We could follow the Swiss example: King Charles XIV was originally Jean Bernadotte, one of napoleon’s generals. But the Swiss, whose own King was childless and pretty shaky to boot, looked around and decided that Jean Bernadotte was a pretty sharp guy. So they simply decreed that he was heir to the the throne, and he became Charles XIV, by all accounts leading the country through a long, peaceful, and prosperous time.
The only trouble is that the supply of Jean Bernadotte-like guys is strictly limited.
I fully agree. Some things are nobody else’s busines. I don’t think anyone would disagree with the general idea, but they fight like hell over the details.
Again, I agree. There is a difference between limiting acitivities for public safety or general welfare, and banning them because “Joe Sixpack” or Reverend Brimstone just doesn’t like it. However, both sides may still try to impose their view. Someone has to win, the other has to lose. There probably have been cases or arguments that I as a non-lawyer would reject and throw out, but then that would be Steve the Autocrat - not law, and not democracy. I believe we DO have rights that are not listed or enumerated, as the 9th or 10th (?) Amendment says. But I also understand that some rights or privileges may be limited or curtailed for public safety and general good - I have a right to own a gun, but I don’t have a right to fire it in random directions on a city street - I have a right to free speech, but I don’t have a right to yell Fire for no reason in a crowded theater. I never subscribed to any philosophy that said we only have the rights that “they” give us.l “They” have the power to set limits on certain freedoms, they have to actively do something. There is no deffault of NOT having a right. The default is, you have it unless the city or state or federal gov’t sets a limit or bans it outright.
I’m starting to think that with textualists, you get a decision based on what the law says, directly from the words. If the law sucks, it can always be rewritten or repealed. If you use a “broad penumbra and some-other-word”, then you really open the door for the ideologues and the people who have an agenda. Textualists seem to be self limiting. The penumbra guys set no limits, the only limit is how far they can stretch the verbage their way, or “read the minds” of old dead guys (Founders). If they are ignoring the words of the law (as I think someone int the thread said?)and setting their own morals/wishes in place, then they are grossly overstepping their bounds.
Again, there is a place for both the narrow and broad interpretations. It depends on the case, the factors involved, and MOST OF ALL, the competence and honesty of the judges. If a judge rules counter to what he personally feels at the time of the ruling, because of what he understand the law to say, that tells me we have at least an honest man on the bench, even if I hate his decision. He told the truth, even if it isn’t what we want to hear.
If the laws suck, if the gov’t is sticking its nose where it doesn’t belong (which is what I sometimes feel), then the blame lies with the writers of the law (Congress). They made the law, the law sucks, then the people in Congress suck. Elect someone else. Throw the rascals out. Clean house.
While that language certainly evokes strong agreement, it leaves unanswered what I feel are basic critiques: when you grant judges the power to go beyond the language to do “equal justice under law,” what is your basis for reining them in when your idea of “equal justice” no longer comports with theirs?
You would agree with applying the Equal Protection clause favorably to same-sex marriage, because you believe that result is equal justice under law. But what about the next set of judges, who honestly and fervently believe abortion is a sin, a crime against life, and so they apply the Equal Protection to mean that all lives, born and unborn, are equally deserving of protection?
They are acting precisely as you told them to act.
But the problem is, your belief that laws concerning economics help society is no better or worse than another person’s belief that laws concerning personal matters help society. For example, there is a principled argument for eliminating the minimum wage just as there is a principled argument for eliminating laws against abortion (and prostitution, too, btw). You don’t get to just say: well, my principled argument are right and yours aren’t. We resolve that in a constitutional democracy by saying: you can’t touch the stuff in the constitution, but otherwise it’s majority rule. And the constution is open to widely differing veiws of interprations (hence this type of debate).
Additionally, there are many people who make a principled argument for federalism, and who would say: MW laws at the state level are fine, but not at the federal level. Or, abortion laws at the state level are fine, but not at the federal level. Federalism adds an entirely new dimension to this argument. I’m a strong federalist (as is Scalia), and I take a much narrower view of what is acceptable on the federal level, than I do on the state level.
Polycarp: Yes, I have to admit I was surprised at how sloppy some of my earlier posts were in terms of painting with a broad brush. I’d be interested in hearing your comments about that last post I wrote in response to yours. Particularly re: narrow vs broad interpetations being the main issue, and how you would resolve that delima, if indeed you agree that it’s a dilema in the first place.
