One man’s judicial activism is another man’s faithful interpretation of the Constitution. Just because you and Antonin think that anyone who disagrees with you on the best interpretation principles for the document are idiots doesn’t mean that people who disagree with your interpretation are basing their decisions on nothing greater than their individual conception of morality. All it means is that they have a different view of what those words should be taken to mean. And it is also worth noting that your dismissal of other possible viewpoints as judicial activism is much the sort of arrogance for which our good minty pitted the judge in the first place.
Once again, I submit that your blind insistence that there can be only one, literal reading of the Constitution is much akin to the insistence on literal interpretation of religious tracts by fundamentalists of varying stripes. It produces an inflexible reading often plainly at odds with the spirit of the text, no matter how true to the letter it might be. You may rail about the tyranny of judicial activism as much as you like, but you will never convince me that when a judge errs on the side of protecting personal liberties in a difficult case that he is not basing his decision on the Constitution rather than his individual conception of morality.
If oral sex between consetning adults in their homes is wrong, I don’t want to be right. If I had the Bill of Rights to do over again, it would be right in there: no cops in bedrooms unless there is a victim.
Some things “shock the conscience”* It’s not oral sex between two gay dudes in their bedroom, unless they force me to watch it on a telescreen with my eyes propped open.
This reminds me of Barry Goldwater’s stance against the Civil Rights Bill of 1964 (IIRC). He took the position that he had, on principle, no choice but to vote against it, not because the cause was not just, it clearly was, but a Federal solution to the issue was against his principles. Myself, I took him at his word, though I abhor his decision.
The idea that the State of Texas has some overarching neccesity to regulate the private sexual behavior of its citizens is perfectly ridiculous.
I would think better of Mr. Scalia if he were to express some element of regret, some compassion for the victims. If he were to say something like “Well, gee, you gotta find another legal foundation 'cause there is no right to privacy. May I suggest…”
Anyone see any hint of such human sympathy in Mr. Scalia’s remarks?
(Though, truth be known, my esteem for Mr. Scalia would rise if I could be assured that he is not an afficianado of kitten baseball.)
What thread are you reading? Who here said it was wrong?
The question is whether it’s a federal constitutional issue. If you did the Bill of Rights, clearly, it would have been. But the discussion here is over whether the actual, real Bill of Rights has anything to say about it.
When Bush is re-elected, he may well appoint one or more new justices. If that new Court starts re-writing the Constitution to suit them, on what basis would you complain?
Piffle. Under a unanimity requirement, very small minorities (even individuals) hold all the cards.
It’s also a recipe for gridlock for the reasons you describe, but that’s just an additional criticism. **
Actually, technically, “autonomous government” just redefines the number of people governed down to one. If the only person governed by my decisions is me, then that is in fact majority rule – my vote constitutes 100% of those governed.
At any rate, this whole semantic hijack is meaningless. The alternative to adherence to rules decided on by majorities in the context of this discussion is rule by an insular group of judges – in a nutshell, minority rule.
I have never, not once, stated that people who disagreed with me were “idiots.” Indeed, I have taken great pains to point out that one can respect the intellect of one’s opponents even as one disagrees with the validity of their arguments.
The same holds for Justice Scalia. All you have in the OP is one reporter’s view that Scalia mocked the reasoning in one particular court opinion. Even if we take that account to be accurate, it tells us nothing about the regard with which Scalia holds his colleagues on the court or advocates of “living constitutionalism” generally. Indeed, in his book, his responses to Professors Wood, Tribe, Glendon and Dworkin each indicate a full measure of respect for their ideas, and cedes to them areas where he thinks their objections carry some validity. **
What are they basing it on, then? If not the text of the constitution, then what? **
Use of the term “judicial activism” is not dismissive. It is simply descriptive. If a judge is going beyond what the people intended when they drafted the various provisions of the constitution, he is doing more than interpreting. He is legislating. **
I think it’s funny that you, out of one corner of your mouth, accuse me (falsely) of calling my opponents “idiots,” and out of the other corner try to associate my viewpoint with the intellectual weakness of religious fundamentalism. **
So you’d back, say, a constitutioanl “freedom of contract” that invalidated minimum wage and maximum hour laws? Activist judges once found that “right” in the constitution, too, and by much the same reasoning as their modern brethren use to find a generalized right to privacy. He who says Roe must say Lochner.
Let us please not confuse your navel gazing with definitions. Just because you verbalize your imaginations about desert islands, and they are the extent of your ability to construct autonomous societies, there is no epistemic burden derived from your musings on the concept of autonomous government generally.
It is a shame that you’ve blown the opportunity to show the strength of character had by a man who admits error. You have chosen instead to have a hissy fit and call people pigs. One sure clue that a man is drowning in his argument is that he begins to protest about “semantics”.
