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The official blog of the National Center for Public Policy Research, covering news, current events and public policy from a conservative, free-market and pro-Constitution perspective.

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Originalism Defined

An e-mail from Barbara Ledeen:

As Senator Specter and others have attacked originalism or constitutionalism, it might be helpful for everybody to have this explanation. It comes from Judge Bork's opening statement to the Senate Judiciary Committee on September 15, 1987.
The judge's authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or of their representatives voted for.

The judge, to deserve that trust and that authority, must be every bit as governed by law as is the Congress, the President, the state governors and legislatures, and the American people. No one, including a judge, can be above the law. Only in that way will justice be done and the freedom of Americans assured.

How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. The intentions of the lawmakers govern whether the lawmakers are the Congress of the United States enacting a statute or whether they are those who ratified our Constitution and its various amendments.

Where the words are precise and the facts simple, that is a relatively easy task. Where the words are general, as is the case with some of the most profound protections of our liberties-in the Bill of Rights and in the Civil War Amendments-the task is far more complex. It is to find the principle or value that was intended to be protected and to see that it is protected.

As I wrote in an opinion for our court, the judge's responsibility "is to discern how the Framers' values, defined in the context of the world they knew, apply in the world we know."

If a judge abandons intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power.

He or she then diminishes liberty instead of enhancing it. That is why I agree with Judge Learned Hand, one of the great jurists in our history, when he wrote that the judge's "authority and his immunity depend upon the assumption that he speaks with the mouths of others: The momentum of his utterances must be greater than any which his personal reputation and character can command if it is to do the work assigned to it-if it is to stand against the passionate resentments arising out of the interests he must frustrate."

To state that another way, the judge must speak with the authority of the past to the present.

The past, however, includes not only the intentions of those who first made the law, it also includes those past judges who interpreted it and applied it in prior cases. That is why a judge must have great respect for precedence. It is one thing as a legal theorist to criticize the reasoning of a prior decision, even to criticize it severely, as I have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much careful thought.

Times come, of course, when even a venerable precedent can and should be overruled. The primary example of a proper overruling is Brown against the Board of Education, the case which outlawed racial segregation accomplished by government action. Brown overturned the rule of separate but equal laid down 58 years before in Plessy against Ferguson. Yet Brown, delivered with the authority of a unanimous Court, was clearly correct and represents perhaps the greatest moral achievement of our constitutional law.

Nevertheless, overruling should be done sparingly and cautiously. Respect for precedent is a part of the great tradition of our law, just as is fidelity to the intent of those who ratified the Constitution and enacted our statutes. That does not mean that constitutional law is static. It will evolve as judges modify doctrine to meet new circumstances and new technologies. Thus, today we apply the First Amendment's guarantee of the freedom of the press to radio and television, and we apply to electronic surveillance the Fourth Amendment's guarantee of privacy for the individual against unreasonable searches of his or her home.

I can put the matter no better than I did in an opinion on my present court. Speaking of the judge's duty, I wrote:

"The important thing, the ultimate consideration, is the constitutional freedom that is given into our keeping. A judge who refuses to see new threats to an established constitutional value and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. That duty, I repeat, is to ensure that the powers and freedoms the Framers specified are made effective in today's circumstances."

But I should add to that passage that when a judge goes beyond this and reads entirely new values into the Constitution, values the Framers and the ratifiers did not put there, he deprives the people of their liberty. That liberty, which the Constitution clearly envisions, is the liberty of the people to set their own social agenda through the processes of democracy.

Conservative judges frustrated that process in the mid-1930s by using the concept they had invented, the Fourteenth Amendment's supposed guarantee of a liberty of contract, to strike down laws designed to protect workers and labor unions. That was wrong then and it would be wrong now.

My philosophy of judging, Mr. Chairman, as you pointed out, is neither liberal nor conservative. It is simply a philosophy of judging which gives the Constitution a full and fair interpretation but, where the Constitution is silent, leaves the policy struggles to the Congress, the President, the legislatures and executives of the 50 states, and to the American people.

I welcome this opportunity to come before the Committee and answer whatever questions the members may have. I am quite willing to discuss with you my judicial philosophy and the approach I take to deciding cases. I cannot, of course, commit myself as to how I might vote on any particular case and I know you would not wish me to do that.


Congratulations to Jay Timmons

Congratulations to National Center Board of Directors Member Jay Timmons, who has just been appointed senior vice president of policy at the National Association of Manufacturers, the nation's largest industrial trade association and easily one of the most influential organizations in Washington.

