Interpretation, Hermeneutics, and Judge Sotomayor

Never go by what someone says -- go by what he/she does. The Federalist Society is in fact outright lying when it makes that statement of purpose, and in fact the "Roberts Court" has shown itself to be quite activist in at least three major decisions. That's the reason Miguel Estrada was filibustered for an appellate court position some years back.

Something I heard from my brother who's a lawyer is that yes, many schools of interpretation exist in terms of constitutional interpretation. All schools have moments where they shine, as well as moments where they'd perform poorly. For instance, it's hard to come up with a originalist defense of Brown v. Board of Education the way it came out, since segregated schools were set up in the late 19th century, by some of the people who supported the 14th amendment. The court was forced to rule the way it did, since segregation proved to be a failure (not to mention wrong) in terms of what the 14th amendment was meant to accomplish. "Separate but equal" proved to be an impossibility.

FWIW, the courts are *designed* to be a conservative check on the rest of government, in that changes there are supposed to take place slowest of all. In terms of problems with the "living constitution," yes the problem is how it then, pushed to its logical conclusion, the constitution means whatever the court wants it to mean. And ultimately, it has to mean *something* objective.

For the disasterous effects of trying to read too much into the constitution, see the Dred Scott case and Roe for examples. Also, consider Lochner for an economic example. Contrast that to the women's vote case(s), where the court refused to interpret "equal protection" to include votes for women, and the subsequent ratification of the 19th amendment. Was that ideal? No. But the process does have much more democratic legitimacy since it wasn't imposed by the court.

Perhaps the Latina voters in Texas and Alabama will take note of how those who represent them in the Senate are treating one of their own and carry that memory into the voting booth when these men are up for reelection.

I used to think that the Republican Party could do nothing to marginalize themselves any more than they had already. I was wrong.

Thank you for your comments. To answer some of them, on law.com, strict constructionism is defined:
n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

The same division happens in biblical hermeneutics, the so call hermeneutical circle. The term "activist judge" is a insult thrown at another judge. I think anyone would be hard pressed to find any Federal judge who says they are an activist judge, though I could quickly find judges charged with be an activist judge. One man activist is another's upholder of the constitution and that echos the battles in biblical hermeneutics, which was my point. One last point is with term, strict constructionism (and I should have made this point, apologises) I used it was more as it is used political realm, when politicians use the term, as Nixon did in relation to the Warren court.

The Sotomayer hearings are that the intersection of Law and Politics.

So when the Left doesn't attack, it's for good reason. When the Right attacks, it's for political reasons.

Oh, the days when I used to think of things in "Left" and "Right." Made arguing so much easier.

What historical facts? That Roberts and Alito are part of the Federalist Society? Cuz the other two statements are opinion and observation and interpretation of events, not "historical facts." That they're members of a group I can't refute, of course.

On the Fed Society's own page, it "is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.... This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law."

Wow, I'm scared! Such activism to make sure the Constitution is applied, not reinterpreted by judges who don't quite like the laws.

And you cannot prove that it is "by definition activist" unless you admit that any endeavor to propagate a philosophy of politics or legal framework is also... which kinda means just about every political or religious organization.

"Bigger picture" and "immediate historical context" based on whose perspective? A libertarian will look at the "context" differently from a progressive or a conservative. Conservatives tend to look at the "context" in a moralistic sort of way (religious conservatives want to retain the "Christian nation" format that the founders "started"-which is a bunch of hogwash).

Even if we agreed upon a method of understanding the Constitution, there are further questions regarding "context" or "literal" or "bigger picture." I'm not attacking your critique, I'm simply pointing out that "bigger picture" is vague at best because there are varying understandings of that "bigger picture." You and I quite obviously disagree on some of these things, based on past exchanges.

