Is Scalia nuts?

The BBQ Pit
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Amazingly, you miss the point. What I’m saying is that the Ninth Amendment makes clear is that additional sources of rights are not foresworn by the enumaration of certain rights in the Bill of Rights – that is, the Bill of Rights is not an exclusive list. Again, let’s take heightened free speech or free press rights created as a matter of state law – press shield laws, for example – which exceed the scope of the protections available under the First Amendment. The Ninth Amendment prevents opponents of such laws from suggesting that the Bill of Rights is an exclusive list and that thus such laws are constitutionally suspect.

Again, I hardly think it does – I think it acts as a bulwark against arguments that, say, statutorily-granted rights are constitutionally infirm on grounds that the Bill of Rights is exclusive.**

My ten-foot pole is on order. I can only imagine what the likes of Evil Captor would call me if I tried to discuss this case. Suffice it to say that just because I find something constitutional does not mean I think it moral.

Oh, so I may not be evil, but just stupid instead? Kiss my ass, you ignorant pigfucker.**

The hard, difficult fact for you to cope with is that the Constitution simply does not mention any kind of broad “right to privacy” within its text. If you think such protections should be constitutional, why don’t you pursue an amendment guaranteeing as much? Yes, that’s a long, arduous, difficult process. Most worthwhile things are.

Again, I’ve got to ask: if you really believe in the freewheeling “rights creation at a whim” view of the Ninth Amendment, why on earth did people have to go to the bother of passing the 19th and 26th amendments?

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I can accept your theory that the Ninth Amendment merely safeguards Congress’s and the states’ authority to guarantee additional rights – but I maintain that the evidence on the record shows that the majority of the Founding Fathers would disagree. And that is not what the text says – it merely says that the existence of guarantees of specific rights shall not be construed to disparage other rights – which therefore must exist in order to be, or not be, disparaged.

However, the “freewheeling rights creation on a whim” gambit is a truly obnoxious case of slippery sloping. Nobody, so far as I know, is suggesting anything of the sort. Rather, what’s being suggested is much what Madison said, that the document is not an exhaustive list of the rights of man. By implication, therefore, a judge, confronted by a case involving another right that the common consent of man agrees is present, is authorized by the Ninth to recognize the legal existence of such a right.

Classic example: Do Americans have the right to travel within the U.S.? You can search the Constitution from “We the people” to the enabling clause of Amendment XVII and never find reference to it. To be sure, the Federal government has the right to regulate interstate commerce – but that’s the definition of a power, not the guarantee of a right, much less a right that does not depend on public transportation to be exercised. SCOTUS is on record as having found a right to travel – the specifics are IIRC a Wisconsin case involving welfare benefits, but that does not affect the specific argument under question. Loving v Virginia established that there is a Constitutional right to marry against which miscegenation laws intrude. I don’t see that one in the text either.

And while I’m not overly happy about Evil Captor’s tone, he has it precisely right – as does Truth Seeker. What makes it possible for you to negotiate mergers and do the due diligence behind them “instead of honest work” :wink: is the respect of the American people for law – law in general and the Constitution in particular. Remember the one reform Roosevelt couldn’t get through, even in a time where 90% of Americans and over 90% of Congress supported what he was doing? This is not, at bottom, an issue about Constitutional jurisprudence – it’s a complaint about one man who seems hellbent on subverting the moral authority on which his own job rests.

It would only take another Andy Jackson to comment “Mr. Scalia has written his decision; now let him enforce it” to subvert the moral authority that enables the Court to be taken seriously. Imagine, if you will, GWB issuing an Executive Order instructing all Executive Branch personnel to refuse to act as enjoined by a SCOTUS decision with which he disagrees. Bush v. Gore, whether or not you agree with the jurisprudence found in it, injured the court’s moral authority with the left, which was already suspect on the right thanks to Roe v Wade and numerous Warren and Burger court decisions. All it would take is one more decision that offends the center to irreparably destroy the court’s authority. And Scalia, with his apparent intent to read into the law what he feels is proper, is just the man to write that decision.

And that is an outcome I hope never to see.

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**
This demonstrates just how much violence mut be done to the plain meaning of the text to reach this position. With the exception of the sixth and seventh amendments, the Bill of Rights doesn’t grant any rights – it prevents the government from interfering with what are viewed as pre-existing rights. In other words, it restricts the government’s authority to make laws.

Now, obviously, if the government doesn’t make a law about something, the government isn’t infringing. Your argument boils down to saying that absent the 9th amendment, you could argue that the government is required to figure out what all the unenumerated rights are and then pass laws infringing on them.

