A moment of your time, please, Justice Scalia

The BBQ Pit
141

** 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.

142

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:

The Constitution says

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

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)

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.

143

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. :cool:

144

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.

145

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.

146

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.

147

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. **

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. **

“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. **

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. **

So what? Sometimes I roll stop signs. Doesn’t mean I should. **

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. **

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.

148

“[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, Democracy and Distrust: A Theory of Judicial Review.

149

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?

150

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. **

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.

151

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.

152

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. **

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.

153

I wouldn’t be complaining if you weren’t distracting from my perfectly good rant.

154

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.)

155

Bah. Scalia lost what last shreds of respect I had for him when he wrote his dissent for Lawrence.

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

156

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.

157

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?

158

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.

159

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

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.

160

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.

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*, 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:

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:

Look out behind you! It’s a homosexual! :eek: