# 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:** 6
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 25, 2003, 10:06pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/101 "2003-03-25T22:06:47Z")
> [@](#): > > \*Originally posted by Truth Seeker \* > \*\*This is, essentially, a form of the “evolving standards” argument often raised against capital punishment. Since they did not have anethstetic in the late 18th century, the constitution cannot have meant to require anethstetic. Thus, if amputation as punishment is sanctioned by the constitution, it also sanctions amputations without anethstetic. \*\* No, I don’t think that’s quite right – anesthetic in 1798 presumably entailed drinking multiple shots of rotgut. IOW, anesthetic wasn’t a real option then. I think the fairest reading of the eighth amendment in light of the fifth amendment is that needless cruelty must be avoided – that executions should be performed with the minimal amount of physical pain to the convict that technology will allow. In 1798, that probably means hanging rather than, say, giving someone the full-on _Braveheart_ treatment. Today that might translate into a requirement for lethal injection rather than Ol’ Sparky. I would have no problem with a lawsuit challenging, on eighth amendment grounds, Florida’s electric chair – the source of some agonizing errors during executions – on grounds that it is cruel and unusal, with an eye toward forcing Florida to use a more humane system. I do have a problem with using the eighth amendment to ban the death penalty altogether. ---
**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 25, 2003, 10:15pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/102 "2003-03-25T22:15:44Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > The problem, of course, is that allowing judges to decide if a law is “arbitrary, unreasonable, and downright stupid” (rather than just deciding if the law violates the constitution) essentially gives the courts broad control over policy. That is precisely what the framers intended, particularly w/r/t the 14th Amendment. Those broad terms aren’t self-defining and -enforcing, you know. The framers were well aware that _courts_ would have to give meaning to them in many cases. It’s all well and good when the legislature spells out, in excruciating detail, exactly how a law is to work. But that’s not always what they’re trying to do, and it’s ridiculous to read _nothing_ into _something_ just because they didn’t make explicit provisions for everything they could think of. Due Process and Equal Protection indisputably mean _something_. And the entities with the power and the authority to tell us what they mean are the courts. I’ll take the 14th Amendment over the Internal Revenue Code any day of the week, thank you very much. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [March 25, 2003, 10:56pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/103 "2003-03-25T22:56:36Z")
I cheer when the Supreme Court strikes down a law. “ **In your face, Congress!** ” I shout. One more freedom that can’t be taken away from us by the tyranny of the majority. How often does Congress repeal a law that it makes? Not very often, I’d imagine. If I have a grievance with a law, it’s a lot easier to take it to court and force the government to demonstrate that it is constitutional, rather than launch a huge nationwide ad campaign to convince people that it’s a Bad Idea. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 25, 2003, 11:26pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/104 "2003-03-25T23:26:45Z")
> [@](#): > > \*Originally posted by minty green \* > **That is precisely what the framers intended, particularly w/r/t the 14th Amendment. Those broad terms aren’t self-defining and -enforcing, you know. The framers were well aware that _courts_ would have to give meaning to them in many cases.** Oh, horseshit. You’re mixing a little truth (that some interpretation is inevitably necessary) with an outright fiction (that determinig whether a law is “arbitrary, unreasonable, and downright stupid” is “precisely what the framers intended”). Why you consider bizzare the notion that cases based on the due process clause should, y’know, be about _process_, and that cases that don’t deal with issues of fair procedure are thus beyond the scope of that clause of the 14th amendment is, frankly, a mystery. I mean, seriously. If that’s what the framers intended, why not just say so? “Neither Congress nor the states shall make any law that is arbitrary, unfair, or downright stupid.” If they really wanted to cede that kind of broad, sweeping power the judiciary, why not just say so outright? Why use phrases like “due process” and “equal protection” which indicate a limited scope of judicial inquiry? \*\* > [@](#): > > It’s all well and good when the legislature spells out, in excruciating detail, exactly how a law is to work. But that’s not always what they’re trying to do, and it’s ridiculous to read _nothing_ into _something_ just because they didn’t make explicit provisions for everything they could think of. Due Process and Equal Protection indisputably mean _something_. And the entities with the power and the authority to tell us what they mean are the courts.\*\* Yes, yes, they mean _something_, but they don’t mean _everything_, which is where this particular brand of constitutional inquiry leads. \*\* > [@](#): > > I’ll take the 14th Amendment over the Internal Revenue Code any day of the week, thank you very much. \*\* I’ll happily take the 14th amendment. What I won’t take is absurd interpretations that transforms limited judicial inquiry into broad-ranging veto power. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [March 25, 2003, 11:32pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/105 "2003-03-25T23:32:45Z")
