A couple days ago, I noted Constitution Day (9/17) was also Justice Souter's birthday and included some stuff he said -- private guy, but he has a few appearances people can access and help understand why so many (down to Justice Stevens, who cited him as the person on the Court that he trusted the most though he is like twenty years older than Souter) appreciate him. Souter is the one you can trust to be rational. Such is not always a guarantee these days, simple rationality, not when people lash out at people's fathers for defending their daughter.
Souter noted that the Constitution (the same can be said about other things) has many components that are not meant to be read literally, in part because we have to balance various things (equality v. free speech, etc.) in the process. I once noted that I was loathe to say that "freedom of speech" is this term of art, that (except for limited cases) it is in effect absolute, but honestly, in the real world, this is right. "Freedom" of speech is something of a term of art though this leads people to make exceptions for obscenity or some such thing, I am off the bus.
So, the rub is to determine the principles -- to reference a new book by Prof. Amar that I might read -- "unwritten" ones often times -- to follow when applying the text. Also, Souter argued (perhaps more accurate to say than "noting" something that one might dispute) applying the Constitution is a matter of doing so in one's own time period. Plessy, e.g., looks better if we put it in the context of 1896. We can simply, on some "law in an ether" (my metaphor) way, pretend that the ruling was simply wrong from the day it was written, that Brown pussyfooted there.
Or, perhaps, more realistically -- as he said -- consider that the rule set forth there was pretty good as compared to what that generation saw in their own lifetimes. All things considered, it was pretty "equal" for the day. Reminds me of someone who kept on asking me (on Slate fray) when (perhaps 9 A.M. some Tuesday ala the creation of the world?) I thought the death penalty became unconstitutional, like constitutional law worked that way. Or, someone today who asked "who" determined what constitutional law meant (I cited public reactions, political processes and judicial review), when it simply is one big messy thing that -- like life -- somehow moves along. We can point to some concrete things regarding the process, but in some basic sense, it is pretty messy and indeterminate.
Souter is not free from doing things that you wouldn't expect from a practical guy from Weare. He is very big on civics education, just like Justice O'Connor, and at times acts like we are so much worse these days. Heh. Really -- I listen at times to what my mom was taught and it is not like it was some ideal time period. If anything, I think there might be some more effort these days in various places though maybe less in other places. Civics is important, but like history and other good stuff, there was always some sizable group, too big probably, uneducated about it.
But, I like Souter and his overall view of things, even if I might be more liberal or libertarian than him on certain subjects. Baby Joe was not that gung ho about him replacing Brennan, but heck, look who picked him! Turned out to be a good pick as hopefully his own replacement, who I thought was a good one upfront, Sotomayor will be. I didn't like various things about Bush41, after all, he thought now typical Republican scuminess was okay at election time, but I could live with the guy. I really don't think the same with some of the people in his party these days. Sheesh. Romney almost makes Bush look good.
One more thing, a bit more personal philosophy. I think part of civics education should be learning how to argue and understand arguments. This is something of a hobbyhorse of mine. Let's take an argument that Stevens trumped Scalia in Heller, which itself (so the argument was) a case of gun rights activists convincing the USSC to change the law.* Reply: well, the public really thought there was a modified right to own guns anyways. Rejoinder: yeah, but (dubious examples) the public is stupid. The dubious examples are bad enough, but this changing the subject is really annoying. It is like someone with a short attention span or something who can't focus on what the point is.
Imagine going further and trying to address how such and such a person is wrong on a narrow point, while not trying to start a debate over the major point every time something comes up. For instance, not try to debate the death penalty writ large every time some specific case is involved or try not to dismiss the other side as morons or something. Yeah, I know, I'm not a saint in this regard, but I feel myself trying harder than some, and it is real annoying at some blogs, including those whose contributors I overall respect and/or agree with, with no restraint.
Life is complicated. There is a lot of nuance. You can be for a side -- Mets fan who will vote Obama here -- but at some point, isn't it not only more accurate but more enjoyable to consider the shades of gray?** Fifty shades or less, whatever -- no, didn't read the book. Hear it's stupid.
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* Comments on blogs and in person also have a lot of baggage to them and it is a matter of picking your target. Take this example, which is from a blog entry elsewhere. I personally think Stevens did a shoddy job in Heller, but it might work best just to point out one thing -- let's say my opinion that the result is in effect a reflection of what the majority supports (shades of Casey / abortion in that respect) and not just a "gun rights activist" reading. An opinion that goes out of its way to set forth acceptable gun regulations seems to be not quite that anyhow.
