# 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:** 8
**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 27, 2003, 3:17am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/141 "2003-03-27T03:17:18Z")
Food for thought, **TS** , from [another thread](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=172810): From the Findlaw [annotations](http://caselaw.lp.findlaw.com/data/constitution/amendment09/): > [@](#): > > Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ‘‘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.’’ It is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. (Emphasis added) Courtesy **minty** , _United States v. Darby_, [312 U.S. 100](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=312&page=100), 124-25 (1941): > [@](#): > > Our conclusion is unaffected by the Tenth Amendment which provides: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’. **The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.** See e.g., II Elliot’s Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, secs. 1907, 1908. > > From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. Martin v. Hunter’s Lessee, 1 Wheat. 304, 324, 325; McCulloch v. Maryland, supra, 4 Wheat. 405, 406; Gordon v. United States, 117 U.S. Appendix, 697, 705; Lottery Case, supra; Northern Securities Co. v. United States, supra, 193 U.S. 344, 345 , 24 S.Ct. 459, 460; Everard’s Breweries v. Day, supra, 265 U.S. 558 , 44 S.Ct. 631; United States v. Sprague, 282 U.S. 716, 733 , 51 S.Ct. 220, 222, 71 A.L.R. 1381; see United States v. The Brigantine William, 28 Fed.Cas. 614, 622, No. 16,700. Whatever doubts may have arisen of the soundness of that conclusion they have been put at rest by the decisions under the Sherman Act and the National Labor Relations Act which we have cited. See, also, Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 330 , 331 S., 56 S.Ct. 466, 475; Wright v. Union Central Ins. Co., 304 U.S. 502, 516 , 58 S.Ct. 1025, 1033. ---
**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 27, 2003, 3:22am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/142 "2003-03-27T03:22:58Z")
Pfffttt. You left out the italics. Clearly, _you_ were never the managing editor of your l. rev. 😛 ---
**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 27, 2003, 5:24am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/143 "2003-03-27T05:24:58Z")
Well, Scalia may not be nuts, but he’s an ignorant bigot. The Supreme Court is currently considering the Texas anti-sodomy law, which is used to prosecute gays (but not used against heterosexuals). Scalia expressed concern that getting rid of the law (which only exists in 13 states) would mean Texas couldn’t legally bar gays from teaching kindergarten. He’s worried that gay kindergarten teachers would make the little kiddies turn out gay. Never mind the Supreme Court, what’s he doing on any bench except for the one in the park? It’s like having Anita Bryant as a justice. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [March 27, 2003, 5:35am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/144 "2003-03-27T05:35:36Z")
I think a Constitutional amendment would make Dewey happy. \*\*All Liberties that haven’t clearly been given to the people in this Constitution, belong to the States or the Federal government and can be taken away at any time. No reading of “Due Process of Law” in the Fourteenth Amendment in any court shall be construed as applying the Bill of Rights to the States, nor shall any reading construe it as giving anybody any rights not expressly spelled out in this Constitution.\*\* Happy now, Dewey? ---
**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 27, 2003, 7:03am UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/145 "2003-03-27T07:03:09Z")
You know, english must not be my first language because the Madison quote above conveys to me exactly the opposite meaning that the annotator thinks is “clear from the text.” > [@](#): > > \*\*’'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." \*\* The 9th amendment was meant to address this problem. Madison is saying, “Don’t worry! The Ninth Amendment will keep the unenumerated rights from being assigned into the hands of the General Government. They’ll be just as secure as the enumerated rights!” Of course, this clearly means that Madison _did not_ intend to secure unenumerated rights on an equal footing with enumerated rights and _did_ intend to assign them into the hands of the General Government. :rolleyes: The elephant in the room here (which I know you very much detest) is that the drafters had a perfectly rigorous method of figuring out what these unenumerated rights were – they reasoned them out based on natural law. Now you can argue all you like that there is no such thing as natural law but you’d just be wasting your time. **The drafters** very much believed that there was such a “legal” system and that its details could be reasoned out from first principles. Now, as I’ve said at