I disagree. The people retain all rights and all powers not specifically circumscribed (rights) or granted (powers). I think it’s the justices job to see that government doesn’t overstep the bounds.
IOW, to keep employers from working people like dogs and claiming they’re “Happy” with it. You may want the money, but 15 hour days are hell. I’ve worked 'em on occasion.
And are those bounds not your rights?
Unless he’s got a life-time pass to use Proffesor Peabody’s Way-Back Machine, he has no more of an idea of what the Constitution was “understood” to cover at the time it was written than anyone else. What’s he doing, going back and asking “Hey, what exactly did you mean by this?” No, of course not. He’s basing his analysis on what he thinks the Framers meant, based on the limited record that they left behind.
It’s actually a little more complicated than that, even. After all, the Framers only drafted the Constitution. It was the States who gave it legal effect. The same goes for amendments. So it is the intention of the ratifiers that is most important.
See, Jack Rakove, Original Meanings : Politics and Ideas in the Making of the Constitution. You’ll notice Scalia skirting this issue, by referring not to the Framers, but to the Founders, E.g., http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-6696#dissent1.
Maybe I am taking things out of context, but looking at the words I quoted (the text), if a justice says we have more rights than the constitution requires, it is s way of saying “OK, you have these rights because they are listed and required, so dammit we can’t take them away”. That is what the text suggests. This seems to agree with the whole Patriot Act thing, where we supposedly do not have certain rights to privacy or due process (all of a sudden). These rights are not specifically worded in just the right way to let’s say prevent searches without warrant, or to prevent indefinite detainment without speedy trial or ability to face accusers under some “enemy combatant” definition.
Likewise, there is the statement that suffrage is not constituionally provided for. That seems to hint that voting could be done away with because it is not specifically listed as a right.
Maybe I am completely wrong in how I read it. If so, show me.
I got tired of waiting for “stuff to happen” so I went on my own “fishing trip”.
From a quick Google search.
So far so good.
Again, sounds good.
OK, here we have provisions for stopping “tyranny by the majority”. However, to use an extreme example, at one time slavery was considered traditional and proper. I could go either way on this one.
Freedom of religion and the alternate freedom from religion - Just as there shall be no government enforced religion, there shall also be no government enforced prohibiton of it - total noninterference. I like that.
I take it then that he is completely against the “enemy combatant” indefinite detainment with no charges or trial ??? I seem to have missed that one (?)
All in all, Scalia may not be the jerk I thought he was. But, why don’t I get the “warm fuzzies” about him? However, on the question and SC ruling about eminent domain, I would buy him a shitload of drinks for his dissenting opinion.
In a word, yes (see my posts therein).
Enemy combatant: Are you talking about US citizens or non-US citizens (captured outside the US)? Those two groups have widely different rights under the US constitution. But if you’re talking about the former, read what Scalia wrote in Hamdi:
Basically, he’s saying: Either Congress has to suspend habeas corpus (which they haven’t done) or he must be tried, or he must be let go. He cannot be detained indefintely.
As for why you don’t get the warm and fuzzies, only you can answer that. He can be abrasive, and he doesn’t suffer fools gladly. But people who know him say he’s a fun guy. I think a lot of really smart people can come off as ass-holes because they don’t have patience for peolpe who aren’t quite so smart.
After my tiny bit of research, I believe he would insist on keeping habeas corpus intact for any American citizen arrested in the USA. It sure looks like, he is also saying it extends to a US citizen who was arrested out of country, unless Congress changes the rules through legislation. Maybe my dislike has more to do with political spin and preconceptions. **I need to rethink my opinion of him. **
You are to be congratulated on using words that are rarely seen on this message board.
There is lots of room for argument about what the various clauses and amendments mean, and we can argue whether things should be interpretted broadly or narrowly. Where we get in trouble is when one side of the debate says they must be interpreted one way or another, and implies (as the OP has) that the other side is evil because that side has chosen one method of interpretation over the other.
