Ann Coulter: She May be Crazy, but I Love Her Anyway
[Posted by The Angry Clam]
Ann Coulter rips into the Miers nomination in her typical fashion.
I especially like her take on the whole “you dirty elitists!” argument I keep seeing from people offended that I dare want someone brilliant rather than someone who promises to agree with me:
Second, even if you take seriously William F. Buckley’s line about preferring to be governed by the first 200 names in the Boston telephone book than by the Harvard faculty, the Supreme Court is not supposed to govern us. Being a Supreme Court justice ought to be a mind-numbingly tedious job suitable only for super-nerds trained in legal reasoning like John Roberts. Being on the Supreme Court isn’t like winning a “Best Employee of the Month” award. It’s a real job.
One website defending Bush’s choice of a graduate from an undistinguished law school complains that Miers’ critics “are playing the Democrats’ game,” claiming that the “GOP is not the party which idolizes Ivy League acceptability as the criterion of intellectual and mental fitness.” (In the sort of error that results from trying to sound “Ivy League” rather than being clear, that sentence uses the grammatically incorrect “which” instead of “that.” Websites defending the academically mediocre would be a lot more convincing without all the grammatical errors.)
Actually, all the intellectual firepower in the law is coming from conservatives right now – and thanks for noticing! Liberals got stuck trying to explain Roe vs. Wade and are still at work 30 years later trying to come up with a good argument.
But the main point is: Au contraire! It is conservatives defending Miers’ mediocre resume who are playing the Democrats’ game. Contrary to recent practice, the job of being a Supreme Court justice is not to be a philosopher-king. Only someone who buys into the liberals’ view of Supreme Court justices as philosopher-kings could hold legal training irrelevant to a job on the Supreme Court.
To be sure, if we were looking for philosopher-kings, an SMU law grad would probably be preferable to a graduate from an elite law school. But if we’re looking for lawyers with giant brains to memorize obscure legal cases and to compose clearly reasoned opinions about ERISA pre-emption, the doctrine of equivalents in patent law, limitation of liability in admiralty, and supplemental jurisdiction under Section 1367 – I think we want the nerd from an elite law school. Bush may as well appoint his chauffeur head of NASA as put Miers on the Supreme Court.
Ann Coulter, incidentally, graduated from the University of Michigan Law School, where she was on Law Review and a founding member of that school’s Federalist Society chapter, clerked for Judge Bowman on the Eighth Circuit, and began her post-clerkship career in the Honors Program at the Department of Justice.
— The Angry Clam
What I think is really funny is that Ann thinks Ken Starr is greatest thing in the World. Mr. Starr is Dean of Law at Pepperdine which is rated 97th in Law schools.
A little info, I live on the same street as Starr here in Malibu.
The Ranando Report (4aaed1) — 10/6/2005 @ 8:51 amThat Pepperdine Law isn’t that great of a law school is something that I think we can all agree on.
However, Ken Starr has had a very distinguished career prior to becoming its dean, including being a judge on the D.C. Circuit.
Additionally, he took the helm of the law school there with the stated purpose of changing and building it into something more than it currently is. He’s instituted a number of seriously massive scholarships to attract high-level students there, and I know of a number who have taken him up on those. Moreover, I know for a fact that he’s been calling in a lot of the massive number of favors he’s built up over the years as one of the most well-connected attorneys in the country for these students to get them good and prominent jobs.
I am willing to wager that, within ten years, we will see a Pepperdine graduate clerking for the U.S. Supreme Court thanks to Starr’s efforts. I don’t think he’s found “the One” yet, but I know he’s looking- I’ve seen firsthand some of his efforts to place some Pepperdine students into court of appeals clerkships.
In any event, I think that there is a lot to be said for a professor, or a dean, that seeks to build a lower-end institution into something special rather than maintain an already established one. Every school needs its pioneers.
Angry Clam (fa7fff) — 10/6/2005 @ 8:54 amOh, nice job lifting the “Ken Starr” argument from Musclehead, by the way. Hat tips are considered polite, you know.
Also, please distinguish between “Dean of the Law School” and “student at the Law School” – at the vast majority of the schools, the Dean is far more qualified as a scholar than the students ever will be.
Angry Clam (a7c6b1) — 10/6/2005 @ 9:24 amLiberals got stuck trying to explain Roe vs. Wade and are still at work 30 years later trying to come up with a good argument. Ann Coulter
After taking a biomedical ethics class in college, I completely disagree with that tripe.
One article I read by Judith Thompson defended abortion even if you allow for the ridiculous assumption that a human being is a human being in the full sense of the phrase at conception – if two assumptions are allowed: 1) people will have sex (i.e., don’t tell me to never have sex if I don’t want a child – it is ludicrous to demand that unless your talking to Spock) 2) No contraception is ever 100 % reliable – even if used in combination. Those two are fairly reasonable assumptions, don’t you think? What if you still get pregnant? Here is Thompson’s scenario:
But now let me ask you to imagine this. You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, “Look, we’re sorry the Society of Music Lovers did this to you–we would never have permitted it if we had known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still? What if the director of the hospital says. “Tough luck. I agree. but now you’ve got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person’s right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.” I imagine you would regard this as outrageous, which suggests that something really is wrong with that plausible-sounding argument I mentioned a moment ago.
The whole article is here: http://www-unix.oit.umass.edu/~cheathwo/Phil160,Fall02/thomson.htm
***
Tillman (1cf529) — 10/6/2005 @ 9:39 amTherefore, even if a Human Being begins at concenption, we are not allways morally obligated to help them live. How’s that for an argument?
