# Originalist Justices: What the heck are they thinking? **URL:** \ **Category:** Great Debates\ **Created:** [September 14, 2005, 9:01pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664 "2005-09-14T21:01:24Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 16, 2005, 11:01pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/81 "2005-09-16T23:01:14Z")
> [@John Mace](#): > > As for laws that restrict freedom, that’s just too vague. “Freedom” in an absolute sense is simply not covered in the constution, and few would argue that it should be. If the constiution enshrined “freedom”, then pretty much every law would be challengeble. Pretty much all laws are challangeable now aren’t they? I don’t think the idea of preserving and protecting freedom is all that vague. It seems to me that there are some valid tests for laws that restrict our freedom. The preamble to the Constitutions sets forth the objectives aimed for in adopting the document as the law of the land. Test 1 would be to ask if the law protects against a threat to one or more of those preample objectives without unduly impacting the others. If the law doesn’t do this it fails. Now the seriousness of the threat needs to be taken into account when considering the importance of the impact on the other objectives. A dire threat to the common defense, for example, might very well mean that the law could impact securing the blessings of liberty a little bit more than would otherwise be the case. Test 2 would be that such a law is necessary in that it is the _only_ way the threat can be removed or ameliorated. If the law doesn’t pass this test it also fails and Congress should get to work on the other ways to do the job. This test doesn’t allow Congress to pass a law restricting feedom just because it is the easy way out. And as an aside. The august and learned Justice Scalia and our royalists on the board keep harping on there not being a right of privacy mentioned in the Constitution. Well, there isn’t a right to life mentioned there either, and the preservation of all fetuses isn’t one of the goals mentioned in the Preamble. ---
**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:** [September 17, 2005, 12:16am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/82 "2005-09-17T00:16:50Z")
> [@David Simmons](#): > > And as an aside. The august and learned Justice Scalia and our royalists on the board keep harping on there not being a right of privacy mentioned in the Constitution. Well, there isn’t a right to life mentioned there either, and the preservation of all fetuses isn’t one of the goals mentioned in the Preamble. There isn’t a right to life, but there is right not to be deprived of life without due process. Additionally, the 5th amendment clearly states that anyone accused of a capital crime (ie, someone whose life may be taken away) must be indicted by a grand jury. You have a right to due process, which is meant to protect your life from being taken away capriciously. Besides, you misstate Scalia’s argument against _Roe_. He isn’t arguing that the fetus has a right to life to be protected by the feds, but that the states have the right to regulate abortion. If your misstated argument were correct, Scalia would agree to strike down state laws allowing abortion-- something he would not do. What Bricker is arguing (your “royalist” _ad hominen_ notwithstanding) is that an expansionist view of the rights in the constution \*\*could \*\*support the granting of a right to life (subject to due process) of a fetus. Not that he would support such a view, but a “conservative activist” judge might do so as an analog to what “liberal activist” judges do. And if you support liberal activism, you cannot, on principle, object to conservative activism. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 17, 2005, 2:06am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/83 "2005-09-17T02:06:44Z")
As a recently “enlightened” person, I think maybe it is best to go right to the source here. _On the role of the Judge: “I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that’s what it says, that’s what it says.” – Anotonin Scalia_ That is the job of being a judge, plain and simple. The answer, and hence the final ruling, may not be what a Judge Scalia or Judge O’Connor wants it to be, but it is their job to tell us what that law says and what it means. I could easily imagine either of these judges saying “This is a stupid goddam law but here is what it says”. It may be stupid as hell and yet not violate the Constitution. If it is a bad law, it should be amended/changed/repealed by Congress. Prohibition is a good example of a stupid law that was repealed by Congress when it was shown to be a failure. It was not unconstitutional, since there is no guaranteed inalienable right to get stewed to the gills but still it was a dumb law. _On legislating from the bench: “Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis.” – Antonin Scalia_ I can hear the sarcastic tone in there. It is a pretty good view of the dangers of depending on “judge activism”, of depending on judges to make the law. Activism is OK, until the judge rules against what you want. Then suddenly it’s a bad thing. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [September 17, 2005, 3:30am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/84 "2005-09-17T03:30:46Z")
> [@David Simmons](#): > > The rights that the people retain relative to the federal government were extended to the people vs. the state governments long ago. Some of them were. Most weren’t until the 1950s. A few still aren’t. But that wasn’t the part of your argument I was addressing. You had said: > [@](#): > > There is no need to bar Congress from restricting early abortions because that power was not granted to it in the first place and you’re right. Whether the right to have an abortion is a constitutional right or not, it’s still outside of Congress’s power to regulate or ban. But, if you assume it isn’t a constitutional right, a state can still ban it. States can do pretty much anything they’re not either explicitly forbidden by the constitution to do, or that violates a constitutional right that has been incorporated. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 17, 2005, 3:47am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/85 "2005-09-17T03:47:41Z")
