22 March 2006

Now We Call Them Judges

Anyone who listens to Laura Ingraham, has heard about the speech (i.e., "’A decent Respect to the Opinions of [Human]kind’: The Value of a Comparative Perspective in Constitutional Adjudication”) the Justice Ruth Bader Ginsberg delivered to the Constitutional Court of S. Africa on 7 February, an argument in favor of using foreign law to interpret and apply the US Constitution.  In keeping with my role as the Jack Ryan of the blogosphere (thanks, Mom) I’ve been reading through it.  (It’s my pleasure to read and analyze liberal crap so no one else has to.)  This could take a few days, what with having to stop occasionally and work (just kidding, boss).

Without taking time here to give it the analysis which, in any fair world, it doesn’t deserve, let me display this gem, as good a sampling of this woman’s genuis as surely there ever could be in a work such as this speech.  After taking several pot shots at originalism, framing it as “frozen-in-time interpretation” (and coming very close to  likening opponents of her view to Justice Roger Taney, of Dred Scot infamy) she affirms a position taken in the Restatement (Third) of Foreign Relations, that "[W]herever the United States acts 'it can only act in accordance with the limitations imposed by the Constitution'" (para. 28 of her speech).  Here’s what’s interesting about that affirmation: her brand of Constitutional interpretation tacitly asserts that there are no limitations imposed by the Constitution!  How could there be?  There can be no limitations imposed by a document which, in order to avoid frozen-in-time interpretations must be treated as if it were living and breathing.  A limitation is a boundary.  A living breathing document specifies no boundaries (whether absolute or relative), lest any insistence upon such boundaries be criticized as a “frozen-in-time interpretation.”  What limitations can be imposed by a document whose meaning may shift at any time, for any reason?

Think of it this way.  You are involved in a boundary dispute with your neighbor to the west of you.  He claims, for reasons you don’t fully comprehend, that he owns the property which you believe you own.  After all, you foolishly think to yourself, I have a deed to the property; and it’s recorded in the county clerk’s office.  Off you and your neighbor go, to court that is, where you are certain that you will win hands down, because, again, you have a deed, a legal document stipulating that you have a right to the property it describes and which is also described in the records at the county clerk’s office.  During the trial you produce the documents which specify your and your neighbor’s respective boundaries, that is the limitations on your and your neighbor’s respective property rights imposed by some legal document(s).  You are, needless to say, shocked to find that the documents which describe the pieces of property owned by you and your neighbor respectively are, according to the judge anyway, not subject to “frozen-in-time interpretations;” because they are living and breathing documents and actually have changed in meaning and, when viewed according to some law in another country, the documents which used to say that you owned your property, now say that your neighbor really owns all the property that you thought was owned by you (and actually was owned by you until the meanings of the relevant documents changed without your knowledge)!

Don’t let the sublties involved in the illustration distract you from seeing that Justice Ginsberg has pulled a barely perceptible trick on you.  She has, in fact contradicted herself: she has said both that a (legal) document with no “frozen-in-time interpretations”  imposes limitations.  Think of it!  A document which ultimately specifies nothing, somehow imposes limitations!  Yes.  On everyone except those who will tell us what those limitations are.  We used to call such people tyrants.

Tags for this post:  Laura Ingraham, Justice Ruth Bader Ginsberg, Ruth Bader Ginsberg,  judges, judicial tyranny, tyrants, constitutional interpretation, originalism, living document, frozen-in-time interpretation


About Me

James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
View my complete profile

Blog Archive