It’s the constitutional reasoning that there is a right to the procedure, bucko.
Angry Clam (a7c6b1) — 10/6/2005 @ 9:44 amWith all due respect to Coulter
But the nerdier and steeped in the arcane/obscure legal cases… the less common sense.
Even those of us without a JD after our names can look at Roe v Wade and say “but it ain’t in the Constitution” Ahem… Blackmun was a Harvard grad and it seems to be a line like “emanations from penumbra” would more likely to come trippingly off the tongue of an Ivy Leaguer than from someone who has had to meet a payroll.
My non-JD 2 cents
Darleen (f20213) — 10/6/2005 @ 9:52 amThe problem is that, with proper judging, all that would be left to the Supreme Court would be things like ERISA and jurisdictional fights.
Besides, I work on a court of appeals currently- over 98% of our docket is stuff that you really need esoteric knowledge for. It just doesn’t make the headlines.
Angry Clam (fa7fff) — 10/6/2005 @ 9:54 amRight Clam, I’m not really talking about law per se here – I’m talking about ethics. But apparently you guys think that the one has nothing to do with the other.
Tillman (1cf529) — 10/6/2005 @ 9:55 amHowever, to take a stab at it, I would think that “the pursuit of happiness” would apply here. A woman getting pregnant may have done everything in her power to prevent pregnancy, outside of abstinence, but becomes pregnant anyway. What then?
So far you and Patterico have an unbroken record of liking every argument you find against Miers, however, ill-reasoned it may be, and however similar it may be in nature to the stuff you normally fisk. The only thing missing now is for Patterico to join in the discussion and gush about how much he loves Ann Coulter himself.
I usually do like Ann Coulter, but like the crap she wrote about John Roberts, whom she also knee-jerk opposed, this essay is not her finest work. Contrary to her snark for snark’s sake, while it may be stylistically preferable to say “that” rather than “which” in the sentence she harped on, there is nothing inherently wrong with saying “which” instead, and there sure as hell isn’t anything “ungrammatical” about it. Which and that are both relative pronouns, so the notion that either can be “grammatical” in any context where the other is not is preposterous. Aside from this being a false arrest by the Language Police, you know what they say about glass houses. It’s never a good idea to harping on the other side’s perceived grammatical errors, especially “errors” {which / that} aren’t, but it’s a spectacularly bad idea to do so while others on your own side of the same debate are gushing over an embarassingly typo-ridden screed by David Frum, which Frum then followed up the next day with an essay {that / which} harped on Miers’ tendency to correct other people’s punctuation errors.
Not that you care, of course. Every argument against Miers’s nomination is a good one, right?
Xrlq (5ffe06) — 10/6/2005 @ 9:56 amTillman, you should start by showing me where “pursuit of happiness” is in the constitution or laws of the United States.
I’ll go ahead and save you from the trap: the Declaration of Independence is not now, and has never been, law.
Bonus points: tell me why the courts should decide matters of ethics, rather than the elected legislatures.
Angry Clam (fa7fff) — 10/6/2005 @ 9:58 amXrlq- subordinating vs. coordinating is at issue there. Although I agree, because I am somewhat of a descriptivist in my linguistics, and am completely comfortable with the sentence
“Whenever someone has a problem, they should go see a shrink.”
because, like a good descriptivist, I believe that modern vernacular American has assimilated the plural pronoun to the singular indefinite/neuter pronoun.
If any other people out there are still reading this comment, you should have stopped, because I can assure you that you don’t want to be so nerdy.
Angry Clam (fa7fff) — 10/6/2005 @ 10:01 amIt looks like we’re just talking past each other Clam. I am concerned with what should be our stance on abortion and you’re claiming it should not be a court’s decision.
Tillman (1cf529) — 10/6/2005 @ 10:13 amYou started by responding to the portion of Coulter’s column that states “[l]iberals got stuck trying to explain Roe vs. Wade and are still at work 30 years later trying to come up with a good argument.”
That’s clearly in the context of the Court’s decision in that, and the subsequent cases like Casey and Stenberg.
I’d agree that you’re on the right track if she said that “liberals are still stuck trying to explain why abortion is ever necessary” or something. That’s not the point- this is all in the context of a judicial decision about constitutional rights.
As such, you need to explain where, and why, policy should play any role in the decision. You hinted, possibly, that the so-called “right to pursue happiness” might provide such a basis for allowing in the rest of the argument. I asked for you to back up where that right exists in law sufficient to support the decision being discussed.
Simply arguing that allowing abortion in some circumstances is the only ethical/moral solution doesn’t get you to “therefore the Supreme Court was correct in Roe,” since you still need to explain how it was the Court’s position to make that judgment. That’s where I’m going.
Angry Clam (fa7fff) — 10/6/2005 @ 10:22 amYou guys may enjoy this – (via Crooks and Liars)
Top Ten Signs Your Supreme Court Pick Isn’t Qualified
10. “Lost 10 grand yesterday in the ‘case’ of Jets vs. Ravens”
9. “Spends most of her time trying to fit the gavel into her mouth”
8. “Her legal mentor: Oliver Wendell Redenbacher”
7. “Asks courtroom stenographer to, ‘Quit that annoying tapping!'”
6. “Instead of Constitutional law books, consults set of ‘Garfield’ paperbacks”
5. “Keeps shouting, ‘When does mama get to hang somebody?!'”