> [@](#): > > I’ll happily take the 14th amendment. What I won’t take is absurd interpretations that transforms limited judicial inquiry into broad-ranging veto power. Could you give an example of what you consider to be a “broad ranging veto power” that the Court has actually adopted? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 25, 2003, 11:34pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/106 "2003-03-25T23:34:50Z")
> [@](#): > > \*Originally posted by Blalron \* > **I cheer when the Supreme Court strikes down a law. “In your face, Congress!” I shout. One more freedom that can’t be taken away from us by the tyranny of the majority.** Your hostility to representative democracy is noted. Plato once wrote we should all be ruled by philosopher-kings; I see you’re much happier being ruled by nine lawyer-kings. \*\* > [@](#): > > How often does Congress repeal a law that it makes? Not very often, I’d imagine. \*\* More frequently than Supreme Court decisions are overturned, I’ll tell you that much. If most people dislike a law passed by Congress, it can be repealed or modified with relative ease. With the states, it’s even better – not only do you have the “change through legislative action” option, but the further option to vote with your feet. But just try to overcome _stare decisis_ sometime… \*\* > [@](#): > > If I have a grievance with a law, it’s a lot easier to take it to court and force the government to demonstrate that it is constitutional, rather than launch a huge nationwide ad campaign to convince people that it’s a Bad Idea. \*\* Yes, yes, it is certainly more expedient to go the lawsuit route. It is much easier to impose your will on your fellow man by judicial fiat than it is to persuade him that your position is just and right. Just because it’s easier doesn’t make it right. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 25, 2003, 11:40pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/107 "2003-03-25T23:40:06Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*Could you give an example of what you consider to be a “broad ranging veto power” that the Court has actually adopted? \*\* I’ve already cited two: a broad-ranging right to privacy and the brief period where the death penalty was deemed unconstitutional. More to the point, that is the logical conclusion of what **minty** is suggesting. If “due process” means “arbitrary, unreasonable, and downright stupid,” then the court can strike down any law at any time for no other reason than its own disagreement with a policy choice made by the legislature. My God, I can think of any number of Democrat-backed pieces of legislation that I would consider “unreasonable” or even “downright stupid” just because I’m a relatively conservative guy; if that’s the standard, if I was a sitting judge should I be able to strike down those laws on that basis? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [March 26, 2003, 1:10am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/108 "2003-03-26T01:10:28Z")
Dewey, do you believe it would be logical to conclude that there are some essential liberties, not directly spelled out in the constitution, that the State could not take away? Let’s look at the case of LOVING v. VIRGINIA, 388 U.S. 1 (1967). In a **unanamous** decision, the Supreme Court struck down Virginia’s ban on interracial marriages. In addition to striking the miscegenation laws on the grounds of violating the Equal Protection Clause, the Court also ruled that it violated the Due Process Clause. > [@](#): > > **These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.** Do you agree with the Courts assesment that freedom to marry is a vital personal right that would be covered under the 14th amendments guarrantee that " **no State shall… deprive any person of life, liberty, or property, without due process of law**? > [@](#): > > My God, I can think of any number of Democrat-backed pieces of legislation that I would consider “unreasonable” or even “downright stupid” just because I’m a relatively conservative guy; if that’s the standard, if I was a sitting judge should I be able to strike down those laws on that basis? As long as the laws advanced a government interest that don’t violate the constitution, they can be as foolish as you want them to be. ---
