Is Scalia nuts?

The BBQ Pit
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It bears repeating: the first, fifth, eighth and fourteenth amendments are democratic instruments. They were passed via the amendment process prescribed in the constitution. The limitations they impose are therefore consonant with democratic self-goverance.

Because of this, even as they are limitations on future government action, they must be interpreted with an eye towards what the architects of each amendment meant when the amendment was proposed. To do less is to do a disservice to the democratic process that the amendment procedure represents.

And y’know, I’m getting fucking sick of that stupid wolf-sheep line. Consider that if that was true, then the 15th, 19th, 24th and 26th amendments would never have passed (why dilute your own power?). Neither would any of the civil rights acts. There is such a thing as moral persuasion, and it has been used effectively many times in the past. But hey, why go to all the time and bother of building consensus and persuading your fellow man when you can just ram the rule you want down your neighbor’s throat with a little help from the judiciary?

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It’s clear that your understanding of the law and the legal process is deep. So I must be misunderstanding you. I apologize if I am too simple, here. IANA lawyer.

Are you claiming that the words used in laws should never be interpreted? That’s clearly unworkable: it’s impossible to forsee all the possible applications of a law.

Since laws then must be interpreted, one has to choose on what basis to interpret them:

  1. as they were intended at the time. The problem with this is that things change. (How can the constitution be interpreted directly in terms of television?) This is why “strict constructionism” sometimes leads to judgements that seem untenable to us today.

  2. as the authors of the laws would have written the laws if they could have anticipated the applications. The problem with this is that people can’t be removed from their temporal context. We can’t know what the framers would have included about television if they were writing the constitution today.

  3. as people with the writers’ ideals would have written the laws if they were writing today.

Are any of these inherently anti-democratic? Doesn’t seem that way to me. Can bad decisions be made under any interpretive scheme? You bet! Good decisions? You bet!

I think which scheme you like is independent of whether it (or you) supports our system of government or not.

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noggin, I’m not going to get into a big discussion on the relative merits of the various flavors of strict constructionism (originalism, textualism, etc, etc). Let’s just say as a general rule that I recognize there are flaws in the strict constructionist approach to things, but find that those flaws are no worse than the flaws in other interpretive schemes, and that the strict constructionist view is most clearly aligned with democratic self-governance.

I have no idea where you got the notion that I believed laws “should never be interpreted.” That’s just nutty. I don’t think I said anything of the kind – indeed, if you peruse the thread, I say the exact opposite (“It’s a judges’ job to interpret those rules, no doubt about it”; “…must be interpreted with an eye towards what the architects of each amendment meant…”)

What I did say, and continue to believe, is that judges shouldn’t invent things that flatly aren’t in the text of the Constution, or make decisions to ban things that the Constitution itself clearly countenaces (e.g., the death penalty). The fact that the Constitution itself and its amendments are themselves democratically-created requires as much.

FWIW, even the most ardent strict constructionists recognize that new technology must be made to fit into the constitutional scheme. Wiretaps weren’t around in 1798, but I have yet to meet a strict constructionist who wouldn’t apply the fourth amendment to their use. And outside of new technology, changes to how things are viewed are strictly a matter of evolving societal mores – precisely the kind of thing the amendment process was created for.

I mean, really: why go to the hassle of passing the 19th amendment if you can give women the franchise by going to court?

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So which was correct, Brown or Plessy? Or were they both acceptable interpretations?

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Thanks. I thought I must have misunderstood… as I said, I’m no lawyer.

I also know little of these flavors of constructionism of which you speak. (If you know a cite that can explain it in lay terms, I’d love to see it. Or your own take, if you have the time.)

I am a little troubled by the following statement, though:

I just think it’s picking and choosing to say it’s OK to invent law about wiretapping but not choose between modern conceptions about what constitutes ‘cruel and unusual’ vs. the framers notions about the death penalty.

Also: I agree 100% that it would be fundamentally more democratic to enact law banning the death penalty or to amend the constitution that effect.

But (again, remember, I’m a layman, so go easy) one thing that’s appealing about the SC is that it seems to sometimes give more consideration to justice than the law, and there are many times when what the majority desires is unjust and can be protected by the anti-democratic provisions of the constitution.

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Without getting into the flaws of Brown, Brown is correct because Plessy establishes a rule that cannot exist in the real world: separate but equal is simply an impossibility.

