Scalia: Disagrees With "Idiots"

[Regnad Kcin]

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," said Supreme Court Justice Antonin Scalia in a speech Monday sponsored by the conservative Federalist Society.

"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.

Scalia was invited to Puerto Rico by the Federalist Society for Law and Public Policy Studies. The organization was founded in 1982 as a debating society by students who believed professors at the top law schools were too liberal.

Article here.

 

[HarryKeogh]

I just loved the reply (and punctuation) to this very topic on RaptureReady:

To me!!!!
It is "just" like the BIBLE, and CANNOT BE CHANGED OR ALTERED!!!

http://www.rr-bb.com/showthread.php?t=243610

 

[Ziggurat]

I just loved the reply (and punctuation) to this very topic on RaptureReady:

To me!!!!
It is "just" like the BIBLE, and CANNOT BE CHANGED OR ALTERED!!!

I'm not sure how that relates to Scalia's argument. Seems like his argument is actually that the document CAN be changed, but that if, as written, it proves inadequate to the times, then actually changing the document itself (as in, adding amendments) rather than pretending it says something it doesn't is the preferred method. In that sense, I'm in complete agreement with Scalia.

My only problem is I can't square these statements with his ruling in the Raich case - but in that conflict it's his recent statements, not his previous ruling, that I lean towards.

 

[shecky]

My only problem is I can't square these statements with his ruling in the Raich case - but in that conflict it's his recent statements, not his previous ruling, that I lean towards.

I can't even square his own statements with history. Is there any question that interpreting the constitution does not change with society? Why should it not?

 

[Tony]

I'm not sure how that relates to Scalia's argument. Seems like his argument is actually that the document CAN be changed, but that if, as written, it proves inadequate to the times, then actually changing the document itself (as in, adding amendments) rather than pretending it says something it doesn't is the preferred method. In that sense, I'm in complete agreement with Scalia.

Scalia's so-called originalist interpretation is bogus. Under his interpretation, the second amendment only allows for muskets and weapons of kind and the first amendment doesn't allow for freespeech online (among other things).

The idea that something (privacy, gay marriage ect.) has to be explicitly written into the constitution to be a right is also bogus. According to this idiocy, none of us have the right to eat food because it isn't written into the constitution.

Scalia is the idiot and he is an embarrasment to this country.

 

[Luke T.]

I can't even square his own statements with history. Is there any question that interpreting the constitution does not change with society? Why should it not?

The last two Supreme Court nominees were peppered incessently with questions about stare decisis. The intent was obviously designed to get them to promise they would not overturn Roe v. Wade.

"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.

 

[BPSCG]

Scalia's so-called originalist interpretation is bogus. Under his interpretation, the second amendment only allows for muskets and weapons of kind

Well, if you assume Scalia is that kind of originalist, then you're wrong, because I guarantee you the word "musket" does not appear in the Constitution.

The idea that something (privacy, gay marriage ect.) has to be explicitly written into the constitution to be a right is also bogus.

Let me see if I have your position straight. The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one. An entire amendment to the Constitution (the second) discusses the right to bear arms. Does that woman who has the right to an abortion also have the right to carry a gun around?

According to this idiocy, none of us have the right to eat food because it isn't written into the constitution.

This is a straw man; you are completely mischaracterizing what he said. Read the first paragraph in Ziggarut's post; I think it comes a lot closer to what he was talking about. Also read the linked article. Scalia says that proponents of a "living Constitution" want the Supreme Court to make the laws, based on society's changing standards, whereas that's really the province of the legislatures. If people don't like the laws, they should have their legislatures change the laws, not demand the Supreme Court re-interpret the Constitution to suit their desires.

 

[ImaginalDisc]

Well, if you assume Scalia is that kind of originalist, then you're wrong, because I guarantee you the word "musket" does not appear in the Constitution.
Let me see if I have your position straight. The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one. An entire amendment to the Constitution (the second) discusses the right to bear arms. Does that woman who has the right to an abortion also have the right to carry a gun around?

This is a straw man; you are completely mischaracterizing what he said. Read the first paragraph in Ziggarut's post; I think it comes a lot closer to what he was talking about. Also read the linked article. Scalia says that proponents of a "living Constitution" want the Supreme Court to make the laws, based on society's changing standards, whereas that's really the province of the legislatures. If people don't like the laws, they should have their legislatures change the laws, not demand the Supreme Court re-interpret the Constitution to suit their desires.

Let's read the second ammendement for a moment. It's one scentence, so that shouldn't be hard.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Hmm, it seems as though the pupose of the civilians keeping arms is so that there is a well regulated militia. Remember that the FF's had just finished pounding the best profressional army in the world with a militia. There was an ongoing debate at the time about whether the United States even required a standing professional army. So, since there's no military in the Constitution, should we demolish it? Of course not. Just because something is not in the Constitution, that does not mean it doesn't exist.

We have a militia, it's the National Gaurd. My keeping a browing .50 machine gun in my basement does not contribute to the militia in any way.

Edited

 

[Ed]

Scalia's so-called originalist interpretation is bogus. Under his interpretation, the second amendment only allows for muskets and weapons of kind and the first amendment doesn't allow for freespeech online (among other things).

