# Now serving #3... Samuel Alito **URL:** \ **Category:** Great Debates\ **Created:** [October 31, 2005, 12:46pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702 "2005-10-31T12:46:56Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 31, 2005, 10:11pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/121 "2005-10-31T22:11:19Z")
> [@Left Hand of Dorkness](#): > > Just for those of us playing along at home, you agree that child pornography It’s a state issue. States aren’t limited in their authority by the federal constitution. > [@](#): > > and advocating violent revolution ought to be legal? That’s the one that I think creates the most trouble for a strict constructionist. Doesn’t bother me. I’m pretty much a free speech absolutist. But Polycarp is using examples of strict constructionism, and there aren’t many strict constructionists out there. Scalia, for instance, is not a strict constructionist-- he’s an originalist who uses a textualist approach to determine original intent. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 10:18pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/122 "2005-10-31T22:18:37Z")
> [@John Mace](#): > > It’s a state issue. States aren’t limited in their authority by the federal constitution. Really? I know that they were not originally, but I thought later amendments so limited them. Under a strict constructionist reading, then, does that mean that a state could throw me in prison for saying, “My senator is a jackass,” or that my state could require me to convert to Southern Baptism or else pay a hefty surcharge on my income tax? These seem to me to be consequences almost as unfortunate as allowing kiddie porn. Daniel ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [October 31, 2005, 10:19pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/123 "2005-10-31T22:19:15Z")
I apologize that my last post was a little strong in wording. What I ought to say is just that it is seems to me that one is making a decision about which amendment should take precedence in a way that happens to support your basic philosophy. I am basically of the belief that “strict constructionism” and its variants are essentially code words for a judicial philosophy that really have no better objective justification than other alternatives. ---
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [October 31, 2005, 10:30pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/124 "2005-10-31T22:30:14Z")
OK, so a reader at Andrew Sullivan’s [blog](http://www.andrewsullivan.com) wrote the following: > [@](#): > > I linked to the website listing Alito cases and picked one at random - Doe v. Groody. Take a look at Alito’s dissent. > > What’s interesting about it is that it reaches a statist result (i.e., he believed that a search warrant authorized the search of two persons who were living in the residence to be searched but who were not listed among those persons to be searched) by ignoring the plain text of the warrant and relying, instead, on the equivalent of “what the legislature (in this case, the officers who drafted the application for the warrant and the proposed warrant) meant the warrant to say”. > > The warrant appears not to conform to the application - it was drafted more narrowly (perhaps by mistake), but c’est la vie. That’s not “strict constructionism” at all; it’s pure originalism. He didn’t decide the case strictly according to the text, using “originalism” to determine the meaning of an ambiguous provision. Instead, he overrode the text by reference to intent. [Here](http://caselaw.lp.findlaw.com/data2/circs/3rd/024532p.pdf)’s the link. I’m not legally trained so maybe I’m missing some important points–any legal Dopers want to comment on the assertion and dissension? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 31, 2005, 10:32pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/125 "2005-10-31T22:32:52Z")
> [@Left Hand of Dorkness](#): > > Really? I know that they were not originally, but I thought later amendments so limited them. Well, if we’re talking “strict construction”, then the 14th amendment would have spawned [incorporation](http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29) as it has. Even today, not all of the bill or rights have been incorporated. It was a slow process. > [@](#): > > Under a strict constructionist reading, then, does that mean that a state could throw me in prison for saying, “My senator is a jackass,” or that my state could require me to convert to Southern Baptism or else pay a hefty surcharge on my income tax? I don’t know about converting, but some of the states did support specific churches with tax dollars in the early 19th century. > [@](#): > > These seem to me to be consequences almost as unfortunate as allowing kiddie porn. But states have constitutions, too. In some cases they are stricter than the federal one (that’s how SSM was legalized in MA). I don’t understand this fear that the states are like children and must be supervised by the feds. A “strict constructionist” would say: if you want to apply the bill of rights to the states, pass an amendment that says to do just that. If you can’t, then maybe it’s not something the states want done. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 31, 2005, 10:34pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/126 "2005-10-31T22:34:27Z")
> [@John Mace](#): > > Well, if we’re talking “strict construction”, then the 14th amendment would have spawned [incorporation](http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29) as it has. Oops. That should be “would **n’t** have spawned…” ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 10:38pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/127 "2005-10-31T22:38:51Z")
> [@John Mace](#): > > A “strict constructionist” would say: if you want to apply the bill of rights to the states, pass an amendment that says to do just that. If you can’t, then maybe it’s not something the states want done. Whereas I would say, given how long they’ve applied, it’d be unwise to stop applying them suddenly. It could be that no such amendment exists because in our current judicial climate it’s unnecessary. And I’m not worried about states acting like children: I’m worried about states being overrun with prejudice. It’s happened once or twice before in our history, I recall, and I think that a federal government can act as a buffer against that sort of thing. Daniel ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 31, 2005, 10:46pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/128 "2005-10-31T22:46:40Z")
