How did you feel when Lawrence v. Texas overruled Bowers v. Hardwick?
Whoops. I didn’t check the schedule - Dewey, it’s still your week. I’ll take over on Monday.
The one I’ll name is Scalia. He is not a strict constrctionist. He is an originalist which is not the same thing as a strict constructionist. Nor is he a textualist. Again, I ask somone to name an influential strict constructionist.
Unfortunately you have only solved a mess of your own making. If you care to dispense with the strawman and address what I actually did say then we might have a discussion. A good place to start might be this wonderful quote I came across a couple days back:
I suspect no one is wedded to the label “strict constructionist.” I suspect that if that label means what you think it means, and the other labels similarly, then the anti-judicial-activism people will simply say: “I’m with Scalia, whatever you want to call his method, because it’s generally anti judge-making-law.”
2/9, Dewey, really. 
Not a strawman. Your basic premise was that there’s no way of telling what the Framers meant and that it’s pointless to try.
I disagree.
I am quite certain they didn’t want troops being quartered in your house.
I am quite certain they didn’t want newspaper editors being arrested for printing bad things about the Queen.
I am quite certain they did not want an Anglican-style state-established Church.
I am quite certain they had no intent to guarantee a right to sodomy.
This doesn’t require reading sheep entrails. It doesn’t require omniscience on my part. It simply requires reading the Constitution, the notes on the constitutional convention, the Federalist papers if you want, and the history of the times and of the pre-Revolutionary circumstances that led to the Revolution and to the enactment of the Constitution.
Are there closer questions as to their intent? Sure. What role did they envision the Supreme Court playing. I suspect that was never fully resolved during the debates, and that’s why I think Marbury represents a plausible, but far from obvious or necessary, result. What did the Framers think about whether a fetus was a “person,” and what would they think if they knew then what we know about embryology? Probably a hopelessly unclear or vague inquiry, though I suspect there was or would have been a consensus at that time that a fetus was not a person, so that if we wanted to establish a constitutional fetal right to life, we’d need to pass a new Amendment.
If you or your sources really are proposing that it’s hopeless ever to try to discern original intent, that strikes me as weird. By the way, courts inquire into and are informed by intent all the time – the manifest mutual intent of the parties is, for instance, the standard by which contracts are construed. Why isn’t that equivalent to reading sheep entrails?
Correct me if I’m wrong, but weren’t decisions such as Roe decided under an interpretation of the 14th amendment? Why didn’t the court use amendments 9 or 10 instead, and would that be more defensible to people who don’t like judicial activism?
I feel like you think you’re about to catch me in a “gotcha” moment. Before I answer, let me say that through these discussions I’ve moved a little towards your point of view in some matters so it’s possible I may contradict some of my past thoughts. Or rather, I’ve come to more fully appreciate the validity and logic of your view.
I see this as a flaw in our system. I am a strong Federalist. I would like to see the states in relation to the federal government as counties are to states. I realize that is not so; but it becomes problematic when you reach Article IV, especially "Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."
While living in Texarkana prior to Lawrence the Arkansas Supreme Court had ruled that the state constitution of Arkansas protected my right to have sex with a boyfriend on the Arkansas side of town. Yet the Texas law across the street made it illegal. So I was not entitled to all the immunities depending on whether I turned left or right at College Drive. But the Constitution said I was entitled to the same immunities. Obviously this is a conflict.
The straight foward answer is that if I am immune to prosecution for sodomy in Arkansas, then the Arkansas protection overrules the Texas ban. This means the will of people of the state of Arkansas is superior to the will of the people of Texas. This seems to conflict with the idea of the states being seperate entities and flies in the face of local rule.
The work-around has generally been to determine whether a right protected by a state is also protected by the federal government and therefore a right of a U.S. Citizen that, by the 14th Amendment can’t be denied by a state.
This gets us back to your objection that judges are creating rights that aren’t protected by the text of the U.S. Constitution. But since the Federal Government is quite limited, the ruling is often in favor of the right rather than the ban. I think this is a good thing; but inadequate.
