Impeach Kennedy for Being Supremacist Judge?Or Just Kill Him

"Racist" is a term that refers to a person's assumed motivation. Happily, in this country, one cannot be punished for his motivations or beliefs - only wrongful actions prohibited by law.

Although Posner is considered a "distinquished" jurist -- he has only distinquished himself by being a prolific writer. However, when he writes that the constitution CONFERS rights, the rest of us ought to be smart enought to know that his writings are based on a faulty premise of both law and history

As for racism: You can slice it anyway that makes you comfortable but the bottom line is that American citizens all have the same rights but that bag, that collection, that passel full of rights does not contain the right to be racist in hiring.

Debra_Law wrote:

Although Posner is considered a "distinquished" jurist -- he has only distinquished himself by being a prolific writer. However, when he writes that the constitution CONFERS rights, the rest of us ought to be smart enought to know that his writings are based on a faulty premise of both law and history

1) Aren't you forgetting an important adjective Posner is using? He is explicitly talking about legal rights. The word "rights" is used in both legal and moral context. When the Declaration of Independence said that "all men" weren't "endowed by their creator" with "certain unalienable rights", it was taking a moral position. If it had statied that people were endowed by their creator with legal rights, their statement is flatly false. "Their creator" didn't leave any codes of law for us to read, and for all we know, there may not be a creator to leave us any such documents. Posner is talking about legal rights in a context of positive law. And in that regard, his statement is true.

2) While you have conclusively refuted chiczaira's contention that Posner does not consider civil rights as subject to tradeoffs, I believe Posner is right in describing them this way. The assumption of the legislature is that the Patriot Act, for all its infringements on civil rights, increases the security of Americans. As a political matter, I think this assumption is false. But as a legal matter, the act claims to be sacrificing some constitutional rights for a gain in other constitutional rights, particularly the right to live. Hence, assuming for the sake of discussion that the premise of the Patriot Act wasn't politically false, I don't see what's wrong about it making tradeoffs between constitutional rights even on your theory.

Good night

It seems to me (that's a phrase I use when I'm signalling that I've got absolutely no evidence for the statement about to follow) that the rights that any human has are given to them by their society and not by their creator.

We live in a time when citizens - and indeed, even constitutional lawyers - are ready to compromise constitutional guarantees for the sake of increased security, whether real or imagined. Those who argue that we must be flexible in times of danger often mouth the slogan, "The Constitution is not a suicide pact." By that, they mean that civil liberties only go so far, and at extremes, security must take precedence. . . .

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Academics invoke "suicide pacts" in the law reviews when they want to demonstrate that they are tough-minded about hypothetical conflicts between liberty and security; editorialists do the same.

Even Posner-as-pundit falls victim to this thinking, though Posner-as-Judge does not. In a forthcoming book, for example, Posner defends Lincoln's suspension of habeas corpus during the Civil War. Indeed, he even hints that it might have been acceptable for Lincoln to suspend the election of 1864, if the military circumstances had required it, simply because "by November 1864 the North was close to victory."

As pundit, Posner advocates "pragmatic" decisionmaking - the balancing of security against liberty - without recognizing that either value has priority. And yet when Posner is sitting as a judge, his strong commitment to the Constitution takes over - despite his desire to appear to be a hard-headed, pragmatic "balancer."

Fortunately, the rhetoric of the balancers does not always translate into decisions contrary to civil liberties. Despite his willingness to balance away human rights against the interests of society, Justice Barak is well known for his decisions protecting civil liberties. When U.S. judges invoke the maxim about suicide pacts, they display a contrary tendency to protect civil liberties in the individual case. Judge Posner - a self-styled "pragmatic" - will use the rhetoric of balancing to disarm potential critics and then decide in favor of the rights of the individual. The language of balancing makes judges appear tough and responsible while they restrain the power of the state.

The danger is that another generation of judges, less schooled in the instincts of liberty, will balance the other way. To communicate our commitments from one generation to the next, we must sometimes overstate the case and leave it to others to cope with extreme, unforeseen circumstances that require tragic choices.