> [@jshore](#): > > I am basically of the belief that “strict constructionism” and its variants are essentially code words for a judicial philosophy that really have no better objective justification than other alternatives. The real issue, as I see is it, is whether or not originalism\* is a judicial philosophy that should disqualify someone from the SCOTUS. That is what some people seem to be advocating. I happen to think it’s a very good method of judicial interpretation, maybe even the best method. But I wouldn’t disqualify other schools of thought outright. \*I dislike the term “strict constructionism”, so let’s assume we’re talking about Scalia-style originalism ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 31, 2005, 10:52pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/129 "2005-10-31T22:52:25Z")
> [@Left Hand of Dorkness](#): > > Whereas I would say, given how long they’ve applied, it’d be unwise to stop applying them suddenly. It could be that no such amendment exists because in our current judicial climate it’s unnecessary. I would often agree (although not in every circumstance). I would prefer that some decisions hadn’t been made, but many of them are so embedded in out legal system now that you’d do more harm than good by overturning them. > [@](#): > > And I’m not worried about states acting like children: I’m worried about states being overrun with prejudice. How is that different? > [@](#): > > It’s happened once or twice before in our history, I recall, and I think that a federal government can act as a buffer against that sort of thing. And when “prejudice” resulted in government enforced racial discrimination, I would agree with you. The 14th amedment actually does place restrictions on the states. It speaks specifically to what states may not do. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 31, 2005, 10:52pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/130 "2005-10-31T22:52:56Z")
> [@John Mace](#): > > … don’t understand this fear that the states are like children and must be supervised by the feds… I take it you’ve never lived in Texas. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 31, 2005, 10:59pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/131 "2005-10-31T22:59:51Z")
> [@elucidator](#): > > I take it you’ve never lived in Texas. Too much brush, and it seems to always need clearing. But that’s a actually a good point. Texas does, shall we say “push the envolope” on some issues, and when they institutionalize\* racial discrimination, a plain reading of the constitution justifies a slap on the wrist. \*that is to say, put the force of law behind it ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 31, 2005, 11:10pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/132 "2005-10-31T23:10:11Z")
As long as Alito is left of **Bricker** and **Shodan** , the Constitution will survive. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 11:22pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/133 "2005-10-31T23:22:10Z")
> [@John Mace](#): > > How is that different? I don’t know many children with a history of turning a blind eye to lynchings, for one thing. The state has nothing sacred about it that makes it the wisest level of government. There’s no reason why it’s going to make better decisions than the county, the neighborhood patrol, or the federal government. A tension between all these levels seems ideal. Daniel ---
**Author:** ![Rachm\_Qoch](https://avatars.discourse-cdn.com/v4/letter/r/a8b319/32.png) [@Rachm\_Qoch](https://boards.straightdope.com/u/Rachm_Qoch)\ **Post date:** [October 31, 2005, 11:57pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/134 "2005-10-31T23:57:50Z")
> [@John Mace](#): > > > [@Left Hand of Dorkness](#): > > > > and advocating violent revolution ought to be legal? That’s the one that I think creates the most trouble for a strict constructionist. > > Doesn’t bother me. I’m pretty much a free speech absolutist. :dubious: Advocating terrorist attacks is OK too? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 1, 2005, 12:35am UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/135 "2005-11-01T00:35:33Z")
> [@Left Hand of Dorkness](#): > > I don’t know many children with a history of turning a blind eye to lynchings, for one thing. I think we’re entering the land of snark now… But let me ask you: What specifically did the feds do to stop lynchings? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 1, 2005, 12:48am UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/136 "2005-11-01T00:48:09Z")
> [@John Mace](#): > > …But let me ask you: What specifically did the feds do to stop lynchings? Not nearly enough. A legend has surfaced over recent years that paints the FBI as palladins of civil rights, visiting Federal wrath upon violent bigots. It is the utterest rot. Along with the charming myth of JFK as the original champion of civil rights. For all his faults, and they were legion, it was LBJ who did the heavy lifting. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 1, 2005, 12:58am UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/137 "2005-11-01T00:58:42Z")
> [@Rachm Qoch](#): > > :dubious: Advocating terrorist attacks is OK too? Define “advocating”. I can’t say I’ve given this a whole lot of thought, but if you mean standing on a soapbox and saying “I think terrorism against the US is justified”, then probably yes. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2005, 1:03am UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/138 "2005-11-01T01:03:48Z")
> [@John Mace](#): > > Define “advocating”. I can’t say I’ve given this a whole lot of thought, but if you mean standing on a soapbox and saying “I think terrorism against the US is justified”, then probably yes. If the right to free speech is absolute, I think it would have to cover the actual incitement to commit crimes, and perhaps even the speech among co-conspirators in planning those crimes. It could also disallow laws that forbid lying to investigators or aiding and abetting by speech. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 1, 2005, 1:05am UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/139 "2005-11-01T01:05:13Z")
Well, of course, “absolute” is a relative term. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2005, 1:25am UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/140 "2005-11-01T01:25:22Z")
> [@elucidator](#): > > Well, of course, “absolute” is a relative term. Absolutely. [Previous page](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702.md?page=6) [Next page](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702.md?page=8)