# Why is there so much hatred toward Justice Scalia? **URL:** \ **Category:** Great Debates\ **Created:** [February 15, 2004, 8:12am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329 "2004-02-15T08:12:03Z")\ **Posts on this page:** 20\ **Page:** 8
**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:** [February 18, 2004, 11:16pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/141 "2004-02-18T23:16:18Z")
> [@Homebrew](#): > > Judges should determine whether a challenged law actually addresses one of the areas that the people have given the Government authority to legislate. If not then they must be overturned. Can’t argue with that. > [@](#): > > At the same time, Judges should evaluate whether the law, even if relevant to a proper government duty, imposes undue violation of the “blessings of liberty.” Where do you get that from, and who gets to define what the “blessings of liberty” are, outside of the constitution. BTW, the constitution gives the gov’t the authority to regulate **interstate** commerce, not just “commerce”, _nes pas_? ---
**Author:** ![Ramanujan](https://avatars.discourse-cdn.com/v4/letter/r/51bf81/32.png) [@Ramanujan](https://boards.straightdope.com/u/Ramanujan)\ **Post date:** [February 19, 2004, 12:06am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/142 "2004-02-19T00:06:58Z")
> [@Homebrew](#): > > Are there any limits to the ability of the majority to oppress other than those specifically enumerated in the various amendments? What is the purpose of the Ninth? in the various states, there are no limits other than what their constitutions and what the federal government set as limits. certainly one must read the constitution and infer in many cases whether a given right enumerated in the constitution applies to something that could not have been imagined by the writers (the search cases, for example). the words are not meaningless, and one must interpret the text and determine what the words mean and how they apply to a given case. but stretching it too far invites abuse of the words, in my opinion, and i believe history has borne this out. as far as the ninth amendment, i can’t see it adding anything substantive to constitutional law. am i not alone in that, or is it just a good thing i’m not a judge? [aside]while this is all being discussed, could anyone tell me where the right to privacy is actually inferred from the constitution? i expect you not to answer with “it can’t be inferred”, as this is a factual question: where have those who found that right found it in the constitution?[/aside] ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 19, 2004, 12:23am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/143 "2004-02-19T00:23:28Z")
That question will gore **Dewey** ’s ox The Right to Privacy is not specifically mentioned but inferred by the Court in several places. From _Roe_ > [@](#): > > Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J., concurring). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 19, 2004, 12:25am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/144 "2004-02-19T00:25:49Z")
> [@Homebrew](#): > > Coersion. Employer and employee are not equals, free of coersion. One of the roles of government is “promote the general welfare”. Minimum wage laws promote the general welfare. Government is given the authority to regulate commerce, which includes wages and working conditions. > > In yet another thread, I keep answering your questions but you continue to ignore mine. How about you answer this: > > Are there any limits to the ability of the majority to oppress other than those specifically enumerated in the various amendments? What is the purpose of the Ninth? There are no limits to the ability of the supermajority to oppress, since they may always amend the Constitution. There are limits to the ability of the majority of the moment to oppress, since they are constrained by the developed consensus of what the Constitution protects, as well as the literal text of the Constitution. The Ninth Amendment’s purpose is to state that fundamental rights may exist that are not expressly enumerated in the Constitution, and refute the argument that a failure to expressly mention a right does not give rise to the inference that it does not exist. But neither does it permit a wholesale addition of unrelated, unmentioned rights. Where else have I failed to answer your questions? Homebrew, what you consistently fail to grasp is that your idea of how to interpret the Constitution boils down to the benign dictator approach: judges should read the Constitution to require what’s right, what’s proper, what’s consistent with liberty for each person. The problem with that power is zero – as long as you, or some other benign person, are exercising it. But when you start to disagree with the benign dictator, he suddenly seems much less benign. You are willing to excoriate the Court for Bush v. Gore, even though they are using YOUR rules - their judgement, yes, but your rules. They did what seemed right to them, even if based on shaky legal reasoning. That’s exactly what you urge – the only difference is that you want them to do what YOU think is right. But you are not the boss of me. No one voted for you. You can’t impose your idea of what constitutes a balance between liberty and orderly society. The nine justices can. But I believe that gives them too much power. They are not elected. They don’t represent the will of the people. What does “self-governance” mean to you? - Rick ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 19, 2004, 12:48am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/145 "2004-02-19T00:48:45Z")