> [@John Mace](#): > > There isn’t a right to life, but there is right not to be deprived of life without due process. Yes a person “born or naturlized in the United States” can’t be deprived of life without due process. There is no way texturally or by the history of the 14th amendment to make that apply to a fetus. > [@](#): > > Besides, you misstate Scalia’s argument against _Roe_. He isn’t arguing that the fetus has a right to life to be protected by the feds, but that the states have the right to regulate abortion. However I think he bases his dissent on his argument that there is no right to privacy specifically stated in the Constitution and therefore the federal government has no standing to protect a woman’s right in this matter from state laws. > [@](#): > > If your misstated argument were correct, Scalia would agree to strike down state laws allowing abortion-- something he would not do. As long as we are guessing what Scalia would do I’ll play too. I think he would find another objection. His personal philosophy is against abortions and my guess is he would invent a dissent if necessary. > [@](#): > > What Bricker is arguing (your “royalist” _ad hominen_ notwithstanding) . I call the attitude of those who claim we only have the rights specifically granted by the Constitution “royalists” because I think they are stuck in earlier times when all rights belonged to the sovereign who magnanimously, like King John with Magna Carta, granted a few to his subjects. As I have said before, James Wilson who was a signer of the Declaration of Independence, an important figure in the Constitutional Convention, and a Supreme Court Justice argued against the inclusion of a Bill of Rights. His argument was that such a list couldn’t possibly be exhaustive as to the rights of the people and those not listed would come to be considered as nonexistent. And he was right. That is what has happened. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 17, 2005, 4:21am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/86 "2005-09-17T04:21:33Z")
> [@David Simmons](#): > > I call the attitude of those who claim we only have the rights specifically granted by the Constitution “royalists” because I think they are stuck in earlier times when all rights belonged to the sovereign who magnanimously, like King John with Magna Carta, granted a few to his subjects. Just a nit to pick. King John didn’t sign the magna Carta out of the goodness of his heart. The nobles and barons made him sign it, it was “an offer he couldn’t refuse”. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 17, 2005, 5:59am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/87 "2005-09-17T05:59:33Z")
> [@David Simmons](#): > > There is no need to bar Congress from restricting early abortions because that power was not granted to it in the first place. The power to restrict murder was granted to Congress every bit as much as the power to restrict early abortion is. That is to say, neither is mentioned in the Constitution. Congress has the right to create any law restricting **anything** so long as it does not violate a right granted by law to people in previous and higher level documentation. > [@](#): > > In order to do so I think the Congress would have to show that not barring such acts would prejudice national security, the general welfare, domestic tranquility and all such stuff. It is Congress’ job to act as the representatives of the people and to restrict actions which the majority feels protect the country, the general welfare, domestic tranquility and all such stuff. If you want to change it to laws being made based on reason, you’re going to either need to change the constitution to make the government become not beholden to the people, or do as you have been suggesting and give judges the right to make law (again, unbeholden to the people.) Good luck trying to get that passed. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 17, 2005, 6:07am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/88 "2005-09-17T06:07:05Z")
> [@Sage Rat](#): > > Congress has the right to create any law restricting **anything** so long as it does not violate a right granted by law to people in previous and higher level documentation. Sigh. quote]It is Congress’ job to act as the representatives of the people and to restrict actions which the majority feels protect the country… [/QUOTE] Sigh. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 17, 2005, 6:21am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/89 "2005-09-17T06:21:38Z")
Not my fault. If you don’t like the way the government is set up in the constitution, change it. But the above isn’t personal opinion, it is what the Constitution and its current set of amendments detail. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 17, 2005, 7:24am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/90 "2005-09-17T07:24:16Z")
In general, what’s the textualist view on the ninth amendment? ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 17, 2005, 8:21am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/91 "2005-09-17T08:21:24Z")
I am not a textualist (just making their argument) but to make my best guess: “Just because the Bill of Rights lists out rights, it shouldn’t be assumed that this is the limit of all rights possible.” So feel free to add more. It also seems to be indicating that the default state of any action not covered is “allowed.” I.e. that it shouldn’t be construed that rights not protected **shouldn’t** be viewed as being denied. But the wording could be improved to make that clearer if it is correct. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 17, 2005, 8:49am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/92 "2005-09-17T08:49:36Z")
> [@Sage Rat](#): > > **shouldn’t** -\> **should** ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 17, 2005, 9:15am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/93 "2005-09-17T09:15:04Z")
> [@David Simmons](#): > > As long as we are guessing what Scalia would do I’ll play too. I think he would find another objection. His personal philosophy is against abortions and my guess is he would invent a dissent if necessary. No, that’s what the “emanations and penumbras” crowd does. Where do you think Scalia’s personal preference was on detention of enemy combatants? How about on the government’s ability to seize property for public use? How about on the government’s ability to use infrared to search your house without a warrant? Now how did he vote on those cases? In contrast, show me a case where you think Ginsburg voted against her personal preference. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 17, 2005, 1:55pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/94 "2005-09-17T13:55:45Z")