**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 26, 2003, 2:44am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/109 "2003-03-26T02:44:40Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > Why you consider bizzare the notion that cases based on the due process clause should, y’know, be about _process_, and that cases that don’t deal with issues of fair procedure are thus beyond the scope of that clause of the 14th amendment is, frankly, a mystery. “[Process](http://dictionary.reference.com/search?q=process)” is not synonymous with “[procedure](http://dictionary.reference.com/search?q=procedure).” And in fact, I have no problem whatsoever with the notion that “_due_ process” applies to both procedure and substance. Your mileage obviously varies on this point, but at least do me–and a whole lot of judges who are way smarter than either you or me–the courtesy of acknowledging that ours is a reasonable position, if not a necessary one. > [@](#): > > I mean, seriously. If that’s what the framers intended, why not just say so? They did. Due Process. Equal Protection. Inkblots, and an invitation to fill in the blanks. > [@](#): > > Why use phrases like “due process” and “equal protection” which indicate a limited scope of judicial inquiry? . . . Yes, yes, they mean _something_, but they don’t mean _everything_, which is where this particular brand of constitutional inquiry leads. Nonsense. Utter nonsense. How many times have courts stared plaintiffs in the face and said “Son, don’t be ridiculous. You don’t have a substantive due process right to smoke dope.”? In point of undeniable fact, substantive due process jurisdprudence has been extraordinarily restrained, recognizing only a tiny handful of SDP “rights.” Outside of reproduction, raising kids, and maybe or maybe not a right not to have doctors keep you alive against your will, I can’t even recall any SDP rights. Am I missing something, or are you just engaging in the standard conservative sky-is-falling wailing? > [@](#): > > I’ll happily take the 14th amendment. What I won’t take is absurd interpretations that transforms limited judicial inquiry into broad-ranging veto power. Hey, guess what? That broad-ranging veto power is **precisely** what those antebellum Radical Republicans intended. The undeniable purpose of the 14th Amendment was to prevent legislatures from legislating away our rights to due process and equal protection of the laws. There it is, a broad judicial veto power, written right into the Constitution. Don’t like it? Good. They didn’t intend for you to like it. ---
**Author:** ![schplebordnik](https://avatars.discourse-cdn.com/v4/letter/s/91b2a8/32.png) [@schplebordnik](https://boards.straightdope.com/u/schplebordnik)\ **Post date:** [March 26, 2003, 2:47am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/110 "2003-03-26T02:47:41Z")
\Do you agree with the Courts assesment that freedom to marry is a vital personal right that would be covered under the 14th amendments guarrantee that "no State shall… deprive any person of life, liberty, or property, without due process of law?\ How about my right to possess a full-auto machine gun, or a hand-grenade? I take it then that Congress (nor the states) have a right to impinge upon that? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [March 26, 2003, 4:36am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/111 "2003-03-26T04:36:19Z")
> [@](#): > > How about my right to possess a full-auto machine gun, or a hand-grenade? I take it then that Congress (nor the states) have a right to impinge upon that? I doubt it, unless you can convince the Supremes that your right to own a fully automatic weapon is implicit to the concept of ordered liberty, the Fourteenth Amendment route is out of the question. I don’t think you’d have much more luck using the Second Amendment either. ---
**Author:** ![schplebordnik](https://avatars.discourse-cdn.com/v4/letter/s/91b2a8/32.png) [@schplebordnik](https://boards.straightdope.com/u/schplebordnik)\ **Post date:** [March 26, 2003, 5:19am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/112 "2003-03-26T05:19:24Z")
“Ordered liberty” is about as vague a standard as you can articulate. I’ve got plenty of friends who think that owning powerful firearms is essential to protecting their liberty. Hence the whole concept of a bunch of judges divining what’s the type of “ordered liberty” that the states can’t regulate, and the plain old unimportant stuff that the states and feds can regulate with impunity, is BS. Which is Scalia’s point. Oh yeah, and what part of “arms” doesn’t include a full-auto…? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 26, 2003, 6:38am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/113 "2003-03-26T06:38:00Z")
> [@](#): > > \*Originally posted by minty green \* > **"[Process](http://dictionary.reference.com/search?q=process)" is not synonymous with “[procedure](http://dictionary.reference.com/search?q=procedure).” And in fact, I have no problem whatsoever with the notion that “_due_ process” applies to both procedure and substance. Your mileage obviously varies on this point, but at least do me–and a whole lot of judges who are way smarter than either you or me–the courtesy of acknowledging that ours is a reasonable position, if not a necessary one.** I’m sorry, but to say that “due process” carries with it substantive content is simply an abuse of the English language. That a bunch of judges have committed that abuse in obtaining a judicial power grab does not change that point. \*\* > [@](#): > > They did. Due Process. Equal Protection. Inkblots, and an invitation to fill in the blanks.\*\* Again, DP and EP on their face do _not_ sound far-ranging; they sould like they are limited in application to those aspects of law dealing with procedural matters (and the dictionary definitions you provided are in essence the same, BTW) and to those aspects of law relating to disparate treatment of citizens based on some classification. If they wanted the power to be as far-ranging as you suggest, it would have been very easy to use language that makes that meaning clear: “No state shall make a law that is unfair in any way nor any law that is downright stupid.” Courts could then invalidate laws for violating the stupidity clause. \*\* > [@](#): > > Nonsense. Utter nonsense. How many times have courts stared plaintiffs in the face and said “Son, don’t be ridiculous. You don’t have a substantive due process right to smoke dope.”