Kennedy and Justice Clarence Thomas appeared before a subcommittee of the House Committee on Appropriations for an otherwise routine hearing on the Court's $66 million budget request for the next fiscal year.

The anger toward federal courts brewing among mainly conservative members of Congress critics surfaced when subcommittee member Rep. Todd Tiahrt, R-Kan., expressed his concern about Roper v. Simmons. That March 1 ruling written by Kennedy struck down the death penalty for juveniles and cited, among other things, international consensus on the issue.

Invoking international law went "beyond the rule of law," Tiahrt said. Tiahrt's comments were not presented as a question, and Kennedy did not respond directly on the international law issue, but he did say debate about the role of the courts was "tremendously energizing" and was a "democratic dialogue that makes democracy work."

At a later point, when Rep. Steven Rothman, D-N.J., asked how justices interpret the Constitution in light of changing circumstances, Kennedy made a more impassioned defense of the American judicial system as "the envy of the world." A key element of the system, he added, was the neutrality and independence of the judiciary. Without mentioning the recent criticism, Kennedy said that disparaging the judiciary's neutrality while the rest of the world yearns for it "would be a tragedy."

For his part, Thomas also suggested that criticism came with the job of being a federal judge."We have lifetime appointments because we are supposed to be criticized." A longtime sports fan, Thomas added that, in his experience, when a game is over, "the referees get out of there fast. They don't stand around high-fiving people."

Much of the hearing was spent discussing the Court's request for 11 more police officers, including one whose sole job would be "threat assessment." Rep. Ed Pastor, D-Ariz., asked if a sharp increase in threats against justices had triggered the request.

Thomas did not want to get into specifics, but said that with the Internet and the 24-hour news cycle, "passions get pretty high." Pastor agreed, mentioning talk radio as an example.

Thomas balked at the suggestion. "It's not that either," he said. Thomas and talk radio host Rush Limbaugh are old friends, and Thomas hosted and presided over Limbaugh's 1994 wedding.

The hearing also had more lighthearted moments. Rep. Tiahrt referred at one point to the possibility of Supreme Court retirements, adding that he doubted that either of the justices present would make any announcements during the hearing.

With a smile, Kennedy said, "Justice Thomas would probably like to announce mine." Kennedy and Thomas are friends, but have been on opposite sides in the Roper decision and other recent hot-button rulings.

Invoking international law went "beyond the rule of law," Tiahrt said.

I don't believe that simply being human confers any fundamental rights on us. If we recognise something as a "right" then for mine it's socially determined.

That isn't to take away from the strength of your arguments concerning inalienable rights. It seems to me (jeepers there I go again) that those arguments must trump the opposition which is actively seeking to deny or at least severely limit those rights. I know this is more than an intellectual exercise. I know that right now forces of darkness are trying to attack those rights - and I am not kidding one bit. Without wanting to sound overly dramatic your Constitution is under attack from within.

The Bill of Rights was drafted to SECURE some of our most precious rights from infringement, or abridgment, or disparagement by the government. This is reflected in the absolute prohibitions place in the Bill of Rights.

For example, the First Amendment provides that Congress shall make no law abridging the people's right to freedom of speech. The language of the First Amendment does not confer the right to freedom of speech upon the people; the language is an absolute prohibition placed on government from abriding an inalienable right. Liberty is an inalienable right, and if liberty is to have meaning, the people must also have the right to speak out against governmental transgressions -- a right that government may never deny or disparage.

Accordingly, the Courts do balance individual rights with governmental interests. But again, there are certain rights that may NEVER be infringed, abridged, denied, or disparaged regardless of the governmental interest involved. "Congress shall make no law . . . " means exactly what it says.

I suspect there may be a few semantical issues lurking behind all this that have made the disagreements appear larger than, perhaps they really are.

Our Declaration of Independence was, among other things, a rationalization of the people's right to the overthrow of their government - Revolution. It and the subsequent constitution made repeated reference to inalienable rights, conferred on men by their creator (or by virtue of thir existence - as you wish), and having a moral status above that of any government.