4. “When Scalia walks by, she pretends to cough and says, ‘Rogaine'”
3. “Authored the book: ‘I’m Not Qualified to be a Supreme Court Justice'”
2. “The closest thing to courtroom experience was being an extra on ‘Matlock'”
1. “Glowing letter of recommendation from former FEMA director Michael Brown”
Tillman (1cf529) — 10/6/2005 @ 10:24 amAngry Clam,
The courts can certainly take up ethical matters, or matters implicating ethics. They just should not decide them on ethical grounds.
The Bill of Rights is rife with potential ethical issues, and the courts should address those issues, so long as they are within the purview of the constitution.
Thus, under my understanding of your argument, the right to abort is not out of the realm of the judiciary because it is an ethical issue, but because it is not a constitutional one.
Unfortunately the bonus points aren’t much good to me now. Could of used ’em in, say, first year contracts, though.
biwah (f5ca22) — 10/6/2005 @ 10:30 amI think that you’re correct, biwah. That was more a response to the “I’m arguing the ethics, not the law” comment that Tillman made, than a blanket “hey courts, yeah you, to hell and gone with ethics!”
In fact, since the federal courts are also equity courts rather than just law courts, within their proper sphere of equitable authority, I think that it is an abdication of duty not to consider ethical issues.
Angry Clam (fa7fff) — 10/6/2005 @ 10:33 amTillman:
Saw that yesterday and thought it would be funnier than it actually was.
Also: I didn’t get Coulter’s point on why lower-tier grads would make better philosopher-kings. Philosopher kings should be more renaissance in their thinking, to be sure, which implies more life experience, which implies…night school?
There are plenty of eggheads at lowlier institutions too – they’re just dumber eggheads.
biwah (f5ca22) — 10/6/2005 @ 10:34 amMy guess is that they’d be less likely to come up with wacky shit, since they’re presumptively not as intelligent/creative.
Angry Clam (fa7fff) — 10/6/2005 @ 10:35 amWell thank you Clam and Biwah, I’m learning something.
Thanks for the rescue Biwah – I didn’t have a legal clue, I just have some training in ethics. I’m no attorney.
Tillman (1cf529) — 10/6/2005 @ 10:42 amUsually “Top Tens” are funny because they have a kernal of observation in them.
When has Miers tried to fit a gavel in her mouth?
Just another observation… if a law- degree and a bar card were to be *the* qualification for appointment to SCOTUS (let alone a “top tier” education), how come that’s not in the Constitution? Considering the Founding Fathers found it necessary for an age requirement for president, would they have been that lax with the court?
Darleen (f20213) — 10/6/2005 @ 10:48 amI’ve got the answer.
Harvard/Stanford justices, Brooklyn/SMU clerks.
That way we can harness the diverse creative power of the masses, filtered through a fine mesh of technical, aristocratic sensibilities. The clerks go on to high-power firms with impeccable grammar and knowledge of proper silverware use.
Or reverse it:
Wacky philosopher kings guided by common sense, yet drawing a guiding principle of prudence from perfectionist drone underlings who make sure they cite the right pages. The clerks go on to high-power firms, breaking the stuffiness of that rarefied environment with droll stories about their proletarian former bosses.
biwah (f5ca22) — 10/6/2005 @ 10:53 amAh Christ, not that “where in the Constitution does it say you have to be competent” argument again. We saw this yesterday… I think his name was John.
Short answer:
First, formal legal education did not exist to any great extent at the Founding, but rather was based upon apprenticeship in an attorney’s chambers. Consider, though, how similar this is to the modern practice of judicial clerkships, and why it was so nice Roberts had one at the Supreme Court, and why it’s so dismaying that Miers has never had one at an appellate level.
Secondly, basic qualifications for the job (e.g. being old enough, getting confirmed by the senate) are often distinct from competence to do the job. A heavily retarded 40 year old with a 10 IQ is, constitutionally, permitted to be President. I don’t think that anyone would argue that he is comptent to, however.
Please don’t mistake that for me saying that Miers has a ten point IQ. I’m not. I’m simply saying that the work done at the Supreme Court is often very technical and very difficult, and just because you’re a warm body who falls into the minimum qualifications not to get constitutionally denied doesn’t mean that it is a good idea for you to occupy the position.
Angry Clam (fa7fff) — 10/6/2005 @ 10:53 amAG
I didn’t mean to annoy you, sorry I missed the other argument.
I’m just bothered by the kneejerk position that someone is “not qualified” because they didn’t do the Roberts’ way
Which is ironic because after Roberts was nominated one heard from the some of those opposed to Roberts that he wasn’t qualified because he wasn’t “regular folk” and had no “real life experience” to bring as a dimension to cases that would come before SCOTUS.
:::sigh::::
Darleen (f20213) — 10/6/2005 @ 11:05 amaw geez… “AG” should be “AC”
durn low blood sugar 😉
Darleen (f20213) — 10/6/2005 @ 11:05 amOH… BTW, Ann Coulter LIVE on Dennis Prager’s show right now.
Listen online here.
Darleen (f20213) — 10/6/2005 @ 11:08 amNo, it’s ok. I find the argument more annoying that the people.
I mean, it’s easy to forget it in this era of seeing the Supreme Court as a super-legislature, but it is a very technical body. As such, I find the calls for “normal people” to be represented on it ignorant of the Court’s role in the legal system, which usually isn’t anyone’s fault- as I said, the Court itself hasn’t helped matter much in its behavior, first around the turn of the last century and the Lochner era, and now in the Warren Court and beyond’s revival of Lochner’s substantive due process.
