It bears repeating: the Constitution did not spring fully-formed from the ether. That document is itself the product of democratic decisionmaking.
As were the Bill of Rights. As were the Civil War amendments. As were the amendments giving women the franchise, prohibiting poll taxes, and (at the relatively recent date of 1971) guranteeing 18 year olds the right to vote.
All of those amendments passed with the requisite 2/3 majorities in Congress and 3/4 approvals in the state legislatures.
So yeah, I think it’s silly to suggest that the Bill of Rights wouldn’t emerge today. **
Then explain the 1964 Civil Rights Act and the 1965 Voting Rights Act. Explain the Americans With Disabilities Act. **
Yes, but those restraints should be decided upon by the people who have to live under them. **
The constitution is not a sentient being. It doesn’t have an “intent” beyond that of its authors – anything more amounts to overlaying one’s own moral code onto the text.
And you, I suppose, are the final arbiter of right and wrong?
We live in a democracy constrained only by agreed-upon constitutional restraints. If a legislature wants do something stupid or even evil that does not run afoul of those restraints, it is allowed to do so. The remedy is to run the jerks out of office. That’s our system. As Justice Holmes put it, “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.” **
Frankly, I don’t think those things ought to need saying. But if you need to read them, please examine Justice Thomas’ opinion. **
Your example needs more detail. How is “ugly” defined? What penalties are prescribed? What is the mechanism for the law’s enforcement?
Actually, teaching your kids German would be protected under the free speech clause of the first amendment, and your ability to own slaves is circumscribed by the thirteenth amendment, not by an act of Congress.
But beyond that, yup, the government can stop you from doing all that stuff. That doesn’t mean it should, of course, only that it can. And you, of course, are free to oppose those measures, and to run the idiots who want to do those things out of office. **
I think the concern is better described as a concern that the Constitution would be seen as an exclusive source of rights. Certainly there are many others: state and federal statutes, state constitutions, and so on. **
Slight hijack, but I’m definitely getting you to cater my next party.
Who said anything about Scalia being a “hero” of mine? I think his position on constitutional interpretation is frequently (and wrongly) given short shrift, and I think the particulars of your OP were silly, but that doesn’t mean I’m obligated to present an unwavering defense of everything the man speaks or writes.
Indeed, if you’ll turn to this thread, you’ll see that I in fact disagree with the rather nasty two paragraphs opening Justice Scalia’s conclusion in Lawrence, and state quite plainly that I think it undermines the rest of his opinion. Hell, I even called him a “schmuck.”
I agree with Scalia much of the time, but I am not the man’s bitch. A defense of Scalia on some things does not translate into a mandate that I defend him on all things.
I did not mean to imply that you shared, or even tolerated, Scalia’s anti-gay animus. In virtually every other respect that I have ever seen you post about, you have embraced and defended the Scalia legal-political agenda. If the “hero” label doesn’t fit, it’s not visible from this end.
If I can interrupt the legal cock-fencing and mention the OP issue-
Can anyone recall another justice EVER mocking (or even being accused by a single reporter of mocking) the majority ruling of the rest of the court in a public forum?
There is nothing in the Constitution stopping senators from shitting on the feet of other senators while they are speaking, but tradition and, yes, decorum forbid it. Therefore Scalia is a syphilitic weasel.
Hopefully Scalia will continue his wanky little self-indulgent speaking tours until he has to recuse himself from everything but obsure admiralty law cases. His dire mutterings about “ratcheting down” rights to the “Constitutional minimum” make me fear for the republic.
I’m still trying to find the harm to the Constitution. The whole idea behind the US Constitution, if you read it as a whole (many times), is to limit and enumerate the powers of government.
The burden is on YOU to show ANY state interest in busting down my bedroom door while I’m giving head to my wife. I think that “shocks the conscience.” Look that up, then tell me about what’s going on in this thread.
I’ve done two things in this and other threads where Scalia’s name has come up:
Defended Scalia’s theory of jurisprudence, which, broadly speaking, I share (I’m definitely a strict constructionist; I’m not sure where I fall on the Bork-Scalia divide).
Suggested your OP is silly.
Neither means I think the man is a “hero.”
The first is simply a philosophical position that we happen to share; I’d be making the same points with or without Justice Scalia’s presence in the world.
The second is true regardless of the Justice involved. I’d defend a similar Souter speech at the People for the American Way on the same grounds I proffered here.
Frankly, I know of very few people in the world worthy of the moniker “hero.” If you’re seeing that in my posts, it is wholly a product of your own imagination.
Do you support oral sex task forces? What about oral sex warrants? It would be pretty easy to show probable cause.
“We saw the couple dirty dancing and groping each other. The man made a suspicious licking movement with his tongue and pointed out the door. We suspected they might attempt oral sex, so we followed them back to their home in hot pursuit…”
Any criminal statute can be enforced like a criminal statute.
