# A moment of your time, please, Justice Scalia **URL:** \ **Category:** The BBQ Pit\ **Created:** [October 24, 2003, 2:53am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243 "2003-10-24T02:53:49Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [October 29, 2003, 9:33pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/181 "2003-10-29T21:33:26Z")
**Dewey** > [@](#): > > Thirty-odd years ago every state in the union had a sodomy statute. It’s not that it’s a sodomy statute. It’s that it’s a _same-sex_ sodomy statute that creates the tension (at least IMHO). From the SC Majority opinion > [@](#): > > It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Don’t you see the difference? Oddly enough, (again IMHO), I think Texas was perfectly within its rights to pass the original statute outlawing sodomy _generally_. It’s when they amended it remove the prohibition against differing sex sodomy that they crossed the line (both USC and TC). ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 29, 2003, 9:50pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/182 "2003-10-29T21:50:13Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > \*\ ***Dewey** : Congratulations on utterly missing **elucidator** ’s point about banning ugliness. The same challenges you offer in reply, as a means of dismissing the concept as ridiculous, apply to the criminalization of homosexual conduct. \*\* I wasn’t offering challenges to dismiss his concept. I was seeking greater detail so that I might properly analyze how the constitution might apply to his proposed law.\*\* > [@](#): > > Easily enough. Support of civil and voting rights _were_ majority positions by then, even though the segregationist faction was still large and loud in 1964-5, and the fuck-'em,-helping-'em-would-cost-money faction was large and influential when ADA was passed and remains so today. Politicians can be induced to do the right thing, but they can’t get very far out in front of public opinion and still get anything done. \*\* All of which does not change the fact that both laws are examples of the majority legislating protections for minorities, something the assertion to which I was responding said was highly unlikely occurrence. This, in spite of the fact that the rights-based amendments to the constitution have pretty much been about nothing but enacting protections for aggreived minorities. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 29, 2003, 9:56pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/183 "2003-10-29T21:56:54Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*So a state can constitutionally decide to incarcerate homosexuals for engaging in pribate, consensual intercourse, but the system isn’t broken. > > Gotcha. \*\* My, aren’t we Mr. Snip Away Context Man. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 29, 2003, 10:03pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/184 "2003-10-29T22:03:51Z")
No, I’m Bottom Line Guy. Snip Away Context Man was back on page 2. ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [October 29, 2003, 10:21pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/185 "2003-10-29T22:21:04Z")
> [@](#): > > \*Originally posted by minty green \* > **No, I’m Bottom Line Guy.** Then we are no longer a nation of laws, but of men. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 29, 2003, 10:23pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/186 "2003-10-29T22:23:30Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*1. I should not have to tell you that every decision by evey judge makes _law_ (not laws) by creating, reinforcing, or rejecting precedent. Case law is an integral part of our system of law, and I get very offended at the idea that “a judge’s job is to interpret the law, not make the law.” Bullshit! The only way a judge can refrain from “making law” is by abnegating his responsibility to rule on the case before him. This argument IMHO shows the bad faith of strict constructionism, which could plausibly be be a system I could see some agreement withif it were to be exercised fairly. \*\* There is a world of difference between interpreting the law – exploring the contours of statutes already enacted, and having that exploration become a _de facto_ part of the substantive law as a simple matter of _stare decisis_ – and judicially legislating – creating rights quite literally out of thin air (or, at least, out of “emanations and penumbras”). The terms are just a convenient shorthand, but the meanings are clear. Calling bullshit on the use of the term “judicial lawmaking” because of the existence of _stare decisis_ is almost willful obtuseness on your part. \*\* > [@](#): > > 1. I forget which SCOTUS Justice it was that said “We must never forget it is a _Constitution_ we are interpreting.” There’s a reason for the deference given the rule of law and the opinions of seven men and two women with no inherent power – and it’s respect for a government with powers delimited by the consent of the governed, aimed at protecting their individual and corporate rights. Strictly construe a penal law; strictly construe a statute on corporate structure – but the Constitution is intended to be the basic law of the nation, giving in broad principles what government