That’s exactly what he’s saying. And he’s saying it because the Constitution clearly specifies that Congress may change the rules. If they don’t, the executive has no power to create new rules, and the courts have no power to create new rules either.
Bricker , I’ve followed your arguments on this board for quite a while, and I understand your perspective (I question it some, but I understand it). I’m genuinely curious - where does Marshall’s decision in Marbury fit into your view of the role of the Court? Was he the ultimate activist judge? If not, why not?
We’ve talked about this part before, so you already know I agree with it. Only Conress can MAKE law. The courts interpret, and the president executes/enforces.
If you meant that Scalia’s job description was to protect the rights of the people, including those rights not specifically spelled out as protected, then we are on the same side. However, if you mean that only those rights that are spelled out in the Constitution should be protected, as Scalia has said, then we are on opposing sides.
I once had a conversation with a lawyer and he told me of a case he was involved in. He was part of a team that was defending a state’s prison system. The plaintiffs had produced a massive amount of evidence of widespread problems. The defense attempted to make the argument that the Constitution prohibited “cruel and unusual” punishment and that the incidents described while bad were common-place (by the plaintiff’s own evidence). So while it might be cruel, it wasn’t unusual.
This case happened back in the 1970’s, so the judge threw out the argument and said that “cruel and unusual” meant “cruel and/or unusual”. But would a constructionist judge have ruled otherwise? The Constitution says “and”; the word “or” existing back in the 18th century; and the authors of the Constitution knew the difference between them. So can we assume Madison would be okay with having prisoners devoured by rats as long as it happened a lot?
I said that it is his job to determine what our rights and the governments are–as can be determined from the constitution, bill of rights, etc.–and tell them to us. This has nothing to do with protecting people, nor limiting our rights to those already specifically written down. The SCOTUS does not work to protect anything. It is a court, it sees cases and determines what the answer should be based on what laws there are. It only metes. Creating rights is not the job of the court, but of congress. If a right is not protected, saying “It is not yet protected.” isn’t being lax, it’s being honest. Pointing out that it isn’t protected yet just enables congress to get to work on it. Pretending that it is and stretching unrelated laws to cover the situation is a case of the judges of the SCOTUS creating law based on their opinions. And as they are not elected representatives of the people, their opinions officially don’t mean squat in terms of determining what the people want.
A textualist jusdge may indeed say that it is only “and” and should be read as such. But all that that means is that you write off a law fixing the wording to be “and/or.” Sure it took an extra day, but now you have a legal text that is accurate to what is desired by the populace. I see nothing wrong with this (to an extent of course.)
That’s where we disagree. We the people can do whatever we please unless prohibited by a law which has been shown to be necessary to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity.
No, the court doesn’t actively seek out rights to protect. However in my opinion whenever there is a question brought to them about a law that limits our freedom to do as we please I think it is their duty to insist that the law have a solid justification.
Our rights are not granted to us by any ruler. Our government wasn’t established by divine right, whatever that is, but by We The People. When the people establish a government to their specification it is ludicrous to imagine that same government has to turn around and grant rights to the people. It is true that without force to compel the respect for the rights then rights are only theoretical and I think it the duty of our courts to provide that force.
Scalia objects to the right of privacy because it isn’t spelled out specifically in the Constitution. I maintain that Scalia and his ilk notwithstanding, the right to privacy and to be left alone to do our thing is inate and can be abridged only for exceptionally good reasons, and our courts should demand the reasons be shown whenever the issue is brought to them.
Ah, but here is where you make the mistake that many people make. The Constitution was carefully crafted to allow for slavery. It would never have been ratified otherwise. A pre-Civil War Justice who voted to strike down laws recognizing ownership of slaves would have been making a wrong decision. Slavery may be morally wrong, but it was not at the time unconstitutional. Judges are given the job of telling us what the Constitution says, not of imposing their own moral values on the rest of us, however lofty and correct those values may be.