Which of the following Judicial Philosphies do you think Judges should ascribe to, and why? (please feel free to give any additional philosophies you think are not represented below):

• Enduring but not Living: Judges should strive to apply laws based on what the language of the law in question would have been generally and reasonably understood to mean at the time it was passed.
• Enduring and Living: Judges should strive to apply laws based on how today¡¦s society would generally and reasonably understand the words of the law, even if it fundamentally alters the clearly understood meaning at the time it was passed.
• Living through the People: Judges should recognize that the Constitution was intended to be ambiguous in its meaning to facilitate changes to its meaning outside of the Amendment process, and that it is the people through their elected representatives who determine the direction of change and ¡§growth¡¨ of the law
• Living through the Courts: Judges are meant to be the arbiters of a Constitution with no fixed meaning, but is left to them to decide what it means each day based on whatever notions they hold regarding the "evolving standards of decency that mark the progress of a maturing society¨

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Test test?

My view is that we should strive for a balanced Judiciary, because the goal is supposed to be about the merits/implications of the case, not any sort of agenda. I've never been a big fan of lifetime appointments, either.

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"My opinions may have changed, but not the fact that I am right." - Ashleigh Brilliant(?)
(Voting for None Of The Above, so far...)

Sorry, was originally going to try it as a poll, but didn't have enough space, have updated the original post with actual content *grin*

I intentionally left any reference to specific political outcomes out of my categories. I think that most if not all judges agree that the goal is supposed to be about the merits/implications of the case immediately before them, but they tend to disagree on what judicial philosophy best achieves that goal in the context of a representative republic with a written constitution and laws. Are judges supposed to make the law, or are they suppose to determine what it is and apply it as they find it to the case before them?

I would submit that it is the later, Judges have no independent judgement as to what the law SHOULD be, their job is to apply the law as it stands (adhereing to the reasonable and general understanding of that law by those who gave it effect at the time it was so done) and apply it to the facts before them.

I also avoided the term "strict constructionist" (which has become short-hand for a broader category to which it does not accurately describe the nuances of). Scalia when asked if the constitution (or any law) should be construed "strictly" he generally responds something to the effect of: 'the law should not be construed liberallly or strictly, it ought to be construed reasonably, giving to its words and phrases the meaning they would generally be understood to have in common usage by those who gave it effect' anything else is to substitute the will and preferences of the judge over that of the people.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

"Originalist" jurists need not necessarily be from either party or ideological camp. You are conflating Constitutional philosophy with political leanings, which, in and of itself, is part of the overall problem.

In any event, the only way to properly interpret the Constitution is by discerning what was meant when the part in question was written. If you don't like the result then, fine, get crackin' on amending it. Reading "new" stuff into it is not the solution. The document is designed to be rigid, concise, and difficult to change so as to not be overwhelmed and ultimately rendered ineffective by the whims of society and its politics. This is what makes the document, by default, superior to just about anything else pretending to be like it - including the EU monstrosity and anything the UN burps up.

I agree with Antonin Scalia (on just about everything) - and even in the case of abortion. For the judiciary to have read into the Constitution some sort of "right" to have an abortion was wrong. It would be equally wrong to read into the Constitution some sort of "prohibition" against abortion. I am staunchly pro-life, mind you, but the Constitution says absolutely nothing about abortion. Pro-abortion types should have resolved to have the document amended to specify it as a right to arrive at where we have. Meanwhile, I would like to see it specified in the Constitution such that the practice is prohibited. Neither of us will get that, though, because the amendment process is [rightfully] difficult. That there, folks, should leave it to be governed by the 10th Amendment, which is genius in its conception, yet often ignored for the sake of convenience and activism. Shameful to let the erosion continue.

Slavery was always wrong, but was completely "Constitutional" until, you guessed it, the document was changed. So, yes, at the moment it was issued, the Emancipation Proclamation was absolutely Unconstitutional...whether it was the right or wrong thing to do was immaterial, really. This is as it was designed.

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"Compassionate Conservatism"?!?! That is a stupid phrase. Conservatism is inherently compassionate. It is liberalism that is cruel for the sake of maintaining a constituency.

In the recent "60 Minutes" interview of Scalia, Justice Ginsburg made an egregiously vapid observation regarding Scalia's "originalism", she said that the "We the People" back when it was written didn't include blacks or women, implying that this was a flaw of originalism, ignoring the fact that BOTH blacks and women were given the rights of "We the People" though the most originalist-friendly means possible, by Constitutional Amendment.

However contraversial an issue may be, there is NO arguing its constitutional legitimacy when it is achieved in the manner specifically proscribed by the Constitution for Amendment.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

60 Minutes actually did an okay job with the Scalia profile.

They still, however, insist upon viewing conservatives as if they were some sort of specimen within a petri dish.

This is a dominant liberal trait and was well illustrated by Scalia's comment they showed - when he was speaking to a group of [what I presume to be] law students. (Paraphrasing) "People ask me, 'So, when did you become an originalist?' in the same manner they might ask, 'So, when did you start eating human flesh?'"