Implicit in the creation of any government is conferring on it the ability to create (or perhaps more accurately, define) legal rights and the obligations it may impose on the people so governed. It is the fate of judges to find the contradictions that may emerge from the various legal enactments of government and the inalienable (intrinsic) rights retained by the people and (in some cases) enumerated in the constitution.

Thomas has referred to a balancing of these rights in which legislatures and judges routinely make such compromises. For example a traffic light temporarily suspends the inalienable right of motorists to go where they please on a public road in favor of motorists on the intersecting road. Ninety seconds later the situation is reversed. This is a trivial case, compared to the security vs. liberty cases Thomas has addressed, but it illustrates the same point.

I wish Judge posner would use a different verb when he indicates that the legislatures and courts "confer" legal rights on various classes of people in their enactments. This has overtones of the creation of those rights, instead of the mere specification of them as something derived from intrinsic (inalienable) rights and power granted to government by the people. However, that said., I don't know of a better or more accurate word for it.

Thomas argues that no right is absolute. Despite the Freedom of Speech secured by the First Amendment, people are not allowed to use words to threaten and commit crimes against others (e.g., give me your money or your life), people are not allowed to yell "fire" in a crowded theater, and people are not allowed to engage in false advertising.

The government has a duty to SECURE the inalienable rights of all persons. Therefore, the government can make it a crime for one person to rob another person. If I rob or attempt to rob my neighbor and utter the words, "Your money or your life," the government may impose punishment upon me. This punishment is not intended to deny or disparage my freedom of speech; this punishment is intended to secure the rights of all persons who are being harmed by my conduct.

It is true that the Supreme Court has stumbled several times over the last two centuries when it comes to interpreting and applying the Constitution. But this fact does not negate the foundation upon which our government was established.

Goodfielder argues that the people's rights are not innate (or intrinsic, or inherent, or inalienable) and that rights recognized by our forefathers had a "social origin." In an earlier post, he stated that the only rights a person may have are those that society gives to him.

Goodfielder's argument simply ignores that our founders believed that our rights are inalienable -- and that we don't form governments to give us rights -- we form governments to secure the rights we already have. When our founders created our government, it was our founders' intent that government SECURE our inalienable rights, and among those rights are life, liberty, and pursuit of happiness.

Accordingly, when we interpret our Constitution, we must interpret the words contained therein in accordance with the intent of our founders. Any interpretation that suggests that our rights are alienable and conferred by the constitution rather than inalienable and SECURED by the constitution is WRONG, plain and simple.

Posner tries (and perhaps fails, though I don't think so) to provide guidelines for the politics of interpreting a statute. And for this purpose, his way of thinking about tradeoffs is as least as helpful as constitutional hermeneutics, if not more.

When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress - and to approve or disapprove the public policy written into these laws.

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The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there.

We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.

I want - as all Americans want - an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power - in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.

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When I commenced to review the situation with the problem squarely before me, I came by a process of elimination to the conclusion that, short of amendments, the only method which was clearly constitutional, and would at the same time carry out other much needed reforms, was to infuse new blood into all our courts. We must have men worthy and equipped to carry out impartial justice. But, at the same time, we must have judges who will bring to the courts a present-day sense of the Constitution - judges who will retain in the courts the judicial functions of a court, and reject the legislative powers which the courts have today assumed.

It is well for us to remember that in forty-five out of the forty-eight states of the Union, judges are chosen not for life but for a period of years. In many states judges must retire at the age of seventy. Congress has provided financial security by offering life pensions at full pay for federal judges on all courts who are willing to retire at seventy. In the case of Supreme Court justices, that pension is $20,000 a year. But all federal judges, once appointed, can, if they choose, hold office for life, no matter how old they may get to be.

What is my proposal? It is simply this: whenever a judge or justice of any federal court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the president then in office, with the approval, as required by the Constitution, of the Senate of the United States. . . .

I think what goodfielder is getting at is that if you were the first person on earth, would you have had these rights? Why?

Wouldn't they have only become "rights" after the second person appeared and offended the first in some way as to cause the first to assert them?


BTW, this is a most informative discussion. I'm enjoying what I am learning.