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Eats Shoots & Leaves
Citizen
Username: Mfpark
Post Number: 3036
Registered: 9-2001
| | Posted on Wednesday, February 15, 2006 - 10:49 am: | 
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Scalia Calls Philosophical Foes 'Idiots'
Conservative Justice Dismisses Proponents of 'Living Constitution'
By JONATHAN EWING, AP
PONCE, Puerto Rico (Feb. 14) - People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.
In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."
"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.
According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.
Scalia criticized those who believe in what he called the "living Constitution."
"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."
"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."
Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."
"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.
Scalia was invited to Puerto Rico by the Federalist Society for Law and Public Policy Studies. The organization was founded in 1982 as a debating society by students who believed professors at the top law schools were too liberal. Conservatives and libertarians mainly make up the 35,000 members.
Copyright 2006 The Associated Press. |
cjc
Citizen
Username: Cjc
Post Number: 5191
Registered: 8-2003
| | Posted on Wednesday, February 15, 2006 - 11:39 am: |
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He's right. |
frannyfree
Citizen
Username: Frannyfree
Post Number: 158
Registered: 1-2004
| | Posted on Wednesday, February 15, 2006 - 11:48 am: |
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Yes he is. |
Eats Shoots & Leaves
Citizen
Username: Mfpark
Post Number: 3038
Registered: 9-2001
| | Posted on Wednesday, February 15, 2006 - 11:56 am: |
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Well, he is certainly right wing!
I posted this without comment because I am of many minds on it, and I am wondering how others approach it.
On the one hand, I absolutely agree with him that the role of the judiciary is to interpret laws written by the legislature (state or national) within the context of the Constitution. Not to create laws from the bench.
However, it is also impossible for a justice to interpret the law or constitution without "personal, political, or religious beliefs." Justices are human, and the issues they deal with are very complex, shaded, and not open to easy decision. That is why we need justices in the first place, and why there is so much disagreement even within the court. To state, as he does, that there is no room for personal, political, or religious beliefs is disingenuous, because I know he is too smart to ignore this.
And it is also true that the original text of the Constitution was never meant to be all-knowing and all-seeing for all-time. That is why there were provisions for new laws to be written, new amendments passed, and a judiciary to review and opine on these. To argue that the Constitution is inflexible is also unrealistic.
I guess I come down to agreeing that judges should judge, not legislate, but that in judging they will of course modify or constrain legislation consistent with how their particular religious, political, personal, and social beliefs lead them. We hope that these will be reined in judiciously and that they try to be as even-handed as possible, but we cannot expect them to be automatons or rigidly tied to the text as if it were an illuminated manuscript written by angels (nor should we want this).
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Dr. Winston O'Boogie
Citizen
Username: Casey
Post Number: 1921
Registered: 8-2003
| | Posted on Wednesday, February 15, 2006 - 12:03 pm: |
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Quote:The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Leaves a judge with a conundrum if he believes he's going to find the answer to every question of the rights of citizens within the literal text of the Constitution, doesn't it? |
dougw
Citizen
Username: Dougw
Post Number: 715
Registered: 3-2005
| | Posted on Wednesday, February 15, 2006 - 12:30 pm: |
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Dr - what are you quoting?
ESL - If the consitution needs to be updated there is a process to amend it. |
dave23
Citizen
Username: Dave23
Post Number: 1341
Registered: 5-2001
| | Posted on Wednesday, February 15, 2006 - 12:39 pm: |
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Scalia makes a classic strawman argument by inverting the point that the Constitution must be interpreted in light of the moral, political, and cultural climate of the age of interpretation (to paraphrase Thurgood Marshall).
Does Scalia really think that our society is the same as it was in 1787? |
cjc
Citizen
Username: Cjc
Post Number: 5194
Registered: 8-2003
| | Posted on Wednesday, February 15, 2006 - 1:05 pm: |
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No, and neither did Congress which is why they've amended the Constitution and passed other legislation. |
bettyd
Citizen
Username: Badjtdso
Post Number: 87
Registered: 12-2005
| | Posted on Wednesday, February 15, 2006 - 1:21 pm: |
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Everybody turn in your modern guns, rifles and assault weapons and replace them with flintlock muskets. |
dave23
Citizen
Username: Dave23
Post Number: 1343
Registered: 5-2001
| | Posted on Wednesday, February 15, 2006 - 1:34 pm: |
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And be careful what you type on the Web. |
Southerner
Citizen
Username: Southerner
Post Number: 681
Registered: 2-2004
| | Posted on Wednesday, February 15, 2006 - 1:40 pm: |
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ESL,
Nice attempt to pull the Reingold routine. However, you only waited for two posters and less than an hour. Granted you are better than Foj who has multiple postings in a row, but if you aren't willing to wait more than an hour then just go ahead and post your comment with the article.
What is the point anyway? All the justices make speeches like this all the time. You must have a philosophical axe to grind with Scalia. |
dave23
Citizen
Username: Dave23
Post Number: 1345
Registered: 5-2001
| | Posted on Wednesday, February 15, 2006 - 1:42 pm: |
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Justices do make speeches espousing their points of view, but Scalia always adds a little spice to make sure it gets in the headlines. |
curmudgeon
Citizen
Username: Curmudgeon
Post Number: 753
Registered: 5-2001
| | Posted on Wednesday, February 15, 2006 - 1:48 pm: |
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Scalia is being the idiot here. One of the Supreme Court's main duties is to decide whether or not legislation is constitutionally valid - but the Constitution itself is often ambiguous so it needs to be interpreted - exactly what Scalia says should not be done.