I don’t have much to add to what **Bricker** has written, but since the ninth has (yet again) come up, here’s a bunch of threads where we beat that horse into several afterlives (this topic comes up so frequently that I have the following post saved in a text file): * * * Here we go again. The Ninth Amendment exists to prevent the argument that the existence of the Bill of Rights invalidates other legal sources of rights (e.g., statutory rights and state constitutional rights). It prevents, say, opponents of the Massachusetts gay marriage decision from arguing that the decision is invalid because the federal constitution’s enumeration of rights is exclusive. It is not itself a source of substantive rights. Even libbies with law degrees like **minty green** understand this. We’ve discussed this point many times. Among other places, it’s buried in these threads: [Rights? What’s a Right?](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=194286) [Is Scalia Nuts?](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=170905) [Supreme Court hears challenge to Texas Sodomy Ban](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=172810) [Conservative dopers vs. gay sex decision](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=193835) [Democrats oppose Hispanic judge: “he’s too competent!”](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=159876) [Strict constructionists: How about adding a constitutional “right to privacy”](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=182770) [A moment of your time, please, Justice Scalia](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=219203) And not a 9th thread, but just for fun: [Dewey! Minty! Come a runnin’!!](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=176486) * * * ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [February 19, 2004, 1:02am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/146 "2004-02-19T01:02:15Z")
> [@Dewey Cheatem Undhow](#): > > Kindly quote where I said I agreed with the reasoning of the majority in _Bush v. Gore_ and you might have a point. I think you’ll find I said no such thing. I didn’t say you agreed with it. I said you gave Scalia a pass on the matter. A pass is not an endorsement, it is failure to deliver a deserved criticism. This is precisely what you did. Scalia’s integrity had been questioned, with regards to his use of equal protection in Bush v. Gore, and you said nothing critical of him, and indeed, came to his defense: > [@Dewey](#): > > You could find others who would dispute that Bush v. Gore is a proper interpretation of the constitution’s text. I do not think you could find any serious critic of Bush v. Gore who would suggest the result has no basis in the text, i.e., that the words supporting the majority opinion simply aren’t there. I mean, Good Lord, in the case of the majority the words are right there: “equal protection.” You didn’t directly endorse Scalia’s position in Bush v. Gore, but in context, you are defending him nonetheless. > [@](#): > > Are the equal-protection-in-election cases similarly ingrained into our judicial framework in a manner sufficient to justify _Bush v. Gore_? Hell if I know. I’m genuinely torn by the decision, and I can pretty much see valid arguments either way. I’m fairly agnostic on the question of the appropriateness of the decision. Well, that’s okay. From my own perspective, I see the decision that there was something clearly amiss with respect to equal protection of voters as quite reasonable. Purely as a result of legal ignorance, I don’t understand how Bush had standing to protest the violation of the voters’ equal protection rights, but that’s really neither here nor there. What boggles my mind is that the remedy guarantees that the equal protection rights of the voters would be violated, but that’s in no small part a reaction based on national differences. As a Canadian, living in a country where there are laws about electoral uniformity, it blows me away that you folks put up with a myriad of non-standardized ballot forms and voting techniques which basically guarantee that some votes count more than others. I spose that’s really neither here nor there with regards to this thread, though, either. > [@](#): > > BTW, I never said that equal protection is “only relevant to racial discrimination;” I only said non-race cases are subjected to a much, much lower threshhold of scrutiny. > [@Dewey Cheatem Undhow](#): > > On this I simply disagree. You’d be hard-pressed to glean from the historical record evidence that the drafters thought they were doing anything more than proscribing racial discrimination in government. Indeed, I suspect the drafters of the 14th amendment would be quite surprised to see it expanded to cover gender, much less sexual orientation. I think you’re ignoring a mountain of historical evidence in favor of focusing on the non-existence of a particular word. That omission, standing alone, simply isn’t enough to justify the expansive reading you wish to take of the amendment.