Go ahead and continue your pointless comments about the ancient scribbles and their meanings. After all, in your mind, you alone understand them.
Dewey, you may not have called anyone an idiot in so many words, but your tone throughout this thread has been extremely dismissive of those who disagree with you. This may have been unintentional on your part, but there it is: I certainly have felt like you’ve been calling me an idiot, albeit in more urbane terms. As for Justice Scalia, I’ve read his dissents in Lawrence and in Romer. You’ll have a lot of convincing to do if want me to think he isn’t heaping scorn on the majority’s view.
As for the comparison with fundamentalism, it is simply the point that obsession with textual literalism leads to rigidity and frequently away from the spirit and sentiment behind the text. Since the Constitution bears little semblance to the varying religious texts which we are told to read literally, obviously we can expect different outcomes. I sense no irrational superstitions in your viewpoints, for example. This does nothing to invalidate the comparison on the specific point, and it was my hope that the nature of the comparison might provoke a little deeper thought. That is all. No insult was intended, and I apologize if what I said was taken as such.
And finally, sure I’d be for liberty to contract beyond min/max labour laws, providing it is clear that no one is coerced into entering such contracts. However, given that I don’t see much difference between physical and economic coercion, I think there’s an argument to be made in favour of said labour laws on the grounds of protecting people from such coercion. If those laws could be more narrowly tailored to serve only the anti-coercive purpose, I’d be all for that. Being no expert on labour law, I cannot say whether current versions are as narrow as I would like. Given that there are 60+ versions of such laws on the continent, it seems a safe bet that many are not.
Please do point out where I’ve been dismissive of anyone defending the living constitutionalist view. Otherwise, to paraphrase a criticism Justice Souter leveled at Justice Scalia previously quoted in this thread, your post is certainly the work of a gladiator, but you thrust at lions of your own imagining. **
Again: you can disagree with an opponent’s argument, even finding that argument to be absurd, without also thinking your opponent is an “idiot” or otherwise intellectually suspect.
You should read Scalia’s book. He is not disparaging of Tribe, et al, in the slightest. He clearly shows respect for the opposing side’s intellect. **
Actually, reading the constitution with an eye toward what the authors meant leads to greater flexibility, not greater rigidity. The constitution in this context is principally about restraint on government action, and it is very difficult to undo a constitutional restraint. It is far, far easier to undo a poor legislative decision. By placing greater power in the hands of legislative bodies, we endorse greater flexibility.
Obviously, we can discuss whether or not that additional flexibility is a good thing or not, but it is certainly not “more rigid.” **
Well, you may not have called me a fundamentalist zealot in so many words, but your tone in raising this point has been extremely dismissive of those who disagree with you. This may have been unintentional on your part, but there it is: I certainly have felt like you’ve been calling me a fundamentalist zealot, albeit in more urbane terms. **
So you think the constitution embodies a “freedom to contract” such that all minimum wage laws and maximum wage laws should be undone. So long as an employer isn’t “economically coercing” an employee (meaning…what? If I offer a position at 50 cents an hour, and am unwilling to pay more, am I “economically coercing” the very poor people who are willing to work for that wage because they have few other opportunities? If so, why?), you find that to be an acceptable constitutional rule. Lochner, according to you, should still be the law of the land.
Some questions, though. Upon what basis do you draw this “economic coercion” distinction? Is there anything in the constitution or its history that leads you to that distinction? Or are you just making it up? Isn’t that just imposing your own moral worldview on the constitutional framework?
Let’s go further: how about Dred Scott? Absent the 13th amendment, would you find a constitutional barrier to depriving a slaveowner of his slave? Dred Scott was, in large part, based on the same kind of slippery substantive due process reasoning that underpins decisions like Roe and Lawrence. If a judge can find the latter two in the constitution, why should he be prevented from finding the former? Upon what principled basis do you draw a distinction between them?
If I have misstated what you mean by “autonomous government,” you are free to correct me. But if that’s the case, please explicitly define your terms, rather than forcing me to guess at it and calling me a “navel gazer” when I guess wrong. I’m not a mindreader.**
I have neither had a hissy fit nor have I called anyone a pig. I have been quite evenhanded in my response. And “lipstick on a pig” is a well-known metaphor for saying that although you can dress up an silly argument (or a bad stock pick, or whatever) all you want, it nonetheless remains a silly argument (bad stock pick, etc). Never once have I called anyone anything remotely pork-related. **
You decided to quibble with the wording of a minor point raised in one of my posts. What is that, if not an issue of semantics?
