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Comments on: Defining a nation http://sharpener.johnband.org/2005/09/defining-a-nation/ Trying to make a point Fri, 25 Jan 2008 12:21:35 +0000 hourly 1 By: Thersites http://sharpener.johnband.org/2005/09/defining-a-nation/#comment-3061 Wed, 07 Sep 2005 09:01:07 +0000 http://www.thesharpener.net/?p=129#comment-3061

Hence the importance of the Supreme Court, whose role it is to reveal the ‘true’ meaning of the text [Constitution].

That is not to say that such truth is absolute. The Supreme Court is not bound by precedent, but only by the Constitution, and has reversed previous decisions on several occasions. This can be demonstrated best by quoting Chief Justice Hughes (1930–41) who famously stated:

We are under a Constitution, but the Constitution is what the judges say it is.

Concerns about changing the balance of the Supreme Court are not new or restricted to Republican administrations as FDR‘s plan for reorganising the Supreme Court in 1937 attests. Currently, with the present administration and Congress, a literal interpretation of the Constitution is in vogue but once a judge has been appointed to the Supreme Court for life, the restrictions and exhortations of politics tend to weaken.

]]> By: News from Around the World http://sharpener.johnband.org/2005/09/defining-a-nation/#comment-3059 Tue, 06 Sep 2005 23:32:50 +0000 http://www.thesharpener.net/?p=129#comment-3059 Defining a nation

Is the quote machine broken:…

]]> By: Blimpish http://sharpener.johnband.org/2005/09/defining-a-nation/#comment-3057 Tue, 06 Sep 2005 21:58:33 +0000 http://www.thesharpener.net/?p=129#comment-3057 Good post. One of the points that you could add, though, is that the big question over future conservative justices is whether they are legal positivists in the mould of Rehnquists and Scalia, or those like Thomas, more open to natural law arguments.

If the Thomas type becomes stronger, then the Court could fall into deep conflict (for better and/or worse). For me, the most powerfully liberal justice has probably been Kennedy – a free-market libertarian, on the Right for economics, but one whose opinions in culture war cases (Planned Parenthood at the start, but Romer or Lawrence more recently) have often made the running for the Left. And Kennedy’s a natural law man too, but in an extremely different way to Thomas (“at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”)

This is especially important given the abortion situation. As you allude, Roberts seems to hold to stare decisis on abortion (although Planned Parenthood more than Roe, now – which is wise, given Roe’s reasoning can only be explained by the level of acid in use in the early 1970s); as did Rehnquist, and as does Scalia and (I think, so far) Thomas. If the conservative justices move towards more of a natural law position, stare decisis has its limits – if manifestly unjust, a previous precedent must be struck, after all. And remember, that in his dissent on Lawrence, even Scalia – a hardline positivist – raised the point that if stare decisis could be struck there (to justify striking down a state sodomy law), then why not elsewhere?

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