The idea that something (privacy, gay marriage ect.) has to be explicitly written into the constitution to be a right is also bogus. According to this idiocy, none of us have the right to eat food because it isn't written into the constitution.

Scalia is the idiot and he is an embarrasment to this country.

That is not how the Constitution works. It does not grant rights, it defines the power of the federal government. If it is not mentioed the feds must keep their hands off.

 

[Tony]

Well, if you assume Scalia is that kind of originalist, then you're wrong, because I guarantee you the word "musket" does not appear in the Constitution.

You're right. It doesn't even guarentee that right. You only have the right to "arms". I guess the founders didn't think we would need legs.

Let me see if I have your position straight. The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one. An entire amendment to the Constitution (the second) discusses the right to bear arms. Does that woman who has the right to an abortion also have the right to carry a gun around?

I think so, yes.

This is a straw man; you are completely mischaracterizing what he said.

I'm attacking the "originalist" interpretation. Not anything that was explicitly said in this thread.

Also read the linked article. Scalia says that proponents of a "living Constitution" want the Supreme Court to make the laws, based on society's changing standards, whereas that's really the province of the legislatures. If people don't like the laws, they should have their legislatures change the laws, not demand the Supreme Court re-interpret the Constitution to suit their desires.

Translation: Scialia doesn't like that the legislature is subject to constitutional accountability for the laws they pass, or that there is a third branch of government.

By definition, the Supreme Court cannot make law, Scalia knows this, and he is propagating this meme to fool the ignorant. I think it's extremely folly to rely on a corrupt legislature such as ours to self regulate itself and only pass good laws and repeal bad ones, the founders appear to agree with me.

 

[Ziggurat]

Scalia's so-called originalist interpretation is bogus. Under his interpretation, the second amendment only allows for muskets and weapons of kind and the first amendment doesn't allow for freespeech online (among other things).

I don't see how that follows. "Arms" means weapons - no further specification is supplied, and there's no reason to believe, based on the text, that any such restriction to only weapons of the time exists. And online speech is pretty universally viewed as falling under the category of "speech", I've seen nothing to imply that Scalia or any other conservative constitutional scholars think otherwise.

The idea that something (privacy, gay marriage ect.) has to be explicitly written into the constitution to be a right is also bogus. According to this idiocy, none of us have the right to eat food because it isn't written into the constitution.

You're looking at the wrong end of the problem. The constitutional question isn't what rights we have, but what POWERS the government has: does the government have the power to not let you eat? Does the government have the power to refuse granting marriage licenses to certain groups? And does the government have the power to make stupid decisions? That's the constitutional question, and Scalia is precisely correct that we cannot pretend that the constitution grants OR restricts government power in a manner different than the actual text says. If we're not happy with the constitution as it is, then the remedy is to change the actual text with an amendment, as we have done in the past.

Take gay marriage, for example: I'm all for it, myself, but marriage isn't even in the constitution to begin with. We have no constitutional right to marriage, it's an entirely legislated issue - the government abolish marriage altogether and it wouldn't be unconstitutional. The only restriction, from a constitutional position, is the issue of equal protection. But that doesn't actually help out gay marriage advocates since gays can, in fact, still engage in marriage with members of the opposite sex. That may not be FAIR, and that may not be right, but there's nothing actually unconstitutional about that, because gays can still do exactly the same thing that straight people can do (namely marry people of the opposite sex). The constitution does NOT, contrary to your protestations, have anything to say about that. And that's fine, because it also means CHANGING that state of affairs is also easier, because all we need to do is get the legislature to pass a law based on simple majority, not the supermajority that would be needed to make any alterations to the constitution. The more restricted the constitution is on such social issues, the better, and that includes for progressives.

 

[Tony]

That is not how the Constitution works. It does not grant rights, it defines the power of the federal government.

I know that. That is the bases for my contention that something doesn't have to be explicit in the constitution for it to be a right.

Section 1 of the 14th Amendment:

http://www.archives.gov/national-archives-experience/charters/constitution_amendments_11-27.html

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I think most things that Scalia and the anti-freedom people in America dislike (gay rights, privacy, abortion,, ect.) are covered by the bolded section right there.

 

[Ziggurat]

By definition, the Supreme Court cannot make law, Scalia knows this, and he is propagating this meme to fool the ignorant. I think it's extremely folly to rely on a corrupt legislature such as ours to self regulate itself and only pass good laws and repeal bad ones, the founders appear to agree with me.

You really don't get the argument, do you? The Supreme Court DOES, in effect, make law. They may not CALL it that, and so sure, by "definition" they aren't doing that, but that's exactly the effect. You know those Miranda rights? They're such a universal requirement now that they have the full force of law. But is there any law that says you have to be read your Miranda rights? No, there is not. There is only a supreme court ruling which creates such a requirement, because without it courts can throw out evidence. So the court does, indeed, act as if it is creating laws on occasion. That you are not aware of this means that either you yourself aren't being honest or (I'm more inclined to believe) you don't really understand the debate.

