hezekiah jones

Thought I'd share a little e-mail I sent to Mathew D. Staver, Esq., President and General Counsel of <a href="http://www.lc.org/" target="_blank">Liberty Counsel</a>:

Subject: Supreme Court Justice Promotes Judicial Activism 1–15-02

Dear Mr. Staver:

On January 15, 2002, under the heading "Supreme Court Justice Promotes Judicial Activism" you posted the following commentary on your website:

"Supreme Court Justice Stephen Breyer promoted his concept of judicial activism in a speech given at the New York University School of Law [given nearly three months ago, by the way]. In his speech, Justice Breyer stated that 'Literalist judges who emphasize language, history, tradition and precedent cannot justify their practices by claiming that is what the framers wanted.' This is an incredible statement by a Supreme Court Judge."

Not really. What is incredible, however, is how you disingenuously removed this phrase from its proper context. In fact, there is no period at the end of the phrase you lifted, but rather a comma, and the sentence goes on to read: "for the Framers did not say specifically what factors judges should emphasize when seeking to interpret the Constitution's open language." This is not "an incredible statement" at all. It's a fact, and a fact that has informed the debate surrounding the so-called doctrine of original intent for many, many decades.

You also fail to mention that appended to this particular sentence of Justice Breyer's is a footnoted reference to "Original Meanings: Politics and Ideas in the Making of the Constitution," by Jack Rakove, a Pulitzer Prize-winning law professor at Stanford University. You do understand that your omissions are quite an egregious breach of commonly accepted academic practice regarding citations, do you not?

You then proceed to pose the following presumably rhetorical question:

"If a judge interpreting the Constitution or a statute does not consider language, history, tradition or precedent, then what does a judge consider?"

Why not let Justice Breyer answer that question? He does, in the same speech from which you misleadingly lifted the quotation above:

"Judges can, and should, decide most cases, including constitutional cases, through the use of language, history, tradition, and precedent. Judges will often agree as to how these factors determine a provision's basic purpose and the result in a particular case. And where they differ, their differences are often differences of modest degree. Only a handful of constitutional issues - though an important handful - are as open in respect to language, history, and basic purpose as those that I have described. And even in respect to those issues, judges must find answers within the limits set by the Constitution's language. Moreover, history, tradition, and precedent remain helpful, even if not determinative."

Did you miss that part? It makes me wonder whether you actually read the entire text of Justice Breyer's speech, which, incidentally, is available at the U.S. Supreme Court's official website. Unlike the publication you're flogging at the end of your "news item," you don't even have to pay for it.

You go on to remark, with a logic derived seemingly from your apparent deliberate misquoting:

"The only thing left is the judge's own personal opinion, which is cut free from the Constitution or the statutory language."

What are you suggesting here? That Justice Breyer decides Constitutional issues based entirely on his own personal opinion, utterly disregarding Constitutional "language, history, tradition, and precedent"? You know as well as I do that this is entirely preposterous. In fact, the substance of Justice Breyer's entire speech maintains the exact opposite of what you are attempting to make him say.

Interestingly, your context garbling is mirrored by several of your ideological allies, the most noteworthy (and comical) being Janet Folger, who writes, "In other words, Justice Breyer doesn't really hold the Constitution in high regard." Can she really be serious? I think she is - which speaks volumes for her credibility, and even more for her familiarity with Constitutional jurisprudence. Coincidentally, Folger's comment is based on exactly the same misapplied fragment of Justice Breyer's sentence that you have excised and posted on your own website. Coincidence?

Despite the laughable disingenuousness of your effort on this particular subject, I hope you keep up the good work, even in the face of your demonstrably woeful inability to perform even the most rudimentary research. There is always a shortage of unintentional comedy out there.

Regards,

[ January 17, 2002: Message edited by: hezekiahjones ]</p>

gravitybow

hezekiahjones: A wonderful, researched rebuttal that was probably deleted ten seconds after it was received. But I hope not.

I would like to find the humor, too. But I only get knotted up when I see this type of pretzel-twisted truth adorned with "liberty", "patriotic", "freedom", "Star Spangled Banner", and the quasiChristian-American verbiage their homepage is steeped in. Too bad honesty doesn't appear on the page anywhere.

[ January 17, 2002: Message edited by: gravitybow ]</p>

hezekiah jones

I wouldn't be at all suprised.

Staver is undoubtedly aware of a little thing known as "<a href="http://www.ablelegalforms.com/flalawyerethics433.html" target="_blank">candor toward the tribunal</a>." What Staver has done here seems to be a clear violation of that rule, since he has both concealed information, and factually misrepresented the information he did provide. This is serious business in the legal profession, and would likely be grounds for disciplinary action, were he to adopt this tactic in court.