A Flawed Constitution

Shade · Mar 6, 2010

Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

By Shannon Bream

Even his critics describe him as "brilliant," but President Obama's newly minted judicial nominee -- law professor Goodwin Liu -- will not have an easy time getting to the 9th Circuit bench.

At age 39, Liu has compiled an impressive resume: Rhodes Scholar, Supreme Court clerk, top grades at both Stanford University and Yale Law School and now law professor University of California, Berkeley.

Liu has also aligned himself with progressive legal groups, including the American Constitution Society, where he is chairman of the board of directors. That's prompting opponents to argue that Liu is "too far outside the mainstream" to take a seat on a court just one step below the Supreme Court of the United States.

"He believes the Constitution is something judges can manipulate to have it say what they think culture or evolving standards of decency requires of it in a given day," said the Senate Judiciary Committee's top Republican Jeff Sessions, R-Ala.

Ed Whelan, a one-time clerk to Justice Antonin Scalia and now president of the Ethics and Public Policy Center, echoed those concerns.

"Liu believes that judges have the authority to impose their views ... using clever verbal camouflage to disguise what they're doing."

Liu opponents point to a number of his writings, including a book he co-authored in 2009 called "Keeping Faith with the Constitution," in which the authors opine about their concept of judicial interpretation.

"Applications of constitutional text and principles must be open to adaptation and change ... as the conditions and norms of our society become ever more distant from those of the Founding generation."

That theme -- that the Constitution's text and principles must be adapted to changes in the world -- repeats throughout the book and raises eyebrows among conservatives.
Others who know Liu point to what he's accomplished, starting as the son of Taiwanese immigrants who didn't speak much English.

"He embodies the American dream," said Doug Kendall, president of the progressive Constitutional Accountability Center (CAC).

Kendall's group does not make a decision about whether to officially support nominees until their confirmation process has concluded, but he is impressed by what he knows of Liu so far.

Kendall said he believes Liu's critics are wrongly portraying him as extreme.
"If you look at Liu's scholarship, he rejects both the conservative idea that judges should strictly construe the Constitution and the liberal idea that the Constitution is a living, breathing document," he said.

Liu is no stranger to Capitol Hill. He testified against the nomination of Justice Samuel Alito during Alito's 2006 confirmation hearings.

In a 2005 report Liu co-authored prior to his testimony, he wrote that Alito's opinions "show a disturbing tendency to tolerate serious errors" and "reveal troubling perspectives on federalism, race, and due process of law."

His testimony didn't derail Alito but now Liu will face similar probing. Already, questions are being asked about whether the president's is putting the young nominee on the fast track to the high court.

Kendall said only time will tell whether Liu would be the right fit, but it's possible he could be in the running if he is confirmed to and serves well at the 9th Circuit. However, that is a possibility that "concerns" Liu's detractors, including Whelan.

"That's certainly an added factor that folks in the Senate need to take into account," he said.
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I'm sorry to all you Constitutionalists out there, but the Constitution, for all of its praise, continues to be used as a weapon against liberty; and it's clear this type of interpretative use will never cease.

morefreedom · Mar 6, 2010

WTF I thought the supereme court interpreted the constitution. Not just "do whatever the fuck you want"

Shade · Mar 6, 2010

morefreedom said:

WTF I thought the supereme court interpreted the constitution. Not just "do whatever the fuck you want"
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The supreme court interprets the Constitution to mean whatever they think it should mean.

The way the Constitution is written has allowed these arbitrary judgments to continue from years past to years to come.

Lynchings · Mar 7, 2010

Wow, I totally get what you're saying! We should just do away with constitutions, and flip to contracts between corporations! Man, I just totally got enlightened! I mean, it just seems like only governments use tricky wordplay when it comes to linguistics! We should definitely just do away with any document that was in written earnestly to protect civil liberties by the United State's founding fathers, and let modern lawyers and businessmen write a new constitution! Because, you know... there's no way there would be major loopholes and/or other long-winded, possibly corrupt bullshit in a "constitution" written by businessmen. Nope. What a foolproof idea I just had!

Because, you know, only the Constitution (because it was written by government) can be interpreted to mean things other than what it means, because, like I said, it was written by the government. We totally don't see bullshit like that all the time in other legal/business/whatever documents. Nope, damn government. Because, you know... a privatized judge would be much less able to interpret documents in a way possibly different from it's intended meanings. Yeah, only a judge elected by the government can have their personal interpretations of the law be up for scrutiny/controversy, because they're just the worst kinds of people.

Shade · Mar 7, 2010

Where's Dorothy, the Tin man and the Lion? All I see is a straw man.

Lynchings · Mar 7, 2010

Shade said:

Where's Dorothy, the Tin man and the Lion? All I see is a straw man.
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What are you talking about? I was just drawing my own conclusions based off the information you gave me. Seeing as how I wasn't arguing with anyone, or trying to debunk any of your points, I am not drawing away from your issue. I mean, don't I have to be debating an issue in order for me to be distracting someone from it?

Sir Elliot · Mar 7, 2010

The Soviet constitution guaranteed all sorts of things. Fair trials by jury, free practice of religion, etc.

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