# 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:** 8
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [October 27, 2003, 11:29pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/141 "2003-10-27T23:29:08Z")
\*\* Dewey\*\*, just to cherry pick portions of your post: _Dred Scott_ is probably the leading example of a Court that took the bit in its teeth and ran off ignoring precedent and history—there had after all been a number of State and Territorial cases that were on all fours with the case before the Supremes. One of them was _In the Matter of Ralph_ decided by the Iowa Territorial Supreme Court in 1839. And the Northwest Ordinance which prohibited slavery north of the Ohio River, and which Justice Tanny ignored, had been passed by the same guys who had approved the Constitution and the Bill of Rights. Despite precedent and original intent, despite the long acceptance of the Missouri Compromise of 1820 (not 1850, as I previously posted) Justice Tanny and the Southern Block of the Court went off on a deprivation-of-property-without-due-process argument which regarded rights of ownership as absolute. It is as if the State of Arkansas authorizes ownership of heroin but Minnesota prohibits it. Under Tanny’s reading of the due process clause an Arkansan could lawfully bring his heroin to Minnesota. Stealth candidates for the federal courts is what I said and it is what I mean. Remember how many matters Justice Thomas had no firm views on? His views sure firmed up as soon as he got on the Court. How many other candidates have been put forward who have claimed not to have firm views on the pressing legal issues of the day or whose views have been claimed as privileged? FDR’s Court Stuffing initiative was stuffed down his throat. The change was not that FDR slipped a bunch of judges into the courts which were supporters of the New Deal and of minority positions on the meaning and application of the Constitution. The change occurred when the Court saw its self falling behind what the nation wanted and needed. When that happened the Commerce Clause suddenly applied to New York dairies. The same thing happened with the Warren Court and the criminal procedure revolution and with civil rights. There came a point when the Court saw that the way it had been doing things was not working and was not serving the needs of the country. So it changed, saying that activities that once may have passed Constitutional muster no longer were acceptable. I understand it to be your position that “Within-the-Four-Corners-of-the Documentism” is the one true, exclusive and reliable method of reading and applying the Constitution. That may be the case when you have to decide who is eligible to be a Congressman. The provision that says that a member of the Senate must be 35 years old is pretty hard to argue about, but concepts like equal protection and due process of law and unreasonable search leave plenty of wiggle room. When you get to the Bill of Rights and the 14th Amendment you are dealing with a list of generalities (as T. Jefferson who you claim as a textualist said). The traditional method of reading those Constitutional provisions has been a combination of methodologies, not the least of which has been some degree of common sense and a view toward the purposes of the provisions. Textualism surely is a method of interpretation but has never been seen as the exclusive method. Even Justice Scalia has gotten off that horse on occasion. I ask you about the textual analysis of the Tennessee voting right and apportionment case because I get the idea that you see the Constitution as a series of clearly labeled coat hooks, one labeled Due Process, one labeled Equal Protection, one labeled Freedom from Unreasonable Search, but no hook labeled Privacy. I get the idea that under the textual approach you advocate **Brown** would fit on the Equal Protection hook and therefore would come out the same way. The Connecticut condom case would be decidedly differently because there is no Privacy hook. I can’t help but wonder if your approach is just a word game—the secret is to some how put a label on the case that matches the label on the hook. My question is if the Republican Form of Government hook would support the Tennessee Legislature case just because there was a hook with that label. Apparently under your view there is no small hook adjacent to the Due Process hook that is marked “None of the Government’s Damn Business.” That it seems to me is the real basis for the Connecticut condom case, _Roe v. Wade_ and the Texas sodomy case. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 28, 2003, 1:04am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/142 "2003-10-28T01:04:45Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\* If due process can mean that Congress can’t prohibit slavery in the territories, it can mean anything at all. \*\* But if Congress can prohibit slavery in the territories, doesn’t that amount to a sort of uncompensated taking? Like Justice Catron said in his decision, the question is: > [@](#): > > whether Congress had the power to declare that a citizen of a State, carrying with him his equal rights, secured to him through his State, could be stripped of his goods and slaves, and be deprived of any participation in the common property? The Constitution says > [@](#): > > No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. and