December 13, 2010
Justice Breyer Really Hates the Rule of Law
I've mentioned it many times before, but Justice Breyer -- defender of the indefensible -- has always had it in for the written words of the Constitution. He tries to couch his distaste for our highest written law in reasonable-sounding legal theories, but in the end they are simply a disguise for his true legal theory: that judges get to make up whatever they want as they go along.
A good example is his justification from his last book, Active Liberty, for restraint on the use of money in political campaigns: because, he said, the goal of the First Amendment is to enhance democracy, we can therefore restrict speech (such as by telling people they can only spend a certain amount of money on speech) in order to enhance democracy (on the assertion that if there's too much speech by some people, it drowns out the speech of others).
So to Breyer, the law literally doesn't mean what it says: the law is used to give us guidelines on values, and then we can ignore what the law actually says in order to further those same values. This is, of course, tyranny: it puts all of our rights not in our own hands, but in the hands of judges who have complete authority to determine not whether we do have certain rights, but whether we should.
This was made clear again yesterday, when, on Fox News Sunday, while plugging his new book, Breyer informed viewers that we could ignore the text of the Second Amendment because the person who wrote it didn't really mean it*: Madison was only trying to get the Constitution ratified, Breyer said. The "just kidding" method of constitutional interpretation apparently means that when the Constitution clearly says "the right of the people shall not be infringed," it really means "unless we're don't really believe in that right, in which case, go ahead and ignore it."
And this, of course, is Breyer's actual view of all rights: simply trust the government and the democratic process. This is fine if, like Breyer, you believe that government is essentially good and can be trusted. But Madison, and Jefferson, and most other Founders realized that is folly, and so did two things: created a federal government that was limited in scope to push most decisions closer to the citizens being affected by them, and restricted the government from enacting any laws violating certain essential liberties. And the right to keep and bear arms -- which Breyer says can be fully and completely denied to law-abiding citizens -- was one of those.
Breyer may love the law, but he despises the RULE of law. He wants with all his might to destroy it. He is working his damndest to give us the rule of men. In Breyer's world, it doesn't matter if the Constitution does not allow the government to force you to buy insurance, to take away your guns, to do literally anything at all, as long as it promotes Breyer's view of American values. In a just world, your rights would matter more than anything else in a court of law: no government could take what is rightfully yours. Breyer's world is unjust.
*Never mind that we know the authors of the 14th Amendment really did mean to include the individual right to keep and bear arms as one of the privileges and iimmunities of U.S. citizenship, and yet Breyer still held that that right wasn't protected by the 14th Amendment ... most likely while writing this book.
Cross-posted on <pudge/*>.
Posted by pudge at December 13, 2010
10:36 AM | Email This
1. Pudge - Spot on, succinct and well-put.
2. Breyer's attitude is the same lust for power common in third world dictators. He would love to be King Breyer master of the common folk, lord and ruler. Fortunately, we have some smart folks watching his every move and calling him out.
pbj, I don't know if Breyer has a personal "lust for power." I think he truly believes in our institutions and that they should be able to do whatever they wish, not because he wants the power, but because he thinks that is the enlightened path forward for a society.
Then again, he seems to abandon his own principles when it comes to issues he has a personal view on, like abortion, gun rights, campaign finance, and so on.
"No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government"
-- Thomas Jefferson, 1 Thomas Jefferson Papers, 334
I think he had people like Justice Breyer in mind.
5. That's EXACTLY the kind of person he had in mind, SN.
Pudge lies, "Breyer informed viewers that we could ignore the text of the Second Amendment because the person who wrote it didn't really mean it*: Madison was only trying to get the Constitution ratified, Breyer said."
There you go again, picking quotes out of context. Try reading the Fox transcript. Breyer was talking about the relevance of the much-debated 2nd Amendment clause "A well regulated militia being necessary to the security of a free state...". In trying to interpret this oddly-positioned clause that uses nonstandard grammar, he looked at evidence of Madison's intent. He never said or implied that Madison didn't mean what he wrote; to the contrary, he was trying to figure out what Madison meant.
Every time the issue of activist judges comes up, I'm reminded of the Plato "philosopher kings" argument. There is an inherent conflict between elitist decision making and representative republics; they are mutually exclusive.
I'm willing to bet that Breyer is feeling a little underappreciated, being resisted in his "stargazing", and the book is his naked rationalization.
