Monday, December 13, 2010

Justice Breyer says that "personal values of our founders" trump the Constitution

Liberal Supreme Court Justice Stephen Breyer is in the news today courtesy of his asinine proclamation that despite the plain language of our Constitution, our Founding Fathers really wanted us to enact gun control.
Appearing on "Fox News Sunday," Breyer said history stands with the dissenters in the court's decision to overturn a Washington, D.C., handgun ban in the 2008 case "D.C. v. Heller."

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

Madison "was worried about opponents who would think Congress would call up state militias and nationalize them. 'That can't happen,' said Madison," said Breyer, adding that historians characterize Madison's priority as, "I've got to get this document ratified."

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

"If you're interested in history, and in this one history was important, then I think you do have to pay attention to the story," Breyer said. "If that was his motive historically, the dissenters were right. And I think more of the historians were with us."
(insert sigh here)

First of all, any lawyer at all--heck, any intelligent 5th grader--knows that it doesn't matter what the parties to a contract privately believed. All that counts is what they actually put in writing and signed off on. If you go to a car dealership and sign papers agreeing to buy a Kia, it doesn't matter if you are thinking in the back of your mind that you'd really like the Corvette instead. You agreed in writing to make payments for and take delivery of the Kia. That's what's in the contract, so you don't get to sign it then drive out with the Corvette because it's what you "really" wanted. Well the US Constitution is perhaps the greatest contract ever written, and it specifies exactly which powers that We, the People, are giving to the government in exchange for us recognizing and obeying it. In this instance, part of the contract specified that "the Right of the People to Keep and Bear Arms shall not be infringed." (Amendment 2, Ratified by the States in 1791.)

But Breyer, a lawyer since 1964 and a Supreme Court Justice since 1994 (Thanks, President Clinton!) now insists that the writing of a contract means less than the personal values of the people who wrote it.
Breyer, who just published "Making Our Democracy Work," a book about the role of the court in American life, outlined his judicial philosophy as one in which the court must take a pragmatic approach in which it "should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances."

Since the Founding Fathers could not foresee the impact of modern day communications and technology, the only option is to take the values of the Founding Fathers and apply them to today's challenges.

"The difficult job in open cases where there is no clear answer is to take those values in this document, which all Americans hold, which do not change, and to apply them to a world that is ever changing," Breyer said. "It's not a matter of policy. It is a matter of what those framers intended."
So in Breyerland, if a mechanic enters into an agreement to fix your car, but he intends all along to cheat you, you should have no legal recourse against him when he does cheat you and returns it still broken after demanding payment for his time because he'd meant to cheat you all along despite contracting with you to fix your car. And his personal values should be considered as a defense, so if he was morally inclined to cheat people, Breyer suggests that he's perfectly entitled to do so, contracts and promised to the contrary aside.

Flippancy aside, Breyer's type of thinking is dangerous for another reason too, and that's because it naturally sets him and people like him (other liberals) up as the arbiter and interpreter of the "values" of those long-dead Founding Fathers. Even if we were to try to run our entire country on what a small handful of people who have been gone for over two centuries would have personally liked, we don't really know what that is, do we? Of course we don't. But Breyer and his ilk now presume to know, and I guess that they'll just tell us and we can take their word for it.

Well me personally, I'm thinking that Thomas Jefferson would have agreed with me putting my foot in Breyer's ass. So I guess that Breyer won't have a problem with that should I ever find myself in close proximity to him, right?

Folks, this is why elections are so important. Presidents get to nominate these Justices, who then sit for the rest of their lives and make decisions that affect us all forever. Clinton gave us Breyer and Ginsburg, two of the most destructive Justices as far as individual rights are concerned. Obama's just put two more on--Kagen and Sotomator--both of whom are judicial hacks outstanding only in their personal allegiance to Obama. The people who elected Clinton and Obama also elected these Justices and anyone else that Obama gets a chance to name before we can get him out of there in 2012. (And does anyone who even pretends to love this country and it's freedoms really want a Supreme Court controlled by a 5-4 majority run by Obama picks?) This is why we've got to get serious about Presidential elections. Bush, for his other faults, gave us some great Justices in Roberts and Alito. His father gave is Clarence Thomas and President Reagan gave us Scalia. Come 2012, we need to elect someone who is ideologically tuned properly enough to give us other Justices in that vein. I have no idea who Governor Palin would pick but I'd still trust any of her choices over anyone that Obama or one of his successors might appoint...or anyone like Breyer, who really works at demonstrating that he still doesn't get his job. I mean, many people really don't grasp the basic concept that words mean things.

Oh--Breyer weighs in on gun rights for DC residents as well, and he seems to be granting some new permissions:
"Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have a gun."
Well there ya have it, folks. You can now take your guns on the Metro--something that was illegal yesterday--because Justice Breyer says that you can. And I didn't even know that Breyer had been appointed to the Metro Board.