may and may not do. It contains generalities because it was intended to contain them, and they are intended to cover broad aspects of powers and rights including those not contemplated by the authors. My rights and my responsibilities as a citizen are _summarized_, not _defined_ by its terms, and it that flexibility that makes a document written in 1789 competent to deal with a world where terrorists fly airliners into skyscrapers. \*\* I agree that the Constitution embodies broad principles. I have no problem with judicial interpretation of the free speech clause, or the equal protection clause, or the search and seizure clause. Those short phrases embody big concepts, and should be treated accordingly. I _do_, however, have a problem with the judiciary finding principles in the Constitution that simply aren’t there. One thing advocates of living constitutionalism never seem to be able to do is to put a limit on what the court can do – they either remain silent when asked, or they respond with a meaningless glittering generality. In a constitution devoted in no small part to the limiting of governmental power, it is jarring to see a theory promultaged which effectively gives absolute power to one of the three branches of government. \*\* > [@](#): > > 1. I was under the mistaken impression that you _agreed_ with me that the application of the law’s rights is not to be found by counting heads. The constitutionality of a sodomy statute is, I think, not to be found in how many states choose to adopt one, but in whether it provides equal protection to **all** citizens and in whether it violates “the privileges and immunities of citizens of the United States” without due process. \*\* _Lawrence_ was not decided on equal protection grounds; it was decided on substantive due process grounds. As you full well know from earlier threads on the topic, I am not unamenable to (though neither am I wholly convinced of) the idea of invalidating the Texas statute on equal protection grounds – a state can ban sodomy or not ban sodomy, but it can’t draw a distinction between same-sex and mixed-sex sodomy for reasons of gender equality. But the court didn’t go that way. They went with the broader concept of substantive due process, which I oppose as a blank slate upon which judges can impose their own policy choices at will. NOTE: the above point also addresses **grem0517**. I’ve dealt with your view of the privileges and immunities clause in earlier threads. I see no need to reargue the point. As for “counting heads,” I have never claimed the sodomy statue was constitutional or unconstitutional based on the number of states that had repealed said statute. I _did_ point out the overwhelming number of states opting for repeal as an example of the legislative process working, but that point is unrelated to the question of constitutionality.\*\* > [@](#): > > 1. I agree that _Roe v. Wade_ became a flashpoint for conflicting views – but to presume that there would be little or no acrimony over abortion if it had not been decided or had been decided the other way, is to show incredible naivete about the issues motivating people about the issue. \*\* Zero acrimony? Of course not. But it wouldn’t be nearly the angry wellspring of bile we see today. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 29, 2003, 10:31pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/187 "2003-10-29T22:31:11Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*No, I’m Bottom Line Guy. Snip Away Context Man was back on page 2. \*\* Meh. Now you’re Mr. Snarkiness Above Substance Man. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [October 29, 2003, 10:40pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/188 "2003-10-29T22:40:10Z")
Hey **minty** , check back with the Babba ho-Tep thread and see if Nov 2, afternoon or evening, dinner, or just drinks and such, works for you. Also, **Moxmaiden** and myself are planning to hit the Matrix on the 6th(cause it’s her birthday) and we’re thinking of making it a mini-dopefest again. Any interest? How is Mrs Green? Drop me a line if you want to do some baby-shopping like we had spoken about earlier. Enjoy, Steven ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 29, 2003, 11:15pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/189 "2003-10-29T23:15:38Z")
Respectively: Plans in the evening, definite interest, swollen ankles but generally good, how’s this Saturday? Or, you could just check your email in a few minutes. 🙂 ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 29, 2003, 11:28pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/190 "2003-10-29T23:28:20Z")