Of course, few non-elitists would agree that they'd never encountered stargazers before.
8. Well, Bruce, I'm thankful the SCOTUS again upheld a citizen's right to own firearms. We can be certain, however, the left will continue in their quest to disarm the populace. After all, unarmed subjects are easier to herd and control. Baaaaaaah.
Bruce, as usual, you're wrong. He was justifying his view of the VALUES in the INTENT of the Second Amendment, and using that to justify ignoring the whole thing.
Yes, he was talking about the first clause, but then ge dismissed the rest of it.
I have to laugh at all the "Strict Constructivists" running around who don't get the central premise -- the D of I and Constitution were documents designed to preserve INDIVIDUAL LIBERTIES not government power!
I was so mad about this I wrote this essay:
Article I, Section 8, Clause 8
John Bailo: I've never heard the term "strict constructivist" before. I've heard "strict constructionist" many times. I wasn't sure if this was a play on words or something, so I jumped to the link from your essay
and found someone named Bulworth using the term, and he is right that "strict constructionism" usually means following only the letter of the law.
However, I know of no one who IS a strict constructionist, by that definition of the term. Scalia certainly is not, and neither is Thomas, nor Alito nor Roberts. And neither am I. Scalia calls himself a textualist, which has important differences: namely, that it looks not to what the text says, but what it meant at the time it was ratified, to the people who ratified it.
In fact, what most people call "strict constructionism" is usually textualism like Scalia's, which far more often than not DOES consider intent, despite your implication to the contrary.
Anyway, I also read Bulworth say that the Unitary Executive Theory suggests the law is open to interpretation. This is completely and utterly false. That concept has not one iota of an iota to do with the Unitary Executive Theory. This is a lie from the liberal left to try to usurp the Constitution.
See, what the UET says -- and it's odd to even call it a "theory" rather than "the words of the Constitution" -- is that all executive power is held by the President. As Article II, Section 1, Clause 1 says, "The executive Power shall be vested in a President of the United States of America." Not SOME of it. All of it.
Liberals, however, like to be able to make up their own laws as they go along, so -- unless their guy is in the White House doing whatever they want -- they want Congress to be able to control the power of the Executive. A simple example: the President has all of the power of the Department of Justice, so therefore the DoJ cannot sue the Department of Education, because it would literally be the President suing himself.
Similarly, Congress cannot say that the power to regulate fisheries belongs solely to the head of the Secretary of the Interior, and that the President cannot interfere: that would be a clear violation of the Unitary Executive.
It's got nothing to do with whether a law is open to interpretation, it has only to do with whether a law divests the President of his constitutional authority.
But the liberal left wanted to make Bush seem like a tyrant, so they pretended it was about interpreting laws.
As to patents, I fear you're wrong there. Yes, a patent was there to protect the individual ... so he could profit from his creation, which created an incentive to create. But selling a patent to a creation is precisely how many, if not most, inventors would want to so profit. To take away the ability to sell a patent would be to undermine the whole point of having patent protections in the first place. Further, it takes away the incentive for companies to hire creative people. Many inventions and copyrighted works were created by groups of people paid for their ability to create, and they'd be out of a job if you got your way, because the company would have no incentive to hire them if someone would just be able to copy the creation.
What you really want is for patents to have more limited times. You cannot have them be tied to the lifetime of the inventor, because that oddly effects the market in negative ways. I think a patent, and a copyright, should simply be for 50 years. Flat rate. No changes. Fifty years and you're done, whether the creator is alive or not, whether he's sold his creation rights or granted them to someone else. Maybe the number of years can change, but it should be completely irrrespective of who created it, what their age is, and whether they are dead. That literally solves all of the problems with copyright and patent terms (unless, like many companies, you want perpetual terms ...).
I watched the interview on FNS and was simply disgusted by Breyer. He was sneering throughout the interview, and delighted in dancing around direct questions. Sure, he can't directly comment on issues that may come before him, but he went so far beyond that. He continually made statements that appeared to support the intent of the constitution, but always left him a "lawyerly" out to rule based on his personal values rather than document and its meaning.
A thoroughly despicable performance.