? In point of undeniable fact, substantive due process jurisdprudence has been extraordinarily restrained, recognizing only a tiny handful of SDP “rights.” Outside of reproduction, raising kids, and maybe or maybe not a right not to have doctors keep you alive against your will, I can’t even recall any SDP rights. Am I missing something, or are you just engaging in the standard conservative sky-is-falling wailing?\*\* What’s utter nonsense is this reply of yours. What you are basically saying is that the court’s (ab)use of SDP is OK because you happen to agree with the particular policy choices they have made in using that doctrine. But as with all things the Supreme Court touches, the underlying logic of the rule announced matters a hell of a lot more than the outcome in any particular case or set of cases. And the underlying logic of SDP as you’ve laid it out – that courts can overturn laws based on their own notion of that law’s unfairness or stupidity – is essentially to give the courts a breathtaking degree of unchecked power. \*\* > [@](#): > > Hey, guess what? That broad-ranging veto power is **precisely** what those antebellum Radical Republicans intended. \*\* Cite?\*\* > [@](#): > > The undeniable purpose of the 14th Amendment was to prevent legislatures from legislating away our rights to due process and equal protection of the laws. There it is, a broad judicial veto power, written right into the Constitution. \*\* That “undeniable purpose” is, in fact, quite deniable. If you really want to get right down to it, the 14th amendment, like all the Civil War amendments, was largely intended to secure fair treatment and participation in the processes of government for blacks. I’d wager that if you had queried the framers of the 14th amendment as to whether “due process” meant more than ensuring blacks were entitled to full and fair government procedures or that “equal protection” meant more than a requirement that the government treat its black citizens the same as whites, they’d have laughed at you. A broad, free-ranging veto power most certainly was _not_ written into the Constitution by the 14th amendment; that amendment expanded the judiciary’s power only in specific areas. It does damage to the English language to suggest otherwise.\*\* > [@](#): > > Don’t like it? Good. They didn’t intend for you to like it.\*\* This is a cute tactic, employed throughout your post: you must figure that if you just say something emphatically enough, people will have no choice but to believe it is true. It won’t work with me, so you might as well spare us the drama. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 26, 2003, 7:06am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/114 "2003-03-26T07:06:57Z")
> [@](#): > > \*Originally posted by Blalron \* > **Dewey, do you believe it would be logical to conclude that there are some essential liberties, not directly spelled out in the constitution, that the State could not take away?** Yes. They are spelled out in the constitutions of the various states. (Rights may also be created via state and federal legislation, and via the referendum process, though those may be repealed much more easily than a constitutional amendment) Anything not found in the federal or state constitutions that is so “essential” as to necessitate guarding against later change should be put there by the amendment process. I believe, for example, that a woman’s right to vote is an essential right. I do not believe that right was protected by the constitution prior to the passage of the 19th amendment, not even under **minty** ’s cherished notion of substantive due process. To make that a protected right, passage of an amendment was necessary. \*\* > [@](#): > > Let’s look at the case of LOVING v. VIRGINIA, 388 U.S. 1 (1967). In a unanamous decision, the Supreme Court struck down Virginia’s ban on interracial marriages. In addition to striking the miscegenation laws on the grounds of violating the Equal Protection Clause, the Court also ruled that it violated the Due Process Clause.\*\* They were right on EP grounds and wrong on DP grounds. \*\* > [@](#): > > Do you agree with the Courts assesment that freedom to marry is a vital personal right that would be covered under the 14th amendments guarrantee that "no State shall… deprive any person of life, liberty, or property, without due process of law?\*\* I do disagree (at least in the sense you’re talking about; I agree that, under that clause, any state interference with marriage must be accompanied by fair procedures ensuring the right of all parties to be heard). I don’t disagree because I think the right to marry is unimportant, but because I recognize that the Constitution simply has nothing to say about it. I would oppose much of the legislation struck down in this area; I would even probably support amendments to state or federal constitutions to limit government action in this area. But I’m not willing to just make up Constitutional provisions under the guise of due process just to reach a result I favor. \*\* > [@](#): > > As long as the laws advanced a government interest that don’t violate the constitution, they can be as foolish as you want them to be. \*\* Ah, but under **minty** ’s view of SDP, “foolishness” is one of those things that SDP protects against. * * * \*\* > [@](#): > > I doubt it, unless you can convince the Supremes that your right to own a fully automatic weapon is implicit to the concept of ordered liberty, the Fourteenth Amendment route is out of the question.\*\* As **schplebordnik** points out, “ordered liberty” is a mighty malleable concept – yet another example of flowery language that ultimately has no meaning, used to disguise the seizure of power by the courts. ---