[link](http://boards.straightdope.com/sdmb/showthread.php?p=4509818&highlight=race+equal+protection#post4509818) Oddly enough, I concluded from this statement that you thought that the equal protection clause does nothing more than proscribe racial discrimination in government. Silly me. (You make other statements to similar effect in the same thread, but upon rereading, I see that you were more careful with caveats in the others. I didn’t, however, see any straightforward statement of the position you state here, i.e., broader coverage at lower scrutiny.) > [@Dewey](#): > > So in the future, please don’t put words in my mouth. Kindly point out where in my post I put words into your mouth. You know, Dewey, sometimes you infuriate me, and right now is one of those times. To really do justice to how angry this post makes me, I’d have to take you to the Pit. However, I don’t really see the point in doing so. If you think I’ve put words into your mouth, you need to take a long, hard look at what you’re writing, and stop assuming that you’re entitled to make arguments based on broad implication and the general thrust of points, while only being subject to criticism based on strict definitions and narrow interpretations of what you say. That may be a valuable tactic in the practice of law, I wouldn’t know, but in an open, honest debate it’s barely a step above intellectual dishonesty. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 19, 2004, 1:06am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/147 "2004-02-19T01:06:28Z")
> [@Bricker](#): > > The Ninth Amendment’s purpose is to state that fundamental rights may exist that are not expressly enumerated in the Constitution, and refute the argument that a failure to expressly mention a right does not give rise to the inference that it does not exist. But neither does it permit a wholesale addition of unrelated, unmentioned rights. A-ha! Well, not so much. But it does seem there’s finally an issue on which you and **Dewey** are not in agreement. I know that **Dewey** will argue that there are no differences in your positions. But there is a subtle yet significant difference. Your position acknowledges that there are rights that aren’t explicit that would be protected by the Constitution. **Dewey** ’s position states that other rights can be granted by other law, but they don’t exist otherwise. > [@](#): > > What does “self-governance” mean to you? > > - Rick It means that I am free to do as I wish without undue interference by the Majority wielding the hammer of government. Self to me means individual. It seems to me that you take it to mean “the people” as a group, not as individuals. ---
**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:** [February 19, 2004, 1:21am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/148 "2004-02-19T01:21:33Z")
**Homebrew** : I’m curious about your idea concerning what limits should be placed on the actions of the majority. Suppose that Congress and the states drafted and ratified an amendment to the constitution that explicitly banned abortions. Do you think that the SCotUS should have some authority to override that action? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 19, 2004, 1:36am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/149 "2004-02-19T01:36:14Z")
> [@Gorsnak](#): > > I didn’t say you agreed with it. I said you gave Scalia a pass on the matter. A pass is not an endorsement, it is failure to deliver a deserved criticism. This is precisely what you did. Scalia’s integrity had been questioned, with regards to his use of equal protection in Bush v. Gore, and you said nothing critical of him, and indeed, came to his defense: I’ve consistently stated in this thread that _Bush v. Gore_ is a highly arguable decision. I’ve even clarified that I think it only justifiable on _stare decisis_ grounds. If I’m “giving a pass” on Scalia on that opinion, then I must also be “giving a pass” to every other opinion ever handed down that depends on _stare decisis_ for its validity. You’ll forgive me if I find that less than damning. > [@Gorsnak](#): > > Oddly enough, I concluded from this statement that you thought that the equal protection clause does nothing more than proscribe racial discrimination in government. Silly me. Perhaps you missed all the posts where I discussed the rational basis test. What did you think I was referring to, exactly? > [@Gorsnak](#): > > Kindly point out where in my post I put words into your mouth. Your post implied rather heavily that I pick and choose my view of equal protection based on what particular is ox is being gored at the time. > [@Gorsnak](#): > > You know, Dewey, sometimes you infuriate me, and right now is one of those times. To really do justice to how angry this post makes me, I’d have to take you to the Pit. However, I don’t really see the point in doing so. If you think I’ve put words into your mouth, you need to take a long, hard look at what you’re writing, and stop assuming that you’re entitled to make arguments based on broad implication and the general thrust of points, while only being subject to criticism based on strict definitions and narrow interpretations of what you say. That may be a valuable tactic in the practice of law, I wouldn’t know, but in an open, honest debate it’s barely a step above intellectual dishonesty. Whatever you say, hoss. Let me know when you decide to quit leveling thinly-veiled accusations of hypocrisy and start simply asking for clarification in whatever percieved inconsistecies you see in my position – that is, when _you_ decide to stop trying to provoke _me_. Until then, you’ll forgive me if I think thou dost protest too much. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 19, 2004, 1:44am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/150 "2004-02-19T01:44:14Z")
