Food for thought, TS, from another thread:
From the Findlaw annotations:
Courtesy minty, United States v. Darby, 312 U.S. 100, 124-25 (1941):
Pfffttt. You left out the italics. Clearly, you were never the managing editor of your l. rev. 
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.
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?
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 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?
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.
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:
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:
**
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. **
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. **
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. **
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.
: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.
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.
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?
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.”
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.
Hey, let’s leave the present Republican admininstration out of this!!!
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.
Hate to hijack the thread back to the “Scalia is Nuts” OP, but here are some excerpts about the current **Lawrence v. Texas** case, centered on “fundamental rights” and “equal protection” issues.:
Ah, yes. Clear-eyed, non-biased objectivity–thy name is Antonin.
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. A full transcript will be available here in a few weeks’ time.
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.
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.
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.” **
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?
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.