Tuesday, November 01, 2005
Thoughts about the Hon. Samuel Alito
I’m hearing these days a lot about “movement conservatives.” I’ve never paid much attention to so-called conservatives. I figure that history will take care of them and their various superstitions, and who am I to argue with history, especially the history of events that haven’t happened yet? However, I am coming to realize that “movement conservatives” seem to have a strangle hold on the executive and legislative branches of our federal government. They look forward to soon having a strangle hold on the Supreme Court as well. They are bold enough that some of their spokespersons look forward with joyful anticipation of a solid conservative majority on the Court.
I know nothing about Judge Alito except what I’ve heard and read in the past three days. It is generally agreed that his political and judicial philosophy is very conservative, somewhat to the “right” of Justice Antonin Scalia. I have a rather vague idea of what it means to be to the “right” or “left” of Scalia. I think it means applying one’s own political and social convictions to interpreting those parts of the federal constitution that are rather vague in meaning. Many parts of that document were deliberately written to allow various interpretations, depending on future social, economic, and political circumstances. A “conservative” and a “liberal” justice can arrive at quite different interpretations of a portion of the constitution, each claiming that his or her interpretation comes from strictly following the language of the document and the intent of the original framers. Conservatives have, in my opinion, unfairly and illogically co-opted the phrase “original intent” to justify their interpretations and have accused liberals of legislating from the bench.
For example, read the text of the Ninth and Tenth Amendments:
Article IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Justice Scalia and other conservatives argue that the Constitution does not explicitly state that there is a right of privacy. They are correct. Liberals argue that a right of privacy is implied in such phrases as “certain rights” not to be denied, and “powers not delegated to the United States” being reserved to the States or the people. If you read the first ten amendments according to the conservative interpretation, those amendments simply specify certain acts and kinds of legislation that the federal government is not allowed to carry out or enact. Thus, the federal government can prohibit the growing and use of marijuana for medical purposes. The federal government can criminalize certain medical procedures, especially those that are repugnant to certain politically powerful religious groups.
The liberal or libertarian interpretation imposes more limits on the power of the federal government. Growing and using marijuana for medical purposes is one of the "other" rights mentioned in the Ninth Amendment, as is the right to make medical decisions about one's own body. The government should not interfere with either of these "other" rights. The government should not be hostile to expressions of religious belief, but at the same time should not appear to approve one particular belief. Thus, the Lord’s Prayer and the Ten Commandments are not and should not be presented as the sole basis of our laws. Other religions also contribute to our sense of morality and legality and their contributions should also be recognized along with those of Protestant Christianity.
I do not know where Judge Alito stands on any of the matters I have discussed. If I am to believe what some writers and commentators say, he believes in the conservative or Scalia interpretation of the vague parts of the Constitution. If so, and if he is also a social conservative and devout follower of his religion, we can expect interpretations of these vague parts that conform to his social and religious ideas. That is, unless the Senate refuses to consent to his appointment to the Court.
I know nothing about Judge Alito except what I’ve heard and read in the past three days. It is generally agreed that his political and judicial philosophy is very conservative, somewhat to the “right” of Justice Antonin Scalia. I have a rather vague idea of what it means to be to the “right” or “left” of Scalia. I think it means applying one’s own political and social convictions to interpreting those parts of the federal constitution that are rather vague in meaning. Many parts of that document were deliberately written to allow various interpretations, depending on future social, economic, and political circumstances. A “conservative” and a “liberal” justice can arrive at quite different interpretations of a portion of the constitution, each claiming that his or her interpretation comes from strictly following the language of the document and the intent of the original framers. Conservatives have, in my opinion, unfairly and illogically co-opted the phrase “original intent” to justify their interpretations and have accused liberals of legislating from the bench.
For example, read the text of the Ninth and Tenth Amendments:
Article IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Justice Scalia and other conservatives argue that the Constitution does not explicitly state that there is a right of privacy. They are correct. Liberals argue that a right of privacy is implied in such phrases as “certain rights” not to be denied, and “powers not delegated to the United States” being reserved to the States or the people. If you read the first ten amendments according to the conservative interpretation, those amendments simply specify certain acts and kinds of legislation that the federal government is not allowed to carry out or enact. Thus, the federal government can prohibit the growing and use of marijuana for medical purposes. The federal government can criminalize certain medical procedures, especially those that are repugnant to certain politically powerful religious groups.
The liberal or libertarian interpretation imposes more limits on the power of the federal government. Growing and using marijuana for medical purposes is one of the "other" rights mentioned in the Ninth Amendment, as is the right to make medical decisions about one's own body. The government should not interfere with either of these "other" rights. The government should not be hostile to expressions of religious belief, but at the same time should not appear to approve one particular belief. Thus, the Lord’s Prayer and the Ten Commandments are not and should not be presented as the sole basis of our laws. Other religions also contribute to our sense of morality and legality and their contributions should also be recognized along with those of Protestant Christianity.
I do not know where Judge Alito stands on any of the matters I have discussed. If I am to believe what some writers and commentators say, he believes in the conservative or Scalia interpretation of the vague parts of the Constitution. If so, and if he is also a social conservative and devout follower of his religion, we can expect interpretations of these vague parts that conform to his social and religious ideas. That is, unless the Senate refuses to consent to his appointment to the Court.