> [@Homebrew](#): > > I know that **Dewey** will argue that there are no differences in your positions. But there is a subtle yet significant difference. Your position acknowledges that there are rights that aren’t explicit that would be protected by the Constitution. **Dewey** ’s position states that other rights can be granted by other law, but they don’t exist otherwise. Rights do not exist without a corresponding remedy. A proffered right without a remedy is a wish, not a right. Proving a right exists apart from the mechanisms that honor and protect that right is like proving God exists. Can’t be done. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 19, 2004, 1:46am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/151 "2004-02-19T01:46:47Z")
> [@Dewey Cheatem Undhow](#): > > Pointing out that the majority relied solely on SDP while O’Connor alone wanted to rely on equal protection does not amount to an endorsement of either viewpoint. I’m not sure where the misunderstanding lies. Prior to the division’s being handed down, we were discussing it here in some thread or other, and I (apparently mis-)understood you to imply that the Texas law was strikeable on equal protection grounds. Hence my (erroneous) assumption that you would likely write on the O’Connor thesis. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 19, 2004, 1:53am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/152 "2004-02-19T01:53:39Z")
> [@Polycarp](#): > > Prior to the division’s being handed down, we were discussing it here in some thread or other, and I (apparently mis-)understood you to imply that the Texas law was strikeable on equal protection grounds. Hence my (erroneous) assumption that you would likely write on the O’Connor thesis. Ahhhhhhhhhhhh. I remember what you’re referring to. In that thread, I was offering predictions, not my own take on the constitution, though I can certainly see how it’d be easy to conflate the two. My appologies. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 19, 2004, 2:12am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/153 "2004-02-19T02:12:09Z")
> [@Homebrew](#): > > I think the original intent and strict constructionalists arguments are evidence that Hamilton was correct when he warned that listing the Bill of Rights would be construed to deny and disparage the existence of more rights. Even the IX Amendment does seem to be enough protection against the Authoritarian leanings of the Strict Constructionalist. The founders of this country and I believe in Natural Rights. There is no need for the Constitution to grant us rights because they are ours in full. > > I know that Dewey will argue that there are no differences in your positions. But there is a subtle yet significant difference. Your position acknowledges that there are rights that aren’t explicit that would be protected by the Constitution. Dewey’s position states that other rights can be granted by other law, but they don’t exist otherwise. I agree with you and Hamilton. However, there’s one small distinction that needs to be made in both these posts which tends to make them slightly inaccurate. The Constitution neither creates nor grants rights; it **guarantees** them. Accordingly, your right to, e.g., chew gum in the privacy of your own home does not need to be guaranteed because there is no anti-gum-chewing lobby (aside from the ADA) running around trying to prohibit peaceful citizens from chewing gum in private. It exists, but no law defining it is necessary. Certain fundamental rights are guaranteed explicitly in the Constitution. Others are inferred as direct lemmas or consequences of the explicit rights. Still others are inferred by the natural law doctrine, which many legal scholars reject, despite its hoary and distinguished origins, and read into abstract guarantees like the Ninth and the references to privileges and immunities and liberty in the Fourteenth (avoiding the obnoxious question of what substantive due process means and when if ever it may be properly applied). **Dewey** has never said that rights not enumerated in the Constitution, state constitutions, or statutes don’t exist – he’s said they are not guaranteed. An assertion of them in a court case would fall flat because no evidence of the cognizant legislative bodies ever having guaranteed them is extant. But they may well exist. A parallel for you: gay couples who have pledged their troth to each other are unquestionably married, as the Common Law understood marriages to be created. But no state is willing to grant legal recognition to those objectively valid marriages as yet. Are the marriages “real”? Certainly. Are they legally enforceable covenants? Not on your tintype, pending further jurisprudential developments. In illustration of my “lemma and consequence” issue, allow me to exemplify with two First Amendment illustrations. One is an old standby for me: A law that guarantees your freedom of speech to advocate for gay rights, but restricts you from doing so when anyone can hear you, is strikeable – despite its guaranteeing your right to speak. Freedom of speech infers a freedom to be heard by a willing listener. The other is something that even some lawyers talk as though it were explicit in the First Amendment: the so-called “freedom of association” that was used in the _Dale_ case. The First Amendment guarantees explicitly only the right to freely assemble for one purpose: to petition the government for a redress of grievances. I have not seen Boy Scouts gathering specifically to lodge protests against the government by petition; they’re usually engaged in horseplay, camping out, community service, or some other worthwhile thing for boys to do. But not circulating petitions. Yet we infer from the freedom to peacably assemble for that purpose, and the guarantee to freely exercise one’s religion, that one has the freedom to assemble with like-minded persons for any other lawful purpose. Nowhere is that specified, but it’s a logical consequence of the enumerated rights. I am not arguing for or against a specific philosophy of constitutional interpretation here, simply illustrating that “strict construction” is not as strict as it may seem. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [February 19, 2004, 2:13am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/154 "2004-02-19T02:13:09Z")
> [@Dewey Cheatem Undhow](#): > > Whatever you say, hoss. Let me know when you decide to quit leveling thinly-veiled accusations of hypocrisy and start simply asking for clarification in whatever percieved inconsistecies you see in my position – that is, when _you_ decide to stop trying to provoke _me_. Until then, you’ll forgive me if I think thou dost protest too much. There was nothing thinly veiled about my accusation of hypocrisy. It was quite blatant. I see you are attempting to justify your position by an appeal to stare decisis. Well, my friend, if you have a principled means of determining when you think stare decisis should have weight, and when it should not, outside of the “Dewey agrees with the result” principle, I haven’t been able to divine what it is. I suppose I could give you the benefit of the doubt, but I’ve never noticed you giving any of my suggestions any benefit of the doubt. Whenever I’ve left anything remotely open to interpretation, you’ve assumed the worst and held my feet to the fire. I have no idea why you think I should adopt a more charitable stance. Hoss? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 19, 2004, 4:11am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/155 "2004-02-19T04:11:20Z")
> [@Gorsnak](#): > > Well, my friend, if you have a principled means of determining when you think stare decisis should have weight, and when it should not, outside of the “Dewey agrees with the result” principle, I haven’t been able to divine what it is. Then you simply haven’t been paying attention. The decision to defer to _stare decisis_, while a judgment call, is not derived from like or dislike of the result. It is derived from the degree to which a particular line of precedents have ingrained themselves into constitutional jurisprudence. The clearest example I can think of is the notion of full incorporation of the Bill of Rights to the states – regardless of whether I like or dislike the result in any particular case, and regardless of my disbelief in the notion that full incorporation as something the drafters of the fourteenth amendment were trying to accomplish, I nonetheless honor that theory because to do otherwise would be to pull the rug out of nearly a century of jurisprudence and to radically alter the expectations of present and future litigants. I’ve stated this numerous times in various threads. That you continually miss it is to your great discredit. As is the rest of your post. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [February 19, 2004, 4:30am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/156 "2004-02-19T04:30:33Z")
> [@Shodan](#): > > Not in the Constitution, you say? It is now - the judge said so. So what do we do - appeal to the majority? No good - rights cannot be overruled by the majority. Amend the Constitution? We have already established that it doesn’t matter what the Constitution says, only what the judge wants it to say. You’ve created a really beautiful strawman here, **Shodan**. I don’t know where we have established that the Constitution says only what judges want it to say. Judges always have to interpret the Constitution. What we are arguing about is the **method** of interpretation. By the way, do you have an example where the Constitution was amended and then the judges ignored the clear expression of the amendment? > [@](#): > > How can a theory that proposes that the Constitution says anything or nothing, depending on the predelictions of the justices, be as objective as one that says the Constitution says what it says? Well, maybe it is because there is no such thing as “the Constitution says what it says.” It is always open for interpretation. The difference is really between those who claim to have a more objective interpretation…which they are then free to abandon as convenient (e.g., in order to get the President they want appointed). ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [February 19, 2004, 4:36am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/157 "2004-02-19T04:36:15Z")
