Antonin Scalia - Justice and Democracy

[pneumatictrousers]

The Republic died 150 years ago. There were many ratifications on what we technically were since then. About 60 years ago we were a 'legislative democracy' but since then even that is no more. I get a kick out of the people today who think we are still are a Republic or have a republican form of government, haha silly sheeple

[stealthswimmer]

The founders didn't want a direct democracy and have people voting on every single thing. The government is supposed to protect people's rights, not give the go-ahead or thumbs-down on every action people take (like gay marriage). The part where he mentions gay marriage just seemed very pro-government to me.

[TheProtomartyr]

It isn't so much that his sentiments were pro-government, but rather are pro-Constitution. The Constitution nowhere provides for gay marriage as a right. Hell, it doesn't provide marriage at all as a right. Such questions are left to the states, per the 10th Amendment. What he's saying is that the Constitution is not comprehensive nor was it intended to be. It sets narrow limits on federal government and leaves the rest to the people. If they want gay marriage, they can vote to create it.

[stealthswimmer]

Actually, no. His statement was still anti-Constitution because the Constitution is NOT a restraint on the people,its only a restraint on the government.

By the way, the list of rights in the Constitution are not all the ones we have..they are those the government PROMISES to never disregard(even though it does).The listing of certain rights is NOT to be construed as throwing all the others out the window,as per the 9th Amendment.

People don't need to vote marriage. That's like voting for food

[TheProtomartyr]

You obviously didn't read my comment fully. I said plainly that Scalia does not see the Constitution as being comprehensive, so of course it doesn't contain all of our rights. That fact is only a problem for the living Constitutionalists, who want to interpret the Constitution as protecting every right. In a democracy, rights are created legislatively and NOT through the judiciary. (Cont...)

[TheProtomartyr]

If the Constitution protected everyone's right to vote, we would not have needed the 14th Amendment, the 19th Amendment or the Voting Rights Act. The Constitution was clearly deficient in these areas, and so the legislature acted to create new rights which previously did not exist. Similarly, the Constitution does not protect or guarantee a right to same-sex marriage. If the people want it (like they wanted votings rights), they should act through their representative government to create it.

[stealthswimmer]

No, these were not new rights and rights are NOT created legislatively. We HAVE rights, we don't need to government to give us rights. This is the concept of natural rights, which the nation was pretty much founded on. What we need is simply to have the government protect our rights. The reason we didn't "have" these rights before was because the government would not allow people to do those things that were later allowed. The government doesn't need to "ok" everything we want to do.

[BOOLsheet]

Scalia keeps talking about the 'exceptions to the majority's will in the Bill of Rights' but I've also heard him say that the Gitlow v NY (I believe) decision is "probably wrong" and under originalist interpretation, the Bill of Rights only did apply to the states.Then how is the Bill of Rights an exception to the will of the majority if the state isn't bounded (according to originalist views of the incorporation doctrine) by the Bill of Rights and can take away free speech, property etc?

[etsneroj]

A fair point. Although some decisions that are not consistent with original intent are so ingrained in our jurisprudence (like incorporation) that even originalists treat them as established law past the point of anything but academic debate. I don't suspect this term's case deciding whether the 2d amd is incorporated vs the states will be close.

[Minnesnowtakid]

Does anyone know where I could see the full version?

[timetofly5]

I thought we lived in a republic??? I was sure we did the United states is a republic? we do not live in a democracy! why is everyone always say we live in a democracy? is there a reason for this?

[LibertyPen]

I think Scalia was referring to democracy in the broader sense---that the people are at the root of power. You are right, we are a republic or a representative democracy. It is our elected representatives who should make laws, not appointed judges. Our founders did not intend for judges to act as philosopher kings, morphing written text to accommodate their personal beliefs.

[whoo689]

Because majorities can oftentimes be wrong. The majority of Americans at one point were wrong in thinking that racism and slavery are OK. They were wrong in thinking that women shouldn't have the vote. So why isn't there a possibility that they're dead wrong, and therefore shouldn't vote on, gay rights?

You can't argue for rights for one group of people and then say years later when another group wants equal rights "We're not giving them to you b/c we think you're not good people."

[TimeWarp66]

I agree that civil liberties should not be put to the vote, however I take issue with your philosophy that people are idiots and the government knows what's best for everybody.

[austinisi]

People are idiots (when it comes to the electoral process), therefore those in government are idiotic when looking out for the general public.

[TimeWarp66]

That's a very collectivist notion. There is no such thing as the "general public." There are only individuals.

[austinisi]

You could certainly argue that marriage should be a process performed entirely without government intrusion. This avoids the problem of putting government in charge of knowing "what's best for everybody".

[TimeWarp66]

That's the way I see it.

[whoo689]

If you ask me, the majority SHOULD NEVER be allowed to vote on the rights of the minority. Just imagine the outcry that would occur if California decided not to limit same-sex marriage but interracial marriage. I'm sorry, but this is a republic. We've never been a democracy, and the Founders warned against it. Direct democracy is dangerous, like when Prop 8 took away gay marriage from millions of people in CA.

In a republic, minorities deserve rights regardless of what the majority thinks

[fzqlcs]

To hell with the majority, because YOU want gay marriages. No society or religion in history takes same sex marriage seriously. But, you want some elitist lawyer to shove it down all of our collective throats. Be careful, empowering kings to rule over the people has not proven so healthy for your liberty. Don't be so short-sighted.

[austinisi]

You've got it all wrong my friend. How does allowing two gay people to marry constitute 'shoving' it down all of our collective throats? Since when do you have the right to stop others from marrying?

[fzqlcs]

The question is who decides? Should lawmakers (which in California includes the people through initiatives) or should it be a politically appointed lawyer? What if a judge declared marriage valid between a person and a dog? Or, claimed marriage itself was unconstitutional? The practice of same sex marriage may sound appealing to you, but no religion or society has ever enacted it. It is not about what is decided, but rather who decides. Think carefully about this.

[austinisi]

"The question is who decides?"

Whoever is intimately involved with the contract. That would be the two (or more) individuals who are capable of constructing and signing the contract.

[fzqlcs]

We agree. Any such contract can be made now without changing marriage laws.

[austinisi]

Would you then agree to remove all special privileges (taxes or otherwise) for heterosexual marriage? You can't say that heterosexual, homosexual, and polygamous marriages all share the same status under the law purely as contracts...

[TracyII77]

The sticking point with gay marriage, is that the contract extends beyond the individuals constructing it. Thanks to our ever socialistic society, issues such as pension and health benefits arrise. Should an employer be forced to supply pensions and/or health benefits to a same sex partner if it goes against their religious beliefs? Either way, someone loses their rights. Should a small number of unelected people (judges) determine what the law of the land should be or should the people?

[sniped101]

@whoo689 thats why we have liberty.. do whatever you want, as long as it doesn't hurt me or mine.

the founders should have outlawed slavery but somehow the founding fathers thought slaves weren't even people.