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Tuesday, January 10, 2006

Prof. Alito

Ok, so after my first semester of law school, I was kind of wondering whether I “got it” at all.  Then I turn on C-Span to watch the Alito hearings today, and it turns out I do.  Watching Alito teach Con Law I to the judiciary committee (even though they had it once with Prof. Roberts) I realized that I at least understand more than I thought, and more than some of the Senators.  Ok, maybe just Ted Kennedy and Dianne Feinstein.  Way to go me.  I thought Alito did very well in today’s questioning.  If you missed them, the hearings are being rerun pretty much constantly, or for a quick oversight, try this article.   I’ll let you pick out the “I went to journalism school” statements.  
I noticed that the Senators still like to refer to the “liberty clause” of the Constitution, as if its in there just the same as the commerce clause.  Clearly it is not.  Now, they may be referring to Section 1 of the 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But probably just the word “liberty”, as Ramesh Ponnuru once pointed out on The Corner.  “Liberty Clause” is certainly more accessible than “due process clause”, and it is, I guess, from what I can tell, mostly a subset.  This reading is dangerous, because the words life and property have the same status in the sentence, if not the senatorial consciousness.  

Sen. Biden talked about SDO being the fulcrum of the court, making the argument that he is basically hesitant to change some sort of mystical balance of the court, worried that it would change the “Constitutional framework” of the country, as if that had never happened before, or as if he thought it a bad thing (isn’t changing the framework the whole idea of that living Constitution nonsense?).

Judge Alito’s wife (over his right shoulder) looks amused by the whole thing; I’m surprised she’s awake.  In all, I think today went well for Alito, so surprise here.


I'm pretty much fed up with both sides' failure approach the debate honestly. No one is really interested in an honest debate on interpretive philosophy.

Moreover, I think the phrase "living constitution" is (intentionally) misleading--I think it refers to the idea the abstract ideals were codified rather than specific intentions of the framers. Referring to this as a "living constitution" colors the idea in a kind of facial absurdity, which hinders legitimate debate about balancing democratic will, certainty, and notice.
Indeed, interpretive philosophy wouldn't make a good clip for the news, and as far as debate goes, well, when Senators like Biden allow a grand total of 72 words from the nominee in their whole half hour, its not so much a debate at all.
As far as the living Constitution goes, I didn't invent the phrase. I am an idealistic person (or at least I like to think so) but I disagree about the Constitution being a codification of ideals. An outgrowth of them yes, but a practical, solid, defined outgrowth; a foundation, not a collection of emanations and penumbras (and you have to admit, whoever coined that phraseology was just pretty much asking for it.)
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