You could argue that, but you would be wrong.
US v. Russell, 411 US 423, 93 S.Ct 1637 (1973)
Here’s another:
A transcript of one of his speeches at the University of Chicago Divinity School.
“I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation”
Which doesn’t seem to limit his view to only Catholic judges.
Interesting take on the death penalty: it seems to be that because the Constitution is not a living document in his opinion (“That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a “living document”” and “As it is, however, the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring”) and that since the DP was acceptable in society 200 years ago, there’s nothing wrong with it now ("It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse–thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. ")
You are too kind to him. He has every clue what it was written for, and chooses to disregard this, while claiming to be supporting it. It’s knowing hypocracy. And it’s all done in a bald attempt at social reactionism.
The issue isn’t “suspending” the constitution. In the U.S., constitutional rights are not absolute. The scope of the right or, conversely, the government’s authority to limit the right, is determined by how important the government’s interest is in doing so. In other words, if the government has a really compelling reason to limit a constitutional right, the government can severely limit that right.
To take an obvious example, the government can constitutionally prevent a newspaper from publishing a complete set of plans for making nerve gas in your kitchen. The government cannot constitutionally prevent a newspaper from publishing an embarrasing account of the U.S. government’s failure to properly manage Indian Trust Accounts.
In times of national emergency, the government may have a stronger interest in infringing on certain constitutional rights than it has at other times. But this is a very dangerous doctrine. It invites the government to derogate from those rights just when it is most important to protect them. When passion and fear run high, the bill of rights may be all that stands between the innocent and a government-sponsored witch hunt.
But don’t take my word for it. Justice Goldberg wrote in Kennedy v. Mendoza-Martinez
Justice Goldberg wrote that almost exactly 40 years ago. He could have written it last week.
By this logic, slavery is still permissible, as it was acceptable in society 200 years ago. Scalia may be a LOT more conservative than we think!
Which brings up my response to the notion that that there is no right to privacy. We now see with a moral clarity that our forebears clearly lacked, that slavery is evil. Not just illegal, or impermissible or unacceptable to society but EVIL.
Those of us who are in tune with the spirit of democracy also now see that there IS a right to privacy, that it is fundamental to a free and open society, and that it’s clearly implied by the Fourth Amendment.
Scalia’s inability to understand that there is a right to privacy isn’t just a matter of interpreting the Constitution in his peculiar way, it’s evidence of a moral flaw. He does not understand democracy and he has no sympathy for the notion of individual freedom. He’s fundamentally a baboon at heart, feeling more comfortable in a world of rigid rules and hierarchies than in a world where rules are secondary to the powerful principles that drive democracy and to the human progression toward individual freedom and power – the world that destroyed slavery in America and is still in the process of destroying it around the world.
Scalia’s a morally flawed individual. Those who blithely accept his views on the right to privacy may simply be misled – a good test would be, does it BOTHER you that you are opposing the notion of a right to privacy? If so, I’m here to help ya. There are others opposing the right to privacy who are no doubt baboons like him. If so, I’ll happily help you on your way to the hell you are surely going to, as your moral flaws already have you halfway there.
Evil Captor: read the 13th amendment and get back to us.
If it is as popular as you think, why not amend the Constitution to put it in? See Article V.
Posted by Dewey Cheatem Undhow:
Evil Captor: read the 13th amendment and get back to us.
I assume the point Dewey is trying to make, rather boorishly, is that slavery was ended by Constitutional Amendment XIII, whereas the death penalty never has been. The Supreme Court’s (former) stance against the death penalty was based on an interpretation of the “cruel and unusual punishment” section of Amendment VIII. So as it’s apples and oranges, and as it stands now, the Constitution does in fact prohibit slavery, but not execution (at least not specifically).
There’s no way an anti-execution amendment would ever pass in the Congress and states, at least not now. Maybe somebody there’ll be a sufficient shift in public feeling on the matter.
So I guess Scalia considers the Constitution as “dead” unless it’s actually amended. If he had been a Supreme Court justice in 1857, I wonder how he would have decided in the Dred Scott case…
Actually, I thought he made the point rather gently, but quite succinctly. However, kudoes for the explication.