Furthermore, what does your quibble have to do with Justice Scalia’s comments, or with the validity of his jurisprudential philosophy? Nothing that I can see. I’m at a loss to see why you’re harrumphing over this so much.
For what it’s worth, I agree with the folks who say that a Supreme Court Justice should conduct himself with the utmost civility when speaking in public on issues that concern the Supreme Court.
Reading a majority opinion in a mocking tone of voice (if that’s what he did) is totally inappropriate. Besides, if he simply said "I respectfully disagree with the majority opinion for the following reasons . . . " it would make a much better impression on the audience.
Dewey,This may fall out side the scope of this discussion, but your reference to Dred Scott as a case that upheld slavery is erroneous. While the decision was split any number of ways, the case in the end stood for the propositions that:
Despite the precedent Northwest Ordinance, Congress had no power to prohibit slavery in the territories.
Therefore the Compromise of 1850 was unlawful as a Congressional restriction on slavery in the territories.
As a Black Man, Dred Scott had no standing to sue – thus the Black Man has not right that a White Man must honor.
As chattel property Dred’s status was not changed by his removal to the Minnesota Territory because the abolition of slavery in that territory was unlawful.
Dred Scott was neither a progressive nor a strict constructions decision, it was a political power play on the part of a Court that had become increasingly politicized. Some may argue that there are parallels to the present Court.
I will not tell you that the intellectual basis for the theory of interpretation advanced by Justice Scalia is dishonest or corrupt, although it can easily be used for dishonest and corrupt ends. I will tell you that it is not the cannon of interpretation that has been the majority view for a long, long time. I will also tell you that it was a theory of Constitutional interpretation that had very slight credibility until it became the rallying cry of people who took great exception to cases like Miranda, the case that prohibited comment on a defendant’s failure to testify (a decision that had one elderly law school dean nearly apoplectic), Brown, the Connecticut condom case, Gidion, and especially Roe v. Wade and any number of others. It was President Nixon who, in recent history, started talking about appointing judges who would enforce the Constitution as it was written and President Reagan who really beat the drum for the idea of cleansing the federal courts. While the intellectual theory is honest, it has been put into the service of reaction. Bork was the poster boy for that transformation of the Supreme Court and Scalia is his substitute–an articulate reactionary seeking to lock the Constitution into a straight jacket called textualism or original intent or some such other balderdash fancy name for preventing change. With the decision of the Texas sodomy case and the pendency of the Pledge of Allegiance case and the Alabama Ten Commandments shrine case there will be a resumption of the hue and cry for the heads of federal judges. Strict construction of one variety or another will be the darling of every demagogue who wants to prosecute queers, compel children to recite a quasi-religious liturgy of patriotism or put pre-Christian alters in public buildings and boost the general proposition that the Constitution says what the loudest segment of the population wants it to say.
Someone tells me that the Connecticut condom case would have been decided differently under the textual approach because there is no express right to privacy in the Constitution. Someone tells me that Brown would have (might have?) had the same out come under textualist reading of the 14th Amendment. Fair enough. Where do you come down on the Tennessee “one-man-one-vote” case? There is a Constitutional guarantee of a republican form of government. Is the inclusion of that phrase in the Constitutional liturgy sufficient to support the Tennessee case under a textual interpretation?
You tell me that my saying it doesn’t make it so. No one is more aware of that than I am. All I ask is that you recognize that the textual approach to Constitutional interpretation as a unifying and exclusive theory does not have wide acceptance among Constitutional scholars or with the courts and that if it is accepted as the generally accepted theory of interpretation it places a number of past decisions at risk.
At present Justice Scalia seems to be a minority voice on the Court. It is fair to think that a fair number of the stealth appointments to the federal bench who have been advanced by the present Administration share his view. It is, as I have said a seductive and simplistic approach to a complex area of jurisprudence with a long history of debate and scholarship. I can only be thankful that the Federalist Society’s thinking and agenda does not dominate the federal bench.
The problem with this view is that it isn’t clear what the spirit and sentiment behind the text is. There is an old phrase, there are two things you don’t want to ever see made, sausage and laws. Having worked in a state legislature, I can tell you that making laws is not a pretty sight. There is no way to determine, divine, or otherwise tell what the intent of the majority that passes a bill is. Oh, you can find quotes that proclaim what one member thinks the intent is, but of course that isn’t the law, it is simply one person’s expression of what they think the law is. All that we have is the words of the law itself that we can look to in determining what the law “means.”
Personally, I think that the judiciary has created its own monster. By making these decisions that really belong in the legislature, the courts have allowed the elected representatives to get away with not touching sensitive issues, and with passing laws that don’t really tell the population what is going on. The ADA is a good example. The mantra of Congress increasingly seems to be to pass some vague outline of a law and let the courts “fill in the gaps.”