As long as those libtards at 60 Minutes (and within the MSM, in general) view conservatism - subconsciously or otherwise - as some sort of "oddity", well, there will rarely be balance. The MSM regards conservatives and conservatism - in terms of how they present them - as Jane Goodall did her various primate subjects. Some sort of pure fascination because they cannot fathom thinking that way. "Observe as this rural lower class middle-America resident inexplicably votes against universal health care. Careful - they spook easy! The voting booth lever has been pulled. This behavior has yet to be fully understood or explained..." I suppose I can understand the fascination to an extent because conservative principles reflect an evolution of one's character. Just about all of us start out "liberal". Ask any 5 year old. They think free food/houses/doctors/X-Boxes for everybody is an outstanding idea. To those alleged adults whose personal progress was retarded, conservatism must be difficult to figure.

The Scalia interview worked, primarily, because the interviewer was flat-out outclassed. All her smiling aside and regardless of how his charm and wit might have disarmed her, one just knows that she was seething inside.

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"Compassionate Conservatism"?!?! That is a stupid phrase. Conservatism is inherently compassionate. It is liberalism that is cruel for the sake of maintaining a constituency.

Yeah, like when he said that he opposed finding a constitutional right to life for the same reason that he opposes Roe v. Wade (hence making it a philosophical rather than ideological point) she was visibly stunned to find that out (also indicated she had not done even a basic level of research to familiarize herself with Scalia's decades long, clear and consistent articulation of his philosophy).

It worked for much the same reason he comes out looking good when snarky college students try to take him on, he is smarter, more thoughtful, and has far more defensible ideas and views than such fools. Some of the sheer vapidness I have witnessed from college students thinking they were being clever with Scalia (and ending up looking like complete fools) makes me weep for the future *grin*.

But that is neither here nor there, I really want to discuss not the personalities of individual jurists or the politics of certain cases, but what and why people believe are legitimate judicial philosophies.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

I'll take door number 1!

The Constitution should be interpreted according to the common law rules of construction at the time it was made.

The object of Constitutional Interpretation should be to ascertain the will of the lawmakers at the time the instrument was made by considering the "most natural and probable signs", which were spelled out in the common law "rules of construction" at the time the Constitution was made.

What if the words have more than one common usage?

How are we supposed to know what meaning a word was understood to have had by those who gave it effect?

Well, there are a variety of methods that are to be employed under the canons of construction, including, but not limited to:

1. If one meaning is more sensible given the specific context (for example, a few terms ago, the SCOTUS heard a case involving a criminal statute which permitted more severe sentencing if a gun were "used" in the commission of a crime. The case in question involved a person who had traded a gun for drugs, and was sentenced more harshly under the statute. The majority found that this was perfectly acceptable under the language of the statute. Scalia disented, arguing that in ordinary discourse, if someone ask if you "use a cane" (for example) they mean for its intended purpose, and not if you perhaps "use" your grandfather's antique cane as a decorative piece in your home. He thus dissented arguing that the word "use" in the statute reasonably meant the "use" of a gun for its intended purpose--as a weapon--and not as it was in this case, as a medium of exchange.

2. By the actions promulgated by those who passed the law. For example, if the question is whether a particular law drafted 200 years ago permits X and the text is vague or ambiguous; but, we see that immediately following passage of that law, the congress did the very thing we are questioning the permisability of, that is clear evidence in support of that interpretation under the canons. For example, does the First Amendment prohibit spending ANY Federal funding that in any way, shape, or form promotes or supports religion. Well, the fact that the post of Congressional Chaplain was not viewed as proscribed by the First Amendment belies any such absolutist and draconian understanding of it.

3. The "long standing traditions and customs society". If something has been done in an unbroken chain before, and since the passage of an ambiguous text, it should not be construed as proscribed by that text. For example, it is not reasonable to conclude that equal protection language which has been in place for over a century proscribes the failure to recognize gay marriage. It is clear from over 100 years of history that it was not understood to mean any such thing by those who wrote or ratified it.

4. General deference to the interpretation of other branches of ambiguities in the text. Where there are multiple reasonable interpretations, judges should generally defer to the interpretation of other branches so long as they are not unreasonable.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

This is the true description of constitutional government, given the construction of out constitution.

This would be... a Constitutional Idiocracy? We are fully bound by the words, but we'll pretend some of the bigger words aren't there for the sake of those who can't understand them.

This is mob rule, pure and simple. Limitations whose applicability are subject to the whim of the people are limitations in name only.

A government of the people, by the courts, for whomever. The courts become a 'Dictator by committee' with unlimited power, but leaving most of the drudge work to the other two branches.

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Today's forecast: Government corruption.

Tomorrow's forecast: 100% chance of more 'politics as usual'

Maybe it's finally time to vote Libertarian

What's the rest of rule? Do we accept or reject the more sensible meaning?

What rules do we use to determine which meaning of a word is more sensible than another? What if there are two or more meanings that are equally sensible?

How would one go about ascertaining the general and reasonable understanding of the original unamended U. S. Constitution's non delegation of authority over religion to the government thereby established?