“Baby-shopping”? You guys are _way_ too strange for Texas. **Dewey** > [@](#): > > And you, I suppose, are the final arbiter of right and wrong? Alas, no. But unless I am very mistaken, (and given the convolutions of your reasoning, I may very well be), you are in agreement with me as to this. You agree that Mr. Scalia is defending a Bad Law, which might best be described as a law designed and ratified for a Bad Purpose, in this case, stigmatizing and oppressing otherwise blameless citizens. You agree that at least some of Mr. Scalia’s remarks are nasty. Yet you rush to defend Mr. Scalia’s legal reasoning as valid, as if somehow that validity had a value of its own, outside of the purpose to which it is prostituted. That gets close to implying that the law has a sanctity outside of its effect on human beings, a proposition I deny as bordering on the metaphysical. I don’t honestly care how splendid and refined his jurisprudence may be held to be, he uses it to a malicious end, hence he is a malicious person. I know kindly and gentle retards who stuggle with “See Spot Run”, in my opinion, they are superior to him in every meaningful way. YMMV, as I’m sure it does. As to defining the crime of “ugly”, well, we might apply currently acceptable community standards, or apply the " curdles milk at twenty paces" standard. Unless, of course, your response was nothing more than a facetious avoidance of a question you’d prefer not to deal with. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [October 29, 2003, 11:34pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/191 "2003-10-29T23:34:52Z")
Nah, not so weird when you think about it. I’ve offered to help Mr. and Mrs. green in selecting baby items. Mostly this will consist of me walking with them around a big baby superstore and bitching about how “I bought one of them, it sucked, waste of my hard-earned cash.” If that doesn’t fit right in with other Texan virtues then I don’t know what does. Enjoy, Steven ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 29, 2003, 11:37pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/192 "2003-10-29T23:37:13Z")
Plus, I’m bringing the beer. Shiner Bock, of course. ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [October 29, 2003, 11:53pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/193 "2003-10-29T23:53:17Z")
> [@](#): > > Yet you rush to defend Mr. Scalia’s legal reasoning as valid, as if somehow that validity had a value of its own, outside of the purpose to which it is prostituted. That gets close to implying that the law has a sanctity outside of its effect on human beings, a proposition I deny as bordering on the metaphysical. I don’t honestly care how splendid and refined his jurisprudence may be held to be, he uses it to a malicious end, hence he is a malicious person. I know kindly and gentle retards who stuggle with “See Spot Run”, in my opinion, they are superior to him in every meaningful way. YMMV, as I’m sure it does. If I may respond, the law is bad. Thomas explicitly and Scalia, at least implicitly, both admit as much. But, their reasoning _does_ have value of its own. Law does have a sanctity outside of its effects on actual people. We may not simply disregard the law because we don’t like the results. You display a startling lack of understanding of the role of the courts in American government. It isn’t for SCOTUS to decide whether or not a law is good or bad, it is for them to say whether or not the law is permissable. It is for the people to say if the law is good or bad, and they do so through their votes. You are looking to the court to cure what you (and I) see as a bad law, that isn’t the right place to go. Those concerns are properly addressed to the legislature only. To those who argue that the system is no longer works, then amend the system. Once you begin to look beyond the law, and the Constitution, and engage in debate in the courts as to whether certain laws are “good” or bad" you are left with nothing. Like I said to **Minty** a few posts ago you live in a nation of men, and not of laws. ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [October 30, 2003, 12:21am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/194 "2003-10-30T00:21:36Z")
a baby minty?? well, hell, congrats! ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 30, 2003, 12:31am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/195 "2003-10-30T00:31:34Z")
> [@](#): > > \*Originally posted by Mtgman \* > \*\*…If that doesn’t fit right in with other Texan virtues then I don’t know what does. > \*\* Depends. Is she barefoot? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 30, 2003, 12:37am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/196 "2003-10-30T00:37:44Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Plus, I’m bringing the beer. Shiner Bock, of course. \*\* You know why I’m so goddamned cranky all the time? _Four fucking years_ without a regular Shiner Bock supply, thats why. (Crossing my fingers that this will change soon if some things work out in my favor…) **elucidiator** : what **Rhum Runner** said. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 30, 2003, 1:04am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/197 "2003-10-30T01:04:34Z")
> [@](#): > > \*Originally posted by Rhum Runner \* > Once you begin to look beyond the law, and the Constitution, and engage in debate in the courts as to whether certain laws are “good” or bad" you are left with nothing. Sure you jest. Even apart from the obvious desirability of determining whether a given law is beneficial, most laws can be interpreted and applied in any number of ways. That’s particularly true with the intentionally-briad-and-vague constitutional provisions that give Scalia and Dewey such fits. If you _can_ apply a law in different ways, why on earth wouldn’t you apply it in the “good” way instead of the “bad”? > [@](#): > > Like I said to **Minty** a few posts ago you live in a nation of men, and not of laws. No offense, but that’s crap. Laws are meant to create a bottom line. You can argue all you want about where it lies, but the fact that laws lead to specific outcomes hardly makes this a nation ruled by mere whim. Thanks, **wring**! ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [October 30, 2003, 1:44am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/198 "2003-10-30T01:44:24Z")
