I wasn’t sure where to put this; at first I thought of GQ, but any responses are as likely to be opinion as factual answers. GD made sense, except that it may be hard to discuss this without cursing. In any case, if anybody has either factual answers, or a perspective I haven’t considered, I’d be happy to hear them.
To the point:
In my morning paper (Atlanta Journal-Constitution), among their news services items is this:
I haven’t been able to find anything about this on the Web, so I don’t know if Scalia went on to provide any specific examples. So I have to wonder… what the fuck is he talking about? I tend to take seriously statements made by SCOTUS justices; at the same time, Scalia’s record shows a certain tendency toward arrogance and totalitarianism. (For instance, he’s one of the few prominant American Catholics who have explained publicly that he, Scalia is right about capital punishment, and the Pope is wrong, and that judges who disagree with Scalia on this matter should resign.)
Of course, there are many examples of the government curtailing rights during wars, but it’s my understanding that those actions are generally considered unconstitutional now. For instance, the Alien and Sedition Act. A famous example is Licoln’s suspension of habeus corpus and use of executive detention during the Civil War. (Not to make excuses, but that was a pretty extreme crisis; the current situation isn’t remotely analogous.)
If there are any constitutional lawyers here, I’d love to hear their input.
Insane, corrupt, an asshole … it all fits Scalia. He doesn’t think American’s have a right to privacy. Why haven’t we bugged his home? He apparently thinks it would be OK!
After the hack partisanship that gave Dubya the crown in 2000, Scalia belongs in a jail cell, not on the bench. Absolutely the worst Supreme Court justice of this century – a corrupt partisan hack and half mad to boot.
I agree with the Scalia comments quoted in the OP and with minty green’s and bricker’s analysis thereof.
I also agree with Kalhoun’s analysis and that the Florida vote was nakedly partisan and a morally corrupt betrayal of all the things that the conservatives on the court, and Scalia in particular, claimed to believe.
Ditto minty and Bricker. The Constitution does set minimums. Any legislatively granted rights that go beyond those minimums can be just as easily legislated away.
An example off the top of my head: press shield laws. IIRC, the first amendment does not provide protection for a reporter who wishes to keep from revealing her source. But many states have passed statutes that prevent reporters from being compelled to do so. Clearly, that right can be taken away by similar legislation at any time without triggering Constitutional limitations.
I’m not going to presume to contradict the legal analysis of the experts here, but I must say I’m now confused. I was under the impression that rights are inalienable, even if unenumerated, unless there is a compelling reason to restrict them. IOW, rights are ours unless the government can prove there is a reason to limit them. This seems to reverse that order and say that rights are granted by being listed in the Constitution and expanded by legislation, otherwise we can’t presume to have those rights.
This seems an arguement in favor of Libertarianism.
What he means is that the Bill of Rights sets forth the minimum Constitutional requirements that prevent actions by the government (Federal, and states, via the 14th Amendment) against individuals. That doesn’t mean that Congress or the states can give you other rights. For example, welfare. The federal government and the states give folks welfare, but the Constitution doesn’t require it. So those government can always “un-give” those rights. Similar situation with a lot of anti-discrimination legislation. Most of those are statutory, not Constitutional.
So he is absolutely right, and calling him an “asshole” merely misses the point he is making. And more importantly, he isn’t saying “the Supreme Court can take away rights”; what he means is that the Congress and the President are within their powers if they do so.
Of course, one could argue that Mr. Ashcroft is trying to take away certain rights that ARE Constitutionally mandated (these “military tribunals” being a fine example), but unfortunately there is some Supreme Court precedent allowing for that.
Oh yeah, don’t forget that that “asshole” who suspended the write of habeus corpus during wartime. His name was Abraham Lincoln. Or that other “asshole” who ignored a Supreme Court decision made in favor of an unpopular minority. His name was Andrew Jackson. Or that other “asshole” whole locked up a bunch of American citizens in prison camps during wartime because of suspicions about their dual loyalty. That was Franklin Delano Roosevelt.
“He doesn’t think American’s have a right to privacy. Why haven’t we bugged his home? He apparently thinks it would be OK!”
He has correctly noted that the “right to privacy” was a judge created right that is not set forth in the constitution, but instead was “found” in the 60s & 70s in a series of cases to stem from the “penumbral” effects of certain other enumerated rights.
Bugging someone’s home would violate the 4th Amendment unless it was done with a warrant (which is exactly how the govt. bugs Tony Soprano’s house). In fact, Scalia said a couple of years ago that the government couldn’t search your house using a super-duper infrared detector, as that violated the 4th Amendment:
So yours is not a compelling example. A better one would be to say “why don’t we pass a law preventing him from purchasing birth control,” which was the first case that really started the whole “right to privacy” thing in the first place. And I think Scalia would say “yes, the government may do that, as distasteful as I might find that. If I object, I should go to my state government and convince them to change that law.”
Scalia is one of the worst justice’s in the last 30 or so years. His opinions are not even consistent with each other, never mind prior Supreme Court precedent. One of his hallmarks is having a desired outcome and then looking for any law, fact or legislative history to support his personal beliefs.
In law school this is called “bad facts make bad law”. Scalia is is also widely noted for chiding others for things he does himself- like judicial activism or overturning precedent of prior Courts.
His pretzel logic routine in some of the early regulatory taking cases, and his explanations for overturning prior Supreme Court decisions that were a mere 3-4 years old are especially entertaining if you like the soft shoe bullshit routine.
But, he is not nuts (well a little, that having stripes sown on his robe thing was a little wierd).
The one-way ratchet – most clearly set forth in footnote 10 of Katzenbach v. Morgan, 384 US 641 is ridiculous. I’m amazed Brennan could write it without being embarrassed. Lessee, “enforcement” doesn’t just mean enforcement, but also means you can change the substance of a constitutional provision, but only so long as you change it in a direction we like. Nutty, I tells ya, just nutty.
I think ratchet theory is something of an aberration, a vestige of a bygone era of extreme activism.
elf6c: the stripes on the robes belong to Rehnquist, not Scalia.