But in any event, your question is irrelevant. I never said there was “one true interpretation” of the Constitution; clearly, some provisions are vaguer than others and thus have more wiggle room for interpretation. All I’ve said is that a decision should be grounded in the text. One can hold to that belief and still recognize areas of ambiguity within the text.

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This is so brief as to do it a disservice, but “originalism” is basically looking at what the people who wrote the amendment were trying to accomplish, while “textualism” is the practice of looking only at the text without reference to external sources such as legislative history. For a fleshed-out layman’s explication of both theories:

Originalism: The Tempting of America, by Robert Bork

Textualism: A Matter of Interpretation, by Antonin Scalia.

Of the two, Scalia’s book is better, mostly because Scalia gives equal time to his critics – there are chapters written by law professors who disagree with Scalia’s take on interpretation (though Scalia, of course, responds to their criticism – it’s his book so he gets the last word). **

The wiretapping deal is not so much inventing a law as it is interpreting an existing textual provision – the fourth amendment guarantee to be secure in one’s home from searches and seizures. The critical question being: is a wiretap a “search”?

Note that that finding is rooted in the text. It doesn’t bootstrap a right out of thin air. Finding that something is or isn’t a “search” is a legitimate area of judicial inquiry. Suggesting that because the Constitution protects against searches that it also protects other non-search related privacy interests is not – that finding is simply not rooted in the Constitution itself. **

That is true if you happen to agree with a Supreme Court decision and not true of you happen to disagree – “justice” is a remarkably elastic term. Pro-lifers claim that protecting the lives of the unborn is “just,” while pro-choicers claim that an absolute right to choose is “just,” to cite one example. What you describe as “justice” is just the court favoring one policy choice over another.

There is an apocryphal story about Justice Oliver Wendall Holmes, Jr., known as the “Great Dissenter.” After meeting a friend for lunch, he and his friend said their goodbyes. As Justice Holmes departed in his carriage, his friend exclaimed “Do justice sir! Do justice!” Holmes stopped the carriage and put his head out the window, replying “That is not my job. My job is to apply the law.”

Holmes was right. His job is not to “do justice” but rather to determine if a given statute conflicts with the Constitution. Anything more would be for the judge to usurp the power of legislative bodies. And that would be wrong.

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Actually, in my second full paragraph, that should read “explication for the layman.” Clearly neither Bork nor Scalia are laymen. :slight_smile:

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And as I’ve said before, interpreting the text of the constitution more broadly is not neccesarily “usurping” power from legislative bodies.

Besides that, I’d like to comment on the importance you place on majority rule. I’m going to go out on a limb here, and say that in many instances the majority of voters have only a vague awareness of constitutional protections.

Just because 51% of the voters in a particular state, or in Congress, approve of something and the Supreme Court strikes it down, I would not say that they were “usurping” power from them. Rather, they are doing their job of interpreting the constitution as it applies to a new instance.

For example, your beloved Scalia voted against allowing law enforcement agences to use heat sensitive equipment to monitor what you are doing inside of your house without a Warrant. He even WROTE THE MAJORITY OPINION on the case. Obviously he is occasionally capable of recognizing that new situations require new interpretation. Kyllo versus United States

Be greatful that John Ashcroft is not watching you take a shower with a thermal imaging camera.

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Blalron, are you even bothering to read my posts? I agree with Scalia’s position in Kyllo. I think my prior posts bear that position out. Quit trying to make my position more sweeping than it actually is.

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Exactly. Ultimately, even the strictest constructionist is obliged to rely on something other than the four corners of the constitution when drafting an opinion. I quite agree that these opinions ought to be anchored on what the constitution says but there is a very, very great deal of scope for interpretation.

Though Scalia won’t admit it, the Ninth Amendment practically demands that judges look beyond the four corners. It’s true that the U.S. Supreme Court has never based any right on the Ninth amendment, but still it kinds of sits there and stares at you if you’re trying to stick to the text. Take a look at Scalia’s pained efforts to explain away the Ninth Amendment here. Scalia is, in effect, indulging in his own brand of selective constitutional interpretation.

So given all this scope for constitutional interpretation, I still like novel constitutional arguments. These arguments, of necessity, can change with the times. I have little doubt the Plessy was “correctly decided” in the sense that it was in keeping with what the drafters of the 14th Amendment thought when they wrote it. Nonetheless, despite stare decisis, I’m quite glad that Thurgood Marshal managed to come up with an argument that convinced the Court and prevented America from turning into South Africa.