Angry Clam (fa7fff) — 10/6/2005 @ 11:08 amThis is becoming an exercise I’m very familiar with, Clam — trying to find a gazillion different ways to say the same thing, hoping that at least one of them will sink in. You’re right of course. Legal scholarship is important. Legal ethics are important also. Biomedical ethics don’t shed a damn bit of light on whether the Constitution guarantees a right to an abortion. An outstanding legal scholar will be better able to refute the arguments that are irrelevant to the legal question before the court (such the example Tillman gives here), keeping the Court in its proper role of deciding cases and controversies under the constitution, laws and treaties of the United States, and avoiding the temptation to use fabricationism (i.e., anything other than originalism) as a means of creatively interpreting the law in favor of one’s preferred policy outcome. If anyone here thinks its a good idea to have a non-lawyer on the Court, consider whether you want someone like Tillman justifying his interpretation of the Constitution with what he learned in a college course on biomedical ethics. Of course, lawyers can engage in such destructive (of the Constitution and laws) interpretation just as well as non-lawyers — Harry Blackmun was a lawyer, and what he did in Roe v. Wade is not much more than a dressed up version of Tillman’s comment here.
The sort of misunderstanding of the Court’s role under the Constitution that characterizes Tillman’s comment here is commonplace, sadly. Look at the headlines today, and you’ll be sure to see more than a few that describe the Oregon assisted suicide law case now before the court as a case involving “the right to die.” Idiots. If we end up with a social conservative who adopts that sort of soft-headed approach to constitutional interpretation, then we might as well put another Ginsburg or Breyer on the Court. If we put someone like Luttig up, we can be sure that we’ll get a highly disciplined, intellectual legal scholar who can convincingly dispose of that sort of policy-first faux analysis.
TNugent (58efde) — 10/6/2005 @ 11:25 amI’ll have 17 years of experience as an attorney when I’m 40.
I’m just sayin’, guys…
I want to be a little kinder to Tillman than the Nuge, however. Like I said, the Court has done much in recent years to give the impression that policy should matter and is relevant to the adjudication. As such, it isn’t surprising to see people acting in accordance.
Angry Clam (fa7fff) — 10/6/2005 @ 11:27 amSo do I; I just don’t think Miers is a good example of that. Her background as a litigator and bar prez is certainly different from that of the typical Supreme Court nominee, but not necessarily in a way that makes her less qualified to sit on the court. Going outside the normal channels may or may not have been a good idea, but it’s hardly equivalent to appointing Bill Gates, Bill Frist or Arnold Schwarzenegger to the bench.
Xrlq (e2795d) — 10/6/2005 @ 11:47 amTNuget, don’t get me wrong – I’m not some totalitarian who thinks that my ethics should be everyone else’s. I wouldn’t want to make that decision for everyone, actually.
On the other hand, for you to argue that no other rights should exist except for what is currently written in the law is, to me, misguided. I’m afraid that you are forced to make ethical decisions. For example, our forefathers didn’t explicitly say that I have a right to own a computer. Does that make it illegal for me to do so then? If not, why not?
But on issues such as abortion and euthanasia, you are making ethical decisions one way or another whether you acknowledge it or not. To claim that there is no right to abortion established in our old law is irrelevant since abortion wasn’t an option until later in our history. Further, to deny the right is an ethical decision, is it not?
Tillman (1cf529) — 10/6/2005 @ 11:58 amWhy support Miers?
It makes not Constitutional sense.
It makes no partisan sense.
It makes no sense from the perspective of supporting Bush.
Perhaps we should suppose the being a Supreme Court Justice is not a right and proceed from there.
Paul Deignan (9e57a7) — 10/6/2005 @ 11:58 amWith something like 2% of civil cases reaching trial, and even less going up on appeal, though, one wonders how much experience even seasoned litigators actually have with courts anymore, though.
That’s why I’d like to see how much actual litigation she did- I think it’s entirely possible that her time at her firm was spent administering and/or rainmaking (read: sucking up to clients), while others did most, if not all, of the actual legal work.
Don’t think that I believe that’s a bad thing- indeed, rainmaking is by far the most highly prized ability among lawyers in private practice, and for good reason. However, it is a skill of zero relevance to service on the Court, and often comes at the expense of substantive legal skill development.
And, let’s not forget, she’s been a secretary (literally) for several years, only recently moving back into legal practice by becoming counsel to the President.
So while I think that a different background isn’t necessarily a problem, I think that it is very important that the background be solidly legal, and not simply managerial (firm or assocation) and business development.
Angry Clam (fa7fff) — 10/6/2005 @ 12:01 pmTo claim that there is no right to abortion established in our old law is irrelevant since abortion wasn’t an option until later in our history. Further, to deny the right is an ethical decision, is it not?
People have known for thousands of years that blunt trauma to the stomach will cause an abortion. True, we didn’t have the medical sophistication then that exists now, but there have always been ways.
And let’s not forget the popular solution of post-partum abortion: it’s not been all that long that the abandonment of live born children on hillsides or in city trash heaps was considered perfectly acceptable (in fact, the garbage dump was one of the places that Romans would go looking for babies, usually of prostitutes, to collect and raise as house-slaves).
Angry Clam (fa7fff) — 10/6/2005 @ 12:04 pmClam – yes, you’re right about the way children have been treated in the past. Of course, that was a tragedy. Children were treated as adults at a young age too.
