Here we go again.
Henry tell us he is an attorney, and his written sophistry suggests he is. He can argue any point with passion--passion, I say--whether it is correct or not.
Is he a constitutional lawyer? Not a chance. He boasts of having had one class on constitutional law--no doubt required for all first-year students at his law school and nothing more than an introduction to the topic. Serious students of constitutional law take many courses on the topic, not just a single semester 50 years ago.
Note, for instance, Henry's claim that the Alito draft would forbid Congress from enacting federal laws governing abortion nationwide. I objected to that on the grounds that the essential basis for the decision, the ratio decidendi, is the fact that the right to privacy is not in the constitution while the states rights stuff that Henry finds so compelling was obiter dicta--the justices' personal opinions and hence nonbinding as precedent.
When I said that we'll have the answer within a couple of years because Congress will try to enact national regulations under the new regime and we'll see SCOTUS's response, Henry fulminated a bit but then retreated to his position that essentially "whatever the court says, I'm still right." [It's easy to see in this link because he puts it in ALL CAPS!]
https://www.exmormon.org/phorum/read.php?2,2427943,2428350#msg-2428350I repeated, and repeat again, that Henry's views are irrelevant. We will see what the supreme court says in the near future and that will show whether he or I understand con law better.
Now Henry comes up with another first-year argument: that the court must follow the written text of the constitution unless it is ambiguous and needs interpretation. To wit,
> It is a fundamental tenet of Constitutional (and
> statutory legal interpretation) that the express
> language of a Constitutional provision or statute
> shall be followed --unless such language is
> ambiguous, which then requires various principles
> of interpretation beyond the language itself.
This is juvenile. At least half of modern constitutional law is based in analysis that has nothing to do with the written constitution. The best example is the "interstate commerce clause," which says the federal government may not regulate any commercial activity that occurs within a single state. That provision of the constitution is virtually meaningless because the supremes have found so many exceptions that the feds can now regulate working conditions in a local store (OSHA), pollution standards in your local stream (EPA), and virtually anything else. The commerce clause is--and this is a basic tenet of first-year con law--a dead letter. Henry must have been home with a cold on that day of class.
The rights to marry outside your race, to have oral sex, to have homosexual sex, to use contraception, etc., are all based on a right to privacy that has no basis in the constitution. There was none of Henry's beloved "ambiguity" in the constitution on any of those issues. The court created the out of the unwritten "penumbra" of the constitution.
Likewise, the First Amendment says nothing about defamation, slander, libel, prohibiting the shouting of "fire" in a movie theater, or "fighting words" that lead to violence. Nor does the Second Amendment say that the federal and state governments may forbid such arms as grenades, bazookas, Stinger missiles, Harpoon missiles, etc.--and those are prohibited everywhere and will remain banned if the Alito draft is adopted. Clearly the simple words of the constitution are not the final word.
You know what else is missing in Henry's proclamations? Any awareness of precedents. A bit of research would have revealed, for example, the extent of the right to privacy, the near meaningless of the interstate commerce clause, the origin of insider trading laws, and the intricacies of first amendment defamation laws, none of which are alluded to in the constitution and yet all of which are very, very real.
That research would also have given him at least a passing familiarity with District of Columbia v. Heller, the 2008 case in which the Roberts Court overturned two centuries' precedent that had been based on the explicit "militia" language in the constitution that Henry now says the court should rightly ignore. But that's a contradiction, isn't it? Henry reckons that Alito's off-topic comments about states rights must be taken seriously and yet he consigns whole clauses and phrases in the constitution to oblivion. He thus approves judicial activism, the notion that justices may overlook the precise words of the constitution.
Finally, and most revealingly for a man who purports to know constitutional law, Henry isn't even familiar with the great constitutional scholars. He knows nothing of the 1930s cases and analysis, and he isn't even familiar with the work of Lawrence Tribe.
> COMMENT: . . .Lawrence Tribe. . . presumably. . .
> thinks the SC should by the final arbiter of
> social problems and political stalemates.
> Unfortunately, that is not what the Constitution
> says.
If Henry knew the man, he'd know the topic and the conclusion. But lacking that understanding, he "presumes" Tribe thinks the supreme court should be activist. That's not, however, the case. Tribe is concerned with the lack of respect for stare decisis, for if the supremes can without hesitation overturn centuries of constitutional precedent they become a body of supra-election sage kings.
He's worried about tyranny, Henry, the tyranny that arises when justices ignore the use of precedent that the founders of the constitution approved and employed when they were appointed to the early courts.
You should know that.