Huh? Certainly a state can outlaw possession and use of certain items, and prevent their entry into the state. But services? A resident of Utah can travel to Nevada to engage the services of a licensed brothel, and then return to Utah without legal consequence.
I was going to make a point about the Mann Act, but I see it was amended back in 1986 to proscribe only “sexual activity for which any person can be charged with a criminal offense.” http://straylight.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002421----000-.html
That means that a judge whose religion deems abortion immoral would have to conclude that abortion was “sexual activity,” which is a stretch.
As I have pointed out elsewhere , *Myers * puts original intent above the text of the constitution, which is anti-textualist. But Scalia claims he doesn’t do that:
SDMB rules explicitly prohibit wholesale insertion of copyrighted material. So, I am not in a position to copy and paste the entire in-depth article including copious face to face interview time with Justice Scalia that appeared in The New Yorker. Please feel free to search for it, however. My assertions are based upon his self-professed points of view regarding his position on the bench. Nothing more.
Gfactor, sure it follows. It doesn’t have precedent yet because the Justices have not been named, and state law has not been empowered by the overturning of Roe V. Wade.
Just because a state has not barred a citizen of that state from crossing their lines into a neighboring state to obtain services that they have deemed illegal doesn’t mean it cannot happen.
230 years ago, would anyone have guessed that an entire city in the United States would be ( more or less ) dry until fairly recently? Salt Lake City , and Utah , write their own law. Every state does. Just because nobody has said in state law yet, " No resident of State A may obtain an abortion as defined by Code ABCD1234 by crossing the state lines into any other state then return to their state of residence" doesn’t mean it cannot happen. Does it? Your cite of HR 748 supports my fear, it doesn’t disprove it. And I agree with you- inter AND intrastate abortion will be banned. Which comes first will depend upon how fast state legislatures act. However, anyone who thinks that all Conservative-run states do not already have the exact wording and proceedural paperwork outlining said laws in place, printed, proofread and vetted and ready to submit for committee work is deep in the River DeNial. Cause, everybody is ready for this. Just as Bush has had his short list for years, not days.
The very OP of this thread is about predicting future events based on what is happening- and heck, the day the OP was posted up, there wasn’t much real action on the Rhenquist resignation. Now, it’s all the buzz that Bush will have two prime spots to fill.
I will admit that while I am usually horrified by how Scalia votes, I am quite impressed by his deep dedication to the word. The Word of the Constitution. Interesting that he sees himself as a textualist first and an originalist second. He did not present himself as such in the New Yorker article I read, and as I said above, it was filled with interviews with him. Interesting. I have a lot of respect for his intellecutal acument, I gotta say that. I just think he’s one dangerous fellah to people who enjoy the liberties granted in the last 50 years…
Sheah, right. Read the majority opinion in Bush v. Gore and try to claim that’s a “textual literalist” ruling with a straight face. :dubious:
“Judicial activisim” is just a right-wing codeword for “a decision I disagree with.” The conservatives are perfectly happy to mangle laws if the ends suits their needs.
How many times have I posted here to refute that canard?
“Judicial activisim” may well be used by certain uninformed commentators in the way that you suggest. But used by principled observers, it’s NOT “a decision * disagree with.” You have been given examples of decisions I disagree with but do not characterize as judicial activism, and decisions I agree with but DO characterize as judicial activism.
I have no idea what a “textual literalist” is. A textualist is not a literalist.
For years, you’ve been happy with the prospect of substantive decisions of law being taken away from the legislature and made by the judiciary. I have complained this was a bad idea; I have been consistently told that it was a great idea and a great system.
It baffles me now to hear complaints. Surely, if the prospect of the judiciary having such great power and sway is so great, we shouldn’t be hearing any caterwauling now, should we?
Or did you support that system only as long as it delivered the results you wanted?
Ah, yes. Your post is your cite. We’ve seen that before. “Please feel free to search for it” doesn’t cut it around here, pal. If you pull a load of crap out of your ass, people are going to call B.S.
I concur in part and dissent in part with my learned colleague’s opinion quoted here. “Judicial activism” is an antonym to “judicial self-restraint,” and does not necessarily reference any of the schools of constitutional jurisprudential philosophy, though it does tend to describe “living constitutionalists” more than “original intent” or “textualist” adherents.