Breyer made me sick to my stomach. After that interview on Fox, I was just thinking that man doesn't belong on the bench, he belongs in a prison. Granted, a few of the things he talked about and said made sense, but my gosh, what a tyrannical SOB, if this were the French Revolution he would have been forced to the guillotine by the Revolutionaries. Heck, if it were the American Revolution chances are he would have been a Tory. Not just in the sense of the 1770s but also the 1700s.
I am of the belief that he is a danger to the constitution and the country. Now, if he would have explained his opposition to the 2nd amendment as having the belief that the right was for militia purposes, I could respect the difference, but he didn't. He went on and on explaining why he should not be considered an American.
14. Breyer is simply another Bolshevik leftie trying to overthrow our Republic.
15. Right on, Hairy #12. Breyer's opinions have always been of the collectivist left. A threat to our country!
16. Apparently' we need to drain the Judicial branch wich has become a bit of a swamp lately!!!
17. Laurie, that is hard to do for appointed judges. Those elected however are a different breed. One of the problems in this state is the judiciary has been declared (by themselves of course) to not fall under the our state's version of the freedom of information act. We cannot look into their dealings to see if they are truly being impartial or to find out what they do with the money they are given for their departments. It is my experience this is a terrible problem for justice. How can the population make informed election decisions by simply relying on special interest endorsements? The legislature could correct this but I guess they think we don't need to know. The thing is that these same elected judges may rise to appointed positions in their careers without the people ever really being able to check on what they did behind closed doors.
18. I listened to a r meeting and the voters pamphlet wich did help some state wide however you do metion a good point. Fed judges could be more carefully picked once those in Wa DC do what they are supposed to do!Then at least that swamp could begin to get drained.Evergreen Freedom Foudation is also a good resource!
Bruce @6 :"Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Publication need only be to one person, but it must be a statement which claims to be fact and is not clearly identified as an opinion"
I believe you commit this infraction frequently, calling a person a liar.
Any attorneys here like to weigh in on the subject of Bruce continuing to assert that people are liars, or lying, when they are clearly opining??
Steve, I am not a lawyer, but I think you would be extremely hard-pressed to find a single example of a successful libel tort against someone for calling another person a liar at all, let alone in a public forum where the statements in question are regarding behavior and statements in the forum itself.
You only quoted what makes a defamation a libel, but there's a lot more to defamation, whether it be libel or slander. For starters, and what makes online discussions like this nearly impossible to use as evidence of defamation, is that the claim has to be harmful to me. I'd have a very difficult time proving that, because very few people who matter -- employers and so on -- would care. Also, the claim has to positively identify me; while many people here know who I am, many others do not, so this goes along with proving harm: if the people who think I am a liar because Bruce said so don't know who I am, then there's no real harm to me.
So if Bruce says "pudge wears combat boots," this may be a lie, but it is not injurious. If I take on a new pseudonym no one knows about, "Captain Foobar," and he says, "Captain Foobar is a liar," that doesn't positively identify me, since no one connects me to "Captain Foobar."
Most importantly, since all of the evidence of his claim that I lied is right here in the discussion, everyone is able to judge the truth or falsity of the claim. Libel law doesn't assume people can't think for themselves. At this point it's fair comment, even though it's wrong. If Bruce were to allege that I lied in a business deal where the details are not publicly known, that would be a completely different situation.
Finally, I wonder why you take what I said as mere opinion, but Bruce's claim about what I said to be a statement of fact? I don't see much distinction.
So, no, I just don't see any evidence of any defamation here.
Now, please, stop making me stick up for Bruce. ;-)
Of course pudge@20 is right. I have nothing to add to his eloquent defense of the First Amendment.
However, it is rude and damaging to constructive debate to call someone a liar, so I generally don't do that (steve's claim to the contrary notwithstanding). I made an exception in this case because, as any regular SP reader knows, pudge loves to call people inflammatory names like liars, liberty-haters, etc. I usually object to pudge's logic more than his facts, but in this case I felt he misrepresented facts, so calling him a liar seemed, well, fitting, as well as factually correct.
I have no opinion on whether pudge wears combat boots.
22. What I meant to say is, I have no opinion on whether pudge wears combat boots, but I'm sure the Second Amendment guarantees his right to do so.
Bruce: I only call someone a liar when they repeatedly, demonstrably, and provably, lie.
I only call someone a "liberty-hater" when they say things that clearly demonstrate it.