So all that bitching you’ve done about the few cases you’ve tried (and failed) to show have been the result of this bugbear of yours has been simple, impotent whining? You advocate NOT using this huge and growing mass of settled case law as the means to decide future cases, but instead would use some vaguely defined and unrealistic philosophy that can be fairly described as idiosyncratic. That would indeed be “judicial activism” in its most naked form.
And that IS in the cause of reactionaryism. You DO want to move the clock back. You DO want to move the calendar back, even though you cloak that desire under a grudging acceptance that it can’t realistically be done. You’re no realist or even ethicist, you’re a reactionary who lacks the courage to act upon his convictions.
No. He (and Scalia as well as others of that school) DO advocate using those settled cases as dictated by the concept of stare decisis, but NOT to create NEW precedents that will then have to treated the same way. No new Roes.
Scalia’s philosophy is no more vague than any other philosophy, and a lot clearer than many. The fact that you don’t like it doesn’t make it “vague”. Your problem is political, not intellectual. Scalia is well regarded as a legal thinker by jurists across the political spectrum. Few crticize his intellect or crticize him for a lack of philosophical clarity-- they criticize him on political grounds, as you are doing.
Yes, it is a lot more complex than “do you agree that *Roe *is settled law, and please answer simply yes or no”.
Scalia does believe that one must look beyond the simple rightness or wrongness of a given decision before deciding whether or not it should be overturned. One must look at whether a ruling to overturn would do more harm than good. He views it as a pragmatic exception to his judicial philosophy-- that the law must not only be “right” but that it must not swing wildly from one to extreme to another.
Perhaps he might conclude that overturing Roe would not, in fact, result in great social upheaval, and that overturning it is the proper course of action. And he might be right-- one likely scenario of a rash and (seemingly) arbitrary repeal of Roe would be that Democrats would sweep into power at all levels of government (state and federal) and that abortion rights would be added to the constution. At a minimum, they would be found to exist at the state level in most states. But I don’t think he would simply ignore the possibility of social upheaval altogether.
Would it be possible for the SCOTUS (as the MA court did for SSM) to phase out a constitutional ban on state anti-abortion laws over time so as to give the legislatures (both state and federal) adequate time to adjust? If so, that also could be a way to minimize the impact. It sure would create an interesting **political **atmosphere if the country knew that *Roe *woudl expire in, say, 2 years.
Personal opinion, so take it as it is given (underlining mine). I highly doubt Scalia, or O’Connor, or any other honest judge would consider partisan politics as part of the decision process - social chaos maybe, party loyalty never. To do so would violate their charter, the purpose of having an independent Supreme Court, and would also violate their own personal philosophies or code of honor.
If portraying the repeal of Roe as a serious threat hasn’t had that effect in over 3 decades, would the fact of it really change the situation all that much? If anything, Roe’s existence has (along with playing up the threat of the Homosexual Agenda, something Scalia has commented upon in a legal opinion at that) helped draw RR supporters out of the woodwork to vote Republican, and has helped convert many others to the RR POV.
Does Scalia mean that he wouldn’t overrule a constitutional precedent only if there were textual support for the precedent, or does he mean that he agrees with the approach from which he dissented in both *Casey *and Lawrence?
The Court has a lot of discretion in its decisions regarding remedies. See, e.g.,Brown v. Board of Education(ordering desegration “with all deliberate speed”); and see, Supreme Court Rule 45 (Court or a Justice may extend the time for issuance of mandate). Conceivably, the Court could stay its order for any length of time. But I doubt Scalia would agree to such a decision.
Sorry if there was confusion. I didn’t mean to imply that Scalia would (or should) consider whether his decision would cause a change in the poltiical power structure at any level. I only used that as an example to counter the commonly held belief among some that it’s too late to reverse *Roe *due to the instibility (social, not political) it would cause. It’s unclear to me that it would do so, especially if it were phased out over time.
Gfactor: I’m going from memory after just having read his book a few weeks ago, but I’ll see if I can dig up some specific quotes later. My memory might be wrong. I don’t know about Thomas-- I haven’t read any of his writings.
It’s all good, John. As for Bush vs Gore, I just read it so it’s fresh in my mind. It’s embarrassing, but I have no idea what the hell it says. I’m far from illiterate, but goddam it all looked like double-talk to me.
Maybe a thread should be titled Justices: What the heck are they saying (slap self)