least three times, I perfectly understand why the Court shies away from the Ninth Amendment. There are extremely sound policy reasons for it. My point is that strict constructionists are intellectually dishonest in their efforts to make the Ninth Amendment disappear by preemptory hand waiving. If they were honest, they would admit that a truly hard-nosed strict constructionist could (and probably should) go to town recognizing unenumerated rights using the analysis I have laid out in this thread. That would, of course, render the entire strict constructionist enterprise nugatory, so they don’t. But this reticence is not based on the text, it’s based on their personal opinion of how the U.S. constitutional system should operate. By the way, the significance of case law on the Tenth Amendment escapes me here. Are you trying to reason by analogy, or what? ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 27, 2003, 12:51pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/146 "2003-03-27T12:51:59Z")
**Minty** seems to believe that that the federal Courts are less apt to use thier power to infringe civil liberties than are other organs of government. To that end, which of the following are infringements of civil liberties?[ol][li]The Government selects innocent individuals and kills them.[_]The Government selects innocent individuals at random and kills them.[_]The Government intentionally turns murderers loose, who they know (or ought to know) will kill innocent individuals.[/ol]Obviously #3 was ordered to be done by the SCOTUS, as the remedy for various prosecutorial flaws. [/li] Of course, #3 is not the same type of civil liberties infringement as #1 or #2, but to the victim it makes little difference. ---
**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 27, 2003, 2:23pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/147 "2003-03-27T14:23:05Z")
> [@](#): > > \*Originally posted by Truth Seeker \* > **You know, english must not be my first language because the Madison quote above conveys to me exactly the opposite meaning that the annotator thinks is "clear from the text."** The annotator (after some poking around, I realized Findlaw uses the annotations provided to members of Congress by the GPO) is only providing excerpts. Madison goes on to say in [his speech](http://www.jmu.edu/madison/madprobll.htm#propose): > [@](#): > > It has been said, that it is necessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of government, as a declaration of the rights of the people. According to Madison, the state legislatures – the “sure guardians of the people’s liberty” 🙂 – courtesy of the ninth amendment would be able to resist unwarranted assumptions of power by the federal (“General”) government. Also note footnote 2 in the annotation: > [@](#): > > Earlier, Madison had written to Jefferson: ‘‘My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. . . . I have not viewed it in an important light–1. because I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.’’ 5 Writings of James Madison, 271-72 (G. Hunt ed. 1904). See also 3 J. Story, Commentaries on the Constitution of the United States 1898 (1833). \*\* > [@](#): > > The 9th amendment was meant to address this problem. Madison is saying, “Don’t worry! The Ninth Amendment will keep the unenumerated rights from being assigned into the hands of the General Government. They’ll be just as secure as the enumerated rights!” Of course, this clearly means that Madison _did not_ intend to secure unenumerated rights on an equal footing with enumerated rights and _did_ intend to assign them into the hands of the General Government. :rolleyes: \*\* No, as noted, it means that Madison saw other sources of rights protection, e.g., the state legislatures, as being in the best position to protect rights unenumerated in the federal constitution. \*\* > [@](#): > > Now, as I’ve said at least three times, I perfectly understand why the Court shies away from the Ninth Amendment. There are extremely sound policy reasons for it. My point is that strict constructionists are intellectually dishonest in their efforts to make the Ninth Amendment disappear by preemptory hand waiving. If they were honest, they would admit that a truly hard-nosed strict constructionist could (and probably should) go to town recognizing unenumerated rights using the analysis I have laid out in this thread. \*\* I hardly agree. Interpreting the Ninth as I do does not “make it go away” or dismiss it outright. It has an important role in the constitutional scheme, albeit one that does not arise much in litigation – it is a safeguard allowing the people to seize other rights via political avenues other than constitutional amendment. \*\* > [@](#): > > That would, of course, render the entire strict constructionist enterprise nugatory, so they don’t. But this reticence is not based on the text, it’s based on their personal opinion of how the U.S. constitutional system should operate. \*\* Again: it is based on the text. This reading (which is hardly limited to strict constructionists, BTW) to my eye flows quite naturally from the words of the amendment itself. \*\* > [@](#): > > By the way, the significance of case law on the Tenth Amendment escapes me here. Are you trying to reason by analogy, or what? \*\* It’s all **minty** ’s fault. 😃 OTOH, if you want a constitutional vestigal appendage, it’s the Tenth Amendment. It’s totally redundant – the fact that the text of the Constitution proper states that the federal government is only authorized to act in certain prescribed areas inevitably leads to the same result as the Tenth. Adding the tenth is like wearing a belt after you’re already wearing suspenders. ---