Tillman (1cf529) — 10/6/2005 @ 12:12 pmSure, but was either of those options legal? I think Tillman’s point is that stomach-pounding (ugh) or leaving of babies in dumps was probably never recognized by law as an abortion procedure, either affirmatively or by prohibition.
The issue of medical abortion is a modern one, and I agree that the founders’ ignorance that such a procedure would someday arise, be it “originalist” or not, is a bad argument for the nonrecognition of a right to abort.
In asking us to ignore all the developments, past present & future, of human technology, originalism asks too much. Too many of the vital questions are framed in terms of specific technologies that were never contemplated by the founders.
biwah (f5ca22) — 10/6/2005 @ 12:17 pmAnn’s not crazy. She’s too skinny and more than a bit neurotic, but she’s also smart, pretty, entertaining, and courageous. She got it right about Roberts, and she has Miers down pat. I’ll sing her praises, or pick up her dinner tab, anytime.
Miers isn’t qualified for SCOTUS. That’s not really disputable to any but the hallelujah chorus. It’s a disastrous nomination which could split the Republican coalition and hand the Left a smashing victory they couldn’t even begin to dream about. They haven’t had a such a windfall since Senate Republicans let Clinton off the hook.
Now, here we sit, armed and ready to checkmate the Left, and our leader stabs us in the back. I’m mad as hell, and I’m not going to take it.
Black Jack (ee9fe2) — 10/6/2005 @ 12:18 pmI don’t disagree. I just don’t think that the emergence of surgical abortion was as unprecedented as you do.
Angry Clam (fa7fff) — 10/6/2005 @ 12:19 pmThank you again biwah! That’s exactly what I was trying to say.
Tillman (1cf529) — 10/6/2005 @ 12:24 pmTillman, I think the answer to your question lies somewhere in the following:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment 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.
This means to me that each state should decide if certain “rights” are in fact “rights”. AS LONG AS the states interpretation does not conflict with the enumerated rights found elsewhere in the Bill of Rights.
TAS (9cb187) — 10/6/2005 @ 12:27 pm…and clearly, that separation from the past is only going to get wider. It does not follow that judges can make up the law, of course. But where a decision is required, “it’s not in the text” does not always dispose of the essential question.
I understand the concern over “legislating from the bench”. But I see it often as code for “I don’t agree with that decision for extralegal reasons.”
And I wasn’t implying that baby abandonment isn’t repugnant of course. But, as a strictly policy issue, isn’t that what has happened when young girls can’t get consent for an abortion? No abortion=dumpster babies.
biwah (f5ca22) — 10/6/2005 @ 12:28 pmWell, baby dumping definitely was in Roman times, which, I believe, was the last time that it was socially acceptable in European society. There even developed a whole custom about placing the newborn on the floor, and the father having to pick it up, acknowledging that the child wasn’t to be abandoned.
As far as the “sharp blow to the stomach,” I’m fairly certain that it was not legally prohibited at any point- consider, for example, California having to pass a criminal abortion statute, after legalizing surgical abortion, because an assault with intent to cause a miscarriage, featuring the statement “I’m going to stomp that baby out of you,” was not criminally punishable for anything beyond battery of the mother.
Finally, biwah, I don’t believe that originalism is as restrictive and inapplicable to technological progress as you do- I don’t think that any serious originalist would argue that speech on the internet is beyond the protection of the First Amendment because there wasn’t any internet, or, to take a more modern example featuring Justice Scalia, that helicopters equipped with infrared cameras flying over your house at night wasn’t a “search” for the 4th Amendment.
It’s simply that the Constitution has never had anything to say, one way or the other, on medical procedures, whether necessary (the so-called “right” to healthcare) or elective (abortion).
Angry Clam (fa7fff) — 10/6/2005 @ 12:30 pmBut it took judges to decide (e.g.) whether the infrared cameras were a search, as opposed to plain view. That distinction took an act of discretion and interpretation, pretty much untethered to any specific expression of the founders.
Originalism is a concept that only works if it’s diluted or excepted, in which case, there are better judicial philosophies out there that suit a conservative temperament. So I believe.
biwah (f5ca22) — 10/6/2005 @ 12:36 pmTo extend the analogy, Congress could not have properly come in after the Court’s decision and declared via statute that “infrared images taken of homes from above shall not constitute a search”. That was a discretionary, wholly judicial (i.e. unaccountable!) decision, as scary as that may sound.
biwah (f5ca22) — 10/6/2005 @ 12:39 pmThat’s a very, very shallow understanding of originalism, then.
Originalist thought makes a distinction between the application of long settled law to analogous situations (e.g. speech on the internet being covered by the First Amendment; the search and seizure) and the unmooring of the decision from that long settled law.
It doesn’t say that this application is invalid, nor does it say that judges should not do so in the former situation.
Angry Clam (fa7fff) — 10/6/2005 @ 12:39 pmisn’t that what has happened when young girls can’t get consent for an abortion? No abortion=dumpster babies.
Abortion has been legal and widely available for 30 odd years, no questions asked, up to 24 weeks gestation.
I don’t think it has had much affect on “dumpster babies” at all. Indeed, many municipalities have tried to deal with abandoned babies by trying to make “safe haven” statutes. And still the the results are mixed. Let’s not make the mistake of trying to look at abortion as a utilitarian “good”… be it to save ‘abandoned’ babies or causing a drop in the crime rate. Heh.