Well, then. If you are not a big enough man to accept an apology, I withdraw it. I do not apologize. And let me say two things. First, that you think comparison with sincere religious folk is automatically an insult speaks ill of you. And second, whether you like it or not, you and they both advocate literal interpretations of normative texts written in social milieus extremely different from our own. I suggest either you abandon your position or get over this fact, because it’s not gonna change.
I thought we were not supposed to look at the authors’ intent, but only the ordinary meaning of their words at the time.
No, it is not. Anyone who holds the banner of substantive due process as a legitimate aspect of jurisprudential philosophy must deal with the fact that the doctrine was first applied in Dred Scott. **
And it is item #1 where substantive due process enters the picture. Justice Taney held that Congress lacked the power to prohibit slavery in the territories on substantive due process grounds – the same grounds used in Lochner, and the same grounds used in Lawrence. To wit:
That last sentence is a transformation of due process from a requirement of fair procedure into one that dictates the permissible content of law – in this case, the notion that the federal government cannot prevent slavery in the territories because a slaveowner must be allowed to bring slaves there.
(He’s also faking it on the line about committing no offense against laws, since a slaveowner bringing a slave into a free state is indeed committing an offense against those laws).
So, bottom line, yes, Dred Scott is an example of substantive due process in action. **
How convenient for you to dispose of “bad” decisions not rooted in the constitutional text as simply a “political power play.” **
The same can be said of any theory of interpretation. Indeed, since strict constructionism aims to sharply limit the power of the judiciary, it is actually less likely to be put to nefarious ends. **
So what? Agumentum ad numerum is a logical fallacy. **
Again, patently false. Unless you consider Madison and Jefferson to be folks with “slight credibility,” as they opposed the creation of the first Bank of the United States on precisely strict constructionist grounds. See the cite I provided earlier. **
As did FDR, who damn near packed the court just to move his agenda forward. So what? Politicians have always bitched about the courts when things haven’t gone their way. **
Did you enjoy your rant? Good. Now settle down and consider this: you’ve just said that “the intellectual theory is honest,” which to me is a tacit admission that you find strict constructionism to be a valid theory of interpretation, even if it’s not the one you’d adopt personally. Which basically renders the rest of your words a variant of ad hominem – you’re not saying “this theory is wrong because it is logically unsound,” you’re saying “this theory is wrong because some of its proponents are nasty people.” **
Are you going to ask me to relitigate every major decision decided by the court in the last half-century? Because I’d really like to know what I’m getting into ahead of time. **
I never said strict constructionism was widely accepted. Indeed, I’d be quite foolish to do so; it is clearly the minority view, much to my chagrin (although a respectable number of scholars and judges do follow that view). That doesn’t make it wrong.
As for putting past decisions at risk – well, there is stare decisis. For those decisions that are so embedded in our legal order, the cure of overturning them is worse than the disease. Sometimes it’s better to keep around a bad decision on pure stability grounds. Indeed, I dealt with precisely this point earlier in this thread. **
“Stealth appointments”? What are these, ninja judges? Last I checked, there’s no getting around advise and consent.
Sincerity does not equal intelligence. Biblical literalists of the type you’re describing may be sincere, but they’re using a methodology that is, frankly, insane. **
Actually, the difference is that biblical literalists refuse to acknowledge the social milieus in which their texts were written, while strict constructionists find those milieus to be an integral part of their interpretational scheme. **
A Scaliaite would say that looking at the text as understood at the time of authorship is the best way to get at what the authors meant. A Borkian would look to external sources to derive not just what the authors wanted the written text to mean, but also what goals they were trying to accomplish in writing the law.
This seems to be the entire sum of your viewpoint - expressed here “For the THIRD time”. Scalia expressed his opinion. You feel he should have not said it because it (which you’ve described as “his bile”) might have negative reprecussions, given his power. That pretty much adds up to what I’ve said. I don’t know what distinction you might be drawing.
I don’t think you’ve been damning minty at all, simply because he has since disclaimed your position. minty says he did not object to the substance of Scalia’s criticism, but only to his mockery, which minty feels to be lacking in decorum. This does not appear to have any connection to your position.
Not to hijack this, but why is that part of the decision problematic? It seems to me the most difficult part of the decision is Taney’s assertion that Scott didn’t become free when Emerson took him into Illinois. (and more generally, that Scott didn’t have standing)
Because it transforms the due process clause from a simple requirement for fair procedures and a right to be heard into a blank slate upon which judges can write policy preferences of their own choosing – be they noble choices (as in Lawrence) or evil (as in Dred Scott). If due process can mean that Congress can’t prohibit slavery in the territories, it can mean anything at all.