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I utterly fail to see any problem with Scalia’s view of the Ninth Amendment. It is, in essence, a simple statement of fact: the Bill of Rights is not exclusive, and other rights can be protected via other sources of legitimate law. For example, New York state law provides a higher degree of free speech protections than the first amendment, and federal civil rights laws provide rights that are not located in the Bill of Rights. The Ninth Amendment just makes clear that the Bill of Rights is not the exclusive source of individual rights.

What the Ninth Amendment is not is carte blanche for the judiciary to invent rights of their own volition. To so find would essentially vest the judiciary with legislative powers.

Indeed, that first paragraph in Scalia’s dissent is a nice summation of judicial restraint.

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Very interesting. It seems like Scalia is saying: Yep, raising your children is an unenumerated right. No, I won’t give the 9th amendment any effect at all. It just sort of sits there, and I can’t do anything about it even if it seems clear that it’s been violated.

If Scalia’s view prevailed? The Ninth Amendment would be dead. Dead. Dead. Dead. It would have no effect at all. Any right that is not explicitly spelled out in big bold “See Spot Run” style writing in the constitution has no life. Was that the intent of the framers of the constitution?

Since the Bill of Rights was put into effect to limit what legislation can pass (such as “Congress shall make no law respecting an establishment of religion”), it would follow the the Judiciary is the only remedy for an out of control Legislative branch. I can conceive of several situations where the Legislature could take away essential liberties that are not clearly spelled out in the constitution, yet are still essential liberties nevertheless.

I’ll go back to my example of outlawing smiling. A majority of the state legislature goes crazy for some reason and makes it illegal to smile. Does you want us to believe that no judicial remedy exists?

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Scalia’s take is correct. The Ninth Amendment is not a source of rights; it only states that the presence of the Bill of Rights does not “deny or disparage” the existence of other rights. It means, in short, that you can’t for example challenge the existence of expansive free speech protections under New York law on the basis of the existence of the first amendment.

What Scalia says makes perfect sense: I think raising your children ought to be a right; however, it is improper for me as a judge to just make up that right out of whole cloth; that right must be enumerated in the Constitution or (as per the Ninth Amendment) some other source of law in order to be judicially enforceable; therefore, while I would support legislation to create such a right, I can’t pretend something is there that clearly is not.

And as for your smiling example: assuming all the niceties of due process are observed (the law is sufficiently concrete, etc.), assuming it does not violate the first amendment (smiling could be considered “speech” in that it is communicative in nature), and assuming there is no conflict with federal statutes or state constitutional law, then no, no judicial remedy exists. There is, however, a huge nonjudicial remedy – no legislature could pass such an act and hope to remain in office for very long. I would expect recall petititons and referendum movements to start the day the bill is presented, much less the day it passes.

I will never in a million years understand why some people think it better to be ruled by a small cadre of life-tenured judges than by an elected legislature (and make no mistake, by stating that the Ninth Amendment means a court can make up rights out of whole cloth is effectively to cede important policymaking power to the judiciary). At least when a legislature screws up royally, they can be voted out of office.

Consider the Kansas City School Board example I cited to earlier: the horrific train of abuses inflicted on that city by Judge Russell Clark would have been curbed in the next school board election had they been created that way. But no, because it was a federal judge ordering the raising of taxes, the building of an opulent magnet school and other absurdities, the good people of Kansas City had to swallow decades of mismanagement and abuse.

There is a very good reason for judges to restrain themselves to the text of the Constitution itself: power corrupts, and absolute power corrupts absolutely. And allowing judges to make up rights as they go along is damned close to absolute power.

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No, it doesn’t mean that. Scalia needs it to mean that. I understand perfectly why he feels that interpretation is necessary. I also understand why the Ninth Amendment has never been cited by the Court to be a source of rights – even Douglas agreed.

My point – and this is quite subisdiary to my original point in this discussion – is that strict constructionists engage in their own brand of “judicial activism.”

Let’s look at what the Ninth Amendment says,

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Now let’s look at what Scalia says about it.

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Now that just be whack, Jack. Scalia says that the state has no power to eliminate an unenumerated right but that the courts have no power to protect the right if it does.

In order to reach this conclusion, Scalia must ignore several well-accepted legal principles. First, one of the most basic rules of statutory interpretation is that you must interpret the whole statute to give effect to every word and phrase. If one interpretation renders part of the statute superfluous and another gives meaning and effect to each part of the statute, the latter intepretation is correct. Scalia’s interpretation is that the Ninth Amendment has no actual effect whatsoever.

