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The Nossiter Net
The net that shall enmesh them all
Edited, Written, and Published by Josh Nossiter

The Morning Mendacity
Thursday, July 21st, 2005

The Nossiter Net is cast to snare some of the riper rascalities of the day. Comments? editor@nossiter.net

All you need to know about Judge John Roberts, Mr. Bush’s nominee to fill the Supreme Court seat vacated by Sandra Day O’Connor, is summarized by Georgetown Law Professor Peter Rubin in Salon.com.* Judge Roberts ruled that the Washington Metropolitan Transit Authority was perfectly correct in seizing, handcuffing, booking, and briefly incarcerating a crying twelve year old girl. Her crime: eating a single French fry on the Washington metro. Freedom fries had not yet been invented, though even they would not have saved young Ms. Hedgepeth from the fury of the law.

Judge Roberts argued that the WMTA’s actions wouldn’t have been a violation of the 4th Amendment’s prohibition against unreasonable searches and seizures when the amendment was written, in 1791. Therefore, goes the good judge’s logic, it cannot be a 4th Amendment violation now. This is a fine example of an approach to constitutional law advocated by Justice Scalia, and which Judge Roberts also appears to follow.

From the Republican point of view, rolling the clock back to 1791 in this way makes a great deal of sense. At that time, for example, with few exceptions (one being New Jersey) only white male property owners could vote. Since the Republican party dominates the vote of contemporary white male property owners, the Roberts approach, by excluding all other voters in 1791 fashion, would insure a permanent, perpetual Republican government.

The rights of women concerning property were limited in 1791, and those of blacks nonexistent in most regions. In the republic as reinvented by a Justice Roberts, the opportunity to close the budget gap by returning to the system of property rights prevailing in 1791 would be too tempting to resist. Depriving women, and blacks and other minorities, of their property through government confiscation would be small price to pay.

For that matter, if consistent, Judge Roberts must advocate a restoration of slavery in this country. Slavery was ubiquitous in the United States of 1791, and furthermore the Constitution and the Bill of Rights are both silent about it. For a strict textualist, or contextualist, or whatever he calls himself, that silence is as good as a command to return to the peculiar institution forthwith. For the Scalias and Roberts of this world, if it’s not actually written in the text of the Constitution, it simply isn’t.

Fortunately for Judge Roberts, a devout Catholic, he is nominated for a Federal position. Had he been tapped for a state government job, this devoted re-winder of the clock of history might have been awkwardly placed. For in 1791, most state constitutions, through test oaths of allegiance, barred loyalists, minorities, and yes, Catholics, from serving in state government at all.

*http://www.salon.com/news/feature/2005/07/20/roberts/

©Joshua C. Nossiter, 2005

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