Darleen (f20213) — 10/6/2005 @ 12:43 pmThank you for the answer above TAS, but reading that stuff makes my hair hurt (yes, all three of them).
Tillman (1cf529) — 10/6/2005 @ 12:46 pmAngry Clam,
I admit that I view originalism as rigid by definition. Why? Because the more interpretion and sophisitication it allows, the less “originalistic” it seems, and the more like straight-ahead conservative interpretation.
And that’s good, in my opinion. It just deserves a different banner, because (a) you’re considering factors other than actual (as opposed to speculative, or “transferred”) original intent, and (b) (a lesser point) any judicial philosophy gives consideration to drafter’s intent, whether constitutional or statutory.
So my gripe may be trifling, but in light of the use of Originalism as a political club, I believe it’s not.
biwah (f5ca22) — 10/6/2005 @ 12:56 pmDarleen,
It was just a potshot, not an overarching policy rationale. Not totally gratuitous, as I beleive in my main point, but also not a drop-dead argument.
biwah (f5ca22) — 10/6/2005 @ 12:58 pmIt’s the difference between original meaning and original intent that you’re highlighting there.
The original meaning of the First Amendment might have been for printing presses and newspapers, and any expansion to other media a non-originalist expansion.
However, it is original intent that is important- the purpose of the First Amendment being to protect political speech and discourse. As such, its easy to see why it would apply to electronic communications or whathaveyou.
Likewise with the Fourth Amendment. And, surprisingly, likewise with the Fourteenth Amendment, and contrary to all the substantive trash that has accumulated on it over the years.
Angry Clam (fa7fff) — 10/6/2005 @ 12:59 pmOn some levels, Ms. Coulter is right, as was Laura Ingraham. Conservatives have been fighting the battle over the courts for years. There is also a large part of the base wanting the intellectual battle over the direction of the Court and judicial philosophy in general to be joined now. Fair enough.
kyle (dca2a1) — 10/6/2005 @ 1:08 pmIntellectually, we win this battle every time. Politically is another story. Let us assume Judge Luttig was the nominee. We already heard Chairman Specter cautioning against such a nomination as soon as Justice Rehnquist passed. We talk about not having faith in the President to pick the right candidate for the intellectual battle, but who here has stood up and announced their unwavering faith in Sen. Specter to wage the battle in the Committee, in Sen. McCain to pull the nuclear option trigger, in Sens. DeWine, Snow and Chaffee to stand with the President, and in Sen. Brownback not to use opposition to an avowed originalist to show his “independence” from the White House, so we can win the debate with a Luttig, and win his confirmation.
Yes, Conservatives have fought hard, and the President has stood on solid ground with judicial nominees, especially those to the Circuit Courts of Appeal, which hold the final word on all those cases that do not get review in the Supreme Court. But, the fact that we fought doesn’t mean we now stop and say “ok we’re done. Give us Luttig/McConnell or else.” We need a larger majority in the Senate, so the President can appoint judges who are lifelong scholars who proclaim their philosophy for all to see, and we never have the “can we be sure” argument again.
It’s all about winning. We could not afford to win the intellectual battle and lose the confirmation war. This White House has been better than most at counting votes. I’d wager POTUS and aides counted long and hard over the weekend, and our “friends” in the Senate wouldn’t commit to backing Luttig or McConnell in the face of a filibuster.
Want to energize the base? Tell it the other truth here—Justice-nominee Miers was selected because we haven’t put enough conservatives in the Senate, and if we stay home in ’06, we can start over and fight for another 25 years to get back to where we are today. If we want to win, we should do it like the military does–with overwhelming force, both intellectual and political.
Granted, 14th A., esp. due process jurisprudence is not without its trashy moments. But wouldn’t you admit that it’s one of the toughest areas to (a) ascertain the original intent and (b) give it modern meaning?
And by the time you’ve done that, isn’t it just a survey of factors (including original meaning as a window into intent) to arrive at a sound interpretation according to a given judicial temperament?
I am enjoying this and would appreciate an answer, but for the moment have to pick up my kid from daycare. Damn priorities…
biwah (f5ca22) — 10/6/2005 @ 1:09 pmNot really; there is plenty of evidence that the 14th Amendment was, along with the 13th and the 15th, designed to corral the Southern states into providing the newly freed slaves with social and civil equality.
The Court itself screwed that up in a number of cases, particularly The Slaughter House Cases and Plessy, but that’s another story.
Not all passages in the Constitution need live to the modern era just because they’re in there, either- what effect does the ban on importation of slaves after 1805 really have? Or the initial allocation of congressmen to the states?
Your final point is, really, an attack on all historical conclusions, that I don’t think is appropriate to debate here any further than to note that people do make determinations of “what really happened” all the time, and they’re rarely settled authoritatively.
For example, was the Civil War about slavery? Obviously to a certain extent it was. But was that the cause, or a symptom of the growing economic and cultural differences between the industrial and protectionist North and the agricultural and free-trade South in the antebellum period?
Angry Clam (fa7fff) — 10/6/2005 @ 1:17 pmTillman, it’s plain that you’re assuming that if a right isn’t guaranteed by the constitution, it doesn’t exist, or at least it isn’t protected. And that perspective causes you to favor “interpreting” into the constitution’s language all sorts of guarantees that just aren’t there, including a right to abortion.
Without Roe v. Wade, abortion rights would still exist. They exist as long as a state doesn’t pass a law making abortion a crime or otherwise prohibiting it. They would certainly exist if a state passed a law affirmatively establishing them, as some states have done, even after Roe v. Wade.