In his new position, Jay will lead the Association's policy and government affairs staff. According to a press release by the National Association of Manufacturers, this staff "develops positions on policy and economic issues in front of the Congress as well as those in the Executive Branch."

Jay previously served for 12 years as chief of staff to Senator and Governor George Allen of Virginia and served as executive director of the National Republican Senatorial Committee during the 2004 election cycle. Jay presently is employed by the Washington office of the Florida law firm Tew Cardenas LLP.

The National Association of Manufacturers is headed by former Michigan Governor John Engler.


We're All British Today


Rep. Richard Pombo Thinks We're "Far Right"? ... Surely Not

Americans frequently complain about the ugly state of public discourse -- but it's not all the politicians' doing. Tabloid-style journalism, which feeds on controversy, is a big part of the problem.

And I'm not just referring to the Washington Post and New York Times. Small hometown newspapers are in on the act.

Case in point is the Tracy Press in Tracy, California: The publication's readership can practically fit into the office of House Resources Committee Chairman Rep. Richard Pombo - and that may be where most of its readers are, anyway. The Tracy Press, you see, is Rep. Pombo's hometown newspaper.

(The Tracy Press actually has a circulation of around 10,000, but in the spirit of tabloid journalism, why let a little fact get in the way of a good story?)

On Monday, the Tracy Press ran a story with a quote from Richard Pombo's press secretary, Brian Kennedy, suggesting that The National Center for Public Policy Research - this organization - is part of the "far right."

Unless Rep. Pombo has had a complete conversion to the political left that we haven't heard about, or has gotten into some loco weed, we aren't buying the report.

After all, the Congressman wrote a glowing comment about The National Center for our 20th anniversary booklet. Rep. Pombo wrote the forward to one of our books. And Congressman Pombo was kind enough to sign a fundraising letter for us to support our efforts to stop a U.N. land grab.

We will disagree with Rep. Pombo from time-to-time, as we do with many politicians, but we have no reason to believe that we are at odds with the Congressman on the broader conservative agenda.

We also considered the source of the information: A publication with a pretty shoddy record for accuracy.

In our case, the Tracy Press has reported that we are both extreme libertarians and that we are in bed with the environmentalists. It has reported that we both support Rep. Pombo's efforts to amend and reauthorize the Endangered Species Act and that we oppose such efforts. It says we oppose "the existence of a drinking age" -- when what we actually oppose is the federal government's use of federal highway funds to bribe states into adopting 21 as the minimum legal drinking age. (I can't wait to read what our positions will be next.)

In short, think Washington Post with a crayon.

Our advice: Never assume a press story is right.


Luddites of the World Unite

The Tehran Times comes out against President Bush's position opposing the Kyoto global warming treaty.

I look forward to attending the first joint Mullah-enviromentalist press conference on global warming -- that is, if ladies are permitted to attend.


How to Stop Borking

From the Wall Street Journal's today:

The only way to stop 'borking' as a political strategy is to defy and defeat it.


O'Connor's Replacement Should Not Be...

Something quite quotable from Mychal Massie:

Sandra O'Connor's replacement should not be male, female, black, white, Hispanic or other, and should under no circumstances be Democrat or Republican. Her replacement should be an originalist that understands their singular function is to uphold the U.S. Constitution, not rewrite it. Her replacement should be an American who understands the high court has a specific job that is well defined and narrow in focus.
Read the rest in Mychal's WorldNet Daily column here.


Hands Off Our Stuff -- Personal and National Property Rights Deserve Defense

National Center Policy Analyst Ryan Balis is becoming a prolific online author on the topic of property rights -- both personal and, believe it or not, national.

Writing in Human Events Online July 1, Ryan has this to say about personal property rights:

The public interest law firm Institute for Justice [has] found that governments have wrongly threatened or condemned more than 10,000 properties nationwide for private use since 1998.

This is perhaps unsurprising considering the average homeowner lacks the political connections and financial resources to defend against a major corporation with ambitions on their property, and the Supreme Court's decision in Kelo opens the door to more widespread abuse in the future. Now, a profitable business plan could be all that's needed to move people out of their homes and onto the street...the Kelo case underscores the need to place limits on government's power to evict people from their property. Many states - where this ruling is likely to be battled out - do not have well-defined constitutional guidelines on the permissible exercise of eminent domain power. Fewer than 10 states permit the taking of private property to eliminate 'blight,' but otherwise outlaw it.

In response to the Supreme Court's decision, U.S. Senator John Cornyn (R-TX) recently introduced legislation to clarify the government's use of eminent domain for genuine public use...

Also on July 1, NewsMax published this piece by Ryan about national property rights:
We look to our nation's most valued landmarks this Independence Day as a reminder of the liberty, strength and justice of America at its best.