Let me put it this way. Putting aside the natural rights argument (which the drafters clearly believed in), all that is necessary for negative rights like these is that the government do nothing. Your reading of the 9th Amendment is that it specifically authorizes the government to do nothing. Once again, :dubious:

The far more reasonable reading is that the 9th Amendment, like most of the rest, requires the government to do nothing that infringes on certain other unenumerated rights. I recognize why no Supreme Court has wanted to go there. The Ninth Amendment is the constitution’s crazy aunt in the attic. Nevertheless, you have to be pretty intellectually dishonest not to admit that my take is a perfectly reasonable reading. I think Scalia is intellectually dishonest for dismissing the 9th Amendment in such a cavalier fashion while claiming to be such a strict constructionist. I mean, come on. With all the hundreds of millions of words analyzing the rest of the Bill of Rights, the 9th Amendment gets one paragraph?

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I don’t think the right to privacy needs to be created at a whim, I believe it’s clearly implied by existing law.

Frex, take the right to chastity. We are all guaranteed it, by anti-rape laws. At one time there were limits on it – women who got married could be raped by their husbands. But we recognized that that was wrong, and made marital rape illegal too. In the U.S. the law is that nobody needs to fuck or be fucked by anybody (in a real, not metaphorical sense, anyway) unless they want to. Everybody has a right to chastity, it’s clearly implied by the law.

In the same way, the limits on search and seizure and the requirements for warrants clearly imply that government has to have a very good reason for infringing on a person’s privacy before they do so. This implies that a right to privacy exists. The ninth amendment provides a very handy mechanism for defining that right to privacy that is so clearly implied by laws about warrants and wiretaps and such.

What’s more, the ethics and values of contemporary Americans are almost unanimous in accepting the notion of a right to privacy. The only people who seem unable to find it are certain high government officials.

Americans value privacy. They oppose slavery. They oppose rape. These are all good things IMHO and I am more than happy to see them enshrined in our laws.

You say, pass an amendment. I say, it isn’t necessary. The right already exist, it need only be acknowledged in the Constitution as the Ninth Amendment very clearly states it should.

Scalia’s fear of judicial activism – the only reason I’ve heard for NOT recognizing the right to privacy – rings false in a person who takes it upon itself to decide the outcome of Presidential elections with highly questionable voting results. More likely, he’s opposed to Constituional recognition of privacy rights because that would make law enforcement harder, and that matters a lot more than the Bill of Rights.

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Yes, indeed, Americans oppose slavery – so they enshrined the 13th amendment as part of the Constitution. Americans oppose rape, so every state has as part of its criminal statutes a proscription on forcible sexual intercourse. Surely if Americans value their privacy as much as you say they do, it will be no major task to enshrine that principle into law via legislation, referendum, or constitutional amendment?

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While the concept of rights as pre-existing makes for nice political rhetoric, in reality they simply do not exist unless they are in some fashion created and made enforceable.

**

Rights are enshrined via the democratic process in other ways besides amendment to the federal constitution. The states have their own constitutions. Ordinary legislation creates rights (such as state and federal civil rights laws). Those sources of law create rights every bit as enforceable as those found in the federal constitution. In particular with regard to state constitutions, the creation of rights takes certain areas “off the table” from future legislation.

My argument is not that absent the ninth amendment the government is required to infringe on any such rights – my argument is that the ninth amendment forestalls an argument against the creation of such rights – specifically, the argument that the Bill of Rights is exclusive.

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And what perchance makes a judge specially qualified to determine what the “common consent of man” is, anyway? It seems to me that a statute passed by an elected legislature is going to be a lot closer to the “common consent of man,” virtually by definition.

Proponents of expansive readings of the Constitution always fall back on this kind of flowery language (“emanations and penumbras” is another favorite). Ultimately, it’s all meaningless. Unless there is a concrete textual basis for a judge’s decision, what he is really doing is substituting his own policy judgment for that of an elected legislature. **

I agree. I also think that nothing destroys respect for the law in general or the Constitution in particular than a judge finding things in the Constitution that simply are not there textually. At that point the rule of law ends and rule by man begins.

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Dewey Three questions:

  1. Before I launch into an explanation, do you understand the distinction between positive and negative rights?

  2. Do you agree that my interpretation of the Ninth Amendment is reasonable even if you do not believe it to be correct?

  3. Do you agree that Scalia would hold that judicial amputation is not forbidden by the 8th amendment?

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  1. :rolleyes: Spare me the patronization. Positive rights are those requiring effort on the part of of others, e.g., a “right to health care,” a “right to trial by jury.” Negative rights are proscriptions on government action, e.g., a “right to free speech.”

  2. Irrelevant. I endeavor to discuss things in good faith, so long as that good faith is returned.

  3. Scalia would most certainly be against “judicial amputations,” as I’m sure he would want to preserve his own appendages. :smiley:

But seriously – I’m not sure if the phrase “life and limb” as understood at the time the Constitution was written would include amputations – AFAIK, amputation has never been a common feature of criminal justice in the Americas. This isn’t Saudi Arabia. I suspect it would have been understood as a term of art meaning a penalty of death or lengthy imprisonment. Thus, it’s likely that Scalia would find them unconstitutional.