> [@Sage Rat](#): > > Not my fault. If you don’t like the way the government is set up in the constitution, change it. But the above isn’t personal opinion, it is what the Constitution and its current set of amendments detail. But the Constitution just isn’t set up that Congress can pass\*\* any\*\* law it chooses. The legislative powers of Congress are set forth in Article I, Sect. 8 as follows: Section 8. 1. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; 2. To borrow money on the credit of the United States; 3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; 4. To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; 5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; 6. To provide for the punishment of counterfeiting the securities and current coin of the United States; 7. To establish post offices and post roads; 8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; 9. To constitute tribunals inferior to the Supreme Court; 10. To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; 11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; 12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; 13. To provide and maintain a navy; 14. To make rules for the government and regulation of the land and naval forces; 15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; 16. To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; 17. To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And 18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. As anyone can plainly see the Congress’ powers are specific and limited. In addition to the above Congress is further empowered by the various Amendments that require such empowerment to legislate so as to enforce the Amendment, but such laws must also be “necessary and proper” if the Constitution is to be construed strictly and in accord with its original intent. According to 17 in order to be constitutional a law must be [u/necessary. I take this to mean that there is not other way to correct the problem the law addresses. A law also must be proper which I take to mean that the law’s effects must be proportioned to the magnitude of the threat or problem addressed. For example, I don’t think a law that makes counterfeiting or refusing a woman the right to vote a death penalty crime would be constitutional. There are some other powers here and there in the Constitution but laws passed to enforce them must also be “necessary and proper.” So, you see, Congress can’t legitimately just pass any old law that its members, or a majority of the people want. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 17, 2005, 2:18pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/95 "2005-09-17T14:18:10Z")
> [@Bricker](#): > > No, that’s what the “emanations and penumbras” crowd does. > > Where do you think Scalia’s personal preference was on detention of enemy combatants? How about on the government’s ability to seize property for public use? How about on the government’s ability to use infrared to search your house without a warrant? > > Now how did he vote on those cases? > > In contrast, show me a case where you think Ginsburg voted against her personal preference. He, being the Dark Lord of Oppression and Tyranny (giggle), voted that government should not seize homes to benefit a corporation, not even under the pretense of generating more tax revenue. Ginsberg, supposedly being the Champion of Goodness and Light and Rights of Da Peeps voted for the “corporate seizure” of private homes. If the vote to “reinterpret” eminent domain so as to favor the rich and powerful went through, it was not his doing. It was the doing of those who claim (pretend?) to be for the people. It was done through a “creative” interpretation of the law, which he opposed. Good for him, he done good. He, being the dreaded Antijudge, also spoke against unreasonable search without a warrant more than once and also is on record as saying habeas corpus applies no matter what the President wants: > [@Scalia](#): > > “Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.” Hamdi v. Rumsfeld (2004) – Antonin Scalia > [@Scalia](#): > > There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. – Antonin Scalia That is the same as saying “better one guilty man go free than etc etc etc”. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 17, 2005, 2:25pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/96 "2005-09-17T14:25:41Z")
> [@David Simmons](#): > > So, you see, Congress can’t legitimately just pass any old law that its members, or a majority of the people want. Certainly they can, so long as the majority is convinced it is necessary and proper. And so, public nudity is outlawed. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 17, 2005, 2:31pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/97 "2005-09-17T14:31:39Z")
> [@Sage Rat](#): > > Certainly they can, so long as the majority is convinced it is necessary and proper. And so, public nudity is outlawed. That I have a problem with. It should be allowed for the good looking ones 😉 ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 17, 2005, 3:15pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/98 "2005-09-17T15:15:33Z")
> [@Sage Rat](#): > > Certainly they can, so long as the majority is convinced it is necessary and proper. And so, public nudity is outlawed. I said “legitimately” pass any law. The majority of Congress and the people being convinced isn’t enough. Outside arbiters, the Courts, must be convinced when the law is challanged. Public nudity probably passes as necessary and proper because of the need to perserve domestic tranquility. And, of course, all forms of public nudity aren’t banned by the various political venues. The bans are selective as to the place where the public nudity occurs. I do believe that a strip joint is considered to be a public place. So all of those laws easily pass the “proper” test. As to “necessary” I’m not sure. I suppose that the reason given, as in so many such things, is to “protect the children.” ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 17, 2005, 3:21pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/99 "2005-09-17T15:21:58Z")
I would support public nudity (for attractive people) as being a “pursuit of happness” 😃 ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 17, 2005, 3:32pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/100 "2005-09-17T15:32:01Z")
> [@SteveG1](#): > > I would support public nudity (for attractive people) as being a “pursuit of happness” 😃 You guys are hopeless optimists. Look, I mean really look, around you on the street sometime and see if public nudity would actually be such a boon to the pursuit of happiness. [Previous page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=4) [Next page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=6)