The point is, we don’t need every perceived “right” to be something that’s constitutionally guaranteed. And when the scope of the so-called right is as hotly debated as abortion rights are, saying that it’s in the constitution is just another way of saying that anyone who disagrees with you doesn’t get a vote.
The constitution’s primary purpose is not the protection of individual rights; rather, that’s the job of the government we choose within the framework of the constitution. That’s why the document as it was originally written didn’t contain a bill of rights — the authors didn’t think it was necessary. In other words, if something is to be a right, then we should recognize it as such legislatively, either affimatively or implicitly by not prohibiting its exercise. The specifically enumerated rights in the Bill of Rights are those very fundamental rights which we as a people have deemed necessary to protect our ability to govern ourselves. The Courts don’t have the power to add to that list. Every time the Court claims this power — every time it fails to construe the constitution according to its original meaning — that is, its meaning when ratified (not necessarily 1787, particularly in the case of the post-Civil War amendments), it violates our right to govern ourselves. That’s what this is about — it’s not about abortion.
TNugent (58efde) — 10/6/2005 @ 1:37 pmClam, I should clarify that in my last comment, I didn’t use “original meaning” rather than “original intent” purposefully. I prefer the term “original meaning” because the meaning of language should be objectively apparent from the language itself. I don’t usually think of words as having intent; rather, that’s something that the authors may have and may or may not be the same as meaning. If you mean the intent of the ratifying states, well, then you’re back to meaning. Still, I don’t think using “meaning” limits the interpretation to a narrow, literal one. The example you gave from Scalia’s opinion in the Kyllo case (regarding the infrared device used to search a home) was a good one — but I would still use “meaning” rather than intent. Semantics, perhaps.
TNugent (6128b4) — 10/6/2005 @ 1:57 pmI think that it’s an important point to hash out and be clear on, since it can potentially have outcome-determinative consequences.
Textualism: looking at the plain language to determine the meaning of the provision, regardless of history. See, e.g., Justice Thomas’ “The Eighth Amendment only applies if the punishment is both cruel and unusual.”
Original meaning: Textualism with a historical flair- what the words would have meant back when enacted, without any reference to the intent behind those words. This is often done in statutory interpretation by originalists.
Original intent: Looking at both the provision itself and considering the motive for enacting the provisions when applying or declining to apply it to other situations. This is the Kyllo situation.
I can see cases where the original intent may produce a different result than original meaning due to poor drafting, or limited language in the original standing for an obvious and historically discoverable broad principle. I don’t think that the terms themselves are necessarily important as long as you catch that there’s two slightly different approaches.
Angry Clam (fa7fff) — 10/6/2005 @ 2:02 pmOne more thought on the Kyllo case that Clam described above. Scalia wrote the Court’s opinion and was joined by Breyer, Ginsburg Thomas and Souter. Dissenting were Rehnquist, O’Connor, Stevens and Kennedy.
Terms like “liberal” or “conservative” or “right” and “left” mean NOTHING when the topic is the Supreme Court. Those terms tell us nothing about a judge’s (or a nominee’s) approach to interpreting the constitution and laws. That’s what we should be concerned about, not about whether a judge favors abortion rights. Policy preferences or political leanings come into play only when a judge fails to do his or her job. If we’re concerned about whether Miers is conservative, then that’s our first clue that she’s not qualified.
TNugent (6128b4) — 10/6/2005 @ 2:06 pmHence your problem. Have you ever read a rebuttal to the Thompson argument? These are at least 9 gross logical fallacies in the so-called ethical argument and your idea that human fetuses aren’t fully human organisms proves you need to study some high school biology before you lecture us about bio-ethics.
Dude, you have no idea what a right is. Not having the right to do something has nothing to do with making it illegal or not.
Stop listening to your cracked bio-ethics professors who are more than likely Nietzschen Socialists who wouldn’t know a ethical argument from a hole in the ground.
Septeus7 (bb34f6) — 10/6/2005 @ 2:30 pmHere’s my take on original intent and the Internets: if it had even occurred to the framers that new communicative media might be invented later which technically didn’t constitute a “press” under the commonly understood definition of that word at the time, does anyone seriously doubt they would have added a phrase to replace freedom of the press with “freedom of the press or whatever the hell other communication media people might invent from time to time?”
If your answer is “no,” then free speech for the Internet is, the original intent of the First Amendment.
Xrlq (e2795d) — 10/6/2005 @ 2:39 pmSepteus – that’s a bit unfair. The definition of “human” is by no means standardized; while there is a biological definition as to what constitutes a human as a species, that isn’t the definition that Tillman was using;
There’s a legitimate debate in both the medical community and the legal community as to at what point a fetus is considered fully a person, and denouncing someone who takes a position which is different from yours as “needing to study some high school biology” trivializes that debate.
aphrael (e0cdc9) — 10/6/2005 @ 2:44 pmSepteus, Aphreal gets my point about “Human being in the full sense of the phrase – human being.”
There are many who would argue that a fertilized egg is a potential human being, but not a human being (in the full connotation of the phrase) yet.
Interesting, I’ve never heard Nietzsche being accused of being a socialist. He has (thanks in large part due to his sister) falsely been accused of being a Nazi. But no, he was somewhere to the right of socialism.
I see what you mean by my use of the word “right.” I didn’t intend for it to sound like the “right” as in a right in the Bill Of Rights. I just meant roughly – legal.
