By Bob Beers ——Bio and Archives--September 22, 2009
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“Willy Forbath holds the Lloyd Bentsen Chair in Law and is Professor of History at UT, Austin. This year, he is the Charles Warren Visiting Professor of Legal History at Harvard. He teaches constitutional law and legal and constitutional history. He is the author of Law and the Shaping of the American Labor Movement and other books, including the forthcoming Courting the State: Law in the Creation of the Modern American State and Social and Economic Rights in the American Grain, and many articles on legal and constitutional history and theory.” According to an online discussion with Mr. Forbath regarding the US Constitution and how the two major parties regard our founding document, the ”Republicans are the party of “original intent” and restoring the Constitution to what the framers and “We, the People” had in mind before liberal “judicial activists” made a hash of it. This, Senator Sessions proclaims, is what it means to be an impartial judge, who applies the law as it is, without bias or favor.”I have to agree with Mr. Forbath. Compassion has no place when applying the constitution. Simply because you feel sorry for a group does not allow you as a judge to twist the original meaning of the constitution to favor that group while applying unfair constraints upon another. Forbath continues:
“Yet, this “conservative” constitutional outlook also makes the Republicans the party of constitutional change and dynamism. They offer a mobilizing vision of restoring personal responsibility, private property, and godliness, and of an end to state sponsored racial engineering and abortions, an end to secreting foreign law into our constitutional order, and so on (it’s all there in the opening statements) – all of which requires a good deal of overturning or eroding of precedents, striking down of statutes, and what would look like “activism” if it weren’t dressed up as restoration. And all of which also supplies the loyal Republican judges like Chief Justice Roberts with a background narrative to guide and justify interpretation and shape doctrine over time.”What he’s saying here is that those conservative judges are basing their decisions on historical precedent. They learned history’s lessons and applied them. They also have refused to slip into the tacitly unconstitutional role of lawmaker. That is what the Democrat judges do, as Forbath points out:
“By contrast, the Democrats offer a more sophisticated account of what judges do. They must both follow the rules laid down and also interpret the open-ended phrases of the Constitution (and of statutes and even of past precedents) in ways that inevitably “make” law as well as simply “applying” law. “The full text of this discussion can be found here. Mr. Forbath goes on to try to defend the Democrat urge to use judges as legislators, but in that respect he is disastrously wrong. The “making a hash of it” is exactly what has happened to our constitution and the mess that US society is in is ample evidence of what a horrible hash that sort of legal chicanery cooks up. I was raised in the days before Ritalin. When I went to school, ADD, ADHD and all the other assorted excuses for Johnny or Janie being a spoiled brat did not exist. And, guess what, the percentage of spoiled brats was exponentially smaller than it was today. Some people sneer at those who express fondness for the good old days. I sneer right back. There is a lot to be said about how things were done 50 years ago. If we could reestablish some of those policies and procedures while retaining the good portions of what we have learned to do over the decades, we could have a pretty fine society. Rather than the hash we have right now.
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Bob L. Beers was a member of the Nevada Assembly representing District 21 in Clark County, Nevada. Prior to his election in 2006, he was an author involved in graphic arts and illustration.
Originally from Eureka, California, Beers attended Arcata High School and Humboldt State College. He currently resides in Henderson, Nevada with his wife and son.