Ah, yes, and the Democrats will lead us to that promised land of 'justice and peace for all." So unlike the Republicans are they, because they are always looking out for the poor and downtrodden in society. They always feel our pain, because they're just like the rest of us, except for those millionaire Senators and Presidents, but that's another story. With the Democrats in full control, this country will see how we will alleviate poverty and racism in a single swoop. But, of course, according to Sojo, "God is not a Republican...or a Democrat. Yeah, right.

Here's what Randy Barnett wrote about "activism" in the column I posted below. I agree with him. It's a useless term.

The second empty issue to be discussed is the bugaboo of "judicial activism" and its conjoined twin, "judicial restraint," which today's judicial conservatives have inherited from New Deal progressives. But what exactly is "activism"? Is it activism when any popularly enacted law is held unconstitutional? Neither Democrats or Republicans truly believe this, however, since they want judges to strike down laws as unconstitutional when doing so leads to the "right result" (but not when it doesn't). So judicial activism means thwarting the "will of the people" when critics agree with the people, while they complain about the "tyranny of the majority" when they disagree.

We can do better.

Yes, I know.

I don't entirely agree. The Republicans are in disarray because, and only because, the ideologues who run the party permanently drove out nearly everyone who doesn't agree with them; the Democrats by contrast appear reasonable. Because such analogous extremists don't exist proportionately with the Dems, I seriously doubt they'll similarly overreach. And in fact, the Democratic Party has become a tad more conservative, especially in the issue of abortion.

Here's what Randy Barnett wrote about "activism" in the column I posted below. I agree with him. It's a useless term.

The second empty issue to be discussed is the bugaboo of "judicial activism" and its conjoined twin, "judicial restraint," which today's judicial conservatives have inherited from New Deal progressives. But what exactly is "activism"? Is it activism when any popularly enacted law is held unconstitutional? Neither Democrats or Republicans truly believe this, however, since they want judges to strike down laws as unconstitutional when doing so leads to the "right result" (but not when it doesn't). So judicial activism means thwarting the "will of the people" when critics agree with the people, while they complain about the "tyranny of the majority" when they disagree.

We can do better.

Yes, I know.

I don't entirely agree. The Republicans are in disarray because, and only because, the ideologues who run the party permanently drove out nearly everyone who doesn't agree with them; the Democrats by contrast appear reasonable. Because such analogous extremists don't exist proportionately with the Dems, I seriously doubt they'll similarly overreach. And in fact, the Democratic Party has become a tad more conservative, especially in the issue of abortion.

Ah, yes, and the Democrats will lead us to that promised land of 'justice and peace for all." So unlike the Republicans are they, because they are always looking out for the poor and downtrodden in society. They always feel our pain, because they're just like the rest of us, except for those millionaire Senators and Presidents, but that's another story. With the Democrats in full control, this country will see how we will alleviate poverty and racism in a single swoop. But, of course, according to Sojo, "God is not a Republican...or a Democrat. Yeah, right.

"How people understand written text, especially ones composed in another time and culture, will be the unspoken context"

I know the Federalist Papers.

In the words of Justice Thomas there are two ways to interpret the constitution orginal intent or you can just make it up.

The constitution can be changed and the instrutions on how to change it are in the constitution.

"The current debate about judicial activism turns on a judicial philosophy called "strict constructionism." This set of judicial ideas states that the text should be taken as literal and at face value without trying to understand the intention nor the context in which the constitution was written."

Ernesto, this is simply false. I defy you to identify a single sitting federal judge at any level who has declared that there is no need to even try to understand the intention of the framers or the context in which the constitution was written.

There are very lively and legitimate debates among various schools of constitutional interpretation. Honorable people can be found in all camps. Moreover, justice can be shown to have been achieved by judges with both narrow and broad philosophies of constitutional hermeneutics.

Caricaturing your political opponents does little to move the discussion forward or increase the likelihood of arriving at a workable consensus or mutual understanding. Even if this caricature is a product of your own lack of serious study on the issue, your ignorance of the law is no excuse. It just adds to the clamoring chorus of ill-informed chatterers who cheapen public discourse for all of us.

