Those activist judges
Apr. 27th, 2005 01:20 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumOne of the things praised about Justice Scalia is his rigid principles. He will tell you himself, he sits down as a little child and looks at the law. The law, as embodied by the Constitution, is simple, and reading it will tell one all one needs to know.
It's convenient that this approach almost always leads to a consonance between his personal views, and whatever question is before the bench.
Then we have the acitivist judges, those liberal types who want to bend and twist the law, and the Constitution to remake the U.S. into the country they want it to be (or to adjust the way the law is interpreted) and make it more consonant with the trends of jurisprudence, or the impositions of modern life and understanding, instead of the pristine intent of the Framers.
Which was part of the brouhaha when Justice Kennedy looked to outside trends (that is to say non-US law, written outside of Britain, and post-dating the writing of the Constitution, as those who suppport the Constitution Restoration Act would limit it... well no, they would also limit it to only those laws) when the Supreme Court ruled that killing mentally retarded minors was a violation of the Eighth Amendment.
Scalia, and Thomas, dissented, in part because they said one cannot look outside the US when deciding what is cruel and unusual (I guess the U.S. is the only place which can rule on that, comparing the rest of the world's behaviour and deciding what's unsual isn't acceptable).
But when it comes to incriminating oneself, on forms which determine whether one can own a firearm, those paragons of US Law, and only US Law, sing a different tune. The "liberals" said today that convictions outside the US don't count (the form asks one to declare, under penalty of perjury, any convictions for which one might be sentenced to more than one year in jail).
The background is less than pretty. Small was convicted, in Japan, of trying to smuggle several firearms (very controlled, as are swords and several other types of cutlery). He did one year of a five year term, and was off parole (his time done) when he bought a pistol in Penn.
Small, Gary v. U.S. Docket: 03-0750
"In seeking review by the U.S. Supreme Court, Small’s attorney, Paul Boas, noted that there was a division among the circuit courts over the phrase "any court" in 18 U.S.C. 922(g)(1).
Within the previous 18 years, five appeals courts had heard cases that required the court to interpret the term "any court" under 18 U.S.C. 922(g)(1), Boas wrote, with the 3rd, 4th and 6th circuits taking the literal meaning of the phrase "any court" to include foreign courts. The 2nd and 10th circuits had held that foreign convictions were not intended to be included under the statute.
"The term ‘in any court’ was not intended to include any court in the world," Boas said. "Foreign convictions don’t count only American convictions."
Looking at the case Justice Bryer, for the majority wrote, "The statute's language does not suggest any intent to reach beyond domestic convictions," noted Breyer, writing for justices John Paul Stevens, Sandra Day O'Connor, David Souter, and Ruth Bader Ginsburg.
Breyer also said it was apparent Congress never considered a foreign conviction provision in its law. But he noted lawmakers are now free to amend the law to make it clear it applied to convictions in other countries. CNN
But Justice Thomas, with Scalia in concurring dissented, '"convicted in any court" has an "expansive meaning" to include foreign convictions. The majority, he said, "institutes the troubling rule that 'any' does not really mean 'any,' but may mean 'some subset of 'any," even if nothing in the context so indicates; it distorts the established canons against extraterritorality and absurdity."CNN
The Bush Administration, that bastion of individual rights argued that one must admit any foreign conviction.
But the Liberals, they upheld the right to limit such requirements of public confession to U.S. convictions, even when that means letting a convicted gun smuggler buy more weapons.
It's convenient that this approach almost always leads to a consonance between his personal views, and whatever question is before the bench.
Then we have the acitivist judges, those liberal types who want to bend and twist the law, and the Constitution to remake the U.S. into the country they want it to be (or to adjust the way the law is interpreted) and make it more consonant with the trends of jurisprudence, or the impositions of modern life and understanding, instead of the pristine intent of the Framers.
Which was part of the brouhaha when Justice Kennedy looked to outside trends (that is to say non-US law, written outside of Britain, and post-dating the writing of the Constitution, as those who suppport the Constitution Restoration Act would limit it... well no, they would also limit it to only those laws) when the Supreme Court ruled that killing mentally retarded minors was a violation of the Eighth Amendment.
Scalia, and Thomas, dissented, in part because they said one cannot look outside the US when deciding what is cruel and unusual (I guess the U.S. is the only place which can rule on that, comparing the rest of the world's behaviour and deciding what's unsual isn't acceptable).
But when it comes to incriminating oneself, on forms which determine whether one can own a firearm, those paragons of US Law, and only US Law, sing a different tune. The "liberals" said today that convictions outside the US don't count (the form asks one to declare, under penalty of perjury, any convictions for which one might be sentenced to more than one year in jail).
The background is less than pretty. Small was convicted, in Japan, of trying to smuggle several firearms (very controlled, as are swords and several other types of cutlery). He did one year of a five year term, and was off parole (his time done) when he bought a pistol in Penn.
Small, Gary v. U.S. Docket: 03-0750
"In seeking review by the U.S. Supreme Court, Small’s attorney, Paul Boas, noted that there was a division among the circuit courts over the phrase "any court" in 18 U.S.C. 922(g)(1).
Within the previous 18 years, five appeals courts had heard cases that required the court to interpret the term "any court" under 18 U.S.C. 922(g)(1), Boas wrote, with the 3rd, 4th and 6th circuits taking the literal meaning of the phrase "any court" to include foreign courts. The 2nd and 10th circuits had held that foreign convictions were not intended to be included under the statute.
"The term ‘in any court’ was not intended to include any court in the world," Boas said. "Foreign convictions don’t count only American convictions."
Looking at the case Justice Bryer, for the majority wrote, "The statute's language does not suggest any intent to reach beyond domestic convictions," noted Breyer, writing for justices John Paul Stevens, Sandra Day O'Connor, David Souter, and Ruth Bader Ginsburg.
Breyer also said it was apparent Congress never considered a foreign conviction provision in its law. But he noted lawmakers are now free to amend the law to make it clear it applied to convictions in other countries. CNN
But Justice Thomas, with Scalia in concurring dissented, '"convicted in any court" has an "expansive meaning" to include foreign convictions. The majority, he said, "institutes the troubling rule that 'any' does not really mean 'any,' but may mean 'some subset of 'any," even if nothing in the context so indicates; it distorts the established canons against extraterritorality and absurdity."CNN
The Bush Administration, that bastion of individual rights argued that one must admit any foreign conviction.
But the Liberals, they upheld the right to limit such requirements of public confession to U.S. convictions, even when that means letting a convicted gun smuggler buy more weapons.
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no subject
Date: 2005-04-27 12:16 pm (UTC)no subject
Date: 2005-04-27 10:09 pm (UTC)That sort of sums up the attitudes of Scalia and Thomas on this issue, as on so many others...
no subject
Date: 2005-04-28 01:59 am (UTC)Nothing you haven't heard already, I'm sure, but this sort of thing i just silly--and frightening, in that it's being taken remotely seriously.