I think at this point we both agree that the current system has a flaw. Where we disagree is the remedy. You think the flaw is that the Supreme Court is going too far in protecting unenumerated rights and the remedy is for legislators to pass legislation that protects (or create in your mind) additional rights. Your default is that the legislature is almost supreme unless explicitly limited.
I think the legislature is limited unless given specific power. I think the remedy is to more explicity state that the U.S. Constitution is the Supreme law of the land and state laws can only do what it allows and further weaken states into administrative entities only. I don’t yet have all the answers formulated, but I’m leaning towards the belief that the nation needs more standardization.
That’s a tough one to resolve.
Because I’m lazy, I defer to Bricker or DCU on your reading of the P&I clause.
That’s a rather expansive reading of the Privileges and Immunities Clause. Were it so, the P&I Clause would function as sort of a super 14th Amendment Equal Protection clause (prior to the existence of the 14th!).
The plain text does not give us a definitive answer as to what is meant by “privileges and immunities.” The clause finds its ancestry in an earlier clause of the Articles of Confederation, which guaranteed “free ingress and regress” from and to the other states, and all the privileges of trade and commerce. The purpose of the clause has thus almost always been interpreted as denying to States the ability to discriminate against citizens of other states in favor of their own. “Only Arkansas citizens may own property in Arkansas,” in other words, would be violative of the P&I clause – as would “only Arkansas citizens may engage in sodomy in Arkansas.” But it’s never been held to mean that because Arkansas citizens may lawfully engage in certain conduct in Arkansas, that creates a “privilege” or an “immunity” which other states are bound to respect within their own borders.
See Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869).
- Rick
I fully acknowledge that your reading is more in line with practice and my reading is expansive. I understand that the P&I Clause isn’t held to be as expansive as I read it. That’s why it takes a federally protected right to hold sway over state laws instead of a state protected right in a different state. That’s the reason I want a more limited, yet centralized, government. I want everyone to share the same freedoms throughout the nation. I want everyone to enjoy the benefits of a limited government.
I don’t remember the Lawrence v Texas case offhand. If it was the ruling nullifying sodomy laws or preventing governments from executing mentally retarded people then I would consider it activist. The same with Brown v the Board of Education. Mandating a racial hierarchy, capital punishment, banning consentual sex; these aren’t things we should be doing but I don’t believe it is the job of judges to reform society. We the people are supposed to have elected officials to do that job. So the answer is “yes”. Do you have a point here?
Do you see the difference between this and your earlier mischaracterization of my post? You know, the one with all the exclamation points? That was a strawman, n’est pas?
In any case, that is overstating it a bit. Sure there are some constitutional questions that are easy to answer. So what? Courts don’t have the luxury of deciding only the easy cases.
Do you have any understanding of how unreliable the early constitutional sources are? The federal convention was a secret meeting. Its official journal is little more than a record of votes and we are lucky to have that. It was nearly destroyed at the end of the convention. The best source we have are Madison’s notes and at the end of his life he altered them to enhance his own status as a Founder. The next best are the notes of Robert Yates which were edited by Citizen Genet to discredit Alexander Hamilton. After that it’s just fragmentary notes from a handful of others. Some of the ratification debates were recorded by Thomas Lloyd, a “Federalist”. “Antifederalists” complained he had eliminated their arguments. The “Federalist Papers” weren’t written as explication but as apologia. Hamilton, Madison, and Jay had every reason to portray the new constitution in the best possible light. The creation of the Bill of Rights is also plagued with mystery because the Senate considered them in secret so we only have the journal of “Antifederalist” William Maclay.
In short, the integrity of the historical record of the foundation of our constitution is tenuous. Sure some questions are easy to answer. For the rest… you can’t build a solid structure on quicksand.
Yes, I do. It’s just that this unreliability does not undermine the conservative/anti-judicial-activism debate as it actually exists (I am not sure if you would say it does undermine it, so apologies if that’s not your point).
The problem is that “judicial activisit” judges have (allegedly) purported to find rights that do not exist in the Constitution. Those who believe in original intent take the following path:
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Does the Constitution explicitly guarantee a right to abortion/sodomy/privacy? No.
