It was a case from the early 1900s where the Supreme Court ruled that a New York State law that set maximum hours of employment for bakers was unconstitutional. The court ruled that the constitution guarantees the fundimental right to enter into employment contracts.
Only so far as those alterations produce more human liberty and freedom, which should be the end goal of every Court proceeding: maximizing liberty and expanding freedom.
And who decides what constitutes liberty and freedom? A judge? Unilaterally? The point is not what ideally happens: the point is: should judges have such incredible power to simply make up the law when there is no guarantee that they will use it in a way YOU might like, as opposed to something someone ELSE might like?
You’re just dodging the meat of the question again and again.
That’s not the issue raised in the OP. It’s why do people hate Scalia. The other justices are a cow’s opinion – moot. People, or at least, I, don’t hate Scalia in relation to Rehnquist or Souter or O’Conner. I’ve been seriously peeved with every one of them at one decision or another, but Scalia is the only one of them that I think is an evil scum. Rhenquist, the one I dislike most seriously after Scalia, I see as a slimy hack. My opinion of Rhenquist is more contempt and disgust than hatred.
Dewey doesn’t defend Scalia AS SUCH, but he DOES defend Scalia, boy does he ever. He had a long go-round with, IIRC minty green over Scalia’s refusal to see privacy rights in the 9th amendment (or anywhere else) awhile back.
So you bought the judicial fig leaf they put over the 2000 selection decision, did you?
the point: i think anyone who attacks strict constructionism as a basis for attacking scalia lacks a basis for an attack at all. the first instances (and majority of instances) in which “substantive due process” was used by the supreme court’s opinion supported fewer civil rights for individuals and promoted a conservative doctrine. it is a knife that cuts both ways, and it, based on the people who’ve thus far used it, cuts into civil liberties more than away from them. so if you have a problem with scalia’s character as a person, be my guest and denounce him. if you have a problem with the doctrine he espouses, leave the man himself alone.
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I think Scalia uses strict constructionism as a tool for actively promoting his social beliefs, a screen if you will. You’re just saying, “Pay no attention to the man behind the mirror!” Sorry, I believe I WILL pay attention to the little twerp.
Are you saying that there aren’t actual textual grounds for the right of privacy? Surely, Griswold and the other decisions didn’t just make this up out of thin air…They referred to something in the Constitution or its amendments. I think what you are really saying is that you find the textual grounds to be stronger for Bush vs. Gore than you do for the privacy stuff. Of course, that is probably a matter of personal opinion and I would guess (somewhat wildly) that one could find others, equally knowledgeable in the law, who would argue the opposite.
And, by the way, what is the purported rational justification for the SC saying that the Bush vs. Gore case should not be a precedent for deciding future cases?
No, I’m positing that Scalia doesn’t make his private political beliefs known, and that they are irrelevant to the arguments he makes regarding constitutional interpretation.
And I am under no compulsion to refrain from calling this approach stupid and offensive.
You cite as evidence of Scalia’s evilness his judicial opinions. A logical, intellectually honest approach to evaluating the use of those opinions for that purpose would be to ask if those opinions are justifiable based on a coherent theory of constitutional jurisprudence. I contend that it is.
Your way is esssentially the way of the mob – it doesn’t matter if there is an intellectually sound case for Scalia’s opinions, it only matters that you don’t like them and consider that alone sufficient grounds to pillory the man.
One wonders exactly how you would demonstrate this. Do you have a mind-reading machine?
Or do you just consider anyone who disagrees with you to be evil?
I look forward to your critique of the arguments Scalia put forth in his concurring opinion in Bush v. Gore. Or will you just hand-wave them away?
Nevermind that he is foursquare within the rules established by the court. Nevermind that he has recused himself in other cases, e.g., the Pledge case.
[Dr. Evil] Riiiiiiiiiight. [/Dr. Evil]
Yeah, Scalia’s opinion in Texas v. Johnson was just part of some masterful subterfuge to disguise his real agenda. It couldn’t possibly simply be a case where Scalia’s view of constitutional jurisprudence demanded that result. :rolleyes:
Adjust the tin-foil hat, dude.
Yet again, you fail to see a distinction between defending Scalia and defending a particular theory of constitutional jurisprudence.
That is exactly what I am saying. Griswold was built on “emanations and penumbras” of other amendments, not on extant constitutional text.
The general right to privacy is literally made up out of thin air. You can find an emanation and penumbra in just about anything.
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.”
That’s wishful thinking on the part of the court. You’re darn tootin’ it’s going to be used as precedent.
Well, I severely question that Scalia’s private political beliefs are so closely held…And, while they may be irrelevant to what he claims motivates his juriprudence that doesn’t mean they are irrelevant to what motivates his juriprudence. (By the way, do you believe that Brennan and Marshall didn’t make their political beliefs known either? How about Thomas? Rehnquist?)
And, I hope that you will hereby blast the WSJ editorial page for complaining about this. But, irregardless, my question really was how one can justify them wanting it not be used as a precedent. I.e., can one make a rational argument why the decision is a good decision but shouldn’t be used as precedent to help decide other cases?
Oh, and here is an example of Scalia not making his private beliefs known:
Admittedly, he claimed in that forum that it his legal views and not his personal views that guide his juriprudence but who wouldn’t claim this?
To be fair to Scalia, if you read the full transcript, his argument is essentially this: “I have concluded that the death penalty is not immoral. And, this is a good thing because if I had concluded it was immoral I would have to resign as a judge because I could not endorse finding it unconstitutional based on my reading of the Constitution but I could also not rule in favor of something I found immoral.” He refuses to say whether or not he is a proponent or opponent of actually having death penalty laws, although I personally have a strong opinion of where he does stand on this from reading all that he says in that forum.
