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George Will's Unanswered Questions
By Mel Hathorn
Last edited: Saturday, October 02, 2010
Posted: Thursday, September 30, 2010



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• How To Eliminate Corporate Personhood; Part I (Updated)
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George Will wrote the following questions in an op-ed article a few weeks ago, that he hopes the Senate Judiciary Committee will ask Supreme Court Nominee, Elena Kagan.


GEORGE WILL’S UNANSWERED QUESTIONS

George Will wrote the following questions in an op-ed article a few weeks ago, that he hopes the Senate Judiciary Committee will ask Supreme Court Nominee, Elena Kagan. I have listed these questions and will attempt to answer them as best as I can. Regardless of the outcome of Kagan’s hearings, I believe that most, but not all, of these questions reflect deep political and philosophical divisions in our society and should be reflected upon by thoughtful Americans. As I address these questions, I will both reorganize their order in what I believe to be core important questions about political and legal issues and separate out what in my opinion are misguided, irrelevant, misleading, and red herring questions.
Note: I am not a Constitutional attorney nor do I specialize in Constitutional Law. Therefore, my thoughts are those of an ordinary American using what I hope is common sense.


George Will’s questions (the original order)

1. Regarding Campaign finance “reforms”: if allowing the political class to write laws regulating the quantity, content, and timing of speech about the political class is the solution, what is the problem?

2. If the problem is corruption, do we not already have abundant laws proscribing that?

3. If the problem is appearance of corruption, how do you n square the first amendment with Congress restricting speech in order to regulate how things “appear” to unspecified people?
4. Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?

5. Some persons argue that our nation has a “living” Constitution; the court has spoken of “the evolving standards of decency that mark the progress of a maturing society.” But Justice Antonin Scalia speaking against “changeability” and stressing “the whole antievolutionary purpose of a Constitution,” says, “Its whole purpose is to prevent change—to embed certain rights in such a manor that future generations cannot readily take them away. A society that develops a bill of rights is skeptical that “evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature as opposed to rot.’” Is he wrong?

6. The 9th Amendment says: “the enumeration in the Constitution of certain rights shall not be construe d to deny or disparage others retained by the people.” The 14th Amendment says that no state may abridge “the privileges or immunities,” of U.S. citizens. How should the Court determine what are the retained rights and the privileges or immunities”?

7. The 10th Amendment (“The powers not delegated to the United Sates by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”) is, as the former Delaware Gov. Pete DuPont has said, “to the constitution what the Chicago Cubs are to the World Series: of only occasional appearance and of little consequence.” Were the authors of the Bill of Rights silly to include this amendment?

8. Should the decisions of foreign courts or laws enacted by foreign legislators have any bearing on U.S. Courts’ interpretation of the Constitution or Federal laws (other than directly binding treaties)?

9. The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about “regulatory takings”? To confer a supposed benefit on the public, government often restricts how persons can use their property, sometimes substantially reducing the property’s value. But government offers no compensation because the property is not “taken.” But when much of a property’s value is taken away by government action, should owners be compensated?

10. In Bush v. Gore, which settled the 2000 election, seven justices ruled that Florida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitution’s guarantee of “equal protection of the laws.” Were they right?

11. Justice Thurgood Marshall, for whom you clerked, said, "You do what you think is right and let the law catch up.” Can you defend this approach to judging?

12. You have said, “There is no federal constitutional Right to same-sex marriage.” But that depends on what the meaning of “is” is. There was no Constitutional right to abortion until the Court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?

13. Bonus Question: In Roe v. Wade, the Court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution’s text would be different if the number of months in the gestation period of a human infant were a prime number?

My reordered list and my responses

1. (Originally Question 5) Some persons argue that our nation has a “living” Constitution; the court has spoken of “the evolving standards of decency that mark the progress of a maturing society.” But Justice Antonin Scalia speaking against “changeability” and stressing “the whole antievolutionary purpose of a Constitution,” says, “its whole purpose is to prevent change—to embed certain rights in such a manor that future generations cannot readily take them away. A society that develops a bill of rights is skeptical that “evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature as opposed to rot.’” Is he wrong?

2. (Originally Question 11) Justice Thurgood Marshall, for whom you clerked, said, "You do what you think is right and let the law catch up.” Can you defend this approach to judging?

3. (Originally Question 9) The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about “regulatory takings”? To confer a supposed benefit on the public, government often restricts how persons can use their property, sometimes substantially reducing the property’s value. But government offers no compensation because the property is not “taken.” But when much of a property’s value is taken away by government action, should owners be compensated?

4. (Originally Question 10) In Bush v. Gore, which settled the 2000 election, seven justices ruled that Florida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitution’s guarantee of “equal protection of the laws.” Were they right?

5. (Originally Question 12) You have said, “There is no federal constitutional Right to same-sex marriage.” But that depends on what the meaning of “is” is. There was no Constitutional right to abortion until the Court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?

6. (Originally Question 6) The 9th Amendment says: “the enumeration in the Constitution of certain rights shall not be construe d to deny or disparage others retained by the people.” The 14th Amendment says that no state may abridge “the privileges or immunities,” of U.S. citizens. How should the Court determine what are the retained rights and the privileges or immunities”?

7. (Originally Question 8) Should the decisions of foreign courts or laws enacted by foreign legislators have any bearing on U.S. Courts’ interpretation of the Constitution or Federal laws (other than directly binding treaties)?

The above questions seem to center around the core issue of the Constitution and its interpretation.