Yet politics - international politics, to be exact - is threatening the integrity of long-standing national landmarks traditionally thought of as distinctly American: the Statue of Liberty, the Grand Canyon and Yellowstone National Park, to name a few. Since 1972, the United Nations Educational, Scientific and Cultural Organization (UNESCO) - the Paris-based cultural arm of the U.N. - has singled out 22 sites in the U.S. and 788 others worldwide as cultural or natural sites of World Heritage. According to UNESCO, these buildings, monuments and memorials have a special and "outstanding value to humanity." Their preservation, therefore, is a matter of global concern.

It is important to protect national treasures from threats such as visitor overcrowding, theft and weather so that future generations may enjoy their greatness. But managing America's "heritage" at the global level not only is economically impractical, it also confuses the distinctness of our heritage with what the first President Bush called a "new world order."

Heritage within our nation's territorial boundaries belongs to the American people...

Top read the entire Kelo piece, go here; to finish reading about how the U.N.'s World Heritage Areas program essentially cedes a degree of authority over American landmarks to the United Nations, please go here.


Poor, Uneducated and Easy to Command

On February 1, 1993, The Washington Post got into a heap of PR trouble after reporter Michael Weisskopf wrote in a news story that followers of the Christian Right are "largely poor, uneducated, and easy to command."

On Sunday, Los Angeles Times editorial page editor Michael Kinsley revisits that infamous quotation, but gets it wrong. Kinsley first confuses "followers of the Christian Right" with "evangelical Christians" (they are not interchangable) and then gives the quote (twice, and in quotation marks, no less) as "poor, undereducated and easily led."

Kinsley's article appears in the Sunday Washington Post, whose editors apparently ran his column without noticing he had the quote wrong.

For Kinsley, no excuse. Journalism 101 says quotations should be checked for accuracy before they are used. In this case, it would have been super-easy, too: nearly a thousand Google citations have it right.

But more important questions: Do Post editors not edit? Or did the grassroots firestorm that followed the original "poor, uneducated, and easy to command" slur leave such a slight impression on them that they read Kinsley's piece without noticing the misquotation of a phrase that -- I'm guessing here -- perhaps a hundred thousand conservative Christians have permanently memorized?

And -- even more important -- if the Post can't get the easy stuff right, how can we trust it on the big stuff?

Addendum, July 9: Early in the morning of July 6 I sent the following e-mail to the Washington Post corrections page:

On Sunday, the Post ran an op-ed by Michael Kinsley stating that the Washington Post "got in trouble a million years ago for an article that described evangelical Christians as 'poor, undereducated and easily led.'"

In fact, the original article (1993, by Michael Weisskopf) referred to followers of the Religious Right, not to evangelical Christians (evangelical Christians can be of any political persuasion), and the correct quotation was "largely poor, uneducated, and easy to command."

The url for the Kinsley piece is:


As of July 9, no correction has been posted, but the Post has had time to run corrections such as this:
A July 2 Real Estate article said that Michael Halpern had previously helped a friend renovate a house. At the time, that person was Halpern's boyfriend.
(What -- a boyfriend isn't a friend?)

Michael Kinsley quotes aside, corrections pages can be some of the funniest pages in a newspaper. The blog Regret The Error, which collects noteworthy corrections from newspapers and magazines across the country, is one I often visit for a laugh.


Everything I Know Is Wrong: A Little Blogging Break

I'm late with this news, but keep Sean in your prayers. I certainly will.


Congressional Action Today

On July 1, the U.S. Senate passed a bill to designate the facility of the United States Postal Service located on Lindbald Avenue, Girdwood, Alaska, as the "Dorothy and Connie Hibbs Post Office Building."

Dorothy and Connie Hibbs are a mother and daughter who both served as postmaster in Girdwood, mother Dorothy from 1954-1976 and daughter Connie from 1979 to 2005.

Note: "Congressional Action" is a new education feature of this blog. It will highlight an an official activity undertaken by or in Congress, very often chosen at random, for the simple purpose of providing an educational snapshot of our Congress at work.


Probably They Think Monsters Are in Their Closets, Too

Barbara Ledeen sent over these quotes from left-wing organizations about the new Supreme Court vacancy -- quotes she received from Progress for America:

Planned Parenthood screamed that "Women's Health and Safety [are] on the Line."

People For The American Way breathlessly claimed "our very national identity hangs in the balance and progressives must be loud and clear."

The Alliance For Justice echoed that sentiment, stating "Individual rights and freedoms hang in the balance."