the Fugititve Slave Acts of 1793 and 1850 extended that into the territories. (also see Prigg v. Pennsylvania). This would seem to show that a slave does not change his status as slave by going to a different jurisdiction. If Scott had absconded into the Wisconsin Territory, under the law, he would still belong to Emerson. But, in this case, Emerson willingly took Scott into Wisconsin, in spite of the law saying that slavery was to be illegal in Wisconsin territory. So, is this law sufficient due process to deprive Emerson of his property? In other words, is due process satisfied merely because of the existance of a confiscatory law? The answer seems to be no. Murray v. Hoboken Land and Imp. Co. (1856) reminds us that > [@](#): > > It is manifest that it was not left to the legislative power to enact any process which might be devised. The article [of due process] is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will. And, as Justice Chase’s decision in Calder v. Bull (1798) states (although he refers specifically to state legislatures…it’s a state ex post facto case, his remarks are intended to be taken as touching on the federal legislature also) (bolding mine) > [@](#): > > I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. . . This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. . . The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; **or the right of private property** So, where does the Congress have the power to prohibit slavery within the United States at all? That power is found nowhere within the Constitution itself, and it is an accepted principle of the Common Law that a person has the right to the use and enjoyment of his property, and that the government does not have a general right to take it without compensation, except as provided for as forfeiture, seizure as a result of a judicial proceeding, or within the general power to levy taxes and duties. ---
**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 28, 2003, 4:55am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/143 "2003-10-28T04:55:03Z")
**Spavined Gelding** , remind me to buy you a Leinenkugel’s next time I’m up there in the Great Midwest. That was an excellent explanation of the difference between the conservative-textualist approach to law (Scalia, Thomas, and to a slightly lesser degree Rhenquist) and the liberal-textualist approach to law (me and anybody else with the common sense to realize that “due process” ain’t exactly self-defining). In other news, I just learned today that Steve Alford’s Hawkeyes are taking on Bobby Knight’s whatever-the-hell-they-have-in-Lubbocks Dec. 22, right here in Dallas. Oh my yes, I will be there. If we make ESPN2, just keep an eye out for the lawyer in the black and gold sweatshirt. 🆒 ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 28, 2003, 1:11pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/144 "2003-10-28T13:11:20Z")
May not be that easy to spot a lawyer in a crowd of screaming Yahoos. Cameras don’t track low enough to catch slime trails. Perhaps if you waved a big sign when the camera pans, something like “Scalia Bites It!” or “Hooray for Sodomy!” apologies for utterly uncalled for “lawyer joke”. I can’t help it. I just can’t. ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [October 28, 2003, 1:32pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/145 "2003-10-28T13:32:43Z")
> [@](#): > > \*Originally posted by elucidator \* > **…a crowd of screaming Yahoos. > …** I beg your pardon, sir or madam, as the case may be. There are Midwestern exiles in Texas. There may even be ex-pat Minnesoooota Honkers down there. As a general proposition we know that our friend **Minty** is a native Texan with an Iowa education. If we see a guy wearing a ten-gallon hat, striped bib overalls and carrying a brief case we may safely conclude that strange conglomerate of cultures is our boy, The cowboy boots covered with pig, as opposed to cow, manure is the real give away. ---
**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 28, 2003, 2:38pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/146 "2003-10-28T14:38:36Z")
> [@](#): > > \*Originally posted by Captain Amazing \* > \*\*But if Congress can prohibit slavery in the territories, doesn’t that amount to a sort of uncompensated taking? \*\* The issue isn’t the compensation clause, but rather the due process clause. And certainly the legislative process is sufficient for (procedural) due process purposes – it is a lengthy, public process affording plenty of opportunity for comment. If Taney had wanted to say that the governmenet had to comp Dred Scott’s owner for the loss of his property, that might be defensibile. But that’s not what he said – he said that as a matter of due process the government _lacked the power_ to deprive Scott’s owner of his property. Which is patently false. ---