> [@Dewey Cheatem Undhow](#): > > Then you simply haven’t been paying attention. The decision to defer to _stare decisis_, while a judgment call, is not derived from like or dislike of the result. It is derived from the degree to which a particular line of precedents have ingrained themselves into constitutional jurisprudence. The clearest example I can think of is the notion of full incorporation of the Bill of Rights to the states – regardless of whether I like or dislike the result in any particular case, and regardless of my disbelief in the notion that full incorporation as something the drafters of the fourteenth amendment were trying to accomplish, I nonetheless honor that theory because to do otherwise would be to pull the rug out of nearly a century of jurisprudence and to radically alter the expectations of present and future litigants. I’ve stated this numerous times in various threads. That you continually miss it is to your great discredit. I’m sorry, but I cannot see any way to square this with your views on privacy rights and substantive due process. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [February 19, 2004, 4:40am UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/158 "2004-02-19T04:40:34Z")
> [@Ramanujan](#): > > i think at this point, it is important to note that it was arguably the most liberal court in the history of the country that decided in the _hirabayashi_ and _korematsu_ cases to uphold the internment of japanese-americans. Just out of curiosity, given your claim that this is “arguably the most liberal court in the history of the country”, can you provide some arguments or views to support this claim. (I am not saying I think it’s wrong…I just don’t know. I always thought the Warren Court had that distinction.) Also, given that 3 justices (Roberts, Murphy, and Jackson) signed on to a sharply worded dissent in Korematsu (see [here](http://www.nyclu.org/wtc11.html)…What were the political leanings of these justices relative to the ones in the majority? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 19, 2004, 3:10pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/159 "2004-02-19T15:10:45Z")
> [@Gorsnak](#): > > I’m sorry, but I cannot see any way to square this with your views on privacy rights and substantive due process. I frankly don’t see the conflict. _Stare decisis_ is simply the principle that we can’t go back and revisit every aspect of every constitutional question _tabula rasa_ every time they arise. There is a need for stability in the law. Sometimes that means accepting even a manifestly wrong line of opinions, if that line of opinions have become deeply entwined into our constitutional scheme. It’s kind of like 18th century doctors leaving the bullet in a victim because surgical removal would be too risky – you’d rather the guy have not been shot in the first place, but the cure would be worse than the injury. I don’t think the privacy cases have achieved that status. In particular, I think there has consistently been the sense post-_Roe_ on both the pro-life and pro-choice side that the finding of an abortion right hangs by a slender thread and could be reversed at any time. Those opinions simply haven’t become as reflexively ingrained into constitutional law as, say, the notion of full incorporation. I also think that when we rely on _stare decisis_, we’re obligated to honor those holdings and go no further. You shouldn’t bootstrap further rights extensions onto a manifestly wrong but deeply ingrained prior rights extension. We can debate and dicker over whether _Bush v. Gore_ merely repeats or actually extends the principles in the prior equal protection in voting cases; again, I think the opinion highly debatable. But the privacy cases are clearly an example of new rights being bootstrapped repeatedly onto old ones. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 19, 2004, 3:16pm UTC](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329/160 "2004-02-19T15:16:35Z")
> [@jshore](#): > > You’ve created a really beautiful strawman here, **Shodan**. I don’t know where we have established that the Constitution says only what judges want it to say. Sure we have. At least, you have, when you posted; > [@jshore](#): > > Well, maybe it is because there is no such thing as “the Constitution says what it says.” So it is not a strawman at all; it is the very essence of your position. “The Constitution doesn’t say what it says” is the linchpin of judicial activism. All that is necessary to establish whatever a given judge wishes to establish is to “interpret” what the Constitution says to mean whatever you want it to mean. Freedom is slavery, black is white, ignorance is strength. > [@jshore](#): > > By the way, do you have an example where the Constitution was amended and then the judges ignored the clear expression of the amendment? Sure, Roe v. Wade vs. the Tenth Amendment, or any number of gun-control laws vs. the Second Amendment. Ignoring the Tenth Amendment is easily accomplished by interpreting “the states, or the people” to mean “the federal government and the courts”. Ignoring the Second is accomplished by interpreting “the people” to mean “the government”, and “shall not” as “can be”. > [@jshore](#): > > It is always open for interpretation. The difference is really between those who claim to have a more objective interpretation…which they are then free to abandon as convenient (e.g., in order to get the President they want appointed). Actually the difference is between those who believe in limited government, and those who do not. Or, more specifically, between those who believe the Constitution has any meaning, and those who change the meaning to fit the needs of the liberal minority of the moment. Regards, Shodan [Previous page](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329.md?page=7) [Next page](https://boards.straightdope.com/t/why-is-there-so-much-hatred-toward-justice-scalia/229329.md?page=9)