Actually, people around here (i.e. where I live and go to school) do speak that way, so I didn’t quite get your tone. I admit, I’ve been wooshed. :o
Minty, in the case of the Constitution as we have been talking about it here there is only one right answer. Either SDP is there, or it ain’t. It can’t be both.
** grem0517**, you are right that the court considered EP, but EP did not form the basis of their opinion.
Yes, he could have. He did not do so because the law, in his opinion doens’t violate EP. See Section V of Scalia’s opinion:
You are certainly misreading what you have posted, but I think your conclusion is probably accurate. The Court may, and probably must, consider the constitutionality of any law before it sua sponte if neccessary, but what you have quoted deals with the application of a rule of civil procedure to pleadings. This was a criminal case where the criminal statute was challenged as unconstitutional.
So how do you intend to conclusively demonstrate which hypothesis is correct? And if you can’t demonstrate the objective truth of one hypothesis or the other, how can you claim that one must be “correct”?
It’s like arguing over the correct interpretation of Shakespeare’s sonnets. There is no “correct” answer.
Heaven forfend we be a nation of laws rather than men.**
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I assert the concept of SDP, in the form I quoted above, is rampantly obvious in the entire genesis of the US government. Limited government. Government where necessary. **
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Actually, the genesis of the US government is more inclined towards decentralized government than limited government. But I digress. **
The ninth amendment is a hedge against exclusivity, not a substantive source of rights. It is there to prevent the argument that other sources of rights – say, federal legislation or state constitutional provisions – are invalid because the federal constitution presents an exclusive list.
It also prevents a slave from tasting freedom after being taken to a territory where slavery is illegal. **
Obviously, strict constructionism doesn’t eliminate gray areas, nor does it pretend to. See, e.g., infrared cameras and the fourth amendment.
But the real question isn’t whether gray areas exist in the text; it’s whether the text matters at all. Living constitutionalists apparently don’t think so. They prefer a government of men rather than one of laws.
Oh spare me. I can’t “objectively” prove that slavery is wrong; that doesn’t mean slavery might be OK. Obviously there’s an element of moral persuasion at play here, but that doesn’t mean it’s invalid to say your worldview is correct.
Sometimes I wonder if you are just being obtuse on purpose. I know that the answer cannot be both A and A! at the same time. Just because I can’t prove whether the answer is A or not conclusively, though I think the arguments in this thread are pretty damn strong in its favor, doesn’t mean that the answer is not, in fact, A. Or are you saying we are both right and that the textualist approach is equally valid to the SDP approach? You seem to think Scalia is wrong, and the majority is right, is the majority, in your view, not also “correct”?
First you told us that you think that when laws are “wrong” they are unconstitutional, now you don’t seem to believe that there is any objective authority to be gleaned from the Constitution at all, I am starting to wonder if you even believe in the Constitution?
If by “law” you mean the funky shapes on paper instead of the concept those shapes are supposed to capture, then yes. I choose men over laws. More accurately, I choose the ideals which are imperfectly represented by the squiggles on paper. The key idea behind the constitution is individual liberty and limited government. In a shock to the values of constitutional nit-pickers everywhere, I find the preamble to be pretty darn persuasive and important. I find the idea that simply because SDP was not enumerated in wording extremely close to the FindLaw definiton that it shouldn’t be considered ridiculous. SDP fits perfectly with the intent of the constitution. SDP was most likely the SOP expected by the framers. Laws where necessary, created by part-time politicians who could largely be trusted to do the best for their fellow citizens because they ARE citizens the majority of the time. Why disrupt your own life unless there is a compelling interest?
As for the “government of men rather than one of laws” I guess you can chalk me up into that category. I can hold a living man accountable. I can quiz a living man about the intents they had when they made squiggles. I can hold a living man accountable to his constituents. Laws from dead guys who wrote them two hundred plus years ago just don’t have that kind of flexibility. The legal system is supposed to model life, not vice-versa. I feel no particular loyalty to the realities of life as it was 200+ years ago(or the 119 year-old sodomy statute either). The constitution HAS to be a living document. It has to live through some process less cumbersome than the official ammendment process or it will never keep up.