However, as used by some conservative pundits/commentators/blogsters, it means exactly what rjung said. The attitude is not whether the person adheres to a given school of constitutional interpretation, but rather whether his/her opinions are ones with which the pundit/commentator/blogster agrees.
Distinguishing between constitutional liberalism/conservativism and political liberalism/conservatism is something that most political writers simply fail to wrap their minds around. (There are clear exceptions, such as George Will.) For example, Hugo Black was a total literalist with a very strict style of interpretation. Yet he is considered a strong political liberal, since his leading opinions were founded on a literal reading of the First Amendment.
While I agree that intelligent observers will use the term accurately, in point of fact I would suspect that typically, 95% of uses of “judicial activism/-ists” in a random sample (say running a Google search for the term) will bring up the “it’s dem lib’ruls tryin’ to distroy America” view, not the principled observer usage which Rick defends.
And here is the heart of the problem. Even intelligent, well read people like Bricker and Scalia and Bork, et al. use the term “judicial activism” to describe a judicial philosphy with which they disagree and little more. It’s a loaded term that is used to describe anyone who does not agree with an originalist point of view. Just look at the rhetoric that Rick constantly (and quite annoyingly) uses when describing a decision that is not originalist. It’s always a barrage of meaningless crap like:
Bricker, like many others, think that their judicial philosphy is correct and all others are somehow “activist”. Pile on the rhetoric of disrespecting the will of the majority or “See how it can work against you too” and their comments are, just like the term “judicial activism”, a bunch of sound and fury signifying nothing.
Just saying “here is an article” proves nothing. How about quoting something from that article that supports the premise that Scalia and like minded jurists would:
Whatever that even means in the first place, I don’t have the vaguest idea.
Or that:
The article you linked to simply does not support either of those assertions.
Let’s note that the Interstate Commerce Clause has one significant exception to it: the right of individual states to regulate the sale and importation of alcoholic beverages, as provided by the 21st Amendment. That Salt Lake City chose to remain dry, and Utah to let them, is covered by that specialized issue. There is no amendment enabling a state to prohibit people from crossing the border into another state to do something which the first state deems illegal but the second state does not.
Of course, since Wicklow one can find precedent to make almost anything fall under the Commerce Clause, from medical marijuana grown by terminal cancer patients to local zoning regulations. (This is a point where I take my leave of “living constitutionalism” and look for something remotely resembling the meaning of the text.)
Hamlet, I do think there is a valid use to the term that is not pejorative. However, it occurs to me that the usage is often associated with a hyperliteralism that presumes that the Founding Fathers and the Reconstruction Congress had no clue what they meant when they wrote broad protections into the law, and that one is supposed to construe them according to the hyperliteralist’s political philosophy. Clearly, homosexual people are not entitled to equal protection, and due process means that government can do anything it wishes so long as it follows someone’s idea of proper procedure when it does so.
This is the exact same comparison as your failed fireworks scenario. It is illegal to import or use fireworks in places that forbid them. It is illegal to import or use liquor in places that forbid it. It is not illegal to go somewhere where it is legal, blow stuff up or imbibe as the case may be, then return home. Your slippery slope is really a stretch.
That’s because the article link you are referring to here is not the article I mentioned in my post, but you’re way too busy sniping at me to realize that, even though it was clearly identified as such. Pity, that.
However, I do thank E_Sabbath for finding the complete text of the article online anyway. I didn’t see that, I only looked for it within the New Yorker site. Good find.
A careful read shows that Scalia did indeed give that interview, and the article does indeed exist. Sorry it sounded as though I was pulling, what was it? Crap out of my ass? By obeying a rule of SDMB, which is that one does not insert copyrighted materials into a post. I’m glad a safe link was found- my only option was to start typing in and copying text into a post. Your coarsely worded description of my defensive powers aside, copying the article into a post here was not an option.
Scalia sounds pretty proud of his textualist position in the interview. That was the foundation of my remarks. A very careful read through the entire article may yield the same impression. It may not of course, but to me he sure came off as a textualist first before anything else.
My assertions are based upon his self-professed points of view regarding his position on the bench. Nothing more.
“Judicial activism” is an antonym to “judicial self-restraint,” and does not necessarily reference any of the schools of constitutional jurisprudential philosophy, though it does tend to describe “living constitutionalists” more than “original intent” or “textualist” adherents.