Dewey, here’s my problem with the whole magic bullet approch to the cannons of interpretation. Over more than three decades in this racket I have become convinced that in all but most cut and dried cases, the cases in which the law and the facts are all but conceded, judges like juries make their decision based on out come. Having decided how the case should be decided the judge then goes looking for a rational, an interpretation of the law, that gives that desired out come. You should know and I do know, as should every one who works in this trade, that an attractive client and a plausible cause will get you a good result when the law is debatable or subject to question. In the same situation an unattractive client with a reprehensible cause will get you a substantial outstanding account.
All the cases we have been talking about here, all the cases in which Justice Scalia has unburdened himself of his Textual Interpretation of the Bill of Rights and the 14th Amendment, have been cases in which the law is debatable or subject to question. Given Justice Scalia’s dissent in the Texas sodomy case which is more a diatribe than a rational and reasoned opinion, it seems to me that Justice Scalia’s conclusion is more compelled by his, perhaps sub-conscious, determination of the merit of the cause as a mater of policy, morality and social order than any adherence to a particular method of Constitutional interpretation. The textual interpretation, in my judgment, is simply the path that gets Scalia to the desired destination. That is not to say that the Justices who voted to vitiate the Texas statute didn’t do the same thing—find an argument that allowed them to reach the result they thought to be the right result; right on a visceral level.
This sort of thing is just why it is appropriate to vet candidates to the courts based on their attitudes and why there are so many people passionately concerned with appointing or rejecting candidates based or political allegiances that suggest they may be inclined toward a desired or feared out come to cases likely to come before the court.
As far as Substantive Due Process, as opposed to Procedural Due Process, is concerned, to tar the concept because in was employed in the Dred Scott case, is a little like refusing to drive on Interstate Highways because the Nazis built the first Autobahns. For the uninitiated, Procedural Due Process is the idea that you should have a fair trial with notice, the right to present evidence, cross examine and any number of other things that give everybody the full opportunity to have their day in court. Substantive Due Process, on the other hand, is a doctrine that says that before the government can regulate an activity (like selling condoms in Connecticut, or privately buggering a consenting adult in Texas) the government must demonstrate that there is a legitimate connection between the regulation and a legitimate end that the government may seek to achieve, and that the regulation is not so broad as to regulate activity which is not related to the desired and legitimate end. Substantive Due Process says that there are some things that are none of the government’s business.
Just to repeat my self, textual interpretation is surely the primary method of statutory interpretation—read the statute is the first rule of statutory interpretation. It is certainly the first step in Constitutional interpretation as well. It is not, however the only rule of Constitutional interpretation, nor is it necessarily first among many. It is one of any number of arrows in the judicial quiver. To claim that it is the only arrow, as Justice Scalia and the Federalist Society sometime do, (when it fits their ends) is dishonest.
Dewey: Congratulations on utterly missing elucidator’s point about banning ugliness. The same challenges you offer in reply, as a means of dismissing the concept as ridiculous, apply to the criminalization of homosexual conduct. As in, to make it simpler, neither such law serves a public purpose and neither is supportable by the Constitution. Scalia’s own dismissal of the “homosexual agenda”, which even he is forced to describe as getting people to stop hating them simply for being homosexuals, should make it clear to you that his argument is result-based at best, however much you may appreciate the technical intricacy of the support-work he’s managed to fill in underneath it.
Easily enough. Support of civil and voting rights were majority positions by then, even though the segregationist faction was still large and loud in 1964-5, and the fuck-'em,-helping-'em-would-cost-money faction was large and influential when ADA was passed and remains so today. Politicians can be induced to do the right thing, but they can’t get very far out in front of public opinion and still get anything done.
I believe the whole point of this discussion was that in expressing disagreement with his colleagues, whether in the context of his written opinions or whether in statements to the public, Scalia routinely makes the accusation, either explicitly or implicitly, that those who disagree with him are either incompetent or unprincipled. He questions their intelligence; he questions their motives. He implies that they are dishonest. He mocks them. He ascribes to them political impulses using the language of the looney Christan right (e.g., “homosexual agenda”). He does not merely acknowledge that he disagrees with them, that he believes their reasoning to be flawed, and that he disagrees with the outcome. He supports the right wing’s agenda in painting liberals as unintelligent, dangerous, immoral, untrustworthy, and treacherous. That is the point. In so doing he undermines the institution of the court and he undermines a democratic political system in which people are permitted to disagree with each other. And that is what makes him contemptible and dangerous rather than merely (in my opinion) wrong.
Not quite. The Constitution also enumerates a process by which further laws will be enacted and other powers defined. The arguement of strict constructionalism, for the most part, is an arguement for preserving this process. Forcing Judges into the “proper” role as interpreters of acts of legislators, and arbiters of conflicts between legislative acts, instead of being legislators themselves.