**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 28, 2003, 3:26pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/147 "2003-10-28T15:26:34Z")
> [@](#): > > \*Originally posted by Spavined Gelding \* > **Despite precedent and original intent, despite the long acceptance of the Missouri Compromise of 1820 (not 1850, as I previously posted) Justice Tanny and the Southern Block of the Court went off on a deprivation-of-property-without-due-process argument which regarded rights of ownership as absolute.** That’s sort of the point, **Spavined** : the _Dred Scott_ majority ignored precedent and original intent, fashioning a rule hung on the due process clause that reflected nothing more than their own (im)moral worldview. The means used by the _Dred Scott_ court are functionally no different from the means used by the _Lawrence_ court. \*\* > [@](#): > > Stealth candidates for the federal courts is what I said and it is what I mean. Remember how many matters Justice Thomas had no firm views on? His views sure firmed up as soon as he got on the Court. How many other candidates have been put forward who have claimed not to have firm views on the pressing legal issues of the day or whose views have been claimed as privileged? \*\* This point is, of course, totally irrelevant to the question of the validity of strict interpretation as a means of reading the Constitution. But I will note this: pre-Bork, the president was pretty much allowed to pick judges of whatever ideology he wanted; the Senate only screened for basic judicial competence. The power to shape the court by appointments was seen as a prerequisite of the Presidency. It is only post-Bork that we’ve seen ideology become an issue. If appointees keep their mouths shut during Senate confirmation hearings, the Senate has only itself to blame: they have politicized the confirmation process, and nominees of all judicial persuasions are conforming their conduct accordingly. \*\* > [@](#): > > FDR’s Court Stuffing initiative was stuffed down his throat. \*\* “Stuffed down his throat?” If Justice Roberts hadn’t switched sides in 1937, the packing plan likely would have worked. But you ignore my broader point – politicians, especially presidents, always bitch about the courts when they don’t go along with the administration’s policies. That is as true of FDR (or Andrew Jackson, or Jefferson, or whoever) as it is of Reagan and Nixon. \*\* > [@](#): > > I understand it to be your position that ?Within-the-Four-Corners-of-the Documentism? is the one true, exclusive and reliable method of reading and applying the Constitution. That may be the case when you have to decide who is eligible to be a Congressman. The provision that says that a member of the Senate must be 35 years old is pretty hard to argue about, but concepts like equal protection and due process of law and unreasonable search leave plenty of wiggle room. When you get to the Bill of Rights and the 14th Amendment you are dealing with a list of generalities (as T. Jefferson who you claim as a textualist said). \*\* The Bill of Rights and the other amendments are no more broad than phrases like “interstate commerce” or “necessary and proper.” I fail utterly to see why they should be treated any differently than the constitution proper. And while yes, there is “wiggle room” in concepts like equal protection or free speech or search and seizure or (procedural) due process, that wiggle room isn’t a blank slate. The due process clause is not a _carte blanche_ permission to do whatever one wants from the bench. And that, frankly, is what strict constructionists complain about. Scalia, et al, have no problem with determining the contours of the search and seizure clause in the context of, well, searches and seizures. They _do_ have a problem with using that clause to create, say, a right to abortion. \*\* > [@](#): > > The traditional method of reading those Constitutional provisions has been a combination of methodologies, not the least of which has been some degree of common sense and a view toward the purposes of the provisions. Textualism surely is a method of interpretation but has never been seen as the exclusive method. Even Justice Scalia has gotten off that horse on occasion. \*\* So what? Sometimes I roll stop signs. Doesn’t mean I _should_. \*\* > [@](#): > > I ask you about the textual analysis of the Tennessee voting right and apportionment case because I get the idea that you see the Constitution as a series of clearly labeled coat hooks, one labeled Due Process, one labeled Equal Protection, one labeled Freedom from Unreasonable Search, but no hook labeled Privacy. I get the idea that under the textual approach you advocate **Brown** would fit on the Equal Protection hook and therefore would come out the same way. The Connecticut condom case would be decidedly differently because there is no Privacy hook. I can’t help but wonder if your approach is just a word game?the secret is to some how put a label on the case that matches the label on the hook. My question is if the Republican Form of Government hook would support the Tennessee Legislature case just because there was a hook with that label.