Please take your responsibility more seriously next time.

Yes, a "living constitution" means changing it, and the Constitution itself provides how to make it "living." Otherwise we could interpret it to mean whatever we pleased.

Something I heard from my brother who's a lawyer is that yes, many schools of interpretation exist in terms of constitutional interpretation. All schools have moments where they shine, as well as moments where they'd perform poorly. For instance, it's hard to come up with a originalist defense of Brown v. Board of Education the way it came out, since segregated schools were set up in the late 19th century, by some of the people who supported the 14th amendment. The court was forced to rule the way it did, since segregation proved to be a failure (not to mention wrong) in terms of what the 14th amendment was meant to accomplish. "Separate but equal" proved to be an impossibility.

FWIW, the courts are *designed* to be a conservative check on the rest of government, in that changes there are supposed to take place slowest of all. In terms of problems with the "living constitution," yes the problem is how it then, pushed to its logical conclusion, the constitution means whatever the court wants it to mean. And ultimately, it has to mean *something* objective.

For the disasterous effects of trying to read too much into the constitution, see the Dred Scott case and Roe for examples. Also, consider Lochner for an economic example. Contrast that to the women's vote case(s), where the court refused to interpret "equal protection" to include votes for women, and the subsequent ratification of the 19th amendment. Was that ideal? No. But the process does have much more democratic legitimacy since it wasn't imposed by the court.

Ah, yes, and the Democrats will lead us to that promised land of 'justice and peace for all." So unlike the Republicans are they, because they are always looking out for the poor and downtrodden in society. They always feel our pain, because they're just like the rest of us, except for those millionaire Senators and Presidents, but that's another story. With the Democrats in full control, this country will see how we will alleviate poverty and racism in a single swoop. But, of course, according to Sojo, "God is not a Republican...or a Democrat. Yeah, right.

Thank you for your comments. To answer some of them, on law.com, strict constructionism is defined:
n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

The same division happens in biblical hermeneutics, the so call hermeneutical circle. The term "activist judge" is a insult thrown at another judge. I think anyone would be hard pressed to find any Federal judge who says they are an activist judge, though I could quickly find judges charged with be an activist judge. One man activist is another's upholder of the constitution and that echos the battles in biblical hermeneutics, which was my point. One last point is with term, strict constructionism (and I should have made this point, apologises) I used it was more as it is used political realm, when politicians use the term, as Nixon did in relation to the Warren court.

The Sotomayer hearings are that the intersection of Law and Politics.

"Many of those who buy into strict constructionism come from the same environs that interpret the Bible through a strict literalism."

'Buy into' implying "falling for'?

"How people understand written text, especially ones composed in another time and culture, will be the unspoken context"

I know the Federalist Papers.

In the words of Justice Thomas there are two ways to interpret the constitution orginal intent or you can just make it up.

The constitution can be changed and the instrutions on how to change it are in the constitution.

"The current debate about judicial activism turns on a judicial philosophy called "strict constructionism." This set of judicial ideas states that the text should be taken as literal and at face value without trying to understand the intention nor the context in which the constitution was written."

Ernesto, this is simply false. I defy you to identify a single sitting federal judge at any level who has declared that there is no need to even try to understand the intention of the framers or the context in which the constitution was written.

There are very lively and legitimate debates among various schools of constitutional interpretation. Honorable people can be found in all camps. Moreover, justice can be shown to have been achieved by judges with both narrow and broad philosophies of constitutional hermeneutics.

Caricaturing your political opponents does little to move the discussion forward or increase the likelihood of arriving at a workable consensus or mutual understanding. Even if this caricature is a product of your own lack of serious study on the issue, your ignorance of the law is no excuse. It just adds to the clamoring chorus of ill-informed chatterers who cheapen public discourse for all of us.

Please take your responsibility more seriously next time.