There is a lot to be said for this viewpoint. Representatives should bear the burden of legislating. Executives legislating via executive orders and judges legislating thorugh “penumbras” and such make big messes of the legal system. There is a fundamental simplicity and wholesome feeling to being able to sit back and say “Legislators, write the law. Executives, enforce the law. Judges, interpret the law as applied to individual cases.”
Of course the biggest drawback to this theory, especially when the issue concerns the constitution, is that it is divorced from reality. Representatives who are more interested in special interest groups than the average joe. Apathetic voting publics. Propaganda machines. Congressional gridlock. Executives beholden to their political parties. A legislative process which is sooo slow and convoluted that watching C-SPAN does nothing more than infuriate the average joe and make them re-double their apathy. Lies, spin, bullshit, all those things which come to be synonymous with politics. Add in the fact that the constitution is over 200 years old and that the founding fathers were never arrogant enough to think they had provided for everything which would need to be provided for. Still you get people, like Scalia, who insist everything we need is provided in the constitution and the legislative system works.
Let’s look at it in the case of the Texas Sodomy law. 120ish years ago a law was passed to criminalize “deviant sexual conduct”. About 30 years ago('74) the law was ammended to exclude heterosexuals. About six years ago there was a bill to further ammend the law to remove the proscription against homosexuals. The bill never made it because the Governor promised to veto it.
Now, I don’t know about you, but I’d call that a breakdown of the system. The majority of the US has already decriminalized homosexual conduct and there have been several cases where a state supreme court ruled homosexual-sodomy only laws unconstitutional(violative of equal protection). So, strict constructionalists, the system is broken. What do we do? Well, the strict constructionalist insists we go back to the system to fix the system. Vote out the governor who threatened to veto the law’s repeal. Vote in more representatives favorable to the issue so they could override a veto. The process is self correcting, they cry.
Bullshit. Strict constructionalists, meet apathy. Apathy didn’t bother to show up for our little meeting, but I got a slurred voicemail to the effect of…ZzzzzZzzzz
The system works for issues which are a hot-button issue for a very large number of voters. Smaller issues, such as gay rights, native american relations, etc. These fall through the system’s cracks. Voter apathy and a legal system which is increasingly seen as unresponsive and indifferent to the average joe have killed the idealism incorporated into the constitution. The fact that some people haven’t let go yet won’t make it work any better.
The pragmatist’s view? Representative re-inforcement. I support the judiciary in kicking the legislators in the pants when these kinds of things fall through the cracks.
I don’t suppose there’s any need to mention that particular governor’s name, is there? Hint: He’s a uniter, not a divider. Although in all fairness, the bill never would have gotten out of the Texas Legislature no matter who had been in the Governor’s Mansion. That’s democracy for ya, as Dewey would certainly note.
That doesn’t prove the system is broken. It only proves that Texas elected to make some different choices from the rest of the country (immoral choices in my view, but not unconstitutional choices).
And your second paragraph belies the first. Thirty-odd years ago every state in the union had a sodomy statute. When Bowers was decided in 1986, that number had been cut in half. By the time Lawrence rolled around, that figure had bee reduced to 13. The trend is clearly towards repeal. The legislative process was working; it just works more slowly in some places on some issues.
Ditto the abortion decisions. Abortion-rights advocates in 1973 were waging what was, by all accounts, a very successful campaign to decriminalize abortion state by state. The Supreme Court short-circuited that process, and in doing so created the modern anti-abortion movement. I honestly believe that, had the courts just butted the hell out, abortion would still be legal today, and the issue would not be marred with the incredible acrimony found on both sides.
I’m not a lawyer. But how do these two statements:
Not create an unconstitutional situation with regard to a law that says:
Hmmm?
Since both A and B above can be (and I’m sure are, even in Texas) performed by people of different sex and it’s not considered illegal, how does the distinction of the sex of the particpants not create tension with equal protection under the USC?
Hell, it even creates tension with the equality clause of the damn constitution of Texas:
Since the only way to enforce the law is to take the sex of the participants into account (ie, participants of the same act, but of a different sex would not violate the law), it seems pretty damn cut-and-dried to this non-lawyer.
Oh, but wait till next election. Then, if enough people care about the issue, the governor will be replaced and/or representatives will be elected who can force the issue. If not enough people care about the issue(and I was a Texas voter who never knew there was such a law on the books, let alone that it had been enforced) then it is perfectly fine and just, according to the principles of democracy, for homosexuals to remain disenfranchised from private, consensual, adult sex.
Quite frankly I have more pity than scorn for the strict constructionalist. The founding fathers almost certainly never envisioned the kind of uber-complex legal framework of modern society. They didn’t address ways for tiny minorities to redress grievances inflicted by laws imposed on them by a bigoted majority because they didn’t expect the state to be involved in as many aspects of life as it is. A “homosexual conduct” law is the result of busybodies seriously going beyond the boundries the majority of the founding fathers envisioned. The system was never meant to handle this level of complexity and it just doesn’t work in these areas. In theory it CAN, but in practice it doesn’t.