OK, this has passed from a rant about the childish behavior of a particularly arrogant Supreme Court Justice, to a discussion about a which is the universal theory of Constitutional interpretation that fits all situations in which the participants talk right past each other because all concerned are so convinced of their own righteousness and the real audience is the peanut gallery, to a wide ranging pissing match about general judicial philosophy of people who, I hope to God, will never occupy a judicial office.
Years ago, before Minty and Dewey were breeched, I studied under a law professor who cried the day Justice Frankfurter died and dismissed the class after telling us we were aspirants to a noble profession and that we should never be anyone mouthpiece. When ever anybody waxed pompous about what the law was or what the law should be he would reach under the lectern and pull out a bucket–a big old five gallon stainless steel milking bucket. “Here,” he would say, “take this bucket and go get me a gallon of the law.”
The law is the rules we live by. Those rules, like it or not, are applied by judges. They don’t make the law. They discover the law and apply it. Except for semantics that is much the same thing as making it. Some judges are lazy, some are stupid, some are so smart they might as well be stupid, some lack sufficient life experience to see the law as anything other than some unchanging monument, some see it differently in every case. One day you walk in to the court room with a bear trap case of an unenforceable employment non-compete case and get a judge who thinks the fact that the covenant is written is the whole case. The next day you get a judge who says that merely walking on to the job site and dropping off some concrete forms is sufficient commencement of work to put the mechanics lien ahead of a mortgage. The next day you get a judge who is determined to decide a case on and issue that both you and your opponent know is irrelevant but the judge will not be dissuaded. The next day you get a judge who will not understand that a prima facie case and proof beyond a reasonable doubt are not the same thing. The next day you get a judge who will always give a woman who shows a little cleavage a break–sometimes the woman is your client, sometime she isn’t, sometimes the woman shows too much cleavage. The practice of law is a crap shoot. Anybody who tells you that the law is knowable and predictable is living in a fool’s paradise. The best you can hope for is to draw a reasonably intelligent judge who isn’t preoccupied with his daughter’s chastity who will listen to you evidence and consider that your arguments and read your brief. Some times the you eat the bear, sometime the bear eats you, sometimes the bear screws you up the butt.
You wonder why lawyers are cynics?
What you have seen going on here for some five pages is what lawyers do for recreation. We argue. We argue with each other about every thing, especially the law and politics (except for the twits, the idiots and the ones that should have been used car salesmen–then we stay away from). We are always right. No one convinces us we are wrong. We are God’s own arguing machine. Once we are done arguing we go have a beer and argue some more. We all know deep in our hearts that the law is unknowable. It is all chaos and without form. We all know that Justice Holmes was right when he said that the law is a jelous mistress. But, God forgive us all, we love this life.
And Minty, congrats on the baby. I wish you and Mrs Green joy.
Which all underscores why the law should not outlive the writers. In drastic cases I can hunt down the writer and kick them in the balls for the mess they made.
Guys who have been dead for two centuries? Their balls were worm food long ago.
Oh, and if I ever find myself in the unfortunate position where I am asked to make laws or ajudicate laws I’ll be sure to call up Dewey, who, I am quite sure, would gladly kick me in the balls.
It was O.K. Patton. He was a friend of Frankfurter’s. Great teacher. He taught freshman contracts as a course in reading opinions and common law methods. Kept a big old milk bucket under the lectern. He scared the bejesus out of me.
I haven’t told you about the guy who would wander in during hunting season with a dog, a shotgun and what ever he had killed on the way down from his home on Lake Mc Bride. The dog’s name was Replevin. Or the guy who doted on Norman freeholds and wore foam rubber shoes. We were a bunch of eccentrics before we took it into our head to be a top of the heap law school and send our graduates to places like Houston, Texas, instead of down the road to What Cheer and North English.
No. Minty, you did not go to a hick law school. It was and is a damn good law school. I was the hick, a hick at a damn good law school. Smile when you say Hick Law School, stranger. People might get the wrong idea.
