Pursuant to Elena Kagans expressed enthusiasm for confirmation hearings that feature intellectual snap crackle and pop here are some questions the Senate Judiciary Committee can elate her by asking:
-- Regarding campaign finance reforms: If allowing the political class to write laws regulating the quantity content and timing of speech about the political class is the solution what is the problem?
-- If the problem is corruption do we not already have abundant laws proscribing that?
-- If the problem is the appearance of corruption how do you square the First Amendment with Congress restricting speech to regulate how things appear to unspecified people?
-- Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?
-- Some persons argue that our nation has a living Constitution; the court has spoken of the evolving standards of decency that mark the progress of a maturing society. But Justice Antonin Scalia speaking against changeability and stressing the whole antievolutionary purpose of a constitution says its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that evolving standards of decency always mark progress and that societies always mature as opposed to rot. Is he wrong?
-- The Ninth Amendment says: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The 14th Amendment says no state may abridge the privileges or immunities of U.S. citizens. How should the court determine what are the retained rights and the privileges or immunities?
-- The 10th Amendment (The powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people) is as former Delaware governor Pete du Pont has said to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence. Were the authors of the Bill of Rights silly to include this amendment?
-- Should decisions of foreign courts or laws enacted by foreign legislatures have any bearing on U.S. courts interpretations of the Constitution or federal laws (other than directly binding treaties)?
-- The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about regulatory takings? To confer a supposed benefit on the public government often restricts how persons can use their property sometimes substantially reducing the propertys value. But government offers no compensation because the property is not taken. But when much of a propertys value is taken away by government action should owners be compensated?
-- In Bush v. Gore which settled the 2000 election seven justices ruled that Florida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitutions guarantee of equal protection of the laws. Were they right?
-- In Bush v. Gore five justices held that Article II of the Constitution gives state legislatures plenary power to set the rules for presidential elections. The Florida legislature fashioned election rules to produce presidential electors immune from challenge by Congress. But the legislature said that immunity depended on electors being chosen by a certain date which could not be met if further recounts were to ensue. The court held that allowing more recounts would have contravened the intent of Floridas legislature. So the recounts were halted. Was the courts majority correct?
-- Justice Thurgood Marshall for whom you clerked said: You do what you think is right and let the law catch up. Can you defend this approach to judging?
-- You have said: There is no federal constitutional right to same-sex marriage. But that depends on what the meaning of is is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?
-- Bonus question: In Roe v. Wade the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitutions text would be different if the number of months in the gestation of a human infant were a prime number?
georgewill@washpost.com
Pursuant to Elena Kagans expressed enthusiasm for confirmation hearings that feature intellectual snap crackle and pop here are some questions the Senate Judiciary Committee can elate her by asking:
-- Regarding campaign finance reforms: If allowing the political class to write laws regulating the quantity content and timing of speech about the political class is the solution what is the problem?
-- If the problem is corruption do we not already have abundant laws proscribing that?
-- If the problem is the appearance of corruption how do you square the First Amendment with Congress restricting speech to regulate how things appear to unspecified people?
-- Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?
-- Some persons argue that our nation has a living Constitution; the court has spoken of the evolving standards of decency that mark the progress of a maturing society. But Justice Antonin Scalia speaking against changeability and stressing the whole antievolutionary purpose of a constitution says its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that evolving standards of decency always mark progress and that societies always mature as opposed to rot. Is he wrong?
-- The Ninth Amendment says: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The 14th Amendment says no state may abridge the privileges or immunities of U.S. citizens. How should the court determine what are the retained rights and the privileges or immunities?
-- The 10th Amendment (The powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people) is as former Delaware governor Pete du Pont has said to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence. Were the authors of the Bill of Rights silly to include this amendment?
-- Should decisions of foreign courts or laws enacted by foreign legislatures have any bearing on U.S. courts interpretations of the Constitution or federal laws (other than directly binding treaties)?
-- The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about regulatory takings? To confer a supposed benefit on the public government often restricts how persons can use their property sometimes substantially reducing the propertys value. But government offers no compensation because the property is not taken. But when much of a propertys value is taken away by government action should owners be compensated?
-- In Bush v. Gore which settled the 2000 election seven justices ruled that Florida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitutions guarantee of equal protection of the laws. Were they right?
-- In Bush v. Gore five justices held that Article II of the Constitution gives state legislatures plenary power to set the rules for presidential elections. The Florida legislature fashioned election rules to produce presidential electors immune from challenge by Congress. But the legislature said that immunity depended on electors being chosen by a certain date which could not be met if further recounts were to ensue. The court held that allowing more recounts would have contravened the intent of Floridas legislature. So the recounts were halted. Was the courts majority correct?
-- Justice Thurgood Marshall for whom you clerked said: You do what you think is right and let the law catch up. Can you defend this approach to judging?
-- You have said: There is no federal constitutional right to same-sex marriage. But that depends on what the meaning of is is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?
-- Bonus question: In Roe v. Wade the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitutions text would be different if the number of months in the gestation of a human infant were a prime number?
georgewill@washpost.com