For anyone who is not sufficiently disillusioned with the legislative process in the US I hereby recommend Supid laws, and Dumb laws. Sorry, but I find it hard to place much faith in the legislatures who pass things like this
Remarkably, this clause has not been repealed. Democracy in [in]action folks!
Excellent, so let’s just let those disenfranchised minorities remain disenfranchised until the apathetic public finally decides to get around to righting the wrongs? Look, I have a lot of sympathy towards strict constructionalism as an academic concept. I lean that way myself, truth be told, when we’re talking academically. But as a practical issue, real people are being hurt by demanding that the apathetic and painfully slow legislative process be the single point of change to the system. Look at voter turnout. Read the dumb laws and stupid laws sites. Look at the power interest groups wield. Come on man, the system is broken. Some activist minority put the “homosexual conduct” law in place. An activist minority was keeping it in place. The silent majority didn’t even know about it. Hell, most of them probably still don’t. You’re a lawyer and I bet you don’t know a third of the statutes which apply to your daily life, let alone have an opinion on them or vote for/against a candidate because of them. Most of those statutes came about as a result of an activist minority, not the will of the majority. To force a small minority, disenfranchised by a slightly larger minority, to win the support of an apathetic majority before they can right the wrongs imposed on them is a pretty clear definition of “injustice” to me.
So are you now advocating ad hoc, outcome-based jurisprudence?
I mean, really: if results are all that matters, why not just abandon the pretense of interpreting the constitution entirely? Why maintain that dishonest charade? **
It doesn’t sound like you’ve actually read Scalia’s dissent. Outside of two nasty paragraphs at the start of his conclusion, his opinion is quite “rational and reasoned” – even minty has noted as much in other threads discussing Lawrence. Characterizing the whole thing as a “diatribe” is actually pretty damned odd.
At any rate, I’ll refrain from performing armchair psychoanalysis on Justice Scalia or any other judge, and keep my comments focused on the substance of their opinions and judicial thinking. **
This is just an assumption on your part, and an assumption premised on precious little evidence at that. Indeed, in this thread it’s already been noted that Scalia has frequently found his jurisprudential philosophy leading him to results that do not match up with conservative policy choices.**
And praising substantive due process on the grounds that it was employed in Lawrence is like praising the Castro regime because they produce tasty cigars. See, I can set up silly analogies and knock down strawmen, too.
Actually, the point of bringing up Dred Scott and Lochner is to illustrate the simple point that there is no limit to judicial power under a doctrine like substantive due process. I’m not arguing that substantive due process is bad because it was used in a bad case like Dred Scott; I’m saying that Dred Scott illustrates why substantive due process is a bad concept.**
To translate: judges shouldn’t strive for principled rulings based on coherent jurisprudential philosophies, but instead should just reach for whatever arrow in their quivers they find convenient for imposing their own moral worldview on the rest of society.
I should not have to tell you that every decision by evey judge makes law (not laws) by creating, reinforcing, or rejecting precedent. Case law is an integral part of our system of law, and I get very offended at the idea that “a judge’s job is to interpret the law, not make the law.” Bullshit! The only way a judge can refrain from “making law” is by abnegating his responsibility to rule on the case before him. This argument IMHO shows the bad faith of strict constructionism, which could plausibly be be a system I could see some agreement withif it were to be exercised fairly.
I forget which SCOTUS Justice it was that said “We must never forget it is a Constitution we are interpreting.” There’s a reason for the deference given the rule of law and the opinions of seven men and two women with no inherent power – and it’s respect for a government with powers delimited by the consent of the governed, aimed at protecting their individual and corporate rights. Strictly construe a penal law; strictly construe a statute on corporate structure – but the Constitution is intended to be the basic law of the nation, giving in broad principles what government may and may not do. It contains generalities because it was intended to contain them, and they are intended to cover broad aspects of powers and rights including those not contemplated by the authors. My rights and my responsibilities as a citizen are summarized, not defined by its terms, and it that flexibility that makes a document written in 1789 competent to deal with a world where terrorists fly airliners into skyscrapers.
I was under the mistaken impression that you agreed with me that the application of the law’s rights is not to be found by counting heads. The constitutionality of a sodomy statute is, I think, not to be found in how many states choose to adopt one, but in whether it provides equal protection to all citizens and in whether it violates “the privileges and immunities of citizens of the United States” without due process.
I agree that Roe v. Wade became a flashpoint for conflicting views – but to presume that there would be little or no acrimony over abortion if it had not been decided or had been decided the other way, is to show incredible naivete about the issues motivating people about the issue.