And, of course, I didn't lie. I properly represented what Breyer. I don't believe you lied by calling me a liar, you're simply misguided ... though not as badly as Breyer.
Breyer said the only reason the Second Amendment was included by Madison is so some states' fears would be allayed. But this is obviously irrelevant. What matters is what the words meant to the people who voted for it.
Let's back up a little and talk about different methods of constitutional interpretation. Breyer's view is that, essentially, we should look at the "values" of the Constitution and try to implement those, regardless of the words. So when the Constitution is clear that government cannot restrict speech, Breyer says, "well, that was written because of the 'value' of 'enhancing democracy,' so if I, as a wise and powerful judge, believe that a given restriction on speech enhances democracy, that makes it constitutional."
Without dwelling on how stupid Breyer's view is, there's an opposing view held by most conservatives, that the words matter most ... not the words as we might interpret them today, but as they were interpreted by the people who voted for the law in question. This is textualism. Going further away from Breyer, we have "strict constructionism," which is a view held by almost no one in legal circles, which says the linguistic intent of the author matters most. So we would need to find out precisely what Madison meant when he wrote the words, rather than what the words meant to others.
But Breyer goes even further away from his own views and says it's not Madison's linguistic intent that matters, but his MOTIVE. NO ONE holds this view. It'd be as if a judge said that we should ignore a mandatory sentencing law because the politicians were only trying to be tough on crime. Go back to what Breyer said: "If [getting this document ratified] was his motive historically, the dissenters were right [that there is no individual right to keep and bear arms]."
Literally, Breyer was making the completely incredible case that the motives of the author of a law predominate in its interpretation. And, might I add, that Breyer's dishonesty is more obvious than the simple facts I laid out above, because in the second gun case, about incorporation, Breyer gave no similar significance to the well-documented motives and intent of the authors of the 14th Amendment, who explicitly included the individual right to keep and bear arms as a right the states would be required to respect.
So yeah, I stand by my claim that Breyer made the case that we could ignore the Second Amendment because Madison didn't mean what he wrote. Breyer even went so far as to dodge Wallace's question about the words "the right of the people": instead, he focused on, "well, what arms?" But we cannot discuss "what arms" an individual has a right to keep and bear with someone who like Breyer denies that there is any individual right to keep and bear arms: Breyer was being further, and extraordinarily, dishonest.
At the end of the day, Breyer was twisting the law and history and even his own fastly held views on constitutional interpretation either because he simply doesn't like guns, or he simply wants to defer to government over the people. Either way, he is ignoring the law and its proper interpretation -- whether you believe in Breyer's or Scalia's methods of interpretations -- in order to push his view. He is so intent on killing our rights, for one reason or the other, that he willing to (selectively) use a discredited legal philosophy -- "strict constructionism" -- that he himself has repeatedly attacked in order to try to subvert our rights.
I stand firmly by my interpretation of what Breyer said. He does not believe in our right to keep and bear arms and is willing to use an incredible statement -- that Madison's MOTIVE matters more than anything else -- to try to kill it.
Pudge@23, first let's agree that Breyer didn't fully describe his philosophy in that interview. Wallace didn't ask as pointed questions as you would have, and there was a lot of parrying back and forth.
I agree that Madison's motive doesn't matter in itself. But his motive, and his intent, and the widespread interpretation of the voters at the time, are likely connected. I read Breyer's comments about motive as yet further evidence that the Second Amendment was written and generally viewed in the context of militias rather than citizens acting on their own. But I also admit to being influenced by what I view as the absurdity of a literal interpretation not constrained by the militia clause or public safety interests, which would allow me to carry a loaded gun or armed nuclear bomb into a a presidential speech, a police station, or a schoolhouse. I am further influenced by my belief that privately-owned guns are more a threat to our liberty than a defense. You may not agree. Shrug.
Bruce: let's agree that Breyer didn't fully describe his philosophy in that interview.
I think he clearly showed what his philosophy is: he does not believe in rights, and does believe in government.
I agree that Madison's motive doesn't matter in itself. But his motive, and his intent, and the widespread interpretation of the voters at the time, are likely connected.
Not according to Breyer. Breyer says Madison wrote it so that people would sign on to the Constitution, and not to defend our individual rights. But the people who signed on to the Constitution DID believe it defended individual rights. This is demonstrated time and again by the historical record, with the overwhelming majority of people, contemporaries and those who followed, believing that the Second Amendment granted us an individual right to keep and bear arms.