In the unlikely event that the phrase “life or limb” did include amputations, then I suspect the question would turn on how the amputations were carried out. The eighth amendment’s cruel and unusual punishment clause is most clearly a proscription on torture. Saudi-style justice – clearly intended to inflict gratuitous physical pain in addition to the sentence of amputation – would likely run afoul of that. But a sterile amputation performed under anethstetic? I dunno – that might fit.

At any rate, the question is silly, one that our dear friend Libertarian would call a “giant squid question.” The American people simply would not stand for limb amputations as a matter of corrections policy under any circumstances.

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**

:confused:

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Sorry, a little hijack here. While amputation of limbs wasn’t, as far as I know, a common feature of American criminal justice, ear cropping, branding, and castration were, if not common punishments, not unknown punishments in English and colonial law. In fact, I believe, during the debates about the cruel and unusual clause, someone opposed to the adoption of the prohibition warned that it could be construed to prevent such punishments as croppings and whipping.

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What about the power of the legislative branch? It would be nice if they restricted themselves to the constitution 100% of the time, but they don’t. In spite of the fact that many of them are lawyers and should know better, they enact laws because they are popular and will get them re elected, often without much regard to whether it is constitutional.

I have more to fear from the legislative branch than the judiciary. The judiciary doesn’t MAKE any laws. They simply interpret laws and occasionally decide whether a law is invalid because it conflicts with the constitution.

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Well, Blaron, obviously I agree that the judiciary should strike down laws that are tacitly unconstitutional. The question is, “what makes something unconstitutional”? I would suggest that such a finding should be limited to rights found in the actual text of that document; anything else essentially makes the Supreme Court not only the final arbiter of the Constitution, but on US policy as well.

And there is a key check on the legislature that does not exist for the judiciary: they are elected periodically. If they do something stupid, they can be voted out of office. I am much more comfortable with power in the hands of a representative body like Congress because they can more easily undo what they have wrought – and must face the music when they do not.

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The problem I have with those who would disregard as irrelevant the original intent of the Constitutional text is, without at least that much constraint, what limitation can be placed on the power of a judge?

In other words, if there need be no reference back to the text of the Constitution, what is to keep a judge from saying “the law is what I say it is”?

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Who says there is “no reference back to the text of the Constitution”? Allow me to explain.

While I agree in principle with most of what Dewey has said in this thread, where we part ways is in the application of those principles. The parts of the Constitution that create so much disagreement are not exactly detailed instructions for how to run the Republic. They are broad statements that could mean any number of things, but at the same time, they are the most important laws in the country, and they have to be given some kind of interpretation. Strict textualism, historical originalism, legal realism, whatever floats your boat.

But no matter what–if any–interpretive philosophy a court applies to a Constitutional provision, you know what? They’re still referring to the text of the Constitution. What the hell does “Equal Protection” mean? Beats the shit out of me. The guys who wrote and passed it sure didn’t bother to exlain themselves–they just guaranteed everyone “Equal Protection.” It’s a legal inkblot test, and that’s the way they wanted it to be.

So you’ve got this Equal Protection thingie, and a question comes before the court. Say it’s Romer v. Evans, the gay rights case Dewey declined to discuss above. Colorado’s got this law that says state and local goverments in Colorado cannot prohibit discrimination against persons based on their sexual orientation. Does that violate the constitutional guarantee of equal protection of the laws?

I dunno. One the one hand, you’re talking about (at least primarily) private persons deciding whether or not, for instance, to rent their property to a gay man–no law involved, really. On the other hand, the challenged law identifies a single group–homosexuals–and specifically provides that local governments can’t do anything to protect them from discrimination. You wanna protect disabled people, or immigrants, or redheaded stepsons from discrimination, that’s no problem, but you can’t do it for them queers. Thus, there’s also a good argument that this law does deny equal protection of the laws.

And you know what happens next? The court looks at the law being challenged, the court looks at the constitutional guarantee of “equal protection of the laws,” the court looks to its past decisions involving the EP clause, and it issues its decision. Just like the guys who wrote and passed the 14th Amendment intended the court to do when they declared, broadly and without any specific instructions, that everyone gets the benefit of equal protection under the law.

Well done, guys. Thanks for not being a bunch of anal retentive nitpickers when you wrote that one.

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minty: One thing I’ve tried to make clear is that I’m more open to interpretations of things that actually are present within the text, e.g., the equal protection clause, for precisely the necessity reasons you cite above.

My bigger beef is with interpretations that either write in entirely new provisions into the constitution (e.g., a broad “right to privacy”) or that are facially contradicted by the text (e.g., the death penalty as a "cruel and unusual punishment).