Sheesh.
The question is not whether a particular thing is evil, Evil Captor, but whether it’s unconstitutional. The Constitution is not a document which purports to list and prohibit all things evil, or list and permit all things not evil.
And has been pointed out by Dewey, your slavery analogy fails, as slavery was abolished by amendment to the Constitution.
I don’t think anyone would argue with that basic sentence. The key, as is so often the case in constitutional law, is to determine how far that right stretches. No one would argue that the right to privacy exists insofar as we are protected against unreasonable search and seizure. What “reasonable” means in this context is a matter of much debate – and whether this “privacy” extends beyond searches and seizures to things like consentual sex between adults is a matter for discussion; it’s not a given.
- Rick
It wouldn’t even require a constitutional amendment – the DP could be outlawed by statute (I have little doubt that Congress could find a source of federal power to do so).
Suggesting that the courts create a rule out of thin air with absolutely no regard for the text of the Constitution itself is to take a great big shit on notions of democratic self-governance. It’s just so pathetic when people pursue remedies in the courtroom that they cannot win at the ballot box. It’s tantamount to admitting you are incapable of persuading people that your side is the right one. **
The Dred Scott decision has logical problems of its own. But it’s silly to suggest the Constitution did not permit slavery prior to the 13th amendment. Clearly, it did – the three-fifths compromise regognizes “free persons” versus “other persons.” Indeed, if the Constitution outlawed slavery, why go to the bother of passing the 13th amendment in the first place?
I have to disagree. The Bill of Rights and the 14th amendment are fundamentally anti-democratic and rightfully so. There are certain things that the government simply can’t do even if a majority of voters think it’s a great idea. Some state may decide it doesn’t want, say, blacks to attend its public universities. I think we all agree that taking such a fight to court is the right thing to do, even if everyone in the state, except you, were staunchly in favor of discrimination.
**
Perhaps it is. Sometimes its even more pathetic, though, when you are forced to go to court because some constitutionally-retarded legislature or electorate is willing to pass a law that tramples on constitutional protections.
This is certainly not to say that all constitutional claims are meritorious. Many are completely ridiculous. However, I actually like it when people bring novel constitutional claims to courts. Much like an outrageous law school hypothetical, they provide an impetus to public discussion and often illuminate other, more accepted, rights even when they fail.
I wasn’t saying that slavery IS legal, the 13th amendment outlaws it. But if the 13th Amendment didn’t exist, by his own logic Scalia would have no problem with slavery.
He’s an evil old man, that Scalia.
I am sure it will happen someday, probably shortly after we depose President-for-Life Jeb Bush and we’re still full of democratic fervor.
I believe it’s appropriate to discuss the underlying principles and ethics of our laws when discussing the law, not just what precedents exist or don’t exist. I am not a strict constructionist.
I had a rather strong impression that Scalia would disagree with the statement you cite. I agree, the extent to which the right to privacy affects the law is a legitimate matter of debate. Law enforcement clearly needs to pierce the veil of privacy to conduct investigations. How far and under what circumstances is a reasonable debate. But the right exists and should not be given up except for pressing reasons, and a lot of the reasons we’re hearing from DAs lately – “sure would make our jobs a lot easier” - don’t cut the mustard, IMHO.
No, they are perfectly democratic. They are amendments to the Constitution. They were passed by the constitutionally-prescribed method for amendment. Their inclusion in the document represents democratic self-government in action.
Why this simple point has to be explained is beyond me.**
I have no problem with the judiciary enforcing proscriptions on government action that are actually found in the constitution. I do have a problem with the judiciary creating proscriptions on laws – such as a death penalty ban – which not only are not forbidden in the constitution, but are in fact countenanced by that document. **
So you support the bringing of wasteful, frivolous lawsuits that encourage judges to usurp policymaking power because they aid in public discussion? How interesting.
If you want to aid in public discussion, present a bill. At least then you have to persuade the representatives of the people who will actually have to live under your proposal rather than an insular group of life-tenured judges.
Please take a course in remedial logic.
