Judge Alito said in his opening statement on Monday, "There is nothing that is more important for our republic than the rule of law."
Really? What about liberty or justice?
I want a Supreme Court justice who knows that defending the former and giving the latter are the most important parts of his (or her) duty, and that the "rule of law" has long been used as an excuse to deny both. I want a Supreme Court justice who understands his job is not to parse the words of dead men but to breathe life into the document they gave to us--who understands, as Justice Kennedy wrote, that the Supreme Court's, "obligation is to define liberty for all." I want a Supreme Court justice who understands that our Constitution merely illuminates our rights and does not grant them; I want a Supreme Court justice who understands that the highest law is not what is writ in stone but what is carried in our hearts and our history.
How ironic it is that "Rule" and "Law" refer to the powers of the Executive and Legislative branches respectively. I want a Supreme Court justice who will guard our Constitution against them. Alito's choice of "most important" reveals him to be a patriarch in his soul.
Monday, January 09, 2006
The Rule of Law
Posted by Dr. Strangelove at 9:47 PM
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9 comments:
What I find so annoying about Alito's statements (and those of right wingers in general) is their consistent assertion that they have no agenda that all they do is read the law in strict sense. They ignore the fact that they do have an agenda they just think it is the "correct" agenda so they see it as a problem. In their minds, conservatives are "objective" and liberals are "activist."
By the way, if you want an example of why I distrust the impartiallity of judges just compare Alito's claims to impartiality with his long list of controversial rulings and dissents overruled or otherwise refuted by higher courts.
// posted by Raised By Republicans
Leaving aside everything else for the moment, I tend to agree with the comment that the rule of law is the most important thing for our country. Liberty and justice cannot exist without the rule of law. Dr. S is correct that the phrase "rule of law" has been also used to support terrible things, but so have the words Liberty and Justice.
The rule of law is absolutely fundamental. It is the only restraint on power.
// posted by LTG
"...but so have the words Liberty and Justice." Touché, LTG. You're right, there.
But I still think liberty and justice are more important to our Republic than the rule of law. As LTG said, Alito's very notion that a judge should merely be an "umpire" (to quote Roberts), reading the law in a strict sense, is a dishonest one.
When the supposed rule of law oppresses or is unjust--when a "strict" interpretation conflicts with liberty or justice--which should bend? The only restraint on power is not the rule of law; the true restraint is the conscience of good men.
I kinda think that the conversation is a little abstract here.
Am I right in thinking that Dr. S. is saying that the rule of law is an imperfect means to the end of achieving liberty and justice, and that when the rule of law runs counter to those aims, the aims are more important?
On the other side of the coin, is LTG saying that the rule of law is the fundamental principle of our government, that it is the only guarantee against tyranny of the strong over the weak? That Liberty and Justice can't be _guaranteed_ unless we are all subject to the same laws?
I'm not sure I disagree with anyone in this argument. Well, except maybe Alito. :)
By which I mean, I readily believe that the rule of law is the best means we have to secure liberty and justice. And as far as Alito, the SC, and the judiciary branch goes, its purpose is the continued striving to _perfect_ that rule of law - continually reshaping it so that it better achieves liberty and justice for all.
Please let me know if I'm missing the point.
// posted by Bob
Bob summarized my position very well. If there is one thing I would add, it is that I certainly agree that the rule of law is also very important. And of course it is a complex and (as Bob pointed out) utterly abstract matter to attempt to weigh "rule of law" vs. "liberty and justice" to decide which is more "fundamental" to our Republic.
But I still think the answer can be revealing. While Judge Alito says his highest duty is to enforce the rule of law, to me that would be an important but lesser duty. The highest duty of a Supreme Court is to, as Bob put it, "continually reshape" the law to conform to the more fundamental guarantees of justice and liberty.
The rights of man stand proudly by themselves, and sometimes you need to reach through the Constitution to see past the syntax to the substance. To put a bloodless academic on the bench is to drain the life out of our Republic.
I think the missing link in this is whether we actually believe that Alito is impartial with regard to either the "rule of law" or "justice." I believe that a person can be a more or less good person and have a conscience and still be partial for all intents and purposes. Even when they think they are being impartial.
The problem is that conservatives like Alito and his supporters don't see the partiality in their own preferences. He can be overruled time and time again and still think he's being impartial in his application of the rule of law.
It's like having an accent. Southerners don't think they talk funny. But we all know they do.
// posted by Raised By Republicans
Case in point: I just heard Alito describing his ruling on a school prayer case. The facts were that the school board had a policy whereby the student body voted on whether or not to have a prayer at their graduation ceremony. If a majority of the students voted to pray, the public school ceremony included a prayer.
Alito very carefully laid out the distinction between individual religious expression which is allowed and government religious expression which is not allowed. He sounded very "open minded" and "impartial." Then came his ruling. He ruled that the above situation represented individual religious expression.
This is a perfect example of what I'm trying to get at. Most conservatives (including Alito) see his conclusion as very impartial and reasonable. However, I see it as a clear case of bowing to the tyrrany of the Christian majority. In fact, I find his conclusions so baffling given the facts that I can't but assume he has an insidious political agenda designed to establish a vicious theocracy and rob me of my right not to participate in religious practices.
Is he impartial? Does he respect a seperation of Church and State? Does he respect the rights of atheists to be free of publicly endorsed pressure to worship? He thinks he is and I'm sure he'd pass a lie detector test.
// posted by Raised By Republicans
That description makes him sound intellectually dishonest.
// posted by LTG
I think intellectually dishonest is a kind assesment of what I heard from him. Willing to blatently dismiss the facts in the service of a political agenda would be more accurate. I encourage you to look over the transcripts of his exchanges with Schumer in particular.
// posted by Raised By Republicans
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