I took some me time away from the confirmation hearings for Sonya Sotomayor. I reviewed the proceedings courtesy of CSPAN, whom I thank for helping me to keep informed. And this topic was so important for me to understand.
On July 17, apparently, she answered a question from one of Senator Orrin Hatche’s constituents from Utah concerning the role of the court. The question asked; if she saw the courts, particularly the Supreme Court, as an institution for resolving perceived social injustices, inequities and disadvantages.
Her response was tremendous.
“No, that’s not the role of the courts. The role of the courts is to interpret the law as Congress writes it. It may be the effect in a particular situation that the court doing that, and giving effect the Congress intent, it has that outcome. But it’s not the role of the judge to create that outcome. It’s to interpret what Congress is doing and do what Congress wants.”
…do what Congress wants? Even if it is unconstitutional?
When asked whether the Constitution, as written, has precedence over modern court decisions, she responded, “The intent of the founders were set forth in the Constitution. They created the words; they created the document. It is their words that is the most important aspect of judging. You follow what they said in their words and you apply it to the facts you’re looking at.”
How profound. The Second Amendment is very clear especially in light of the ancillary documentation, i.e. the Federalist Papers. You Anti-Federalist guys don’t even go there!
But, let’s rewind to July 14th, because I did. There, Senator Hatch noted that, in Supreme Court decisions, the Second Amendment was placed in the same category as the First and Fourth amendments as fundamental rights that the Constitution merely solidified in writing. He asked the nominee, “Now do you believe that the First Amendment rights, such as the right to freely exercise religion, the freedom of speech or the press are fundamental rights?”
Now, here is where it gets fun-da-mental.
“Those rights have been incorporated against the states, the states must comply with them. So in… to the extent that the court has held that… then they are, they have been deemed fundamental as that term is understood legally.”
I admit that I am hazy on just what she said. But is clear that it is one of the mounting reasons that the English language must be taught in schools; particularly law schools. Any of ya’ll big time counselors are welcome to help out this po’ ol’ country boy that can’t ‘ford law school on this one. It seems that what is meant, here, is that the Supreme Court has decisions that, in one way or another, specify that the First Amendment is a fundamental right. Therefore, that amendment is “incorporated” to the states and they must comply. I am guessing that they never made a decision that specifically stated that the Second Amendment is a fundamental right. Therefore, they are not “incorporated,” therefore, state and local governments don’t have to comply and can take your rights in those specific areas—especially the Second Amendment—away.
If the Senator will yield a few minutes of his time to the Peon from Arizona, I would like to ask where are these rights “incorporated?” Sotomeyer, herself, noted that the founding fathers wrote the words and the document, so their words should carry more weight. Did they “incorporate” any fundamental rights? I believe that they are “incorporated” in The Bill of Rights.
With logic like that, I hope the Supreme Court has “incorporated” the Tenth Amendment. They certainly haven’t “incorporated” the Ninth.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.