> [@](#): > > \*Originally posted by minty green \* > **Sure you jest. Even apart from the obvious desirability of determining whether a given law is beneficial, most laws can be interpreted and applied in any number of ways. That’s particularly true with the intentionally-briad-and-vague constitutional provisions that give Scalia and Dewey such fits. If you _can_ apply a law in different ways, why on earth wouldn’t you apply it in the “good” way instead of the “bad”?** It isn’t jest at all. I was responding to **elucidator** who claims that it is the result only that matters, and that the law has no validity outside of the effect it has on people. **elucidator** would have the court strike down as unconstitutional any law that the court considers bad (a definition which he undoubedly hopes is in line with his own) irrespective of the authority of the legislature to pass such a law. If that is the rule, then where are we **Minty**? I have not always agreed with everything you have posted here, but I don’t think that I need to point out the dangers of going down that road to you. It should be obvious. > [@](#): > > \*\*No offense, but that’s crap. Laws are meant to create a bottom line. You can argue all you want about where it lies, but the fact that laws lead to specific outcomes hardly makes this a nation ruled by mere whim. \*\* No offense taken. 🙂 It is ruled by whim when we start creating new constitutional rights out of nowhere, which is what is going on in _Lawrence_. The “living” constitution works both ways. So far the doctrine has been used by Courts seeking to expand personal rights, but what if that power falls into a different Court? What if the Court decides it can disregard the original meaning of the 4th amendment in favor of a “modern” and “evolving,” less protective, interpretation? My concern is that once power is surrendered, or stolen, by the court (or any other branch) that it can be used for good or ill and seldom can it be reclaimed. It is to a much lesser extent that history can be rewritten, and thus the way to protect indivdiual rights is to force government to remain grounded in history. I have little to no faith in government’s respect for individual rights, and would like to see it kept on the shortest leash possible. I believe that the purpose of a written constitution is to act as that leash. That may mean in individual cases “silly” laws remain on the books, but that is preferable to me than wandering around in the morass of substantive due process. Look what has been done with the commerce clause. Sure, much of it has had good results, but much of it has been bad. To wit I would argue that the increased political apathy people have cited here as justification for the courts being more active is directly a result of the swelling federal government, allowed through the Court’s refusal pre-_Lopez_ to restrain the use of the commerce clause over the last 60+ years. Government has shifted to far away from the state and local arena to the national one, and political apathy is the result. It has distorted the federalism upon which our system rests. Don’t feel the need to respond to this, as it is probably a topic for another thread, I bring it up only to illustrate the point that shifting power and judicial decisions have effects that radiate beyond the immediate case. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 30, 2003, 1:58am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/199 "2003-10-30T01:58:04Z")
But what about the _children_? Won’t someone think of the _children_? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 30, 2003, 2:39am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/200 "2003-10-30T02:39:41Z")
> [@](#): > > \*Originally posted by Rhum Runner \* > It is ruled by whim when we start creating new constitutional rights out of nowhere, which is what is going on in _Lawrence_. No sir. It was recognized on the basis of the 14th Amendment and a long line of exceedingly narrow cases applying it. You may disagree with the majority’s analysis in Lawrence, but claiming that it was created out of thin air is contrary to reality. > [@](#): > > I would argue that the increased political apathy people have cited here as justification for the courts being more active is directly a result of the swelling federal government, allowed through the Court’s refusal pre-_Lopez_ to restrain the use of the commerce clause over the last 60+ years. . . . Don’t feel the need to respond to this, as it is probably a topic for another thread Start 'er up. You are, of course, completely wrong. 😛 [Previous page](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243.md?page=9) [Next page](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243.md?page=11)