# Is Scalia nuts? **URL:** \ **Category:** The BBQ Pit\ **Created:** [March 19, 2003, 1:27pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525 "2003-03-19T13:27:00Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [March 19, 2003, 5:05pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/21 "2003-03-19T17:05:47Z")
Speaking of Rehnquist, he wrote a book on this topic. [All the Laws but One: Civil Liberties in Wartime](http://btobsearch.barnesandnoble.com/booksearch/isbninquiry.asp?pwb=1&ean=9780679767329) ---
**Author:** ![Zoff](https://avatars.discourse-cdn.com/v4/letter/z/6de8d8/32.png) [@Zoff](https://boards.straightdope.com/u/Zoff)\ **Post date:** [March 19, 2003, 5:10pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/22 "2003-03-19T17:10:04Z")
> [@](#): > > Justice bans media from Free Speech Event This is sort of a pet peeve of mine. As seemingly contradictory as this appears, it really isn’t. The First Amendment is about government action. It doesn’t restrict a person from asking a group to restrict taping or distribution. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 19, 2003, 5:19pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/23 "2003-03-19T17:19:38Z")
> [@](#): > > \*Originally posted by SuaSponte \* > But practically, what about the “one-way ratchet”? Note that Scalia did not offer, and I did not agree with, any specific examples of when it would be legal and/or desirable to restrict or withdraw civil rights and liberties due to a military conflict. _In principle_, it is sometimes both legal and desirable to do so. _In specific instances_, I suspect Justice Scalia and I would sharply disagree. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [March 19, 2003, 5:26pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/24 "2003-03-19T17:26:07Z")
> [@](#): > > \*Originally posted by schplebordnik \* > \*\*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. \*\* This is confusing the issue. Welfare is a social program, not a “right”. Whether a social program is econonically feasible or desirable is a matter of policy and politics, not a question of constitutional rights. A more fitting example would be “Miranda Rights”. These are not specifically enumerated in the Constitution, but were determined to be “rights” by the court. Are these some of the rights that can be curtailed? ---
**Author:** ![nogginhead](https://avatars.discourse-cdn.com/v4/letter/n/5e9695/32.png) [@nogginhead](https://boards.straightdope.com/u/nogginhead)\ **Post date:** [March 19, 2003, 5:43pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/25 "2003-03-19T17:43:45Z")
> [@](#): > > \*Originally posted by schplebordnik \* > \*\*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. \*\* Scalia is an asshole because of his judicial reactivism, his inconsistent and politically motivated opinions, and his disrespect for the other members of the supreme court. It has nothing to do with the opinion expressed in the OP! ---
**Author:** ![davidw](https://avatars.discourse-cdn.com/v4/letter/d/c4cdca/32.png) [@davidw](https://boards.straightdope.com/u/davidw)\ **Post date:** [March 19, 2003, 8:17pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/26 "2003-03-19T20:17:45Z")
James Madison wrote the Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ") specifically to counter the argument Scalia is making: From the Federalist Papers: ‘‘It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.’’ ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [March 19, 2003, 9:17pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/27 "2003-03-19T21:17:22Z")
If prohibiting broadcast media from attending his award ceremony is some kind of violation of free speech, banning cameras from a trial must be positively Orwellian. _“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.)”_ I’d like to see a cite to this effect. ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [March 19, 2003, 9:23pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/28 "2003-03-19T21:23:00Z")
—James Madison wrote the Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ") specifically to counter the argument Scalia is making:— You mean: the ink-blot? 🙂 The legal problem is: if the rights aren’t stated, anyone can claim anything as a “right.” The historical problem is that the founders never envisioned a government like the one we have today: they never even thought that it was possible that the federal government would become this powerful and all-encompassing. If they knew, they very well might have tried to add things that more severely limited its powers, but they didn’t, and so we can’t very well invent them out of thin air. The SC has a long history of cases in which the government need has trumped basic rights, especially in times of war. Test case: where in the Constitution or the bill of rights is there a protection against the government ordering its troops to force you, at gunpoint, to ballet dance naked, or to pass a law demanding that you do so? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 19, 2003, 9:39pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/29 "2003-03-19T21:39:37Z")