Indeed, Madison HIMSELF said so. So whatever Madison's MOTIVE, his INTENT -- especially how it was interpreted by everyone else -- was clear: that government cannot take away our individual right to keep and bear arms.
His motive is, literally, irrelevant. I'd argue, however, that -- like most of the Bill of Rights -- Madison didn't believe it was necessary. Madison likely thought that the Second Amendment was superfluous, not because he didn't believe in an individual right to keep and bear arms, but because he believed the Constitution did not allow the federal government to usurp that existing right. Note that Madison wrote in Federalist 46 -- before he wrote the Bill of Rights -- that Americans have a right to be armed. So Madison already believed in the substance of the Second Amendment, and believed it was not necessary to add it to the Constitution. But he did so to provide assurances.
But Breyer's argument is that since he had ulterior motives -- to assure some states -- we can throw it out. So much for assurances, hm?
I read Breyer's comments about motive as yet further evidence that the Second Amendment was written and generally viewed in the context of militias
Yes, that is what Breyer thinks, but ALL the evidence is against him. Most obviously is the words themselves: "the right of the people to keep and bear arms shall not be infringed." If this is a right of "militias" and not individuals, then how to explain the exact same phrase used for our right against unreasonable search and seizure, and so on?
No, the language itself strongly implies it's an individual right, and what seals the deal is the history of it, that EVERYONE at the time considered it an individual right, and further, that this was cemented against the states by the overwhelming, expressed, sentiments in favor of an individual right in the passage of the 14th Amendment.
But I also admit to being influenced by what I view as the absurdity of a literal interpretation not constrained by the militia clause or public safety interests, which would allow me to carry a loaded gun or armed nuclear bomb into a a presidential speech, a police station, or a schoolhouse.
That's a red herring. It's like saying we can implement any restrictions against speech, just because a literal interpretation would allow us to libel, to lie in court, to cause riots, and to encourage criminal acts.
I am further influenced by my belief that privately-owned guns are more a threat to our liberty than a defense.
Yes, but reason dictates that this must not influence you, otherwise you must accept that someone may be influenced in taking away your right to free speech just because they believe your use of speech is a threat to our liberty.
Of course, Breyer DOES believe that. As I noted, Breyer does not believe in rights. I think, however, that you do.
Dumbest rant on this website, ever.
Of course Justice Breyer doesn't hate the Rule of Law. How the hell do you think he became a Supreme Court Justice?
Do you idiots ever think?
All you seem to have is raw emotion, no logic, no thought. No reason. Just hate for our system of Govenment.
It's pathetic what's become of the right wing, taken over by insane exteremests.
John Gatt: Of course Justice Breyer doesn't hate the Rule of Law.
Yes, he does. He's proven time and again that he does.
How the hell do you think he became a Supreme Court Justice?
That question is irrelevant to whether he hates the rule of law. Clearly you don't even understand my point, so it's kinda funny that you're criticizing it. Whether one loves or hates the rule of law, versus the rule of men, is entirely orthogonal to whether they love the law or are a lawyer or a justice.
The rule of law is not the same thing as the law. Someone who loves the rule of law says, "we cannot allow a law that, in design and effect, restricts political speech, because the First Amendment says that law is disallowed." Someone who loves the rule of men says, "I think that some people have too much political speech, so regardless of the First Amendment, we're going to allow a law that restricts that speech." Breyer does the latter.
All you seem to have is raw emotion, no logic, no thought. No reason.
Obviously, you either didn't read my post, or you are not intelligent enough on the topic to understand what I wrote.
Just hate for our system of Govenment (sic).
No. Hatred, rather, for what Breyer wants to turn our system of government into: one where the law doesn't reign, but judges do.
It's pathetic what's become of the right wing, taken over by insane exteremests.
Considering that you didn't actually criticize a single thing I wrote, other than the title of the post, which you clearly didn't even understand, your judgment on the matter is not worth considering.
If you actually had a criticism for what I wrote, as Bruce does, you might have a point for people to care about. You didn't, and you therefore don't. Frankly, I think you cannot criticize anything in my post. I think you don't understand the issues well enough to even understand my post, let alone comment intelligently on it.