\*\* _Baker v. Carr_ is a troubling decision insofar as it prevents the states from apportioning their legislatures on a basis other than population. That is, to my mind, clearly incorrect; the Constitution itself allows geographic apportionment (see: the U.S. Senate) as a compromise between small rural states and large urban ones. I can see no reason why such a compromise should be suspect within the states – surely the good folks in west Texas are just as concerned about being run roughshod over in the state lege by Dallas and Houston as folks in North Dakota are concerned about being run over by folks from New York in Congress. With that one caveat, yes, I think the republican government guarantee is sufficient to reach the same result in _Carr_. No one can credibly argue that the Tennessee lege was apportioned as it was in 1952 because of a statewide equivelant to the Great Compromise. I think the republican government guarantee can credibly be read as an ongoing obligation of the states to their citizens, and that they must periodically revisit their population-based apportionment schemes to ensure they reflect reality. \*\* > [@](#): > > Apparently under your view there is no small hook adjacent to the Due Process hook that is marked “None of the Government’s Damn Business.” That it seems to me is the real basis for the Connecticut condom case, _Roe v. Wade_ and the Texas sodomy case. \*\* There is no “N.o.t.G.D.B.” hook. There is no generalized right to privacy hook. To say otherwise is the triumph of hope over reason – it just ain’t there. And in spite of your earlier characterization of that approach as a “word game,” I think it a totally substantive approach. If you think the government has exceeded its bounds, you have to find where in the constitution that government act is prohibited. If you can’t find such a hook, then start writing your congressmen, because your remedy is not to be found in the courts – you’ll have to engage in the political process and the task of convincing your fellow man that your viewpoint is correct. ---
**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 28, 2003, 4:06pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/148 "2003-10-28T16:06:04Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*(me and anybody else with the common sense to realize that “due process” ain’t exactly self-defining). \*\* “[T]there is simply no avoiding the fact that the word that follows ‘due’ is ‘process.’ …[W]e apparently need periodic reminding that ‘substantive due process’ is a contradiction in terms – sort of like ‘green pastel redness.’” – [John Hart Ely](http://www.stamfordadvocate.com/news/local/state/hc-26192415.apds.m0426.bc-ct--obitoct26,0,3763069.story?coll=hc-headlines-local-wire), [Democracy and Distrust: A Theory of Judicial Review](http://www.amazon.com/exec/obidos/tg/detail/-/0674196376/qid=1067357792/sr=8-1/ref=sr_8_1/102-9021460-5004908?v=glance&n=507846). ---
**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 28, 2003, 4:14pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/149 "2003-10-28T16:14:09Z")
Since you seem bound and determined to continue this hijacked discussion, I need only point out that _result_ is an inherent part of _process_. And may I suggest that, for the sake of economy, you simply link to all your past statements on the subject and have done with it? ---
**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 28, 2003, 6:02pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/150 "2003-10-28T18:02:44Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Since you seem bound and determined to continue this hijacked discussion, I need only point out that _result_ is an inherent part of _process_. \*\* Only in the same sense that _ends_ are an inherent part of _means_. That doesn’t mean that the former justifies the latter. As for the “hijack,” I’ll just suggest that a discussion of Scalia’s juriprudential philosophy is a helluva lot more on-topic than an Iowa Law class reunion. \*\* > [@](#): > > And may I suggest that, for the sake of economy, you simply link to all your past statements on the subject and have done with it? \*\* Actually, I’ve already linked to the most significant GD thread on this topic in which I’ve participated. Apparently, no one bothered to read it because I’m still hearing the same stale arguments proffered to me back then. ---
**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 28, 2003, 7:16pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/151 "2003-10-28T19:16:04Z")
Apparently, you didn’t bother to read the responses in that thread, since you’re still offering the same stale arguments you proffered back then. Seriously, we’ve been over this stuff dozens of times already. I specifically did _not_ attack Scalia in the OP for his jurisprudence. Shit, I even _defended_ Thomas’ integrity somewhere on page 1. So would somebody explain why this has turned into yet another tired old argument about why conservative judges are saints and liberal judges are dishonest scumbags, or vice versa? At least the Hawkeye Reunion has the distinct merit of being something _new_. ---
**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 28, 2003, 7:58pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/152 "2003-10-28T19:58:18Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Seriously, we’ve been over this stuff dozens of times already. I specifically did _not_ attack Scalia in the OP for his jurisprudence. \*\* I never claimed you did. **Poly** asked a question, I answered it, and that led to the current discussion. It isn’t all about _you_, y’know. \*\* > [@](#): > > So would somebody explain why this has turned into yet another tired old argument about why conservative judges are saints and liberal judges are dishonest scumbags, or vice versa? \*\* I don’t think anyone here has called anyone else a “scumbag” or a “saint” based on their jurisprudential philosophy. The argument isn’t over the moral fiber of conservative and liberal jurists, but over the validity of their legal analysis. And not to put too fine a point on it, but your participation here is strictly voluntary. If you’re tired of these debates, no one is forcing you to continue – just stop participating. ---
**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 28, 2003, 9:31pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/153 "2003-10-28T21:31:01Z")
I wouldn’t be complaining if you weren’t distracting from my perfectly good rant. ---
