Educated Guesswork

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September 12, 2005

25 Questions for Roberts

This morning's TImes lets a bunch of lawyers and academics suggest five questions each that the Senate should ask John Roberts. Most of them aren't very interesting, but Glenn Reynolds surprises with:

1. The Ninth Amendment provides that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Do you believe that this language binds federal courts, or do you believe - as Robert Bork does - that it is an indecipherable "inkblot?" If the former, how are federal courts to determine what rights are retained by the people? On the other hand, if the Ninth Amendment does not create enforceable rights, what is it doing taking up one-tenth of the Bill of Rights?

2. Justice Joseph Story wrote in 1833 that "since the American Revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A and transfer it to B by a mere legislative act." Was Story wrong? Or was the Supreme Court wrong this year when it ruled in Kelo v. the City of New London that a government had the right to take property for the use of private developers?

3. Could a human-like artificial intelligence constitute a "person" for purposes of protection under the 14th Amendment, or is such protection limited, by the 14th Amendment's language, to those who are "born or naturalized in the United States?"

4. Does a declaration of war by Congress have the effect of suddenly making proper actions by the executive and Congress that would otherwise have been beyond their constitutional powers?

5. Is scientific research among the expressive activities protected by the First Amendment? If not, is Congress free to bar research based solely on its decision that there

Questions 1 and 2 are fairly directly challenging, which I appreciate. Question 3 is a really good one, not because it's something we're actually likely to face real soon but because it's related to a bunch of other questions of identity that I think we will have to face real soon and we'd get a chance to see what kind of thinker the person answering was. 4 seems on point and 5 is something that we will very likely have to deal with extremely soon.

Posted by ekr at September 12, 2005 7:30 AM | Filed under:

Comments

Posted by: Kevin Dick at September 12, 2005 9:29 AM

Posted by: Hal at September 12, 2005 12:45 PM