And note that they were not the same groups of people.
The commerce clause was written in 1786 at the Convention, and ratified by a series of popularly elected state conventions, from 1787 to 1790.
The First Amendment was largely written by Madison, but drastically modified by Congress, then passed with little debate in either House. It then was ratified by state legislatures over the next two years.
Whose original intent governs?
Where? (Not a gotcha question. I truly don’t know).
So to answer the original post regarding Scalia’s feelings on slavery. Of course he would oppose it as the vast majority of Americans do today. Slavery was permitted to continue to exist as a compromise to the several states that heavily relied on it, in order to get ratification from all the states. It was not considered a legitimate or moral enterprise by all of the founders, just some of them.
It doesn’t. But the Fifth Amendment does provide that no person shall be deprived of life, liberty or property except by due process of law. If you can be deprived of life through due process, that can only mean that the state can, with proper process, execute you. Or at least so one might argue.
Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases… etc.
The U.S. Constitution explicitly recognizes capital crimes and that persons can be so charged, and describes the necessary conditions for doing so.
That’s not what Breyer means by that phrase. He wrote a whole book about it. You should read it.
Believing that the Constitution embodies principles with unforeseen results and applications does not mean you interpret it to mean whatever you want. It may well be more vulnerable to misapplication, but if so it is a difference of degree.
md2000:
Technically, that’s not true, it’s still valid, it’s just that it’s been proven to be, in fact, not truly equal. If equality in separation were true in fact, it would not be unconstitutional.
That is an incorrect reading of the opinion in Brown v. Board of Education at the very least.
The conclusion of the Court was that it is impossible to have separate but equal schools. The mere act of creating the separation creates inequality. It’s not an “in fact” thing; it’s inherent in the whole concept.
5th Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
I haven’t read the book, but I have seen the debate between Scalia and Breyer. Breyer uses six tools to “interpret” the Constitution:
[QUOTE=the article]
Breyer has six interpretive tools—text, history, tradition, precedent, the purpose of a statute, and the consequences. In his view, it’s a mistake to ignore the last two. Scalia replies that to look at either the purpose or the consequence of a statute is to invite subjectivity and beg the question.
[/QUOTE]
Of course, big shock here, I agree with Scalia. The “purpose of a statute” is its text and original meaning, and no further. Legislation is the result of compromise. Nothing is ever advanced for its own sake to the extreme.
So, for example, if a Civil Rights Law states that no person shall be discriminated against based upon religion in public employment, then that’s what it does and no more. It’s improper to say, well, the purpose of the statute is to advance civil rights, so I am going to apply that to race, gender, sexual orientation, etc. and further since the purpose is hindered by not applying it to private employment, I’m going to “interpret” the statute as meaning private employment, etc. Considering the “purpose” is to go beyond what the Legislature meant.
The same way with “consequences.” The Legislature passes laws. If these laws have bad consequences, we should elect new legislators, not rewrite the law to have “good” consequences, which are subjective views of judges. Would it be good to take the above hypothetical law and make private employers not discriminate against sexual orientation?
Sure, it would, for different definitions of good. Some citizens may believe that the private business owner should have the right to discriminate to his heart’s content. The resolution of that question is left to We the People.
There is simply no way to look at purpose and consequences without “discovering” your own subjective belief.
Since text and original meaning is always,and I say always up for interpretation, how can you possibly go with that alone?
Let me throw in here that the U.S. Constitution was an exercise in extreme liberal thought (for it time ( being originalist here)) and I would like those that relish in their conservatism to ponder and respond.
We don’t. We then go with #3 and #4. History and precedent.
How was this provision, that is both textually ambiguous and original meaning unknown, handled in the past? Gun possession is a good one, and in Heller, Scalia analyzed the history and prior precedent.
If we reach a position where the text, original intent, history, and precedent leave us no valid answer, then the legislative enactment (or alternatively personal freedom to continue doing) the activity is question remains because it cannot be overruled by any principled means.
Purpose and consequences are subjective. Take gun possession.
A conservative would say that the purpose is to make sure that all people are armed for militia service and self defense. The consequences of a contrary holding would leave people defenseless and at the mercy of criminals.
A liberal would say that the purpose was solely for military service and the consequences of a contrary holding would mean a public awash in guns with shootouts at traffic lights.
See how the last two don’t solve anything?
IANAC, but considering the nature of this thread, you might ponder the meaning of he word “liberal” back then. 
Speaking of falling back on history to decide a dispute over a text’s meaning, wasn’t “cruel and unusual” a technical term with a precise meaning used in law and jurisprudence? Didn’t the first mean punishments that were unnecessarily tortuous and degrading, and the second arbitrary penalties not specified by encoded law as the standard punishment for a crime?
My understanding is that gun ownership was included to protect the people from from a tyranical government. And I see that that there ate those that feel it has already reached that point. I am not one of those to be clear. And I suspect it was easier back then to decypher liberal and conservative than it is today.
I don’t know that it was easier - the concepts were defined differently back then. But you are correct about the Second Amendment. The people have the right to keep and bear arms at least in part to maintain an authority apart from the federal government.
One of the principles of modern conservatism is limited government. The whole Constitution is an exercise in limited government - laying out explicitly what the federal government can do, what it cannot do, the process of amendment whereby it can be changed as to what the government can do, and the punchline of the Tenth Amendment. The Tenth Amendment says that for the government, whatever is not mandatory is forbidden. Modern liberalism fights against that, trying to bring more and more of society under the control of the federal government.
Regards,
Shodan
That’s not fair. There are both “conservative” sides of issues (abortion, gay marriage, for example) and “liberal” sides of issues (health care, guns, for example) in which greater government control/intervention is advocated.
I disagree with the first part. Conservatives argue that the issues of gay marriage and abortion should be left in the hands of the people to decide: whether to make either or both legal, legal in some circumstances, or illegal in all circumstances.
Liberals advocate “big government” solutions to both, to wit, that the federal government, by judicial decree, remove that decision from the states and the people by ordering that both be legal.
Should a state make either of those illegal, it would certainly be a governmental restriction. However, conservatism is not anarchy. If abortion is indeed the taking of a human life, then all people would agree that a government should ban it.
Gay marriage is a different beast. As Thomas said in dissent, to construe that as a “liberty” is a different definition of that word. Liberty has historically meant the freedom to do a certain thing or the right to be left alone while doing it. Gay marriage proponents ask for a positive grant of authority, stamp of approval, and entitlement to certain benefits from the government.
It is not merely being left alone to do what one wants in his home or business. It is the demand to go to the county courthouse and require an agent of the government to issue a government approved license to conduct a certain activity. That is different than saying to just leave me alone and let me carry my gun, or leave me alone and let me buy or not buy health care at my discretion.
Are there other issues, ones on which conservatives want Federal control and liberals are okay with state control?