The key issue is I believe: How do we interpret the Constitution?

Traditionally, there are two views on Constitutional interpretation: The originalist view holds that only the words directly written and which in theory represent the views of the Framers should be used to determine issues and cases. The dynamic view claims that the Constitution is a living document and should expand or contract with the times.

In order to determine the views of the framers as the originalist or the strict constructionalists advocate, one would have to consult with the framers. Since there are no framers around today to consult with, one would have to “interpret” or read into statements the framers made at the time.

It seems to me that unless the originalists take the words of the framers literally, they are applying to the framers' words with their own interpretations and definitions.

The originalists’ view seems contradictory. The originalists still impose on the Constitution their view of what they think the framers meant, that is they interpret the literal words according to their own understanding. The same evil they accuse the dynamicists of. Ultimately, this will make the Constitution irrelevant, as the Framers had no way of foreseeing the new and changing issues that we saw today.

Since the meaning of many words used during the early days of the Nation has changed, the originalists are ultimately at a loss to make the Constitution and their views relevant to our times. Either they are stuck with an outdated, literal point of view and thus provide no useful service toward meeting modern needs, or they simply have nothing relevant to say to us. Therefore, not only is the Constitution irrelevant, but it is useless toward solving the Nation’s problems.

One way out of this dilemma that the originalists could utilize would be to consult with other writings of the framers such as the ratification debates. If they were to do this, however, they would face an even more serious problem. Many framers during these debates and in their other writings often contradicted themselves.

Consider James Madison’s views on Christianity:

"If the public homage of a people can ever be worthy the favorable regard of the Holy and Omniscient Being to whom it is addressed, it must be that in which those who join in it are guided only by their free choice, by the impulse of their hearts and the dictates of their consciences; and such a spectacle must be interesting to all Christian nations as proving that religion, that gift of Heaven for the good of man, freed from all coercive edicts, from that unhallowed connection with the powers of this world which corrupts religion into an instrument or an usurper of the policy of the state...Upon these principles and with these views the good people of the United States are invited, in conformity with the resolution aforesaid, to dedicate the day above named to the religious solemnities therein recommended.” Given at Washington, this 23d day of July, A. D. 1813.[seal.]

"To preserve the Republic, it is in the hands of the people. We have staked the whole future of American civilization not upon the power of government, far from it. We have staked the future of all of our political institutions upon the capacity of mankind for self-government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments" Letter of Madison to William Bradford (September 25, 1773), in 1 JAMES MADISON, THE PAPERS OF JAMES MADISON 66 (William T. Hutchinson ed., Illinois: University of Chicago Press 1962).

Versus:

"[T]he number, the industry, and the morality of the Priesthood, & the devotion of the people have been manifestly increased by the total separation of the Church from the State." Letter to Robert Walsh, March 2, 1819

“The Constitution of the U.S. forbids everything like an establishment of a national religion." "Detached Memoranda"

In light of the above problems, it seems only logical that the originalists err in their views of a strict interpretation of the Constitution.

It appears to me that the only way out of this quagmire is either to acknowledge the irrelevancy of the Constitution or to apply the core Constitutional values to new issues.

Below are other key questions with a theme of political speech, corruption, and their regulation.

1. (Originally Question 1) Regarding Campaign finance “reforms”: if allowing the political class to write laws regulating the quantity, content, and timing of speech about the political class is the solution, what is the problem?

2. (Originally Question 2) If the problem is corruption, do we not already have abundant laws proscribing that?

3. (Originally Question 3) If the problem is appearance of corruption, how do you n square the first amendment with Congress restricting speech in order to regulate how things “appear” to unspecified people?

4. (Originally Question 4) Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?

It seems to me that the core issue in this set of questions is the process of “judicial activism.” Judicial activism as it is defined in legal circles means that a judge can interpret the law in such a manner that will advance personal and political beliefs that are not in current law. Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."

To be consistent, the originalists should at least adopt what some have called “fundamentalist positivism” a fundamental positivist acknowledges that over time law should be modified because of societal changes while still maintaining that the primary role of a judge is to maintain continuity. This person believes that the law should be predictable while allowing for some modifications over time.

The world changes. The framers had no way of knowing that there would be the internet, TV, loss of privacy and so on.

Below are what I consider trivial questions designed to confuse and befuddle.

1. (Originally Question 13) Bonus Question: In Roe v. Wade, the Court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution’s text would be different if the number of months in the gestation period of a human infant were a prime

2. (Originally Question 7) The 10th Amendment (“The powers not delegated to the United Sates by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”) is, as the former Delaware Gov. Pete DuPont has said, “to the constitution what the Chicago Cubs are to the World Series: of only occasional appearance and of little consequence.” Were the authors of the Bill of Rights silly to include this amendment?
   

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Reviewed by Edward Phillips 2/7/2013
You have tackled many difficult issues and handled them well all of which demonstrates that you are thoughtful, intelligent person. One solution to the issue of changing word meanings, and new issues not dealt with in the Constitution is to amnend that document with a mandatory Constitutional Convention every 75 years with the exress purpose of clarifying issues with new, crisp language that is a precisely stated as possible, by adding rights that we have come to accept (privacy, right to marriage, right of mobility, to send our children to school of our choice, and many more). We might even rely on national polls and try to abide by those that the people support in large numbers. Nice job.
Reviewed by m j hollingshead 10/3/2010
interesting read

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Mel Hathorn



The Prisoner's Dilemma

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