**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 26, 2003, 12:59pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/115 "2003-03-26T12:59:36Z")
Let’s try a different approach, Dewey. Should Nebraska be able to pass a law forbidding criticism of the state government and requiring universal attendance at the local Baptist church every Sunday morning? Since, as you say, “process” can have no substantive component, I assume you are also strongly opposed to the incorporation of the Bill of Rights against the states, correct? ---
**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 26, 2003, 1:01pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/116 "2003-03-26T13:01:43Z")
And by the way, you can drop the “arbitrary, unreasonable, and downright stupid” phrase. As you must certainly be aware, that is a rhetorical flourish on my part, not the actual legal test for SDP. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [March 26, 2003, 1:12pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/117 "2003-03-26T13:12:25Z")
The Supreme Court is considering a case in which the right to privacy comes up right now. A gay couple was busted in Texas, the police entering their apartment on a phony report of gunfire cooked up by a neighbor with a grudge. They found the couple in flagrante delicto and busted them under Texas anti-sodomy laws. The couple’s attorney is defending them in part on violation of the right to privacy. The D.A. (of course) holds that there is no right to privacy? Anybody see a pattern here? Individual Americans claim a right to privacy, government bureaucracts oppose it. Gettin’ any clues yet? ---
**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 26, 2003, 1:39pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/118 "2003-03-26T13:39:18Z")
It is not a “right to privacy” case. It is primarily an equal protection case, with SDP as a backup argument. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [March 26, 2003, 1:44pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/119 "2003-03-26T13:44:26Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*It is not a “right to privacy” case. It is primarily an equal protection case, with SDP as a backup argument. \*\* The report I heard on NPR very clearly stated that right to privacy was being advanced by the gay couple’s attorneys and denied by the D.A.s. It may not be the main basis of the case, but it’s definitely an element thereof. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 26, 2003, 1:57pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/120 "2003-03-26T13:57:48Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Let’s try a different approach, Dewey. Should Nebraska be able to pass a law forbidding criticism of the state government and requiring universal attendance at the local Baptist church every Sunday morning? > \*\* No, of course not – [Nebraska Constitution](http://info.neded.org/stathand/parttwo/nebconst.html), art. I (1875): > [@](#): > > Section 4 – All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No person shall be compelled to attend, erect or support any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted. No religious test shall be required as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious beliefs; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the Legislature to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction. > > Section 5 – Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense. But I’m guessing that isn’t the answer you had in mind. > [@](#): > > **Since, as you say, “process” can have no substantive component, I assume you are also strongly opposed to the incorporation of the Bill of Rights against the states, correct?** Justice Black’s concept of incorporation is, frankly, unsupportable, and had I the ability to go back in time as it was originally being accomplished I would oppose it. However, in this day and age, discussing the logical basis for rights incorporation is a little like discussing the logical basis for _Marbury v. Madison_ – the principle is so firmly embedded in the legal landscape that to undo it would work more harm than good. * * * \*\* > [@](#): > > And by the way, you can drop the “arbitrary, unreasonable, and downright stupid” phrase. As you must certainly be aware, that is a rhetorical flourish on my part, not the actual legal test for SDP.\*\* It might as well be the test – it’s as meaningful as anything the Supreme Court has come up with. Hell, it’s both more meaningful and more honest than “emanations and penumbras” or “concepts of ordered liberty.” [Previous page](https://boards.straightdope.com/t/is-scalia-nuts/162525.md?page=5) [Next page](https://boards.straightdope.com/t/is-scalia-nuts/162525.md?page=7)