NARAL: "Unless we act quickly and forcefully, it will be filled by a right-wing extremist bent on ending a woman's right to choose." predicts a nominee who's an "extremist who will undermine the rights of individuals and families."

National Abortion Federation warned that women would have to "sacrifice their lives and health by having back alley abortions in order to end an unwanted pregnancy." They have even demanded "a candidate who will win a consensus of at least 60 votes in the Senate."
What is it about interpreting our Constitution according to its actual words that has these folks so frightened? Like many others, I've read the Constitution. Not scary stuff.


Constructionists Only, Please, Says Black Group

Project 21 member and U.S. Commission on Civil Rights Commissioner Peter Kirsanow has this to say about the new Supreme Court vacancy, following the announcement today by Justice Sandra Day O'Connor:

I'm confident that the President will nominate someone with integrity and wisdom who understands that the proper role of a Supreme Court justice is to interpret the text of the Constitution, rather than, as Justice Thomas put it, promote 'the faddish slogans of the cognoscenti.'
Project 21 member Mychal Massie adds:
We are not looking for a liberal or a conservative jurist to replace Sandra Day O'Connor. We are looking for a strict constructionist. We are looking for someone who can uphold the Constitution, not rewrite it.
Project 21's entire press release can be read here.


Kelo v. City of New London Might Just Be the Beginning

Should the federal government tell Americans what grass seeds they can use for their lawns, what flowers they can have in their flowerbeds and what vegetables they can plant in their gardens?

If you don't think these are powers the Founders intended for the federal government, brace yourself -- another betrayal of private property rights may be on the horizon if draft language for a new (GOP!) bill in the U.S. House of Representatives accurately describes what its sponsor intends.

Kelo v. City of New London may have just been the beginning...


Deep Throat Lied to Grand Jury?

Bob Woodward's new book claims Mark Felt lied to a federal grand jury about his identity as "Deep Throat," the Washington Post reports.


Good for Time Warner

Time magazine agrees that journalists aren't above the law.

Meanwhile, Arthur O. Sulzberger, Jr. of the New York Times says, "We are deeply disappointed by Time Inc.'s decision...''


"The New President of Iran is a Terrorist"

From the Washington Times:

Americans held in the 1979 seizure of the U.S. Embassy in Iran said yesterday they clearly recall Iranian President-elect Mahmoud Ahmadinejad playing a central role in the takeover, interrogating captives and demanding harsher treatment for the hostages.

As soon as I saw his picture in the paper, I knew that was the bastard,' said retired Army Col. Charles Scott, 73, a former hostage who lives in Jonesboro, Ga.

'He was one of the top two or three leaders,' Col. Scott said in a telephone interview. 'The new president of Iran is a terrorist.'

The new president's hard-line political views and his background as a student radical in the Iranian Revolution are well known.

But recollections of Mr. Ahmadinejad's direct and personal role in the embassy drama promises to complicate the already rocky relations between Iran's new president and the Bush administration.

Donald Sharer, a retired Navy captain who was for a time a cellmate of Col. Scott at the Evin prison in northern Tehran, remembered Mr. Ahmadinejad as 'a hard-liner, a cruel individual.'

'I know he was an interrogator,' said Capt. Sharer...



Jeff Harrell says:

The war on terror is no more about Osama bin Laden than World War II was about Tojo.
Speaking of Hideki Tojo, his granddaughter Yuko Tojo, president of the Tokyo-based Environment Solution Institute, recently defended him on TV, claiming Japan was not fighting "a war of aggression" in the 1930s and 1940s.

Tojo's granddaughter claims the Japanese invasion of China was merely a defense of Japanese interests, and Japan's war against the United States was fought in its own self-defense.

(I pause a moment to recall the Rape of Nanking.)

Let us hope that, 60 years after we arrest bin Laden, his grandchildren are not still making excuses for his atrocities.

Let us further hope that, unlike Tojo, bin Laden doesn't ultimately bear responsibility for the brutal and wholly unecessary deaths of many hundreds of thousands of innocent people, very many of them children.

For more on the Rape of Nanking, go to here or here, if you can stand it.


Impeach Bush?

Rep. Zoe Lofgren explains that "lying about sex" (code term for President Clinton's perjury) "certainly" isn't an impeachable offense, but "lying to Congress" (which, she claims, President Bush has done) "might well be" impeachable.

Nonpartisan translation:

Lying to the judicial branch = not impeachable.

Lying to the legislative branch = impeachable.
But don't we have three co-equal branches of government?


Weare, New Hampshire: Vacation Spot of Freedom

Can't remember when I have enjoyed a press release more.