Chief Justice John Roberts?
bobsheridan at earthlink.net
Mon Sep 5 09:30:03 PDT 2005
DavidEBernstein at aol.com wrote:
> ...As for the criminal procedure stuff, isn't odd that the Warren
> Court, and not the Constitution, is the body that "afforded criminals"
> these protections. I generally like these protections, but I'll be
> damned if I can find Miranda warnings, even implicitly, in the
> All this is a long way of saying that while I have my serious
> disagreements with Rehnquist, it's wrong to judge a Justice by
> the practical consequences of his decisions, regardless of whether
> they were legally correct.
It seems there's a good deal of Constitutional Law that, the more
conservative one is, cannot, or at least had not, been found in the
Constitution until the Court ruled otherwise, starting with judicial
review, going to a loose construction of the commerce clause, proceeding
to the incorporation theory, and all sorts of liberty, equality, and FA
protections. In fact, the whole concern of Conlaw is what can be found
in the "Constitution," meaning the accumulated body of doctrine over the
Assuming some truth to that, the question is what an intelligent person
with a conservative bent who has been active and alert over the past
three decades is apt to do if made Chief Justice over the next three
decades. What does he keep and why does he keep it, and what does he
get rid of in the way of rights and protections on the ground that
originally such rights were not "in" the Constitution and he wouldn't
have voted for them had he been on the Court then, which he wasn't.
Isn't this the key question for conservative justices, how much of the
decisions laid down long ago must be kept for reasons of reliance,
continuity, and having become part of the "fabric of society," as the
late C.J. William H. Rehnquist, of respected memory, recognized in
upholding Miranda as constitutional, not lesser, doctrine in Dickerson,
and the Troika in Casey?
As for the proposition that it's wrong to judge a Justice by "the
practical consequences of his decisions, regardless of whether they were
legally correct," I wonder.
Justices are not theoretical scientists concerned with uncovering basic
laws of the universe, oblivious to the practical implications better
left to engineers and technicians. In the Universe of Conlaw there are
no bedrock principles. They've all been invented out of human
experience, some of which is only thought to produce what supporters
like to call bedrock. The only value a principle has is in its
practical consequences. If a principle does not have practical
consequences such as whether a woman can have the abortion, or whether
we can do stem-cell research that may result in a medical treatment that
means the difference between life and death to someone, the principle
is, or has become, useless or evil.
One of the reasons we honor John Marshall is that his principles are
said to have resulted in practical applications of enduring utility.
That applies even more to the Framers, and is perhaps the reason we
congratulate them, since we're probably actually congratulating
ourselves for having built on and cherry-picked the better ideas while
letting the others slide into the background.
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