what does the right REALLY think of Roberts?

Tue Jul 26 08:14:42 PDT 2005

Marc: My understanding of the Ninth Amendment is that it was not intended to empower federal courts to protect unenumerated (certain but not all) rights based upon the judges' personal views of which rights deserve protection and which do not. Frankly, that would be a stain on liberty, since it would allow an unelected body of lawyers to rule us from the bench on even the most important issues such as the meaning of life, marriage, and death.

Rather, I view the 9th and 10th amendments as being designed to make clear that the Federal Government is a government of strictly limited powers and to protect state-created rights and liberties against federal interference. I know others read the 9th differently, but I have never been convinced by their arguments.

By the way, most social liberals who consider themselves libertarian do not support gun rights, school choice, low taxes, freedom of contract and other economic liberties, etc. So even if I am not a 100% libertarian, I score higher on the libertarian scale than do many liberals who like to think of themselves as lovers of liberty. Indeed, I would go a long way toward abolishing the Regulatory Welfare State, much further than most self-identified libertarians.

Rick

Marc Stern <mstern at ajcongress.org> wrote:
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Rick:
The Ninth Amendment refers to rights not in the constitution and asserts these belong to the people (or the states).But the substance of these are not to use your phrase “expressed in the Constitution.” Is it your view that the Ninth Amendment is a nullity, or just that the rights it recognizes are not subject to judicial acknowledgement. Or  just that abortion is not one of those rights reserved to the people?
Marc Stern

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From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Monday, July 25, 2005 11:20 PM
To: Law & Religion issues for Law Academics
Subject: Re: what does the right REALLY think of Roberts?

I am a libertarian/social conservative (I like the liberties that are expressed in the Constitution, the ones I have trouble with are the deadly ones the liberals on the Court have invented), and I think the Roberts nomination is a great choice. There is nothing wrong with a Catholic Republican Boy Scout type, particularly one who is married to a pro-life activist. I think Roberts replacing O'Connor could make a huge difference not only in outcomes, but in solid reasoning and leadership. Indeed, Tony Kennedy seems to be an empty-headed sheep in search of a leader, and Roberts calm conservative style may command Kennedy's support in ways that Scalia's more muscular conservatism cannot. Change will come by accretion, but it's all good--it is better to boil frogs like Roe slowly to assure that they are cooked for good.

I think Roberts is a great choice. I think McConnell would have been a great choice (I would be delighted with an Evangelical Republican Boy Scout type like Mike as the new Chief when the current Chief steps down). Indeed, if we care about religious diversity on the Court, we might well welcome and celebrate a conservative evangelical as the next nominee.

Cheers, Rick Duncan

Steve Sanders <stevesan at umich.edu> wrote:

Despite the rally-the-troops messages on websites like the ACLJ and Concerned
Women for America, no one can seriously believe John Roberts makes the hearts
of religious conservatives beat faster. Social conservative groups are 
falling
into line behind Bush and going through the motions of the battle they spent
years preparing for. But as everyone now knows, Roberts is a conventional,
buttoned-down, Catholic Republican Boy Scout type of guy who may or may not
have once been a member of the Federalist Society -- but is anything but a
true-believer or ideologue (and left wing groups look silly attempting 
to label
him as such). Most people profess not to have a clue about any actual
convictions he might hold, and he has in the past disclaimed any theory of
constitutional interpretation. He seems in many ways like the person that
movement conservatives urged Bush *not* to nominate -- someone with a thin
record who might be insufficiently committed to the right's activist
jurisprudential agenda.

So, who's willing to fess up? What do social and religious conservatives
*really* think of John Roberts, and how long before doubts or misgivings start
leaking out?

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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When ! the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner

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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner
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