For example, the 2nd Amendment says A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Okay, does that mean that individual citizens have the right to keep and bear firearms? Or does it mean that the "people," collectively as a "free state," may keep and bear arms only in the context of a "well regulated militia?" The Supreme Court, if asked to rule on a gun-control law, can only find it constitutional or unconstitutional after deciding what they believe the 2nd Amendment actually says. What Scalia believes it says and what David Souter, for example, believes it says may be entirely different things. Scalia said that the Court must stick to the Constitution "as it was originally written and intended." Not only is it sometimes ambiguous, but how to decide what was "intended" is the out that gets us right back to the Justices' "personal, political or religious beliefs."
In other words, there is no such thing, and can be no such thing, as Constitutional "Originalism." It is a fiction that happens to suit Scalia's agenda.
[Please note that I have no interest in arguing the merits of gun control here - just using it as an example of a place where the Constitution MUST be a "living," interpreted, document because there's otherwise no way to tell what it's saying.] |
TomR
Citizen
Username: Tomr
Post Number: 987
Registered: 6-2001
| | Posted on Wednesday, February 15, 2006 - 1:50 pm: |
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Does anybody have a link to Justice Scalia's full comments in Puerto Rico?
Thanks for any help.
TomR |
Dr. Winston O'Boogie
Citizen
Username: Casey
Post Number: 1922
Registered: 8-2003
| | Posted on Wednesday, February 15, 2006 - 2:24 pm: |
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dougw,
that's the Ninth Amendment. |
Bob K
Supporter
Username: Bobk
Post Number: 10692
Registered: 5-2001
| | Posted on Wednesday, February 15, 2006 - 2:38 pm: |
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The Constitution has been amended, from memory, 28 times. Ten of those are the bill of rights, four (?) deal with the end of slavery, two with Prohibition and a bunch of other amendments are purely "housekeeping" issues such as succession to the Presidency. Seems to me that the document offers some flexibility in its interpetation.
Not to mention a lot of the language is compromises that can be read more than one way and I doubt even if Ben Franklin (who was a pesimist about how long the Constitution would last btw) could have imagined the issues we are dealing with today, both socially and technologicaly.
The new European Union Constitution is something like 2,000 pages long.
I would hate to see us end up like some third world country that has to rewrite its constitution every few years.
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Eats Shoots & Leaves
Citizen
Username: Mfpark
Post Number: 3043
Registered: 9-2001
| | Posted on Wednesday, February 15, 2006 - 4:39 pm: |
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Southerner: Sorry you have such a cynical and limited view of your fellow posters. I posted it because I thought people would be interested in his comments. I waited to comment because a) I had work to do, and b) I wanted to think a bit before I wrote (try it more often, it works well).
I have no axe to grind with Scalia per se, although I do see the world very differently than he does and I often disagree with his rulings, and I actually found myself agreeing with his point that Congress legislates, not the Court. We could use more cajones in Congress, which has found it easier to defer to the courts on some hard issues (from civil rights to abortion to even some economic controls). But I do have problems with the rest of what he said, as I indicated, and as others have.
I think the axe grinding is all on your shoulders. Stop looking for partisan rhetoric under every bush and try to read and think. Your posts are always more illuminating when you actually engage the topic rather than blather on about someone else's motives. |
tom
Citizen
Username: Tom
Post Number: 4361
Registered: 5-2001
| | Posted on Wednesday, February 15, 2006 - 5:04 pm: |
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Scalia has no credibility on this topic. He was willing to insert the Supreme Court into the 2000 election, an election that the Constitution spells out procedurally in exquisite detail down to stuff that happens once every few hundred years, yet gives that court absolutely NO ROLE in. But he took it on anyway.
And speaking of the second amendment, if it means "arms" that means the right of the people to have assault rifles, artillery, surface-to-air-missles and nukes. You have the right to mine your front yard. After all, the framers didn't make any distinctions and the fact that most of those things weren't available in 1791 isn't relevant to an originalist. |
Threeringale
Citizen
Username: Threeringale
Post Number: 36
Registered: 1-2006
| | Posted on Wednesday, February 15, 2006 - 6:53 pm: |
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The constitution is a procedural document and the founders probably did not intend for it to function as a substantive blueprint for life in a Republic. That task seems to be assigned to the Federal Register which grows like Topsy every year.
People make constitutions. Constitutions don't make people. People who lived by custom and tradition would probably need little in the way of written law. A society that consigned custom and tradition to the scrap heap would probably need something like the 2000 page EU constitution as noted by Bob K above. Not to mention an army of judges and lawyers to apply it.
Cheers |
Southerner
Citizen
Username: Southerner
Post Number: 682
Registered: 2-2004
| | Posted on Wednesday, February 15, 2006 - 8:23 pm: |
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ESL,
You really need to lighten up. If you don't see the humor in your own words then I apologize if I touched a nerve. It's just you made a point to say you "posted without comment" and then waited for two posts that contained a total of five words before letting us hear your comments. I just thought that was funny on the face of it when I read it. If you don't see a little humor in that then I apologize.
As for the topic I have no idea if Scalia is right or not. He has his view and I don't mind him speaking about his view. |
Bob K
Supporter
Username: Bobk
Post Number: 10700
Registered: 5-2001
| | Posted on Thursday, February 16, 2006 - 8:48 am: |
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Actually, the Brits get along fine without a written constitution using common law and prescedent. This is basically custom and tradition.
An interesting point is that the United States Constitution is really difficult to amend. If the Founders didn't intend it to be a broad outline why did they make it so difficult to change?
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