It sounds like you could use a bio-medical ethics class Septus. Yes, there were other articles representing differing points of view, including one to the right of Attila the Hun. Also, they let you argue your points in class – it isn’t a brainwashing session or anything. So don’t be afraid.
Tillman (1cf529) — 10/6/2005 @ 3:27 pmAnne Coulter is pretty funny, criticizing others’ grammar while making a whopper of her own in just the preceding paragraph:
“Being a Supreme Court justice ought to be a mind-numbingly tedious job suitable only for super-nerds trained in legal reasoning like John Roberts.”
“John Roberts” = “legal reasoning”? Hunh…Me, I’d phrase it “…super-nerds — like John Roberts — trained in legal reasoning.” But then I attended parochial schools.
Pundits attacking the grammar of websites defending Nominee Miers would be alot more convincing without all the syntax look it up, Clam errors.
Twit, her slip is showing.
–furious
furious (3681f5) — 10/6/2005 @ 4:03 pmFurious: “super-nerds trained in legal reasoning like John Roberts” may be awkward, but it is grammatical. Start with the noun phrase “super-nerds.” That adjoins with “trained in legal reasoning” to form a larger noun phrase, “super-nerds trained in legal reasoning,” which in turn is modified by “like John Roberts.”
Your construction would work too, but the semantics are a bit off. By having “like John Roberts” modify only “super-nerds,” rather than “super-nerds trained in legal reasoning,” you imply that someone can start out as a “super-nerd like John Roberts” before receiving any legal training. Of course there are plenty of super-nerds out there without legal training, but are they really like John Roberts?
Xrlq (5ffe06) — 10/6/2005 @ 4:28 pmHow about “super nerds trained in legal reasoning, like John Roberts”? For my money, the comma makes the sentence much less awkward.
aphrael (e0cdc9) — 10/6/2005 @ 5:03 pmI think America will be well served by Ms. Miers. I think that avoiding a knockdown dragout is a wise course at this stage.
On the other hand, I love to hear Ann Coulter argue. I hope I never make her mad, pity poor President Bush. I can’t wait for Ann to go back to beating the leftists down.
You gotta love her!!
JoeS (ff0bfe) — 10/6/2005 @ 8:44 pmAphrael: I agree, and hereby nominate you to the Supreme Court.
Xrlq (428dfd) — 10/7/2005 @ 7:15 amQuote:
Why isn’t the biological difinition i.e. the scientific definition acceptable? Why are you anti-science? Isn’t science good enough? What do you want us to measure in order to qualify? Human Vital Forces? A psychic aura?
You F-ing moron, an egg is not a potential anything. They are sex haploid sex cells. An oocyte is not destined to become anything let alone human. Since most the ovum degrade or become polar bodies the most logical thing to call in terms of potentiality are potential polar bodies NOT human bodies.
A fertilized egg is a misnomer for a zygote. Once fertilization is complete after 24 hours it is no longer an egg in any sense because eggs, which are sex cells, by definition are haploid in mammals and zygotes are diploid. Your argument makes no sense from a scientific perspective.
I never said anything about the fetus being a “fully human being” or whatever meaningless concept you wish to apply to the human organism. I I simply stated a scientific fact the zygote is a human organism. Not a semi-organism, not a quarter organism but a fully 100% genuine organism whose type happens to Homo Sapien. No one with any knowlegde of biology would deny this fact. NOT A SINGLE PERSON!
You cannot claim the human zygote is anything other than a human organism because that is a violation of the 2nd principle(law) of biogenesis.
What next? You gonna deny the principles of gravity and interia because your Bio-Ethics class says its a mere mental construction of patriarchial European males?
What is this “potential human being” nonsense? What does that even mean? Answer: Nothing. It means nothing. It is a useless empty slogan that begs the question.
What is the actual Y of this potential X? Define the limits and character of potentiality? Prove that there is a potential X as opposed to an actual x? I await your formal proof as nothing less will do when we are dealing with possible human life.
Why can’t you read? I never said Nietsche was a socialist just that your professors are most likely socialists who hold to many of Nietsche’s principles.
Go back to first grade and review that SOV and grammer stuff.
Which is why the lawyers on this site have told you to can it because you clearly have no clue as to “legal” anything.
First, Attila was militarist not a rightist which proves what the class is good for namely propoganga and misinformation.
Second, do you even know what brainwashing is? Apparently not. There is no such thing as a brainwashing session if you are refering the techniques of xǐ năo?
Thirdy, Why should I go a Bio-Ethics class when I read articles from Bio-Ethics journals and Books about the topics quite regulary? Why you aren’t familiar with the criticism of the Thompson argument? If you are familiar with that criticism state the 9 alleged fallacies of the arguement?
Lastly, should I go to that class so I can discuss the vitues of “positive eugenics” that are so popular among the “Bio-Ethics”? Maybe we will get to discuss the virtues of pederasty like its positive developmental effects on boys? That seems to be the “in thing” right now for that community.
In short, why the heck should I take a prepacked, dumbed down, heavily edited version of the nicest and cleanest pieces of Bio-Ethics Journals and “learn”about ethics from people who clearly have no ethics if what they write in the unedited Journal is to be believed? Why should I want to waste my time?
Septeus7 (bb34f6) — 10/7/2005 @ 6:04 pmSepteus7, your ad hominem attack proves that you’re not worth arguing with. Forget you.
Tillman (1cf529) — 10/9/2005 @ 2:14 pmTypical… They always run
Septeus7 (bb34f6) — 10/12/2005 @ 5:53 am