Then there is the well established principle that for every right there is a remedy. Scalia expressly disavows this doctrine, which is pretty embarrassing since it’s a key principle in Marbury v. Madison!

Scalia is also forced to ignore the plain language and obvious meaning of the Ninth Amendment. Enumerating certain rights does not “deny or disparage” other rights retained by the people. “Deny” means to say they don’t exist. “Disparage” means to reduce in rank or to slight. Translation: Listing certain rights doesn’t mean other rights are not on an equal footing with the listed ones.

Once again, I understand why he needed to adopt this position. What I object to is the fiction that he did not have to do his own violence to the text to do it.

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It is not a matter of logic, it is a matter of understanding the topic. You think the topic is, “are Scalia’s decisions legally sound?” whereas the topic is actually “Is Scalia nuts?”

We are not considering jsut the legality of Scalia’s decisions, but what those decisions say about Scalia’s sanity and morality.

I would suspect that you’d argue that Scalia’s decisions don’t establish any insanity or moral turpitude, but are merely the mark of a man doing his job to his best ability and to his best understanding of the Constitution.

I disagree vehemently. His failure to find a right to privacy embedded in the Ninth Amendment is to my mind a moral failure and not just a matter of logic. There is a decision to be made in the matter of whether or not Americans have a right to privacy, one whose answer is clear if you believe America should be a free and open society. Scalia clearly does not. He can’t shield himself behind his strict constructionism of whatever else he wants to call it – he’s a fucking fascist, pure and simple. This, combined with the raw partisan corruptness of his decision on the 2000 election makes his character very clear to me.

This is NOT a legal debate, or else your position would be tenable. There may be tenable position for holding Scalia to be a good man, but not the one you are advancing.**
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Truth Seeker: You’re simply wrong that Scalia’s (and my) take on the Ninth Amendment renders it “superfluous.” It does not. It makes clear that the existence of the Bill of Rights cannot be used as to bludgeon out other sources of rights. It means, for example, that one could not challenge the existence of expansive free speech protections under New York state law on the basis of the existence of the First Amendment. Indeed, this view makes a lot of sense in light of the founder’s concern that the Bill of Rights would be seen as exclusive – the Ninth makes clear that the people may establish rights in other ways besides constitutional amendment.

I think that take is clearly derived from the plain language of the amendment, rather than doing it grave harm. And it does no violence to the “for every right a remedy” prescription because the Ninth Amendment is not itself a source of rights. It is simply a recognition of other sources of rights under the law as having equal validity.

That ain’t whack, jack. That’s a legitimate position derived from the text of the amendment.

Evil Captor: Fuck you.

You believe that a person’s view on constitutional interpretation, even if perfectly logical, are marks of moral quality. You suggest that if someone believes that the Constitution does not contain a sweeping right to privacy (beyond the simply proscription against searches and seizures without probable cause), then that person is a “fucking fascist.” That the strict constructionist view is not just a legitmate, though debatable, position on constitutional interpretation, but rather a “moral failure” that indicates nothing less than the presence of pure evil.

Well, those are positions I hold, too. Based on your post I can only figure you’d tar me with those labels, too.

So, fuck you, you shitbrained maggot. I am not a fascist. Neither is Scalia. Frankly, it’s assholes like you that make political and constitutional debate impossible in this country. For you, it’s not enough to say that a person’s position is simply incorrect; no, you’ve got to go the extra step and say that position makes them evil as well – character assassination as political argument. How fucking pathetic.

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WRT the Ninth Amendment, Dewey, your take and Scalia’s flies in the face of the fact that it was ever passed and ratified, and in the very words of the man who wrote it, James Madison.

Why bother to have an amendment that specifies that there are other rights than those guaranteed by the original text of the Constitution and Amendments I-VIII if statute law and the amending process are sufficient to guarantee such rights? Your own argument defeats your case.

And every case involves the interpretation of law? If Frank Culprit points a gun at Joe Citizen and demands his wallet on some dark street one night, the judge must decide that what Frank Culprit did falls within the definitions of armed assault, robbery, and larceny as they are spelled out by the legislature – he must interpret the “Whoever shall… shall be guilty of…” language to determine if the facts of the specific case before him fit the circumstances contemplated in the abstract text of the law. Granted this is not much of an effort to do, it remains a case of interpreting the law. If a judge did not interpret the law, he would be forced to find for the defendant/respondent in all cases, because the allegation of the plaintiff/state that the law had been broken by the acts of the defendant/respondent would not be acceptable – he’d be reduced to saying, yes, that’s the law, and it sure sounds to me like it’s a violation, but I cannot rule on it, to say that it covers the case you’ve argued here.