Scalia’s logic does not translate into him having “no problem” with slavery absent the 13th amendment. It only translates into a belief that the pre-13th amendment Constitution does not forbid slavery, and that the question of slavery is therefore left to Congress and the states (and, as it turns out, the Union and Confederate armies).
Drill this into your head: constitutional != moral; unconstitutional != immoral. There may be overlap, but the terms are not the same.
Certainly the people who were responsible for the 13th amendment did not believe the Constitution forbade slavery – otherwise, why amend it? And yet I hardly think that you can say they had “no problem” with slavery, because they did in fact vote to outlaw it.
You can be pro-choice and still think abortion decisions should be left to the legislatures. You can be pro-woman and still believe the 19th amendment was necessary to give women the franchise. You can be anti-death penalty and still recognize that the constitution does not forbid the practice. And you can find slavery to be an abhorrent, immoral institution and still recognize that the 13th amendment was critical to making the practice unconstitutional.
Your comment is simply a slur on the man that has absolutely no basis in fact.
**
Dunno. We’re all just too stupid, I guess. The fact remains that the Bill of Rights and the 14th amendment are specifically designed to act as a check on popular democracy. You may quibble about the semantics of whether overturning a ballot measure approved by a majority of voters is “anti-democratic” but anyway, I’m sure you see my point.
**
You seem to be confusing “frivolous” with “nonmeritorious.” “Frivolous” means so completely without merit that no colourable argument can be made on its behalf. “Nonmeritorious” just means you didn’t win. I’m all in favour of bringing claims that attempt to stretch the constitutional envelope. This constant proving is what keeps the U.S. constitution so vital.
The problem with your attitude, as I understand it, is that it would prevent people from bringing cases like Brown v. Board of Education “How dare you bring that frivolous lawsuit! Don’t you know this issue was settled over sixty years ago in Plessy?” Declaring “Separate but Equal” to be unconstitional may have “usurped policymaking power,” but for my money, Brown was right and Plessy was wrong.
But it’s not that simple, is it? Hardly anyone can get a bill voted on in the the legislature. Everyone with a grievance can bring an action at the local courthouse and make the government justify itself. Sure, this results in a significant “waste” of time and energy. It’s also probably the single most attractive feature of the U.S. system.
I disagree. I don’t think the courts are creating the rules out of thin air. They are simply construing words in the constitution more broadly.
Pure Democracy is two wolves and a sheep sitting down and voting on what’s for dinner.
The constitution is, by it’s very nature, an undemocratic document. Some basic rights need to be protected from “The Tyranny of the Majority”.
Freedom of Speech is not open for a vote. Neither is Due Process of Law or the prohibition on “Cruel and unusual punishments”.
If you want to bitch that this is undemocratic, register your complaint with the founding fathers. All you need is a shovel and a few hours digging time.
Again: the Bill of Rights and the 14th amendment were passed by the ordinary amendment process. Yes, they prevent certain future democratic decisions, but the key point is that democratic processes decided to put those limitations in place.
It is not anti-democratic when the people decide to restrain the government in specific ways. It is anti-democratic when judges elect to restrain the government in ways the people never countenanced when they wrote the amendment. **
See, the 14th amendment does in fact have an equal protection clause. I have no problem with Brown’s result (I do have some quibbles with its reasoning) because there are ample grounds within the text for reaching the result the court came to.
On the other hand, finding, say, that the cruel and unusual punishment clause is tantamount to a ban on capital punishment is absurd in a document whose contemporaneous provisions clearly countenance it (see, e.g., the 5th amendment’s prevention of double jeopardy “of life and limb”).
Look, I’m not opposed to judicial review. I’m opposed to constitutional decisionmaking that goes beyond the four corners of the document itself. The Constitution is a set of rules that the people agreed on, either at the time of ratification or at the time of amendment. It’s a judges’ job to interpret those rules, no doubt about it. But the judge shouldn’t make up rules or ignore contradictory rules just because it favors his own personal view of social justice. **
The logical endpoint of that attitude is the Kansas City school system througout the 1980’s. Why bother politicking for a tax increase when you can just get a federal judge to order one for you?