More New York Times Incompetence

Op-Ed Contributor - Our Fill-in-the-Blank Constitution - NYTimes.com

www.nytimes.com

Constitutional law is not a mechanical exercise of just “applying the law.”

This article is further evidence of the complete incompetence of the NY Times editorial staff. The article states:

[The constitution] defines our most fundamental rights and protections in open-ended terms: “freedom of speech,” for example, and “equal protection of the laws,” “due process of law,” “unreasonable searches and seizures,” “free exercise” of religion and “cruel and unusual punishment.” These terms are not self-defining; they did not have clear meanings even to the people who drafted them. The framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations.

The terms used in the Bill of Rights were not considered to be "open ended." The understanding of the constitution was that it defined the powers the federal government has, not that it defined the powers it doesn't have. The idea that the federal government had only "expressly delegated" powers (a phrase that appears in the Articles of Confederation and was included in debates about the constitution) was what got fiercely independent states like Virginia to ratify the constitution. If any of the founders thought the constitution was open to interpretation, that's not a context that was brought up at the Constitutional Convention.

Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Whether or not you think conservative judges are "neutral and detached," the fact is that they more consistently favor individual rights, which, in turn, is more consistent with the original intent of the constitution. People who try to argue that "corporations" do not have the same rights as individuals have a severe deficiency in logical thinking. A corporation is not some entity with ascribed rights and powers. A corporation is made up of individuals, all of whom have the right to freedom of speech and thus have the right to use their property (i.e. money) in any way they see fit. The SCOTUS didn't redefine the constitution to give rights to "corporations." In such a context, corporations don't exist. The money is owned by individuals. When a corporation buys and ad, who do people think made that decision? A disembodied entity with a brand name? Sheer stupidity.

It is also true that the federal government does not have the right to regulate guns (although states do, which has been muddled a bit by the 14th amendment, I think) and affirmative action was only ruled unconstitutional if it awarded points for race. There's nothing unique or bizarre about that interpretation of the constitution. Frankly, any school that accepts government money (which is just about all of them) should not be allowed to discriminate based on race in its acceptance policy. A private school funded completely independently should be allowed to set any rules for acceptance that it wants. Similarly, my only problem with the Boy Scouts excluding gay members is that they get a bunch of government funding and are allowed to use public property for their meetings.

Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended ... from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.

The framers did not all necessarily think democracy was the best system. We have a democratic republic for a reason (increasingly becoming more democratic and less republican--in the traditional sense of the words, nothing to do with political ideology). States' rights were the first defense against federal government. The SCOTUS was certainly established to settle disputes and balance out executive and legislative power, in effect (supposedly) inoculating individual rights from encroachment by the federal government. But why would a New York Times columnist want to point out that the U.S. was established as a republic?

If all judges did was umpire, then judicial empathy would be irrelevant. In baseball, we wouldn’t want an umpire to say a ball was a strike just because he felt empathy for the pitcher. But once you understand that the umpire analogy is absurd, it’s evident that a sense of empathy can, in fact, help judges fulfill their responsibilities...

Stone completely fails to discredit the "umpire analogy." Judges are supposed to be impartial. Even though it's an impossible ideal, there's no harm in striving for it. You don't have to rule on empathy to outlaw bans on interracial marriage and protect "the rights of political dissenters and members of minority religious faiths." Those things rely on individual rights which is what the constitution was built to protect. This is yet another completely absurd editorial from the Times. It seems as if Stone purposely avoided legitimate arguments to his claims but it could be that he's just another idiot on the editorial staff.