Fields: Sotomayor Hearings Based On Myth

Guest Columnist


After a lawyer spent ten minutes explaining a point of law before the United States Supreme Court,  the following exchange is purported to have occurred
Justice:  “Young man, that is not the law.
Young man: “It was until you said that.
Legal aphorism: The Supreme Court is not the final court because the justices are infallible; the justices are infallible because they are the final court.

The Sonia Sotomayor hearings are based on a legal mythology that the above is what is wrong with our judicial system. 
Further, this mythology holds that, like some arithmetical computation, there is an objective process to understand the “objective truth, a.k.a., “original intent of the Constitution.

And we must only allow Supreme Court justices who stick to that well-known, commonly-understood and overwhelming agreed upon truth.
There are only two kinds of people that proclaim there is an immutable objective truth to the law and the Constitution.

First are Republicans who are lying to themselves. 

Second, Democrats who, in an effort to conform to the popularly accepted “original intent myth, are lying to us.
If there was an “objective truth
Why would we need nine justices instead of one?
Why are there split opinions and dissents?
Why did the Founding Fathers fight for a geographic mix of Justices in the same way we today insist on an ethnic and gender mix?
If the plain language of the Constitution was all that controlled, then the “no law phrase of the First Amendment would protect shouting fire in a crowded theatre, polygamy, publishing the D-Day plans on June 5, not to mention child pornography.  
If we continued to apply the meaning of the words of the Constitution as understood in 1789 there would be no airline industry. Huh?
In 1789, and at least as far back as the Magna Carta in 1215, property rights protected you against trespassers. And the common definition of the word “property meant from the bowels of the earth to the high of the sky.

 Thus the Fifth Amendment protection of your property rights guaranteed that the government would protect you from those who chose to cross your land without your permission.  It protected you from the government taking your land without compensation.
Guess what?  Under the 1910 definition of property, airplanes were not flying “over your property they were flying “on your property.  The Wright brothers, Glenn Curtiss, Eddie Rickenbacker were trespassers. 
Clearly rulings by “activist judges changed the meaning of property to accommodate a new technology.  I don’t hear any complaints. 
In 1892, in Plessy v Ferguson the Supreme Court ruled that the Fifth and Fourteenth Amendments “equal” protection provisions were met with “separate but equal”.  By 1954, in Brown v Board of Education, the same Supreme Court with different members in a different time said it did not. 
Between 1892 and 1954 neither the Constitution, nor the statutes had changed.  No one had uncovered some heretofore unseen legislative history to justify this “judicial activism”.  There was not some independent truth that the 1892 Court had inadvertently overlooked.
The Court simply recognized that, as Bob Dylan said: “The times they are a changin.”
A lot of the Constitution is intentionally vague.   The Fourth Amendment protects us against “unreasonable search and seizure.   It’s hard to think of a word that is more susceptible to debate and interpretation than “unreasonable. 
Last month the Supreme Court, in an 8-to-1 vote, concluded that “unreasonable included public school officials, acting on a hunch, demanded that an eighth grader peel back her underwear and brassiere so they could see if she was hiding an Advil. 
To understand the “original intent of “unreasonable imagine, you could go back in time and interview Alexander Hamilton and James Madison, leaders of the Constitutional Convention and authors of the Federalist Papers. 
The only thing certain is that, having been posed with the facts of the case, they would have jointly asked: “What’s a brassiere?   
Upon learning what a brassiere was, both would have looked at you like you had asked them about the dark side of the moon.  [Although there is a possibility that Hamilton, the Bill Clinton of his era, might have had a couple of additional questions. ] 
Both men lived in an era when schoolteachers could, with impunity, beat the living crap out of students for little or no reason.  The idea that the Constitutional Convention envisioned a document protecting a 13-year-old from teachers would have sounded absurd.
The simple choice is this; either allow the Constitution to be a living document that changes with society or demand a Constitutional Convention every generation. 

With the latter choice we would begin to look like France in that we would now be up to the Tenth Republic rather than maintaining the one we started in 1789.

4 Responses to “Fields: Sotomayor Hearings Based On Myth”

  1. KenK says:

    I couldn’t have said it better. Very true.

  2. Completely Agree says:

    I completely agree and would only add that the concept of advice and consent is blown out of proportion also.

    Talk about expanding the plain meaning of the Constitution.

    Advice and consent never involved the suggestion of a televised public hearing with the Senate Judiciary Committee at which attempts are made to get justices to reveal personal viewpoints that might be damaging to their changes of getting confirmed. As Sam suggests, things just evolved that way.

    Originally it meant that the Senate should be able to offer advice to the President on who might be best to fill positions, and that once he nominates someone that they have the duty to consent to those selections. This was put there to ensure that no President appoints someone that is not up to doing the job. It was not put there so that Senators could obstruct the appointment of qualified persons simply because they disagree with their viewpoint on issues.

    I think that if the issue of what “advice and consent” really means ever got to the Supreme Court, they would probably vote to modify that process.

  3. To A Point says:

    I agree to a point.
    Judges can interpret. Should they be allowed to legislate? This is a thin, shifting line. For instance, should the Supreme Court rule that same sex marriage is legal despite voters and Legislatures passing laws against it repeatedly? I don’t know, since you could use the same argument against same sex marriages as against the civil rights rulings of the court. Fifty years ago, Southern state voters and Legislatures voted repeatedly for segregation.

  4. What is Legislate? says:

    Is it legislating to say that the Constitution requires that black kids be able to go to the same schools as white kids despite “legislation” that says something else?

    It is legislating to say that women have a right to vote under equal protection? Is it legislating to say that one must be read their rights before they are asked to provide testimony against themselves? Or is that simply clarifying what the Constitution requires, or where a law that’s on the books is not in compliance with the Constitution?

    If the Court someday rules that gays should have the same right to marry as straights do, would that really shock anybody that’s actually read the Constitution? I don’t think so.

    More important is this hypocrisy that we see, where some they don’t want the Court to legislate when it comes to things they don’t want but want it to fill the gap of the Congress where Congress refuses to act. And to hear members of Congress say that themselves is the height of all hypocrisy. Where are they on these important issues? They duck them the difficult issues all the time.

    So yes, I think the Court does what it has been required to do to keep the American experiment moving forward, however imperfect it may be, there has been just enough wiggle room between the estates to make it work.