** Or, "grey." Do at times feel like using that form. British of me.
Souter noted that the Constitution (the same can be said about other things) has many components that are not meant to be read literally, in part because we have to balance various things (equality v. free speech, etc.) in the process. I once noted that I was loathe to say that "freedom of speech" is this term of art, that (except for limited cases) it is in effect absolute, but honestly, in the real world, this is right. "Freedom" of speech is something of a term of art though this leads people to make exceptions for obscenity or some such thing, I am off the bus.
So, the rub is to determine the principles -- to reference a new book by Prof. Amar that I might read -- "unwritten" ones often times -- to follow when applying the text. Also, Souter argued (perhaps more accurate to say than "noting" something that one might dispute) applying the Constitution is a matter of doing so in one's own time period. Plessy, e.g., looks better if we put it in the context of 1896. We can simply, on some "law in an ether" (my metaphor) way, pretend that the ruling was simply wrong from the day it was written, that Brown pussyfooted there.
Or, perhaps, more realistically -- as he said -- consider that the rule set forth there was pretty good as compared to what that generation saw in their own lifetimes. All things considered, it was pretty "equal" for the day. Reminds me of someone who kept on asking me (on Slate fray) when (perhaps 9 A.M. some Tuesday ala the creation of the world?) I thought the death penalty became unconstitutional, like constitutional law worked that way. Or, someone today who asked "who" determined what constitutional law meant (I cited public reactions, political processes and judicial review), when it simply is one big messy thing that -- like life -- somehow moves along. We can point to some concrete things regarding the process, but in some basic sense, it is pretty messy and indeterminate.
Souter is not free from doing things that you wouldn't expect from a practical guy from Weare. He is very big on civics education, just like Justice O'Connor, and at times acts like we are so much worse these days. Heh. Really -- I listen at times to what my mom was taught and it is not like it was some ideal time period. If anything, I think there might be some more effort these days in various places though maybe less in other places. Civics is important, but like history and other good stuff, there was always some sizable group, too big probably, uneducated about it.
But, I like Souter and his overall view of things, even if I might be more liberal or libertarian than him on certain subjects. Baby Joe was not that gung ho about him replacing Brennan, but heck, look who picked him! Turned out to be a good pick as hopefully his own replacement, who I thought was a good one upfront, Sotomayor will be. I didn't like various things about Bush41, after all, he thought now typical Republican scuminess was okay at election time, but I could live with the guy. I really don't think the same with some of the people in his party these days. Sheesh. Romney almost makes Bush look good.
One more thing, a bit more personal philosophy. I think part of civics education should be learning how to argue and understand arguments. This is something of a hobbyhorse of mine. Let's take an argument that Stevens trumped Scalia in Heller, which itself (so the argument was) a case of gun rights activists convincing the USSC to change the law.* Reply: well, the public really thought there was a modified right to own guns anyways. Rejoinder: yeah, but (dubious examples) the public is stupid. The dubious examples are bad enough, but this changing the subject is really annoying. It is like someone with a short attention span or something who can't focus on what the point is.
Imagine going further and trying to address how such and such a person is wrong on a narrow point, while not trying to start a debate over the major point every time something comes up. For instance, not try to debate the death penalty writ large every time some specific case is involved or try not to dismiss the other side as morons or something. Yeah, I know, I'm not a saint in this regard, but I feel myself trying harder than some, and it is real annoying at some blogs, including those whose contributors I overall respect and/or agree with, with no restraint.
Life is complicated. There is a lot of nuance. You can be for a side -- Mets fan who will vote Obama here -- but at some point, isn't it not only more accurate but more enjoyable to consider the shades of gray?** Fifty shades or less, whatever -- no, didn't read the book. Hear it's stupid.
---
* Comments on blogs and in person also have a lot of baggage to them and it is a matter of picking your target. Take this example, which is from a blog entry elsewhere. I personally think Stevens did a shoddy job in Heller, but it might work best just to point out one thing -- let's say my opinion that the result is in effect a reflection of what the majority supports (shades of Casey / abortion in that respect) and not just a "gun rights activist" reading. An opinion that goes out of its way to set forth acceptable gun regulations seems to be not quite that anyhow.
** Or, "grey." Do at times feel like using that form. British of me.