The former is at least arguably limited to textual interpretation; the latter is nothing short of a judicial power grab.

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But the “right to privacy” (actually, just a small number of individual rights recognized by the courts, primarily in the area of reproductive freedom) is based in the text, Dewey. That was the entire point of my post.

The 14th Amendment guarantees “Due Process.” That guarantee regulates not only how a law is to be applied or carried out (procedure, juries, courts open to the public, etc.) it regulates whether a law can be applied or carried out. For instance, the government simply has no authority whatsoever to stick you in jail if you don’t wear a cummerbund and tie while driving a car. Such a law would be so arbitrary, unreasonable, and downright stupid that no application of it can be consistent with our notions of “Due Process.”

(I know you don’t need a refresher on substantive due process, Dewey–it’s for the benefit of the audience.)

So, now that we know laws can sometimes violate due process just because they’re so fucked up, the question is whether that principle applies in a particular case. For the most part, the answer to that question is no. In fact, substantive due process forbids the government to act in only a very, very few areas. But one of those areas is makin’ and raisin’ babies.

A long, long time ago (like a century ago, if memory serves–you can’t blame this on the Warren Court), the Supreme Court decided that a law that prevented parents from teaching their children in the parents’ native language was just so ridiculously stupid and contrary to our system of well-ordered liberty that it couldn’t survive challenge under the Due Process clause. That established that, broadly speaking, Due Process protects parents’ right to control how their children are raised–an eminently sensible position, and one that I have no problem seeing as a matter implicated by Due Process.

The next step, obviously, was whether parents could also decide whether or not to have children at all. As we all know, that is indeed something that the government cannot regulate without violating Due Process, except in the most limited of circumstances. Thus, laws prohibiting the possession or use contraceptives, criminalizing abortion, and preventing consenting adults of opposite genders from screwing themselves silly simply cannot be applied or enforced without violating Due Process.

The “right to privacy” you disparage as being extra-constitutional is really little more than a shortcut nickname for a particular area of the Due Process clause. Thus, contrary to your strict textualism argument, there is indeed a textual basis for the rights that are recognized within that realm of “privacy.” That texutual basis is Due Process, which, like Equal Protection, was intentionally kept broad and without detailed instruction on how it was to be applied. Again, thank goodness for the lack of “textualist” nitpickers in 1865.

As for the death penalty, hey, no more than a handful of judges have ever declare execution to be per se a violation of the Cruel and Unusual Punishment clause. It’s entirely clear that the death penalty is constitutional in principle, and anybody who argues otherwise is either delusional or ingnorant of the law. It is, of course, a different question altogether whether the death penalty as applied is constitutional. That’s what the Supreme Court decided back in the 70s when it temporarily barred executions and told the states to get their act together.

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I’m disappointed that Dewey refuses to answer this question. I suspect the problem is that he knows that he must admit my interpretation is reasonable.

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I was not intending to be patronizing. From your posts, it appeared that you did not understand this distinction. Since you do understand it, you should admit that a government protects negative rights by doing nothing. There is no need for a constitutional provision that authorizes a legislature not to pass a law.

**
Well, no, probably not according to Scalia, anyway. 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.

**
I wish. As Captain Amazing points out, physical punishment was a feature American law. IIRC, Up until 1996, California authorized involuntary physical castration for some sex offenders serving life sentences. Up until at least the late 1960s, some American states used flogging to maintain prison discipline.

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You didn’t make it clear that this amendment to the Colorado constitution was indeed found by SCOTUS to be in violation of that guarantee. 6-3, in 1996. In case anyone was wondering.

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minty: “Substantive” and “due process” are, quite frankly, a contradiction in terms and should not be used side-by-side, much like “rap” and “music” or “Britney Spears” and “virgin.” I’ve always found it odd that the courts could consider a guarantee of process could mean anything more than procedural fairness – the right to be heard. The very term is an abuse of the text. The term is not one rooted in the text of the Constitution – it is the redefinition of words that happen to be in the Constitution to suit particular policy ends. Black is white, day is night.

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. Arbitrariness, unreasonableness and stupidity are very much in the eye of the beholder; why the courts are better arbiters of such matters than the duly elected representatives of the people who have to live under those policy choices is really quite a mystery.

And yes, I understand that this is a doctrine that’s been around awhile. This is unsurprising; why should the judiciary be any different than any other branch of government in seeking to expand its power? That doesn’t change the ridiculousness of the doctrine. Just consider the bootstrapping required to find an abortion right: “substance” must be bootstrapped from “due process;” “privacy” from “substance;” “birth control” from “privacy;” and “abortion” from “birth control.” The end result is so far afield that you need a telescope to see the Constitution from whence it supposedly came.