**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 28, 2003, 10:24pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/154 "2003-10-28T22:24:57Z")
Meh. Your rant ran out of steam on page two, well before **Poly** asked his question. (Speaking of which, my last response to that rant, also on page two, remains unresponded to. If this thread has drifted, it’s not due to a failure on my part to address your OP.) ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [October 28, 2003, 11:25pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/155 "2003-10-28T23:25:27Z")
Bah. Scalia lost what last shreds of respect I had for him when he wrote his [dissent for _Lawrence_](http://supct.law.cornell.edu/supct/html/02-102.ZD.html). > [@](#): > > Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. Sorry, accusing your fellow Justices of acting on bad faith, motivated by a “homosexual agenda”, as opposed to simply disagreeing with their interpretation crosses the line as far as I’m concerned. Saying the wrong tests were applied, or that the reasoning they used is suspect, all well and good. Speculating on their motives? Out of bounds. Declaring that they were part of some sort of conspiracy to promote the “homosexual agenda”(whatever that is) and disenfranchise those who want consensual, private, adult homosexuality outlawed? Reprehensible. This is an accusation leveled at his fellow Justices which is nothing less than an accusation of violating their oaths of office. If he believes this then he should not be writing dissents, he should be pressing for removal of his fellow Justices. Enjoy, Steven ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 28, 2003, 11:34pm UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/156 "2003-10-28T23:34:59Z")
But its still wrong, **Dewey**. Your posts are heavy with jurisprudence and _stark staring decisis_, but light on substance, about justice, right and wrong. Of what value is all the arcane scholasticism if it but enables men to do wrong with a straight face? Does Scalia offer assistance? Does he say “Yes, of course it is unjust for the law to lay heavy hands upon homosexuals for no good reason. But you mustn’t go about it that way, _herein_ I offer the correct approach…” Not that I’ve noticed. Sort of seems he is rather content that the moral values he approves of are held enforceable, simply because the word “privacy” does not appear in the Constitution. Well, neither does the word “ugly”. Justice Scalia is most spectacularly ugly, I have seen horny toads with a more comely visage. He must use non-dairy creamer in his coffee, as half and half would curdle in his presence. So suppose the State of Texas, in its majesty, shall deem “ugly” to be illegal. They’ve done dumber things. (Ask Molly, she’ll tell you). Would Mr. Scalia calmly accept his fate as legally correct, simply because there is no “right to ugly” in the Constitution? Of course not, because it is stupid and unjust, and no amount of scholarly fooforaw will render it otherwise. It is unjust to torment a man simply because his appearance is distasteful. Just as it is unjust to torment a man because his sexual expression is distasteful. At least the aforementioned sodomites are behind closed doors. ---
**Author:** ![litost](https://avatars.discourse-cdn.com/v4/letter/l/c4cdca/32.png) [@litost](https://boards.straightdope.com/u/litost)\ **Post date:** [October 29, 2003, 12:23am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/157 "2003-10-29T00:23:36Z")
Just one question for **Dewey** : Suppose the constitution was created as a book with blank pages, and a provision was created (exactly the same way one can add amendments to the current constitution) to add Constitutional articles, would something like a Bill of Rights ever emerge? IOW, would people write to their Congressmen/women and create something akin to the current Bill of Rights? I don’t believe so. Most politicians pander to the majority and protections for the minority aren’t high on their agenda. In fact, you wrote earlier in this thread that there ought to be restraints on the democratic impulse. But, why should these restraints be restricted to the only ones listed on the original version of the constitution? (as amendments are driven by the democratic impulse) Why can’t judges interpret the intent of the constitution (not necessarily the founding fathers’) and see a protection for privacy in the Bill of Rights? ---
**Author:** ![litost](https://avatars.discourse-cdn.com/v4/letter/l/c4cdca/32.png) [@litost](https://boards.straightdope.com/u/litost)\ **Post date:** [October 29, 2003, 12:29am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/158 "2003-10-29T00:29:31Z")
Re: the actual OP, after reading that excerpt posted by **Mgtman** , how can anyone think Scalia is only after the content of the ruling and not the individuals behind them? He is essentially attacking the other justices’ motives (not their logic/reasoning). The mocking tone mentioned in the news article is becoming a little clearer. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 29, 2003, 1:50am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/159 "2003-10-29T01:50:47Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*The issue isn’t the compensation clause, but rather the due process clause. And certainly the legislative process is sufficient for (procedural) due process purposes – it is a lengthy, public process affording plenty of opportunity for comment. > > If Taney had wanted to say that the governmenet had to comp Dred Scott’s owner for the loss of his property, that might be defensibile. But that’s not what he said – he said that as a matter of due process the government _lacked the power_ to deprive Scott’s owner of his property. Which is patently false. \*\* Eh, I’m not wedded to my theory…I just threw it out there. It seems to me (and this is admittedly a non-lawyer’s view), that with your theory, the government can do pretty much whatever the hell it wants. It can say I can’t own slaves. It can say I can only work so many hours in a bakery. It can say I can’t teach kids German. It can say I can’t wear a condom. It can say I can’t have gay sex. Admittedly, none of these things are set out in the bill of rights, but does that mean that the government can go ahead and stop me from doing them just for the hell of it? Isn’t that what the people opposed to the bill of rights were afraid would happen? That somebody would come along and say, “Well, there’s nothing in the Constitution that says you can do x, so we’re going to pass a law to stop you from doing it?” And admittedly, you have to pass a law banning x, so there is plenty of time for public debate on the matter. But that doesn’t do me much good if I’m the only gay, slave-holding, German, condom-wearing baker in town. If you’re talking about original intent, it seems to me that the founders did realize that there were certain things, beyond those mentioned in the bill of rights, outside the scope of proper government intervention…that there is, as stated by Justice McReynolds in Meyer, a > [@](#): > > right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Like I said, I’m not a lawyer, but I have read enough history to know that bad stuff can happen when people start outlawing things based on their own prejudices. ---
**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, 2:58am UTC](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243/160 "2003-10-29T02:58:27Z")
> [@](#): > > \*Originally posted by Mtgman \* > Sorry, accusing your fellow Justices of acting on bad faith, motivated by a “homosexual agenda”, as opposed to simply disagreeing with their interpretation crosses the line as far as I’m concerned. Saying the wrong tests were applied, or that the reasoning they used is suspect, all well and good. Speculating on their motives? Out of bounds. Declaring that they were part of some sort of conspiracy to promote the “homosexual agenda”(whatever that is) and disenfranchise those who want consensual, private, adult homosexuality outlawed? Reprehensible. It’s especially distasteful given that Scalia’s _legal_ analysis in the _Lawrence_ dissent was actually right on target. The majority’s opinion (but not its judgment) _was_ seriously screwed up, as I discussed in [this contemporaneous thread](http://boards.straightdope.com/sdmb/showthread.php?&threadid=193127). But when it comes to homosexuality, Justice Asshat is never satisfied with disagreeing with his colleagues or pointing out the failings of their reasoning. Rather, it’s always the fault of the faggots, those insidious parasites undermining the democratic foundations of the nation. For instance, I refer you to Scalia’s dissent in \*[Romer v. Evans\*](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=517&page=620), 517 U.S. 620 (1996), which invalidated a Colorado law that prohibited any statute, ordinance, or court decision from prohibiting discrimination against homosexuals. (As Kennedy’s majority opinion points out, that effectively meant that librarians could legally deny library cards to gay folk, with no recourse whatsoever for the victim of that discrimination.) How did Scalia react to this? As you would expect: > [@](#): > > The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “`bare . . . desire to harm’” homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. > [@](#): > > In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, _see Bowers v. Hardwick_, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. > [@](#): > > This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality is evil. I vigorously dissent. > [@](#): > > No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice. Did ya catch that, **Dewey**? Your hero says that it’s “eminently reasonable” to discriminate against gay folk. Kinda puts the lie to his claim in _Lawrence_ that he has “nothing against homosexuals,” doesn’t it? Anyway, back to the gay-bashing: > [@](#): > > The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers. > [@](#): > > The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and of course care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation"). Look out behind you! It’s a homosexual! :eek: [Previous page](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243.md?page=7) [Next page](https://boards.straightdope.com/t/a-moment-of-your-time-please-justice-scalia/209243.md?page=9)