> [@](#): > > \*Originally posted by Baldwin \* > Fine, but can you provide some specific examples? Sure! Someone mentioned reporter’s shield laws. In case you believe they are grounded (or should be grounded) in First Amendment protection - they are not, btw - I’d offer up **doctor-patient privilege** as another candidate. It’s enshrined in most states’ laws, be it statutory or caselaw, but it’s not of constitutional dimension. If legislatures wished to, they could erase it with a single bill. > [@](#): > > \*Originally posted by SuaSponte \* > But practically, what about the “one-way ratchet”? It’s the ugliest thing ever written by Brennan. It amounts to a declaration that Congress may amend the Constitution. Once they’ve passed a law expanding constitutional rights, it’s incorporated into the Fourteenth Amendment and becomes inviolate, save a constitutional amendment? Please. It raises serious federalism issues as well; being seemingly appplicable to the states. So I say “Bah!” to Brennan’s one-way ratchet theory, which is in no way good law. - Rick ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [March 19, 2003, 9:50pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/30 "2003-03-19T21:50:51Z")
Striped robe? What the hell? ---
**Author:** ![Baldwin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/baldwin/32/7264_2.png) [@Baldwin](https://boards.straightdope.com/u/Baldwin)\ **Post date:** [March 19, 2003, 9:55pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/31 "2003-03-19T21:55:30Z")
> [@](#): > > “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.)” > > I’d like to see a cite to this effect. Hang on… Here’s one: [Cite](http://www.nhcadp.org/scalia_vs_pope_catholic_judges.htm) Google will provide a lot more. I see that I overstated the case slightly; Scalia is saying that **Catholic** judges should resign if they’re against the death penalty. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [March 19, 2003, 9:56pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/32 "2003-03-19T21:56:05Z")
[Rehnquist’s robe](http://abcnews.go.com/sections/us/PoliticalNation/robes990126.html), just for **Guin**. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [March 19, 2003, 9:58pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/33 "2003-03-19T21:58:39Z")
Ah, thank you, _tovarish_. ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [March 19, 2003, 10:55pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/34 "2003-03-19T22:55:46Z")
Entrapment is another good example. There is nothing unconstitutional about entrapment, it is a matter of statutory interpretation. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [March 20, 2003, 12:41am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/35 "2003-03-20T00:41:30Z")
> [@](#): > > The legal problem is: if the rights aren’t stated, anyone can claim anything as a “right.” Which is precisely the reason that the Supreme Court is around. To determine if something is an essential, yet unenumerated, liberty. For example, if a state made a law against smiling. The constitution doesn’t say anything about our right to smile, does it? But it seems that this right would be covered by the 9th amendment. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 20, 2003, 1:10am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/36 "2003-03-20T01:10:54Z")
What you guys are missing is that you have the “natural right” to do anything you damn well feel like doing. In a “state of nature” – that neighbor with the obnoxious habits? Shoot him!! Governments are given powers, by the consent of the governed, that restrict rights, in order to make this a liveable society where people do treat each other with a modicum of decency. Take zoning – you have every right to do whatever you like with the real property that you own. But that right is restricted by the police power of the state, usually delegated to and exercised by the local government, to make your right to the “quiet enjoyment” of your property possible, by restricting your neighbor’s right to open a 24-hour biker bar tight to your property line, the right of the guy who owns the land next to your kids’ school to open a porn shop on that land, etc. The U.S. Constitution and state constitutions specify some rights that the governments in question (Federal and state) are not permitted to infringe vis-à-vis their citizens. (Under the 14th Amendment, rights specified in the U.S. Constitution are rights of American citizens and as such protected against state infringement as well as Federal.) With regard to the Ninth Amendment, Federal jurisprudence to date has established that it is not a nullity (Bork to the contrary) but that the courts are very chary of identifying what rights are protected by it. And Scalia is accurate as far as he goes – there are rights which are not of constitutional status, but given by law. And the Lincoln precedent, according to Scalia’s reading of it at least, is that acts in contravention of rights but taken for what the President sees as necessary for the preservation of the country itself are justifiable – the most that can be done is a post-crisis handslap and recompense to the person whose rights were infringed on. Nonetheless, I regard him as truly one of the poorest justices of all time, prepared to read his own prejudices into the Constitution and without a single clue as to the basic concepts which it was written to enshrine. ---