  1. Insert another big ol' sigh here. Breyer drives me nuts.

    And just because Madison's primary goal was adoption of the Constitution doesn't mean he was opposed to gun ownership, so nanny-nanny boo-boo, Mr. Justice.

    Jefferson would like to kick Breyer's butt, I'll wager.

  2. Anonymous4:18 PM

    Elections have consequences.

  3. Hi Lagniappe's Owner. Remember me? We had a good discussion about Israel a while back. I just thought I check back in to see how you are doing.

    I think you are misconstruing what Justice Breyer wrote. He is simply restating the purpose of the Supreme Court - to interpret the Constitution. This isn't a radical idea, that is their job. He didn't base his vote in DC v Heller on anyone's (not even a Founding Father) opinion or intent. He based it on judicial precedent from similar cases in the past. Without boring you with a bunch of dull cases involving gunpowder regulation, I'll try to make an easier connection. We have the Freedom of Speech as clearly stated in the First Amendment, however we can't shout fire in a crowded theater. Brandenburg v. Ohio (in a 9-0 decision) ruled that the right to free speech can be restricted if it is "likely to incite imminent lawless action." I think everyone would agree that was a good ruling. The point is, rights are not absolute. The Second Amendment, like the Fist, can be restricted based on a valid and rational argument.

    Now in DC v. Heller, Breyer believed that a law which restricted a specific type of gun ownership in an urban, high-crime area, was a permissible restriction of the right to bear arms - much like similar restrictions on other rights. He cited numerous studies showing the crime-related fatalities by handguns in DC. The intentions of the founding fathers did not play into that part of his decision. Later in his dissension he talks about the original intent of the Second Amendment, but that's a different argument.

    If you want to read the whole ruling, Beyer's dissension starts at page 114.

    For the record, I'm still trying to make up my mind on this case two years later. I would just like to defend Breyer because he is an very intelligent judge who puts a lot of effort into his decisions. While I do not always agree with him I understand where he is coming from and do not believe he is destructive to individual rights in any way.

    Anyway, happy holidays!

  4. Unbelieveable... and this guy is on SCOTUS??? Sigh...

  5. I bought his book -- "Know Your Enemy" is a motto I affirm.

  6. Sorry NE, but Breyer is fundamentally wrong. His job is to APPLY the plain language of the Constitution, not decide in retrospect what the people who wrote it were really thinking. words mean things, and the Amendments were all clearly written for a reason--so that there would be no mistake or misinterpretation. Breyer's job is no more involved than a lower court judge who looks at a statute to determine if the prosecution has proven all of the elements to the degree necessary to support a conviction for violating that statue. Breyer is overstepping his authority by trying to be an activist judge instead of simply applying the law as it was written.

    Oh, and as an aside, Lagniappe's no longer here.

  7. "While I do not always agree with him I understand where he is coming from and do not believe he is destructive to individual rights in any way."

    REALLY?!?!?! Then why do you go to such great lengths to explain just WHY his decision in Heller, to leave in place a dimmunition of the right of INDIVIDUALS in DC to arm themselves? If he's NOT destructive to INDIVIDUAL rights, how can he justify limiting them for any reason, let alone the spurious belief "that a law which restricted a specific type of gun ownership in an urban, high-crime area, was a permissible restriction of the right to bear arms"?
    I would argue that Breyer is VERY detrimental to individual rights, especially the right of the LAW-ABIDING citizenry of DC to protect themselves against the lawless...who don't give a rip whether handguns are banned in DC or not...they'll still have THIER guns!

  8. ME, I'm sorry to hear about Lagniappe. My condolences. I hope you don't mind if I call you "ME" from here on out.

    ME, It is very hard to apply the plain language of the Constitution, when language in the Constitution is not plain. For example, "probable cause" in the Fourth Amendment, "just cause" and "due process" in the Fifth Amendment, and "cruel and unusual punishment" in the Eighth Amendment. These and many other terms are not defined in the Constitution. It was left up the Supreme to determine just what they meant. I doubt you could find anyone with a law degree that does not believe that there is vagueness in the Constitution.

    Ironically, interpreting the original intent of the Founding Fathers is how Justice Scalia, the most conservative member of the Supreme Court, and Breyer's greatest opponent, considers his rulings. You can see talk about it in this interview:

    Shifty1, Most of your ire should be reserved for the members of the DC legislature that voted and passed the provision banning handguns. It is a stupid provision and I agree with you that it will not cut crime one bit. Breyer was ruling on the constitutionality of the provision and not its validity. Laws can be ridiculous and still be constitutional, and if the are legitimately passed they must be enforced until overturned.