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Does it implicitly extend these rights? It’s meaningless to say that a document “implicitly” guaranteed something other than to determine if we can infer that the document’s authors meant to or would have guaranteed such a thing.
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Did the authors intend to extend right “X?”
(a) we’re pretty sure they did, because from the context, it’s clear that calling your state church the “AmeroAnglican Church” and providing that the President, unlike the Queen, is not its head, does not differ sufficiently from the type of system the Framers were trying to prevent.
(b) we’re pretty sure they didn’t, because no one in 1865 society would have been okay with sodomy, so it’s ludicrous to suggest that the Framers meant the Amendment to extend a “right” to it.
(c) we’re just not sure what the Framers thought on this topic, so in the absence of any clear textual evidence (see step 1) or reliable original-intent evidence, we are not justified in inferring or creating a fundamental right in such a fashion as would limit the states’ plenary powers to legislate on all subjects not covered by such fundamental right.
Obviously you do not have to adopt this rubric as your framework for constitutional interpretation, but do you see why I think that either 2(a), or 2(b), can lead to the same result, even though 2(c) explicitly accepts your “original intent is murky stuff” premise?
Put differently, original intent is a tie-breaker. If there’s no clear intent to serve as a tie, the tie should be broken in favor of the absence of clear textual evidence (step 1). I suspect most constructionists/original intent folk are irritated by the notion that the murkiness of original intent can be used against them, which probably flows from the “activists’” failure to acknowledge that the burden of proof (from original intent, or somewhere else) is on them in view of the absence of any explicit provision of their hoped-for “rights” (step 1).
Also for 2(b) and 2(c) read 3(b) and 3(c).
On this you are flatly wrong. Scalia is indeed a textualist, widely considered a subset of strict constructionism. He is absolutely not an originalist (which is the other major school of strict constructionism), and indeed specifically opposes seeking legislative intent from sources other than the text of the document being interpreted.
I suggest you pick up a copy of his book, A Matter of Interpretation: Federal Courts and the Law, if you want to understand Scalia’s jurisprudential philosophy.
If you want to believe that rights exist in some metaphysical sense independent of those rights being protected and enforceable, that’s fine. It’s akin to a belief in God in that it’s completely unfalsifiable, but whatever.
However, since this thread deals with the judiciary – an institution of law – and its interpretation of the Constitution – a legal document – it’s a bit silly to suggest that “non-legal” rights are in any way relevant to the discussion.
No, it should be filled in by the ironclad, never-changing opinions of Internet message board posters! Because they’re so much more qualified!
Oh, there is no doubt that the Framers had no idea that Marbury was a’coming down the pike. Determining the validity of laws was not part of the English common law tradition upon which American jurisprudence was based, and obviously English courts did not engage in review of the constitutionality of English laws (there being no English Constitution). So it was a wholly new power, and if the Framers wanted the courts to have that power, they would have mentioned it.
That is one of the deliciously sneaky bits of Marbury. Marshall placed this power grab in a case in which he held that the judiciary lacked the power to grant the relief sought by Marbury: while vastly expanding the power of the judiciary, he told the plaintiff, “sorry, we’re too weak to do what you ask.” Machiavellian guy, that Marshall.
To this debate, the decision in Marbury has one salient value - it devastates the position of those believing in original intent. The original intent of the Framers was that the judiciary would have no business determining the constitutional validity of statutes. Thus, every judge who attempts to determine the validity of laws by applying the “original intent” of the Framers is violating that original intent. If Scalia were consistent with his own beliefs, he would dissent in every judicial review case, saying that it wasn’t the Supremes’ job to review the law in question. But he doesn’t. Hmm.
Sua
Homebrew, I also defer to Bricker’s post re: the P&I clause. Suffice it to say that the rule you appear to be trying to articulate would ultimately destroy the autonomies of the individual states, imposing conformity on social issues based on whatever the most liberal state in the union offers its citizens. Since I think legislative diversity among the states is a good thing – what’s right for Texas may not be right for New York – I think your view a poor one.