John Roberts denounces Original Intent

[CShine]

The more I see of this guy the more it looks like hardcore conservatives are in for a very rude awakening when he takes his seat on the Court. Not only did he reject the importance of original intent yesterday, he sent a clear signal that he believes in the idea of a "living" Constitution that so many conservatives have often rejected.

Chief justice nominee John G. Roberts Jr. carefully avoided taking sides on many issues Wednesday, but he went out of his way at his Senate confirmation hearing to put some distance between himself and justices Antonin Scalia and Clarence Thomas — the Supreme Court's two staunchest conservatives. And the issue was a basic one, with possibly great import for the future: How should a high court justice interpret the Constitution?

Scalia and Thomas proudly call themselves "originalists." They say the Constitution should be interpreted strictly, based on its literal words and its original history. Like other conservatives, they shun the notion of a "living Constitution." They say their approach is faithful to the Constitution as it was written in 1787 and amended since then. Scalia says, only half-joking, that he believes in a "dead Constitution."

This look to the past leaves no room to consider such contemporary concepts as a right to die or equal rights for gays.

Roberts pointedly said Wednesday that he disagreed with this narrow originalist approach and would apply the Constitution in light of today's concerns and understandings.

"I depart from some views of original intent," he told the Senate Judiciary Committee.

Words such as liberty or equality should not be given a "cramped or narrow construction," based on "just the conditions at the time" when the Constitution was written, he said.

"The framers chose broad terms, [with] a broad applicability, and they state a broad principle," he told Sen. Arlen Specter (R-Pa.), the committee's chairman.

He noted that the preamble to the Constitution says the document was designed "to secure the blessings of liberty to ourselves and our posterity."

"It applies to modern times," he said. The Founding Fathers intended the Constitution "to apply to changing conditions. And I think that in that sense, it is alive … and applies down through the ages," Roberts said.

http://www.latimes.com/news/nationwo...home-headlines

[pan6467]

It truly is hard to say what ANY judge believes until once we see how they rule a couple times and what their pattern of thought.

He could be saying whatever, to get easily approved by the Dems. and make it look like he'll be more fair than what he will be once on the bench.

And vice versa, Bush may have believed he would be getting an ultra conservative only to find once there Roberts is more liberal than anyone believed.

So who knows, only time will tell.

You are talking about arguably a position more powerful than the president, and he maybe hungry and conniving enough to say what ever he needs to to get this lifelong powerful position.

[smooth]

Well, I don't hold as cynical a view of this process as pan.
I do consider that people can employ various definitions of what constitutes a living Constitution.
While Roberts may agree the Constitution is relevant to modern issues, he may differ from people who generally that view in how the application is achieved.

That is, the Constitution may very well apply to modern issues, but is it the role of the court to derive meaning from the social context or the principles embedded within the document? He may well hold the view that new principles ought to be instigated by Congress (although he has written disdainfully of their logic skills in the past). One could conceivably believe that the document is indeed living, but not malleable by the Court; rather, one could still hold that view simultaneously with the belief that only Congress has the power to forge newly recognized rights.

This is one possible way for someone to skate the line between the "originalist" camp and the "living document" camp.

[flstf]

I think the writers of the constitution did give us a living document. They gave us a way to amend it when/if it becomes outdated. I believe they thought that it would have to be amended from time to time to take into consideration contemporary concepts. Stretching their original intent should not be necessary and could be rather dangerous. Jurists should interpret the law, not make it.

[alansmithee]

Schumer was grilling him about this today, and Judge Roberts totally outmaneuvered him and danced around directly answering the question. Apparently Justice Thomas made some similar remarks during his nomination hearings, and dem's are afraid Judge Roberts might be similar when he's installed on the SC. The more I hear of this hearing and how Judge Roberts is handling himself, the more I like him. The more the Senate tries to get him to commit on certain hot-button issues, the more he seems to make them look foolish/partisan.

[politicophile]

The Democratic Senators on the Judiciary are no match for John Roberts: he could be the most conservative jurist in U.S. history and they still wouldn't be able to prove he was an extremist. Roberts has spent his entire life preparing for this moment: he is amazingly intelligent and patient, and he will have no difficulty outmanuvering the idiots that call themselves Senators.

There are certainly degrees of originalism. My prediction of John Roberts is that he will turn out somewhat to the right of O'Connor and Kennedy, but perhaps a hair to the left of Rehnquist. A degree of respect for the Constitution as a document is important for any Justice, simply because of the overwhelming importance of rule of law: a court must not be permitted to interpret the Constitution in just any way they see fit. Rather, a fine balance must be struck between legislating from the bench whilst ignoring the Constitution, and binding oneself to an 18th-century interpretation of an 18th-century document. From my view, Rehnquist struck the best balance in this regard, although he sometimes tended to rely to heavily on an originalist reading.

John Roberts, it seems, understands the importance of allowing judicial understanding of the Constitution to change over time. However, as a conservative, he presumably also understands that we have a Constitution for a reason. I hope that he sees the attraction of slow, gradual change to Constitutional interpretation.