johnwk
06-28-2010, 06:37 AM
Those who have studied the framing of our Constitution will readily confirm our founding fathers thoughtfully provided an important check upon the President’s power to appoint “Judges of the supreme Court”, by requiring the “Advice and Consent of the Senate” prior to their confirmation.
It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. ____ FEDERALISTS NO. 66
And just what is a primary quality which makes for a meritorious appointment to the Supreme Court of the United States? Would that not be one’s dedicated obedience to enforce the documented intentions and beliefs under which our Constitution was adopted?
Let us make no mistake. The personal whims and fancies of an individual, which includes the president‘s nominee, even when they advocate and defended them in a public way, present no threat to adversaries unless the force of government may be used to impose those personal whims and fancies upon others. But under our system of government we have written constitutions, state and federal, which are intended by the people to define and limit the powers of government beyond which public servants may not exercise the force of government! And so, the line of questioning most important in determining a primary quality of a president’s nominee to the Supreme Court would revolved around questions designed to ferret out and identify the specific procedures by the nominee would use to determine what is and what is not constitutional.
Thomas Jefferson wrote regarding this very subject "On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
And, in 1858 Chancellor James Kent, in his Commentaries on American Law echoed the same idea as follows:
"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.”
It is also interesting to note that in Hawaii v. Mankichi, 190 U.S. 197 (1903), our very own Supreme Court notes the dominance of legislative intent:
But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :
"A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law."
And what do we find in our contemporary American Jurisprudence volumes?
“The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.”( numerous citations omitted).___ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19, Par. 92. Intent of framers and adopters as controlling
Having established the most fundamental rule of constitutional law is to carry out the intentions and beliefs under which our Constitution was adopted, is it not proper for the Judiciary Committee members to ask the President’s nominee to give some specific examples of the procedures used to determine what is and what is not constitutional? For example, if a question arose concerning Congress’ power to regulate commerce among the States, would it not be important for the Senate Judiciary Committee members to ask Kagan how she would determine what the meaning of “commerce” is as the word is used within our Constitution? And, should they not question Kagan how would she determine the intentions for which the power was granted over commerce, beyond which the Founding Fathers would consider to be a usurpation of the powers retained by the various States under the Tenth Amendment?
Unfortunately, the problem today with our Senate Judiciary Committee is, it has made its hearings a circus and platform for each Senator to execute well rehearsed speeches and talking points designed for political campaign consumption, and to play upon the passions of their immediate constituents, while there is an intentional avoidance to question a nominee on the most fundamental rule of constitutional law!
And why is there an intentional avoidance by members of the Senate Judiciary Committee (http://judiciary.senate.gov/about/members.cfm) to question a Supreme Court nominee on the most fundamental rule of constitutional law, and the procedures for determining what is and what is not constitutional? Any member who would dare reference the rule and pursue such a line of questioning would be acknowledging, by their own voting record, to have knowingly been complicit in spitting upon our Constitution and subjugating the documented intentions and beliefs under which our Constitution was adopted.
JWK
Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.
It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. ____ FEDERALISTS NO. 66
And just what is a primary quality which makes for a meritorious appointment to the Supreme Court of the United States? Would that not be one’s dedicated obedience to enforce the documented intentions and beliefs under which our Constitution was adopted?
Let us make no mistake. The personal whims and fancies of an individual, which includes the president‘s nominee, even when they advocate and defended them in a public way, present no threat to adversaries unless the force of government may be used to impose those personal whims and fancies upon others. But under our system of government we have written constitutions, state and federal, which are intended by the people to define and limit the powers of government beyond which public servants may not exercise the force of government! And so, the line of questioning most important in determining a primary quality of a president’s nominee to the Supreme Court would revolved around questions designed to ferret out and identify the specific procedures by the nominee would use to determine what is and what is not constitutional.
Thomas Jefferson wrote regarding this very subject "On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
And, in 1858 Chancellor James Kent, in his Commentaries on American Law echoed the same idea as follows:
"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.”
It is also interesting to note that in Hawaii v. Mankichi, 190 U.S. 197 (1903), our very own Supreme Court notes the dominance of legislative intent:
But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :
"A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law."
And what do we find in our contemporary American Jurisprudence volumes?
“The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.”( numerous citations omitted).___ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19, Par. 92. Intent of framers and adopters as controlling
Having established the most fundamental rule of constitutional law is to carry out the intentions and beliefs under which our Constitution was adopted, is it not proper for the Judiciary Committee members to ask the President’s nominee to give some specific examples of the procedures used to determine what is and what is not constitutional? For example, if a question arose concerning Congress’ power to regulate commerce among the States, would it not be important for the Senate Judiciary Committee members to ask Kagan how she would determine what the meaning of “commerce” is as the word is used within our Constitution? And, should they not question Kagan how would she determine the intentions for which the power was granted over commerce, beyond which the Founding Fathers would consider to be a usurpation of the powers retained by the various States under the Tenth Amendment?
Unfortunately, the problem today with our Senate Judiciary Committee is, it has made its hearings a circus and platform for each Senator to execute well rehearsed speeches and talking points designed for political campaign consumption, and to play upon the passions of their immediate constituents, while there is an intentional avoidance to question a nominee on the most fundamental rule of constitutional law!
And why is there an intentional avoidance by members of the Senate Judiciary Committee (http://judiciary.senate.gov/about/members.cfm) to question a Supreme Court nominee on the most fundamental rule of constitutional law, and the procedures for determining what is and what is not constitutional? Any member who would dare reference the rule and pursue such a line of questioning would be acknowledging, by their own voting record, to have knowingly been complicit in spitting upon our Constitution and subjugating the documented intentions and beliefs under which our Constitution was adopted.
JWK
Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.