I’m pretty sure you know exactly which quote I’m thinking of. Pseudo naivete is a petty way of conducting a debate.
But what rights “don’t already exist?” It’s too easy to dismiss any claim of pre-existing rights by saying what Scalia said. It turns the issue into “Prohibited unless expressly permitted,” which is the opposite of what the constitution implies.
He tried to put the burden on the side of liberty, when it should (nearly always) be on the side of restriction.
(Do you have the right to ride a bicycle? Not until the legislature creates that right by law, right? That is, in essence, what Scalia was saying.)
That’s an awful debate technique, but leaving that aside, Bricker isn’t the only reading this. If you make a claim like you did, you owe it all reading to back it up, not just Bricker.
The way I understand the philosophy of US law (as a non-lawyer who’s had minimal legal training) is this:
The government does not “give” rights to anyone. People are assumed to already have them whether or not there is a law. However, the law does “recognize” and protect certain rights (like those in the Bill of Rights).
My assumption is that Scalia was talking about which rights are explicitly protected by law. I have a right to eat pistachio ice cream but I can’t sue for denying my right to eat pistachio ice cream if I’m trying to eat it in a workplace where someone else has a pistachio allergy. Ice cream flavor access has not been subject to civil rights legislation.
On the other hand, I won’t be arrested for eating pistachio ice cream just because there’s no law saying I’m allowed to. The assumption is that absent a law prohibiting the consumption of that flavor that I have a right to eat it.
I hope my understanding is correct, please thwack me if I’m wrong.
The law addresses new situations, or fails to address new situations; the law now means something that before it did not. The law, itself, has changed. Fundamentally, even, depending on the circumstances (which need not be fundamental themselves, really).
If there is a choice to be made between the two, and the choice affects new situations, then it is through interpretation that a judge makes that call, even if they stick strictly to a textual reading. Either way, the judge in question has made the choice to take control of that decision into their own hands; how are these new circumstances affected by the law? They decide. Choosing “the text is paramount” damages notions of self-governance - the governed have made no self-determination on the matter of this new situation.
“You have the right to remain silent. If you give up the right to remain silent, anyhting you say may be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during questioning. If you so desire but cannot afford an attorney, one will be presented to you without charge before any questioning. Having these rights in mind, do you wish to talk to us?”
That’s a very familiar speech to any TV crime show watcher. (Or habitual criminal, I guess).
But if that isn’t read to a suspect in a custodial interrogation, his statements are inadmissible as a matter of law.
Was Scalia talking about something that had been expressly prohibited already?
Was he? Or was he hearing a challenge to a law that forbid riding a bicycle?
In other words, absent any law, absolutely you have a right to ride a bicycle. But if the legislature forbids bike riding, then your challenge must do more than simply claim the law is invalid because people have a right to ride bikes.
It is important to remember that the founders thought that the right to arms was, in part, there so that citizens could overthrow a tyrannical government. So it would seem logical to assume that they would expect citizens to have weaponry capable of being a threat to said government.
The real question is, how is the judge to interpret the statute’s or constitution’s language as it applies to something the legislator or founding father never thought about?
There is a whole lot of excluded middle here that you are missing. Many, many “rights” do not exist; some matters may be permissibly regulated by the Legislature, all the while keeping the “permitted unless expressly prohibited.”
Examples:
Free speech is a right. It is impermissible for a legislature to take that away by statute.
Riding a bicycle is not a right. If a legislature is silent, the riding a bicycle is permitted. If the legislature chooses to restrict bicycle riding, then you no longer are permitting to ride bicycles in the restricted manner.
The question for Scalia in the Lawrence and Obergefell cases was: is the freedom at issue more like #1 or #2?
Okay. The following, among several other things, was in Scalia’s gay-marriage dissent:
"This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like . . . "
No, the states aren’t; the 14th amendment applies to the states. Scalia is claiming that the recognition of gays’ rights to marriage is “legislated” by the court, which is exactly the opposite of the truth: the right exists, and the legislature may not ban it, at least not without a very good reason – and no such reason has ever been put forward.
In simple, if he believed that upholding the people’s right to do something is “legislating,” rather than “protecting,” then he was not competent to serve as a Supreme Court Justice – which, in fact, he was not.
Yes. The Fourteenth Amendment is, exactly as Scalia says, “a constitutional prohibition agreed to by the People.” So why do you say “No?” Scalia’s statement is exactly accurate: states have plenary legislative power, except where limited by the Constitution.
How do you know it exists?
More specifically, how did you know prior to the Court’s decision?
Did it exist in 1870?
That’s precisely an example of legislating from the bench – declaring that a right exists in the Fourteenth Amendment to permit same-sex couples to marry, when essentially no one who voted to adopt the Fourteenth Amendment’s text in 1867 would have agreed. Where did the right come from? How can it exist when no one who voted for it would agree that’s what it did?
Marriage exists. Has for a looong time. Pretty sure you know that.
So it seems the question is why should some people be allowed access to it and not others?
Remember, this is marriage as a legal construct and not a religious one. Marriage confers a slew of benefits as regards various legal issues to the couple (e.g. inheritance, able to make medical decisions for the spouse, tax benefits and so on). So the court should explain why one couple is allowed those benefits from the government while another couple is denied those same benefits.
That’s framing it as a policy question, though. Why should some people get a benefit and others not is a question for the legislature. The court should not attempt to answer that question.
No. That places the court in the position of making a new law because it doesn’t like the old law. The court should be asking, “Does the law comply with the Constitution?”
