Wednesday, September 14, 2005

Roberts Confirmation Hearing: He's No Scalia

Other than the obvious threat he poses to abortion rights (but arguably less of a threat than Rehnquist posed)... I'm REALLY starting to like this guy much more than I expected to.

Here's my favorite part of today's testimony from John Roberts, on originalism. Roberts seems to recognize that originalism means embracing expansive civil rights and liberties for all people, no matter how traditionally unpopular they may have been, because the constitution's drafters KNEW that times change, that laws and constiutitonal interpretations must change to keep up with the times, and that's a GOOD thing. It's etched on the ceiling of the Jefferson Memorial, for pete's sake.

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SPECTER: . . . Dissenting in Poe v. Ullman, Justice John Marshall Harlan made one of the famous statements on this issue, saying that the -- commenting on liberty, the quote, "The traditions from which it is developed," quote, "that tradition is a living thing."


And my question to you is: Do you regard the evolution of various interpretations on liberty as a living thing as Justice Harlan did and as Justice Rehnquist appeared to on the Miranda issue?


ROBERTS: Well, I think the framers, when they used broad language like "liberty," like "due process," like "unreasonable" with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.


As they said in the preamble, it was designed to secure the blessings of liberty for their posterity.


They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages.


SPECTER: Well, when you talk about intent, I think that's a pretty tough interpretation. When the equal protection clause was passed by the Senate in 1868, the Senate galleries were segregated: blacks on one side, whites on the other. So that couldn't have been their intent.


And the interpretation which occurs later really is captured by Justice Cardozo in the case of Palko v. Connecticut, a case which impressed me enormously back in the law school days.


When talking about the constitutional evolution, he referred to it as expressing values which are, quote, "the very essence of a scheme of ordered liberty," close quote, quote, "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."


Would you agree with the Cardozo statement of jurisprudence which I just quoted?


ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle.


And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas.


But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles.


And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle.


ROBERTS: I depart from some views of original intent in the sense that those folks, some people view it as meaning just the conditions at that time, just the particular problem. I think you need to look at the words they use, and if the words adopt a broader principle, it applies more broadly.

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And here are my favorite passages from yesterday's testimony.


ROBERTS: Youngstown's a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR's attorney general and certainly a proponent of expansive executive powers...


LEAHY: You've also said he was one of the justices you admire the most.


ROBERTS: He is, for a number of reasons. And what's significant about that aspect of his career is here's someone whose job it was to promote and defend an expansive view of executive powers as attorney general, which he did very effectively. And then as he went on the court, as you can tell from his decision in Youngstown, he took an entirely different view of a lot of issues; in one famous case even disagreeing with one of his own prior opinions. He wrote a long opinion about how he can't believe he once held those views. I think it's very important...


LEAHY: Are you sending us a message?


ROBERTS: Well, I'm just saying... (LAUGHTER)


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I got embarrassingly excited by his answer on the right to privacy, which I just added to my last set of article edits(which might make me the only person submitting an article to law journals this round with a hot off the press Roberts testimony analysis. woo.). I really want to take him at his word.


Here he is on the right to privacy:

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SPECTER: This was a 1981 memo to Attorney General Smith, December 11th, 1981. You were referring to a lecture which Solicitor General Griswold had given six years earlier and you wrote, quote, that, Solicitor General Griswold devotes a section to the so-called right to privacy; acquiring, as we have -- that such an amorphous arguing, as we have, that such an amorphous right was not to be found in the Constitution. Do you believe today that the right to privacy does exist in the Constitution?


ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways. It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected. It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise. It protects privacy in matters of conscience. It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops. And in addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause. The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well. And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.


SPECTER: So that the views that you expressed back in 1981, raising an issue about amorphous and so-called, would not be the views you'd express today?


ROBERTS: Those views reflected the dean's speech. If you read his speech, he's quite skeptical of that right. I knew the attorney general was. And I was transmitting the dean's speech to the attorney general, but my views today are as I've just stated them.

1 Comments:

Anonymous Anonymous said...

THis is like verbal diarrhea. You really are quite mad, huh?

9:49 AM  

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