As for relying on the legislature, sure, they're corrupt and incompetent. But they're also accountable, and that matters. The supreme court is not accountable. They are, in many ways, even less competent than the legislature on many topics. Their role in law SHOULD be quite limited. Yes, they're needed as a check on the legislature, but the purpose of that check is NOT to stop bad laws, but only to check unconstitutional laws. Some people want them to do the former as well as the later (and from the way you phrased things, it sounds like you might be in that group), and one of Scalia's main points is that there's neither a constitutional nor practical reason to accept that role.

 

[Tony]

I don't see how that follows. "Arms" means weapons - no further specification is supplied,

"Arms" at the time of the founders meant personal weapons, like muskets. If you want the interpretation expanded to include modern weapons, you'll have to ratify a new amendment. According to Scalia that is.

and there's no reason to believe, based on the text, that any such restriction to only weapons of the time exists.

I know. But I'm talking about an originalist interpretation. Not the text. Thinking people (like you and me) can see the folly in that.

And online speech is pretty universally viewed as falling under the category of "speech", I've seen nothing to imply that Scalia or any other conservative constitutional scholars think otherwise.

Irrelevant. I'm talking about an originalist interpretation. That Scalia has neglected to apply it consistently is telling. His "originalist" ********e is simply an excuse to justify his anti-freedom biases.

You're looking at the wrong end of the problem. The constitutional question isn't what rights we have, but what POWERS the government has

I know I'm looking at it wrong. I'm employing an originalist interpretation. That's the point.

That's the constitutional question, and Scalia is precisely correct that we cannot pretend that the constitution grants OR restricts government power in a manner different than the actual text says.

No he's not. He is saying that if something isn't exactly enumerated in the constitution (such as the right to privacy), it doesn't exist and the government has the power to infringe upon it.

Take gay marriage, for example: I'm all for it, myself, but marriage isn't even in the constitution to begin with. We have no constitutional right to marriage, it's an entirely legislated issue - the government abolish marriage altogether and it wouldn't be unconstitutional. The only restriction, from a constitutional position, is the issue of equal protection. But that doesn't actually help out gay marriage advocates since gays can, in fact, still engage in marriage with members of the opposite sex. That may not be FAIR, and that may not be right, but there's nothing actually unconstitutional about that, because gays can still do exactly the same thing that straight people can do (namely marry people of the opposite sex). The constitution does NOT, contrary to your protestations, have anything to say about that.

Except that it does. In the section 1 of the 14th amendment.

 

[brodski]

If I remember my US politics correctly, the US Constitution does not explicitly give the supreme court the authority to overturn decisions made by the other branches of government. That power was granted to the supreme court by the supreme court by virtue of an interpretation of the constitution. In which case logical speaking wouldn't Scalia have to vote in favor of decisions made by the other branches of government, even if those decisions violated his view of the Constitution, because to vote against them would mean him exercising powers which are not available to him, given his constitutional interpretation.

Or am I missing something?

 

[Luke T.]

I win.

 

[ImaginalDisc]

If I remember my US politics correctly, the US Constitution does not explicitly give the supreme court the authority to overturn decisions made by the other branches of government. That power was granted to the supreme court by the supreme court by virtue of an interpretation of the constitution. In which case logical speaking wouldn't Scalia have to vote in favor of decisions made by the other branches of government, even if those decisions violated his view of the Constitution, because to vote against them would mean him exercising powers which are not available to him, given his constitutional interpretation.


Or am I missing something?

You're refering to Marbury v. Madison. Yeah, that established judicial review as a power of the Supreme Court. Technically, that goes back into the early 1610's in English common law, but IIRC, it was little more than a footnote.

http://en.wikipedia.org/wiki/Marbury_v._Madison

 

[Marc L]

Let me see if I have your position straight. The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one.

At the risk of being flamed, could you tell me on what basis you believe the Constitution guarantees a woman's right to an abortion?

I'm serious, really. I've heard this said before, but I have no idea on what it's based.

Marc

 

[Tony]

You really don't get the argument, do you? The Supreme Court DOES, in effect, make law. They may not CALL it that, and so sure, by "definition" they aren't doing that, but that's exactly the effect.

No it doesn't. Skriking down law=! making law.

You know those Miranda rights? They're such a universal requirement now that they have the full force of law. But is there any law that says you have to be read your Miranda rights? No, there is not.

I'm not familiar with the case, and as such, I cannot make a judgement on this.

As for relying on the legislature, sure, they're corrupt and incompetent. But they're also accountable, and that matters. The supreme court is not accountable.

Yes, it is accountable. Justices can be impeached and rulings can be overturned via constitutional amendment.

They are, in many ways, even less competent than the legislature on many topics. Their role in law SHOULD be quite limited.

Which it is, very limited.

Yes, they're needed as a check on the legislature, but the purpose of that check is NOT to stop bad laws, but only to check unconstitutional laws.

They are one the same.

 

[BPSCG]

At the risk of being flamed, could you tell me on what basis you believe the Constitution guarantees a woman's right to an abortion?

I don't believe it does, but I'm no constitutional scholar. If you google "abortion" and "penumbra", you'll probably get 10,000 hits that explain it better than I could.