The Constitution indulges itself in abstract phrasing intended to cover a wide variety of circumstances – it specifies “interstate commerce” rather than “stagecoaches or goods-wagons crossing state borders,” and “cruel and unusual punishment” rather than “bodily mutilation, torture, and the pillory” – because it has the intent of including all interstate commerce, however it is done, and all punishments that a reasonable man would deem “cruel and unusual.” Sometimes the specificity required of lawyers in their normal practice, where defining precisely what parcel of land is being conveyed or what specific objects are included in the sale, or precisely what distribution the testatee intends to make of his residual estate, mediates against the broad scope, need for interpretation aspect of constitutional law.

With all that in mind, I’d like your reading, and that of other lawyers, on Romer v. Evans, and whether Justice Kennedy ruled in accordance with how you read the Constitution.

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It’s good to be reminded that one is in the Pit sometimes.

You believe that a person’s view on constitutional interpretation, even if perfectly logical, are marks of moral quality.

Some of them, yes.

You suggest that if someone believes that the Constitution does not contain a sweeping right to privacy (beyond the simply proscription against searches and seizures without probable cause), then that person is a “fucking fascist.” That the strict constructionist view is not just a legitmate, though debatable, position on constitutional interpretation, but rather a “moral failure” that indicates nothing less than the presence of pure evil.

Generally, yes. If you’re willing to create conditions that render America a police state rather than put some flex in your interpretations of the Constitution, you’ve got a screw loose, at the very least. If you also demonstrate partisan corruption in other decisions, such as election 2000, it’s an easy call. Scalia’s evil. You, DCU, are not demonstrably evil yet, because you haven’t written anything or done anything that demonstrates moral corruption. You may simply be misled.

**Frankly, it’s assholes like you that make political and constitutional debate impossible in this country. For you, it’s not enough to say that a person’s position is simply incorrect; no, you’ve got to go the extra step and say that position makes them evil as well – character assassination as political argument. How fucking pathetic. **
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You’re just pissed because I won’t debate on your terms. IANAL! I am a CITIZEN! It is up to the mass of citizens to debate the morality of laws and of the way they are interpreted, and that is what I am doing. I am not about the letter of the law, I am about its spirit. This is EXACTLY the kind of speech that the framers had in mind when they wrote the Bill of Rights. Sorry if it disturbs you.

Now, as to preventing constitutional debate – I didn’t realize I had that much power!

If you want to start a thread about “Strictly legal intepretations of the ninth amendment and the Ninth Amedment,” that would be different. I would not engage in it, because it’s a purely legal debate by definition, which this thread is not.

In any event, not every decision of the court has a moral dimension, and on some of those that do, it’s possible for people of good conscience to differ. The right to privacy is not one of those decisions.

Let me put it this way. If an earnest judge from the South were to be appointed to the Supreme Court, and he found Constitutional reason to reinsitute, or at least not to oppose reinstituting, the Jim Crow laws, I’d say he was an evil motherfucker. I wouldn’t give a shit WHAT his legal reasoning was, I’d know his game from step one.

That is the way I feel about Scalia and the right to privacy. Reasonable men may differ on the extent to which the state may violate the right to privacy, or the circumstances under which it may be violated, but to use a particular interpretation of the Constitution to deny it’s very existence?

I know the game. It’s fascism, state control uber alles, from step one. Don’t like it? Your problem.

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Would that be the one that begins, "Congress shall make no law . . . ? Yes, I can see how you’d need a special provision to make it clear that Congress can’t restrict free speech protections. :dubious: If Scalia were as philosophically pure as he claims to be, he’d chuck the whole “ordered liberty” thing out the window. What part of “shall make no law” doesn’t he get?

Anyway, your analogy doesn’t work. Defining the scope of enumerated rights is a very different thing than recognizing and enforcing unenumerated rights.

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But Polycarp, body mutilation is perfectly OK under Scalia’s (and Dewey’s) reading of the constitution. Whacking off limbs as a criminal punishment doesn’t violate the 8th amendment. See, the 5th Amendment says,

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Thus, judicial amputation is not only not forbidden in the constitution, but is in fact countenanced by that document.

So the constitution clearly authorizes the states to adopt Sharia if they like. Hey, states have rights too, you know! :wink: