October 10, 2004

Bush: I Will Nominate a Supreme Court Justice Who Will Criminalize Abortion

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He didn't say it directly, but he did use all the code words:

BUSH: I really don't have -- haven't picked anybody yet. Plus, I want them all voting for me.

I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.

Let me give you a couple of examples, I guess, of the kind of person I wouldn't pick. I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.

Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights. That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

And I suspect one of us will have a pick at the end of next year -- the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.

The first code word is "strict constructionists," whose basic ideology is that the Constitution only applies to matters that it directly and specifically addresses, and that any interpretation beyond that is not within the court's power; to these people, there is no such thing as "intent of the founders," and they would judge no new law from the original intent or principles derived from the constitution. Any new law is acceptable so long as it is not directly addressed in the constitution.

As such, Bush's remark that he wants "strict constructionists" and that the "judges interpret the Constitution" are not exactly consistent.

The right wing found strict constructionism as their legal philosophy while trying to find a way to fight Roe v. Wade; traditionally, it has been a Libertarian point of view. If one applies strict constructionism, Roe. v. Wade would be struck down, as would many other issues concerning civil rights and probably separation of church and state. This goes along with the current Republican agenda to remove power from the judicial so that conservatives in the legislative branch can pass whatever laws they wish with no challenge on their constitutionality.

Another code word from Bush's rhetoric was the Dred Scott decision, which, for those of you who forgot about it since high school, was a rather infamous Supreme Court decision which ruled that blacks were not citizens and were constitutionally the property of the slaveholders. Dred Scott is a famously popular case held up by pro-life groups as an example of how an entire class of people can be regarded as property to be dealt with without concern for their rights. The argument is that fetuses today are like blacks at the time of Dred Scott.

Bush's reference, therefore (as first pointed out by Paperweight), is little more than a code word meaning that he will have Roe stricken just as Dred Scott was.

Other comments on Bush's remarks: his joke about how he would "want them [Supreme Court justices] all voting for me" was borderline at best; few have forgotten how the politically partisan 5-4 vote on Bush v. Gore--considered by many as an illegal decision at least, and a coup d'état at most--handed Bush the presidency in 2000. It's a ballsy thing to joke about.

He also called the courts' ruling on the Pledge of Allegiance a "personal opinion," which is fiction, of course, but then on these matters, such fiction is standard fare for Republican politicians. The core issue of the pledge, of course, is the First Amendment and its protection that prevents the state--in this case public schools--from requiring any American citizen--in this case, schoolchildren--to make a religious pledge, and to prevent that government agency from endorsing any one belief system. It is a core constitutional matter on civil rights with very little real ambiguity (the only lack of clarity is in the GOP fiction), which is why the GOP is trying so hard to pass a law that would prevent the courts from ruling on "Pledge protection" laws without having to amend the Constitution to achieve that.

Finally, on the litmus test, Bush says that he would have "no litmus test except for how they interpret the Constitution." However, since what he defines as "interpreting the Constitution" covers almost every major issue before the courts, he is essentially saying that he will choose a judge based upon a wide range of litmus tests, especially Roe v. Wade.

Posted by Luis at October 10, 2004 04:21 PM

Do you really believe that the joke he made about wanting them voting for me was a reference to the 2000 Election. It was a joke. Give it a break.If Bush is so dim that he could make a joke about Supreme Court justices "voting" for him and not understand the reference to the 2000 election, then he really is an idiot. But maybe that's exactly what it was--he has no clue about historical references in his speech, old or new, just like when he called the hunt for terrorists a "crusade." Which was like investigating a Christian sect and calling it an "inquisition." Either way, he's a jerk.I thought that he did a great job clarifying what his criteria is. Funny, that Kerry agreed, huh? So are you not voting for Kerry then?What alternate reality do you live in? Kerry laid down a fully different set of criteria which he then summed up as how the law would be interpreted, light-years away from what Bush laid out. Bush said he wanted strict constructionists and made it clear he wanted a judge who would vote conservative all the way down the line. Kerry said that a good judge writes an opinion which is not recognizable as being partisan. That both said they would want someone who would interpret the law/constitution is hardly "agreeing." You really don't look beneath the surface of things, do you?Lastly, and most importantly, what is your litmus test for chosing a president?My litmus test is that the person understand that the Constitution is a living, breathing, evolving document--not a dead, static piece of paper that strict constructionists see. When times, people, and technologies change, the interpretation of the Constitution must also change, otherwise it would be meaningless. I would want someone who truly recognizes the origins and meaning of the principle of division of church and state, someone who understands the definition of "establishment" as written in the Constitution. I would want someone who understands that the role of the Constitution is to restrict the power that the federal government has to oppress the people, and in that vein allow the people to exercise their individual beliefs, to maintain rights such as privacy even though it is not explicitly granted in the constitution, and when there is a question of power to the government and rights to the people, that they always side with the people.

Posted by: Luis at October 11, 2004 11:02 AM

You are funny.
The constitution as a living breathing document? Well, that has a connotation that is out of line with reality. The constitution was amended only 17 times since 1789. ...And you are clueless. Amending the constitution means changing it, not interpreting it. And the amendment process is painfully protracted so as to make any change extraordinarily difficult (are you even aware of what is required?). So every time a question of interpretation comes up due to changes in technology, for example, you want to amend the constitution? We'd be doing nothing but that 24/7 if that were the case. A specific example: does the 4th amendment against unwarranted search and seizure apply to police using infrared or other high-tech devices to spy on people within their homes? Does the state have the right to use these devices simply on the grounds that they did not exist in the 18th century and so were not mentioned in the 4th amendment?

Another example: wiretaps. In 1924, a man was convicted on evidence collected from a wiretap; the SC initially ruled that this was constitutional because it was not clearly stated in the 4th amendment that electronic transmissions were protected; the case was decided by a close 5-4 margin, and more than 40 years later, in 1967, that decision was overturned and a warrant is now needed for a wiretap. Now the question has come up as to whether Internet communications are similarly covered or not. Do you want us to go through a decade-long process of amending the Constitution every time such a case comes up? Clearly you have not put any thought at all into your stand.

The Constitution must be continuously interpreted to take into account changes that are happening in the world--not just technological, but social as well. Does money equal free speech? Is it constitutional to ban political advertising during an election? Can pornography be outlawed, or is it covered by free speech? There is no end to the number of cases that need to be decided on the interpretation of the Constitution. And the Constitution must be able to flow with the times until a breaking point is reached, and then an amendment made. The Constitution is about principles, and those principles live and breathe with the society that holds them.

Or do you hold that we should be amending the Constitution every week to adapt to the times? That the state can tap your phones under the loophole that they didn't exist in the 18th century? Do you believe you have a right to privacy? If you're a strict constructionist, then you don't--which means the police can tap your phones, read you email, and spy on you all they want and it's fully constitutional. Or I can do that, for that matter. You approve of that?And what is your beef with the division of church and state??? The first amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. *Sigh*. Even after I explicitly mentioned it, you still don't know the definition of the word "establishment," do you? Conservatives rarely do--they assume it means that the state cannot establish a religion in the sense of founding one. Such ignorance never fails to tire me. You have a dictionary? Go look "establish" up. There's more than one definition, and there are two in particular that are almost exclusively germane to the First Amendment.Now, lately, there is a LOT of violation of this by people who don't allow Christians to where a crucifix while they teach school. This under the complaint that she was wearing a crucifix on government property and her salary is paid by taxes. Where is the ACLU when you need it? Isn't that restricting her exercise of religious expression?The ACLU happens to agree with the separation, and rightly so. The example you bring up is, of course, a fringe case and has not even made its way through the courts yet, making your reference to it in this context meaningless. Additionally, you are clearly avoiding the far more numerous and outstanding cases, such as allowing prayer in school or whether or not a student can be forced to recite a religious pledge in a public school. Your opinion and mine may differ, but the basic principle laid down by Thomas Jefferson could not be more clear: there is to be a "wall of separation" between church and state. That's why churches don't pay taxes and the government can't regulate them, and that's why schools can't endorse any one religion or religions to the exclusion of others in public schools. It is not a "one way" relationship as you and the fundamentalists are suggesting, where the state must keep out of the church, but the church can go willy-nilly into the state.

In fact, by definition, that is impossible. If the state allows members of any one religious faith to use taxpayer resources to promote religion or incorporate it in any way into any government-sponsored action, then the state is, by action or inaction, endorsing that one religion to the detriment of all other belief systems, including atheism and agnosticism. So it must treat all belief systems equally, i.e. not allow any one belief system to be taught or promoted within the schools. Therefore, religion, like atheism, is simply kept out of such affairs, except where it has been intruded over history--such as the pledge, to which the words "under God" were added in 1954 in response to communism, as was "in God we trust" added to paper money in 1955. Such intrusions have been during periods of religious evangelism or nation-wide fear, and are tested Constitutionally only later, such as the pledge is being tested now.

As to religious expression, read the First Amendment. Doesn't mention it. It mentions the exercise of religion, but does not say that people have the right to express their religious beliefs on the taxpayer's dime and as an official spokesperson of the state. Unless you want a judge to interpret it that way, that is.

Posted by: Luis at October 13, 2004 01:28 AM

In Dredd Scott Taney simple pointed out the obvious: Since the founding fathers had slaves, and they wrote a document that said all men were created equal, they were obviously not including slaves in their meaning of Men. That then, is a strict intention of the framers argument. Which is close to be strict constructionist.

If we use the "living breathing document" position, we can say that all men equals just that all men, black and white, and then we can add to that, all men equal women and men. 18th, 19th and even many early 20th century persons didn't think all men meant, women, or blacks.

Now if Bush can pack the court with strict constructionist, then he will have to respect the seperation of church and state doctrine. This would be a good thing because the war on Terror is largely about seperation of church and state. And Bush tries to blurr the distinction which undermines the whole affair.

Curious thing this Mr. Bush. I just wish he'd Buzz off and go away, for good.

Posted by: Tim Kane at October 14, 2004 06:18 AM

What is most amazing about this "living breathing" stuff is that it is exactly what the Constitution was designed to PREVENT.

The Constitution is the supreme law of the land, nothing more and nothing less. It was specifically designed to keep wild eyed politicians from enacting panic legislation that damaged the rights and freedoms of US Citizens. When it needs to be changed to meet with changing times, the document itself outlines the procedures for changing it.

The "living breathing document" swill is simply liberal attempts to do end runs around the strict limits on federal powers that are enshrined in the Constitution.

The irony is the current CONSERVATIVE administration is now benefiting from the "living breathing" idea that they supposedly oppose with its drug war, and "no child left behind" act and other unconstitutional activities.

Posted by: Al at March 24, 2005 01:43 AM