**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 27, 2003, 2:43pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/148 "2003-03-27T14:43:44Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*I think a Constitutional amendment would make Dewey happy. > > \*\*All Liberties that haven’t clearly been given to the people in this Constitution, belong to the States or the Federal government and can be taken away at any time. > > No reading of “Due Process of Law” in the Fourteenth Amendment in any court shall be construed as applying the Bill of Rights to the States, nor shall any reading construe it as giving anybody any rights not expressly spelled out in this Constitution.\*\* > > Happy now, Dewey? \*\* :rolleyes: This is just stupid. Besides, you make a common mistake: thinking that, because I judicial incorporation of the Bill of Rights represents a misreading of the 14th amendment, I must also think applying the Bill of Rights to the states is bad policy. Not so. I’d be perfectly fine with an amendment that made those rights applicable to the states. Similarly, you appear to assume that I dislike the existence of privacy rights, or the right to marry, or whatever. Not so. I like those things. I just disagree that judicial fiat is the appropriate method to attain those rights. I’d be perfectly willing to support legislation or amendments to protect those rights. The end doesn’t justify the means. ---
**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 27, 2003, 2:45pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/149 "2003-03-27T14:45:03Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Pfffttt. You left out the italics. Clearly, _you_ were never the managing editor of your l. rev. 😛 \*\* Feh, at least I added a link to the case. I added value, dammit! Besides, italics are the technical editor’s job. Don’t bother me with such trifles. 😛 ---
**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 27, 2003, 4:01pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/150 "2003-03-27T16:01:46Z")
> [@](#): > > \*Originally posted by december \* > _ **Minty** seems to believe that that the federal Courts are less apt to use thier power to infringe civil liberties than are other organs of government. To that end, which of the following are infringements of civil liberties?[ol][li]The Government selects innocent individuals and kills them.[]The Government selects innocent individuals at random and kills them.[_]The Government intentionally turns murderers loose, who they know (or ought to know) will kill innocent individuals.[/ol]Obviously #3 was ordered to be done by the SCOTUS, as the remedy for various prosecutorial flaws. [/li] > Of course, #3 is not the same type of civil liberties infringement as #1 or #2, but to the victim it makes little difference. \*\* And of course, #1 is the sort of thing the government has ACTUALLY done which has made the Supreme Court look to #3 as a remedy. I.e., the execution of innocent men because of bad procedures and bad faith by D.A.s, the cops and the lower courts. Let’s face it, the lower courts themselves have one nasty rap sheet. There were a LOT of innocent men on Illinois’ death row, y’know? ---
**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 27, 2003, 4:08pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/151 "2003-03-27T16:08:22Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*Three words which trump that: > > Equal Protection Clause. > > Why you keep trying to transform my position from “let’s narrowly interpret the 14th amendment” to “let’s ignore the 14th amendment entirely” is a real mystery. \*\* My point about Jim Crow is that the states have a very nasty history of ignoring the 14th Amendment – and in fact, most of the Constitution.😃 We cannnot rely on them for much in the way of understanding, much less justice. Do you have any idea how stupid state legislators are? I’ve met a few, and their stupidity can be truly stupifying. I once interviewed the head of my state’s Senate. What an idiot! He could hardly string two words together. I asked an experienced lobbyist what his story was, and she said, “Well, he went a lot farther in life than anyone expected him to, including himself.” ---
**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 27, 2003, 4:15pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/152 "2003-03-27T16:15:02Z")
To the extent a state passes a law that violates some Constitutional prohibition that applies to the states, I have no problem with federal courts striking the law down. Again, your implication that my position is tantamount to completely ignoring the 14th amendment is simply bizzare. But as to the rest – lawmakers are stupid. So what? Being stupid and passing stupid laws are not, in and of themselves, unconstitutional. If the people of a state want intelligent lawmaking, it is incumbent on them to elect smarter people. Otherwise they get the government they deserve. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 27, 2003, 4:18pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/153 "2003-03-27T16:18:47Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*But as to the rest – lawmakers are stupid. So what? Being stupid and passing stupid laws are not, in and of themselves, unconstitutional. If the people of a state want intelligent lawmaking, it is incumbent on them to elect smarter people. Otherwise they get the government they deserve. \*\* Hey, let’s leave the present Republican admininstration out of this!!! ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 27, 2003, 4:23pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/154 "2003-03-27T16:23:50Z")
> [@](#): > > \*Originally posted by Evil Captor \* > \*\* Do you have any idea how stupid state legislators are? \*\* You make a good argument for being ruled by an appointed oligarchy of superior individuals, rather than pure representative democracy. Perhaps you would prefer to go back to an appointed Senate. One problem with giving too much power to the judiciary is that by and large they are ignorant of fields other than law. Furthermore they deal with broad social problems, while ostensibly judging only the legal aspects. For these reasons, many court decisions have worked poorly in practice, despite the high intelligence of most judges. ---
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [March 27, 2003, 7:11pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/155 "2003-03-27T19:11:36Z")
Hate to hijack the thread _back_ to the “Scalia is Nuts” OP, but here are some [excerpts](http://slate.msn.com/id/2080746/) about the current \*\*[Lawrence v. Texas\*\*](http://www.lambdalegal.org/sections/library/decisions/lawrence.pdf) case, centered on “fundamental rights” and “equal protection” issues.: > [@](#): > > “It’s conceded by the state of Texas that married couples can’t be regulated in their private sexual decisions,” says _[attorney for Lawrence, et al]_ Smith. To which Scalia rejoins, “They may have conceded it, but I haven’t.” > [@](#): > > Smith says these laws say “you can’t have sexual activity at all” if you are gay and Scalia objects: “They just say you can’t have sexual intimacy with a person of the same sex.” > [@](#): > > Smith explains that the anti-sodomy laws have pernicious secondary effects–”keeping gay parents from gaining child visitation or custody or employment, for instance”–and Rehnquist wonders whether, if these laws are stuck down, states can have laws “preferring non-homosexuals to homosexuals as kindergarten teachers.” Smith replies that there would need to be some showing that gay kindergarten teachers produce harm to children. Scalia offers one: “Only that children might be induced to follow the path to homosexuality.” Ah, yes. Clear-eyed, non-biased objectivity–thy name is Antonin. ---
**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 27, 2003, 9:08pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/156 "2003-03-27T21:08:25Z")
It’s a mistake to infer nuttiness on the basis of oral argument excerpts. Judges will often phrase their questions or comments in an extreme fashion in order to make a larger point, and each of the items you list have very little surrounding context. And “objectivity” isn’t the goal of a judge in oral argument – it’s to press the lawyers on those aspects of his case that the judge finds weak (an exercise necessarily colored by the judge’s view of the law) and, secondarily, to convince his fellow judges that his view of how the case should turn out is the right one. There are more extensive excerpts at the [New York Times](http://www.nytimes.com/2003/03/27/national/27TTEX.html?ex=1049346000&en=61c177c32ca0290a&ei=5062&partner=GOOGLE). A full transcript will be available [here](http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html) in a few weeks’ time. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [March 27, 2003, 9:32pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/157 "2003-03-27T21:32:56Z")
