If we hold to a principled process, there will sometimes be decisions we don’t like. That’s the price we pay for holding ourselves to the rules.”
Sunday marked the 24-year anniversary of Robert Bork’s borking. He was a stalwart in his views; he would’ve followed strictly the framer’s intent. For that, he was destroyed by the Left, as noted by Nocera in his Saturday NYT column; which he titled something like ‘thus began the bitter partisanship we see today’.
His lefty readership took him to task for that off-plantation thinking.
Alice: “But you just said that it was correct to change the meaning, and that’s just silly…..”
The Queen: “Enough!!!…..Things mean exactly what I say they mean, no more no less!!!
Alice: “I’m sorry your highness, but it’s just not possible to converse if we won’t know the meaning of things until after we’ve said them.”
The Queen: “…..OFF WITH HER HEAD!!!!!”
“. . . by the Left . . .” plus Arlen Spector, the then “Republican” Arlen Spector, providing “bi-partisan” cover to the Progressives.
of a piece is this BBC report on Was the Declaration of Independence legal?
He may have been a Republican, but he was still “of the left” in the fundamentals.
In fact, he may have contributed in no small way to the GOP’s decay.
My comment was in ref to Arlen Specter.
As for the Declaration of Independence, the British signed two treaties, in 1783 and 1814 I believe, ratifying U.S. independence. By now the statute of limitations, if there were one, would have lapsed.
Darleen,
The reader comments to that article were exactly what I expected them to be.
:: eye roll ::
Now that‘s a hoot!
I admire many of the folks in Her Majesty’s armed forces….but I do not suspect that they would have much of a chance of forcibly revoking that Declaration. HRH Secretaries of State and Foreign Affairs have signed a couple of “legal” agreements as McGehee has pointed out too.
Heh.
10 – to really explode heads, agree with that statement and mention how that we now must re-establish the ancient Kindgom of Israel.
To really maximize the hilarity, ask the Brits if they’d like to abrogate the agreements on the grounds they, who had the world’s mightiest empire at the time and a military apparatus to match it, were under duress by force of arms.
In addition to vetting, I’d push for one tinker:
Federal judges, Including Supreme Court justices are appointed for an 18 year term. When their term expires they can be reappointed to a second 9 year term.
The alternative, it seems to me, is to embrace the drift towards mobocracy and subject federal judges to retention elections (Shall N continue in office?).
Two observations:
1) King John is owed an apology
2) Every member of Parliament is a traitor to the Crown.
Divine Right of Kings, baby!
We really need to get back to work on that 1:1 scale map of Europe…
Allow?
This came from the BBC? Rule Brittania!!!
France is gonna be pissed.
OT: Anyone read KC Johnson’s evisceration of the whitewashing of the Group of 88’s shameful behavior? A couple of brief excerpts:
If you’ve followed our host’s arguments on language and its abuse at the hands of the postmodernists, there’s a lot of good fodder in Johnson’s takedown of this silly PhD. It’s the sort of thing I wish more people would practice: pushing back against the hollow, self-serving, dishonest rhetoric employed by the Left to excuse their worst behaviors and to disguise their ultimate goals.
No more nodding and smiling and not-making-waves. Instead, a clear rebuttal: “You are equating two unequal things, Professor, and whether you do it consciously or not, whether you do it for political advantage or because you’re just not a sharp enough thinker to see the difference, it’s dishonest and lazy and insulting to your audience. I must insist that you try harder in future. You might also revisit your assertion that feelings trump evidence, lest you listen to R. Kelly one too many times and jump off a tall building.”
I’m sick and tired of my good manners and politeness being used as a countermeasure by my adversaries as they work to subvert the language, the economy, the nation, and my status as a free man. Fuck that.
Sorry; missed the link to KC Johnson’s piece. It’s here.