SecretAgentMan's Dossier

Southern Appeal Launches a Flight of Fantasy

Via Southern Appeal and some astute commenters, my Oblomovesque personality launches itself on the following flight of fancy. Here I sit, in my best suit, before the Senate Judiciary Committee, trying to suppress the urge to throw peanuts to some of them as they put their questions . . . . . .

Mr. SecretAgentMan, what are your views on the incorporation doctrine?

Seeing as we're on CSPAN, Senator, and this is being potentially broadcast to schoolchildren, I'll refrain from the succinct group of of hand-gestures I use to express my views on the incorporation doctrine. I'll just say it's to jurisprudence what Hair Metal is to Rock and Roll.

Do you believe that the men who wrote and ratified the 14th Amendment intended for most of the amendments comprising the federal Bill of Rights to be applied against the States?

Hell, Senator, they had no clear idea on what they were doing, you know that. Some of the more urgent Yankee nationalizers, particularly that fellow from Michigan, thought they were obliterating the federal system altogether in favor of a national uber-government. Others thought they were just giving the federal government power to thwart a revanchist sectionalism that might re-start the Civil War. Mostly, though, they wrote and ratified it for the same reason rock stars trash hotel suites -- it sounded like a really good idea at the time, and they knew somebody else would have to clean up the mess.

If so, do you think that the "liberty" component of the Due Process Clause of that amendment is the appropriate jurisprudential foundation for incorporation; or do you instead agree with those legal scholars who believe the Privileges and Immunities Clause is the constitutional provision upon which incorporation must/should rest?

Incorporationism, to the extent the word may be appropriate, can occur only with respect to the privileges and immunities clause. As to the rest, the state's legislative or judicial processes (provided they're conducted with due regard for the Constitution's guarantee of a republican form of government) is all the due process required before the state messes with anybody's life, liberty, or property. And if you'll take some unsolicited advice, repeal the seventeenth amendment.

On the other hand, if you believe the incorporation doctrine is a constitutional fiction, is it your view that the doctrine must be nevertheless be preserved on stare decisis grounds?

We all know that stare decisis means that we respect the laws we can't change.

And none of you bastards should even think about there being follow-up questions to that one.

I can't get over the sonorous inquiry y'all pretend to do about what a nominee will decide about abortion, gay marriage, cooking dog, or whatever hot-button issue has got your constituencies' goats. Take Joe over there. Last time he asked Roberts whether he'd vote to preserve Roe v. Wade. Now Joe, you got to know how damn foolish that is.

Suppose you asked me that in a few minutes. And suppose I said "Sure, Joe, I'll always vote to preserve Roe v. Wade from attack by those Christian fascists." What would you know? I mean, seriously, Joe, what would you know? All you'd really know is what you know now -- I want to be on the Supreme Court. So let's just skip the neo-platonic epicycles of Judiciary Committee cosmology, and leave it at that.

Bonus question I Do you agree with Justice Thomas that it is time to rethink whether the Establishment Clause should be incorporated against the States?

Not really. To re-think means to have thought in the first place. Nothing in the Constitution -- not even the privileges and immunities clause -- prohibits state-supported religion. It's a damn bad idea. But constitutional liberty is largely an exercise in damn bad ideas. You want brilliance and unending prosperity, then go rent a Fuhrer.

Bonus question II: Is the right to bear arms, as articulated in the Second Amendment, an individual right, and if so should it be incorporated against the States?

Steve, those folks who voted for you were damn smart, if you don't mind my saying so. That's a great question. And my answer is yes, the right to keep and bear arms is an individual right and, no, it shouldn't be incorporated because its exclusion from the candidate list of privileges and immunities is made pretty clear by the Amendment's appeal to the militia power, which if anything is a state power or a natural right and not a privilege or immunity conferred by citizenship in a national polity.

What, if any, weight should be given decisions from international courts when interpreting the United States Constitution?

HAW! Damn, boy, you're funny! I don't trust anyone who reads advance sheets, let alone somebody pointy-headed enough to read decisions from international courts. Spencer Tracy's speeches in Judgment at Nuremburg are as far as anybody ought to go in that direction.

In terms of interpreting the Constitution, should one look to the original meaning and intent of the drafters or to subsequent interpretations by the judiciary? If it is the former, what is your position on 14th amendment jurisprudence? If it is the latter, what recourse do the people have, short of constitutional amendment, to counter a judicial interpretation by the Supreme Court?

Well, Mr. Speaker, I'm not much on the kind of originalism that pretends we can all go chew on roots and have a mystical communion with the Founders via a ceremony that's half country-club locker room, half Native-American sweat lodge. I favor the Horton Hatches an Egg theory of constitutional jurisprudence: "I said what I meant and I meant what I said, and a Justice is faithful, one hundred percent!" The document says what the document says, and I don't like plumbing the Founders intentions for things they never thought about. If you have to go beyond the four corners of the Constitution, then I'd try leafing through Madison's Notes (one version has an index that's really helpful, by the way, and I'd have my law clerk go get that one). If that fails, then I'd do my best with the language, saying with Mencken that democracy is the theory of government that the people should get what they deserve, good and hard. Unless important and clear guarantees are involved, then it's not the Court's business to extricate Americans from the consequences of their own legislative folly.

Sort of a side comment on Steve's proposed questions (which would be great ones) -- but in which some of you might be interested: It seems to me that the whole Thomas-Amar argument over whether the Establishment Clause resists incorporation has particular value for defenders of the Second Amendment . . . .

Now that guy's talkin' like a Supreme Court justice. How come he didn't get nominated? How did all these people get in my hotel room?

If Train A left Sheboygan, WI at 5 a.m. moving southward at a speed of 50 miles per hour and Train B left Peducah, KY at 7:43 a.m. moving north at a rate of 5 kilometers per second, would a tree falling in the woods substantially affect interstate commerce?

Hey, bud, nobody can talk about my LSAT scores. I mean nobody.

What particular qualifications will you bring to the Supreme Court?

Good marksmanship skills. I can also pick good cigars, port, and Irish whiskey, and I promise to introduce a tradition of genteel cursing to judicial deliberations.

Why are you qualified to interpret the constitution as a Supreme Court Associate Justice?

I thought this was an affirmative-action program for legal medioctrities, not some pointy-headed, elitist witch-hunt. That's what George said, and I believe him. I'll may screw him the minute I'm on the bench, but I believe him. Go read the latest Supreme Court Christmas-Tree decision and if you can, after that, tell me with a straight face that qualifications are required in the first place, I'll answer that question.

Now I need smokes and coffee. Excuse me, y'all . . . . .