> [@](#): > > Similarly, you appear to assume that I dislike the existence of privacy rights, or the right to marry, or whatever. Not so. I like those things. I just disagree that judicial fiat is the appropriate method to attain those rights. I’d be perfectly willing to support legislation or amendments to protect those rights. You would have the Court throw out years of firmly established precedent on the Due Process Clause of the Fourteenth Amendment. What you support has the practical effect effect of destroying all privacy rights and any other rights that aren’t expressly spelled out in the Constitution. The evils of permitting that to happen far outweighs any of your whining about “judicial fiat” or “lawyer kings” infringing on the “states right” to infringe on essential liberties unimpinged. I know you’re pissed off at the relative permanancy of _Stare Decis_ compared to State actions. But looking at things from my point of view, I see that as a good thing. Certain matters _must_ be taken away from the whims and passions of the majority. I have certain fundamental rights that my state can’t take away at a moments notice. I rest much easier at night that way. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [March 27, 2003, 10:39pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/158 "2003-03-27T22:39:45Z")
There is no tyranny that the Supreme Court imposes on us, Unless you consider it tyranny that Conress or a State can’t take away certain freedoms. But I find that argument utterly and completely unmoving. I’m not going to shed any tears if my State REALLY wanted to ban all contraception and abortion but couldn’t because the EVIL Supreme Court stopped them by recognizing a right to privacy as “within the penumbra of specific guarantees of the Bill of Rights” (GRISWOLD v. CONNECTICUT, 381 U.S. 479) and one within the Due Process Clause of the Fourteenth (ROE v. WADE, 410 U.S. 113). I suppose that Dewey, on the other hand, would be grief striken. Different strokes for different folks. ---
**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 27, 2003, 10:40pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/159 "2003-03-27T22:40:00Z")
> [@](#): > > \*Originally posted by Blalron \* > **You would have the Court throw out years of firmly established precedent on the Due Process Clause of the Fourteenth Amendment.** Actually, even this is something of a misrepresentation. I clearly said that, while I think the notion of 14th amendment due process incorporation of the Bill of Rights is an incorrect one, that principle has become so embedded in the legal landscape that to remove it would do more harm than good. Thus, discussion of the propriety of that doctrine is, and ought to remain, purely academic. As for notions of substantive due process in areas of the right to privacy, abortion, etc. – they are of relatively recent vintage, remain controversial, and are thus hardly “firmly established.” \*\* > [@](#): > > What you support has the practical effect effect of destroying all privacy rights and any other rights that aren’t expressly spelled out in the Constitution. The evils of permitting that to happen far outweighs any of your whining about “judicial fiat” or “lawyer kings” infringing on the “states right” to infringe on essential liberties unimpinged. \*\* So the ends justify the means, then? Would a dictatorship be OK by you so long as it rules justly, granting all manner of individual rights to its citizens? ---
**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 27, 2003, 10:53pm UTC](https://boards.straightdope.com/t/is-scalia-nuts/162525/160 "2003-03-27T22:53:30Z")
> [@](#): > > \*Originally posted by Blalron \* > **There is no tyranny that the Supreme Court imposes on us, Unless you consider it tyranny that Conress or a State can’t take away certain freedoms. But I find that argument utterly and completely unmoving.** The shape of society – including what freedoms are and are not protected – rightfully belongs to the people as a whole. If the people want to place a certain area beyond the reach of the legislature, they may do so by passing a constitutional amendment. And indeed they have. Absent the desire of the people to make free speech a fundamental, protected right, there would be no first amendment; absent the desire of the people to be secure in their homes, there would be no fourth. And so on and so forth. As I’ve said, I have no problem with judicial enforcement of these provisions. Indeed, I encourage and applaud it. In those instances, judicial review amounts to enforcement of the rules the people set up in the first instance. But when the judiciary deigns to write in provisions wholesale to the Constitution that simply are not there, it is doing more than creating an individual right. It is usurping a power that can only justly be taken with the consent of the governed. The ends do not justify the means. Judicial creation of substantive rights not found in the constitution represents an abuse of power, no matter how good or noble or desirable those rights may be. [Previous page](https://boards.straightdope.com/t/is-scalia-nuts/162525.md?page=7) [Next page](https://boards.straightdope.com/t/is-scalia-nuts/162525.md?page=9)