**Author:** ![Truth\_Seeker](https://avatars.discourse-cdn.com/v4/letter/t/5fc32e/32.png) [@Truth\_Seeker](https://boards.straightdope.com/u/Truth_Seeker)\ **Post date:** [March 20, 2003, 1:19am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/37 "2003-03-20T01:19:40Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*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. > \*\* The key is that this is only true with respect to “legislatively granted rights.” I’m very much afraid that this isn’t what Scalia is talking about. The real areas of contention are exactly the areas where the U.S. constitution controls: free speech, freedom of association, due process, the right to counsel and the Fourth amendment. I think what Scalia is saying is that during wartime, the state has a compelling interest in curtailing these rights and freedoms. While I accept the point in principle, I do not accept it in practice – certainly not as it’s being applied now. Things like locking up people, especially U.S. citizens, without access to a lawyer and claiming those people are beyond the reach of the judicial system is just wrong, whether it’s wartime or not. I’m afraid that this is the kind of thing that Scalia is thinking about, ala the U.S. Supreme Court’s disgusting rubber stamp of the internment of Japanese-Americans during WWII. ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [March 20, 2003, 1:21am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/38 "2003-03-20T01:21:13Z")
For another example, the Fifth Amendment prohibits the taking of private property without fair compensation, among other things. There is an elaborate body of case and statutes expanding this so you end up with stuff like condemnation juries, appeals, stays of seizure. I can see that in times of war, invasion and insurrection that these processes may be shortcut and the government just take my pickup truck for its own use and leave me to argue about the financial warrant left in my garage without observing the case and statutory elaboration of the basic Constitutional requirement for compensation. The good justice is right in principle–that doesn’t deal with the practical politics of the matter. I can’t help but think that Justice Scalia might find the seizure of my pickup truck justified by emergency but not the seizure of his. Entrapment, it seems to me, can be fairly seen as a due process matter under the Bill of Rights and the 14th Amend. Nor could crises of war justify the disallowance of self-defense as a defense to a charge of assault/homicide. ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [March 20, 2003, 1:24am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/39 "2003-03-20T01:24:40Z")
> [@](#): > > The real areas of contention are exactly the areas where the U.S. constitution controls: free speech, freedom of association, due process, the right to counsel and the Fourth amendment. I think what Scalia is saying is that during wartime, the state has a compelling interest in curtailing these rights and freedoms. While I accept the point in principle, I do not accept it in practice – certainly not as it’s being applied now. I think what he is saying is that the power of the state to act w/o violating constitutional rights is broader than we are used to, and that Congress could go further than it has w/o violating the Constitution at all, not that in times of war the Constitution is suspended. Whether you think a particular act is wrong or not doen’t mean that it is unconstitutional. ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [March 20, 2003, 1:27am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/40 "2003-03-20T01:27:27Z")
—For example, if a state made a law against smiling. The constitution doesn’t say anything about our right to smile, does it? But it seems that this right would be covered by the 9th amendment.— There have been all sorts of crazy laws passed that managed to survive challenge (though most died of lax enforcement). Generally, when a court like the SC faces one that does not challenge an enumerated right, the strongest standard they’d apply is the “rational” standard: i.e., can this law be said to advance some rational state goal. This standard, needless to say, is almost too lax to ever be failed (though to their credit, one justice actually argued, probably wrongly, that the law in the Korematsu case wasn’t even rational.) [Previous page](https://boards.straightdope.com/t/is-scalia-nuts/162525.md?page=1) [Next page](https://boards.straightdope.com/t/is-scalia-nuts/162525.md?page=3)