Monday, July 13, 2009

islands of rights, seas of powers


The land that's our land, rightly known as ours,
has power islands within seas of rights,
and rights in islands within seas of powers,
each barking orders in most unsoundbytes.

Judicial activists resist constraint,
while tyrannical majorities attempt
to sail on seas of power while they taint
rights with intentions Founders never meant.

Those who cannot do may try to teach,
and those who can't pass laws may use the bench
for hermeneutics that can overreach,
extrapolating rights laws don’t entrench.

When we read texts we should interpret, not
impose interpretation on each clause
that weren’t originally in the plot
conceived by Founders, writing rights and laws.

If we don’t do this, we are implying
that the original, like “Seinfeld,” merely
is about just nothing, not relying
upon old texts that we don’t read sincerely.

Inspired by an article by Randy E. Barnett ( in the WSJ, July 13, 2009. The article is called “The Seinfeld Hearings,” because Barnett thinks the Senate hearings on the confirmation to the Supreme Court of Judge Sonia Sotomayor will, like the “Seinfeld” show, be about nothing. Professor Barnett teaches at Georgetown Law and is the Author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2009).He quotes Princeton professor Stephen Macedo who has described the New Deal as transforming the constitutional order from "islands of powers in a sea of rights" to "islands of rights in a sea of powers". Barnett writes:

The second empty issue to be discussed is the bugaboo of “judicial activism” and its conjoined “twin “judicial restraint,” which today’s judicial conservatives have inherited from New Deal progressives. But what exactly is “activism”? Is it activism when any popularly enacted law is held unconstitutional. Neither Democrats or Republicans truly believe this, however, since they want judges to strike down laws as unconstitutional when doing so leads to the right result (but not when it doesn’t).So judicial activism means thwarting the “will of the people” when critics agree with the people, while they complain about the “tyranny of majorities” when they disagree. We can do better. Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean…Don’t ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained….Of course, inquiring into clauses not cases would require senators to know something about the original meaning of the Constitution. It would interesting to hear what Sen. Al Franken thinks about such matters, but no more so than any other member of the Judiciary Committee. Such a hearing would not only be entertaining, it would be informative and educational. After all, it would be about the meaning of the Constitution, which is to say iut would be about something.

© 2009 Gershon Hepner July 13, 2009

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