Personally, I think that Scalia genuinely believes that he is just applying his “strict constructionist” judicial philosophy with utmost fairness and dispassion. However, I also think people are much better at believing that their personal or political beliefs don’t influence their judgement than they are at actually not letting these beliefs influence their judgement. Scalia reminds me of people I know who are, as a colleague at work so aptly puts it, “almost as smart as they think they are”…I.e., he is a brilliant legal mind who unfortunately overestimates his own brilliance and dispassionateness a bit. Sort of like another former colleague at work who was was a rational objectivist, believing he could prove the correct (more or less “libertarian”) points of view to be objectively correct from first principles.
jshore:
I read the whole artilce, too, and don’t take it as a declaration of a political philosophy. It’s just as easy to take it as a way of responding to the oft asked question about the death penalty being applied “unfairly” in that some get it and some don’t, and that it should therefor be gotten rid of. He’s just pointing out that there are two ways to skin the fairness cat. And he pointed out what he uses to actually make his decsion as a SC judge on the subject:
IOW, the constitution does not require him to strike down a type of punishment bcause it it is not fairly applied, only if it not is cruel and unusual.
The whole problem with the “he’s not philosophically pure” argument is that the opposite philosophy defies a test of purity. If the constitution means whatever I think it means, then no matter what judgement I make, I’m being philosophically pure.
Scalia is consistently held up as the premier example of constructionist thinking in the US judicial world. But even among constructionist, there are going to be arguments about how to apply specific textual tracts under specific circumstances. Like DCU, I favor that method myself and often find myself agreeing with A.S. much more often than not. Scalia can be caustic and arogant at times, but it’s unfair to criticize his judicial rulings because of those personality traits. (And I’m not saying you have done this, but other posters on this thread have.)
Yes, if someone is making very explicit claims to philosophical pureness then they must be held to a higher standard in this regard.
Take my arguments with the rational objectivist as an analogy, I never claimed to him that I could prove from first principles why my liberal philosophies are correct…that I could prove that the only fair taxation is progressive, for example. I will strongly argue that this is what I believe to be true but I won’t try to say that one can prove it mathematically; I’ll admit it depends on one’s values. (This guy was a mathematician, by the way. And really did essentially believe he could prove this stuff just like you proved a math theorem.)
So, to summarize, I much more trust a judge who says that judging Constitutionality is a difficult issues and it is impossible to do it purely on the text and divorced from all context, regarding society, current values, etc. than I trust one who claims there is an objective way to interpret the Constitution and what everyone else is doing is less objective. And I will be particularly hard on this person if he ever seems to read into the Constitution things that don’t seem to be there when it suits his convenience…such as Bush vs. Gore.
To summarize the summary, people who claim they can be perfectly objective scare me a lot more than those who have a more complicated and nuisanced view of how you go about interpretting the Constitution.
Geez, that is a pretty stupid statement, especially from a judge who should know better. Sounds more like a Bill O’Reilly talk than one of his opinions. And it seems that his opinion on the eigth is colored by his religious views: the state killing someone isn’t really a big deal to him, because killing isn’t a big deal unless it’s a situation in which it imperiels one’s soul. And how the eigth the only amendment relevant? Even someone who thinks it’s applied fairly and equally has to concede that it would be unconstitutional to apply it without any regard to equal protection.
I was curious, so I pulled this case up and looked at it. I read through Scalia’s dissenting opinion, and I don’t see anything like raving bigotry. Maybe I’m not very good at reading cases yet, but I saw a few things that he pointed out.
- Moral legislation should be left to the states
- If the majority of the state want sodomy to be illegal they will legislate it
- The Supreme Court shouldn’t overturn this legislature unless there is a “fundamental right” to sodomy
- Sodomy isn’t a fundamental right
- Therefore the Supreme Court shouldn’t overturn this Texas legislation
Justice O’Connor did mention that sodomy was closely related to certain group and in making it illegal Texas was legislating against this group. I agree, but I also agree with Scalia. I don’t think the Sup. Ct. should overturn moral legislature made by the states.
Maybe I’m just not seeing the raving bigotry. I’m a little tired and it’s swimming before my eyes – I’ve read a lot of cases today. It seems like Scalia is just sticking pretty close to his original viewpoint of strict Constitutional interpretation.
He even says here:
I really am curious about this. Where is the raving bigotry? I want to be able to read these cases better.
Heh, originally posted by Scalia! I didn’t know he was on the SDMB!
Whew, I AM tired.
I don’t beleive any of those folks commented on pending or proposed legislation or endorsed particular candidates for office, or commented on the utility of existing legislation outside of decisions interpreting that legislation or determining its constitutionality. So no, basically.
Why don’t you just say “regardless” and save yourself a syllable? They’re synonymous, you know. Your usage is technically permissible but is considered really poor writing.
(Yes, “irregardless” is a pet peeve of mine.)
I think the “no future precendential use” part of the opinion was both stupid and near-wilfully naive. I understand why they’d want to do that – the facts of the case were absurdly bizarre, so God only knows how they might be applied in future cases – but think it was futile for them to do so.
Strict constructionists don’t claim to have a perfectly objective answer to how the Constitution should be interpreted. Strict constructionism is simply a methodological approach to interpretation. It clearly excludes some interpretations, true, but as John Mace points out, there is robust debate among strict constructionists as to how various provisions should properly be interpreted.