I totally agree with Justice Breyer. I don't think his ideas are just the more reasonable, but also the more likely to be true. The big problem for a textualist and originalist like Scalia is how can he explain the 13th and 14th amendment, but the power of judicial review to begin with.
Scalia Suggest: The Constitution should not be interpreted but be viewed Objectivity. One cannot rely on judges to always interpret The Constitution with good ethics/morality 100% of the time; therefore textualism is the best way to view The Constitution.
Breyer Suggest: The Constitution should be interpreted and viewed Subjectively. Because as our culture changes we need judges who look at the context of the text which is relative to the people/culture today/future.
@canofsand - And yet Men created the laws, which in turn are a snapshot and reflection of their values, beliefs as well as the philosophical zeitgeist of their times.
As society changes, so must the law to reflect those changes.
The constitution IS a living document because it serves as both landmark AND a set of guideline for democracy.
But let us not forget to practice democracy, not just enforce it. If laws can be changed and amended, then so can the constitution, which is just more laws.
@morpheusxnyc Wrong. It is a living document in that it can be amended. But living in terms of it means what it means in the context of the times we live in is rediculous. That means that the document in effect means nothing.
@DANJULLMANN44 - Oh, really? !What are amendments if not recognition of the fact that the times have changed?
Almost every amendment has been brought about as the result of new sociocultural considerations, usually after abuse by officials or large powerful bodies.
Just read the history of the amendments and see what triggered each one and you'll see a history of social advancement prompted them.
Just why exactly did you think the constitution was amended so many times over such a long time?
@DANJULLMANN44 - The Constitution is a guideline - rules of the road that govern our society, but their application are based on interpretation of its wording - wording which was written before the existence of much of what it governs today.
Slavery was constitutional - so it had to be amended. But not everything is enshrined in the constitution therefore requiring an amendment.
Some things are written into the spirit of the law and fall under jurisprudence and interpretation of the law.
@morpheusxnyc Yep, so the const clearly delinates limited powers of a fed gov. Prior to the const the states opporated independently. The founders and the citizens of the states had come from gov that were centralized and powerful. The founders wanted to ensure that power would resid primarily in the states and that gov power in general would be limited. These basic principles have been undone by both congress and the court. An activist court. That is what Scilia argues against.
"From bondage to spiritual faith; From spiritual faith to great courage;From courage to liberty; From liberty to abundance;From abundance to complacency; From complacency to apathy; From apathy to dependence; From dependence back into bondage." -Alexander Tyler on the Democratic Cycle
The living constitution preamble: We the Oligarchy of the US, in Order to form a more perfect central government, establish only criminal Justice, insure controlling Tranquility, provide for the common redistribution, promote social Welfare, and secure Liberty to the Oligarchy and our Posterity, do establish this erratic constitution for the US.
@Mike10four "From bondage to spiritual faith; From spiritual faith to great courage;From courage to liberty; From liberty to abundance;From abundance to complacency; From complacency to apathy; From apathy to dependence; From dependence back into bondage." -Alexander Tyler on the Democratic Cycle
@freyness Thanks for Tyler's cycle quote. Relative to today we are in bondage. Therefore, the next cycle phase should bring us back to faith hence, our Constitution. According to John Adams: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." I hope we could live long enough to experience the "liberty to abundance" phase.
@Mike10four Oligarchy only exist due to an apathetic society. You are to blame if: You watch TV religiously, consume yourself with credit, obsess over ambiguous laws: abortion, gay rights, etc. And in general consume yourself with.... consumerism.
@Mike10four You're a fool. The US Constitution was written over 200 years ago by people, who by todays standards, would probably be considered mentally retarded. The Framers themselves were living constitutionalists they wanted discussion, they wanted ammendments, they just didn't expect the parlous level of polarisation you have at the moment.
@KungfuCow5 Read the constitution, it has an amendment process. Also, the design of our Constitution of 1778 promotes the “parlous level of polarization” I wish we had today. Remember, anytime congress passes anything, you lose a little bit of your freedom. The “living constitution” effectively bypasses the amendment process. I challenge you to find out how many laws and regulations we have on the books today. And you want more?!?
@Mike10four Look at the seal on a 1 dollar bill, it is of an unfinished pyramid, a permantly unfinshed pyramid; the USA is unfinished, the Framers intended for the USA to change and grow as its people did, they wanted discussion and co-operation, they didn't want gridlock and a filibusters and Contract with America.
@KungfuCow5 “Contract with America” is our Constitution of 1778. In the 5th Amendment, government is to protect our “life, liberty, or property,” found in our Declaration of Independence of “Life, Liberty, and the pursuit of Happiness,” for Happiness, in part, is ownership of property. Growth in the USA is the freedom to acquire property as in wealth. For freedom is a function of wealth. The more laws, the less freedom, as we move towards tyranny in today’s “living constitution.”
@Mike10four Happiness isn't the ability to acquire property. That may a a small factor for some, a veeeeeery small factor. True happiness comes from other people and within.
@KungfuCow5 That is your philosophy of Happiness. Each and every one of us have our own unique philosophy. Therefore, nor you or government should define what Happiness is. That is why our Constitution of 1778 was design to give each individual the Liberty to pursue their own Happiness.
It never fails to amaze me that two of the most powerful men in America can sit down in spite of their significant differences of opinion and just... converse!
The nature of this debate is a perfect example of why we are so fortunate to live and work in a country like the United States.
SO SAD he thinks we are a democracy. How much education does a person have to have to figure out we are a REPUBLIC? And to the REPUBLIC...for which it stands.
the main problem with scalia's argument is that its a load of crap. I lost most of my belief in him after this most recent opinion in Mcdonald. After all that bitching and moaning about substantive due process and applying "original understanding," he agreed we should apply the 2nd amendment to the states. originalist my ass
As he explained in another interview, he can't go around reinventing the wheel all the time. The doctrine of incorporation is much older than scalia and is established precedent, in loads of cases.
The problem with Scalia's argument is that judgments do have consequences. Every judgment, especially at the supreme court sets precedent, which lower court judges must follow. To not consider the precedent one is setting is insane.
The Constitution is a legal document. Much like a last will and testament, an executor follows what it says and doesn't bend or alter the words to fit their need. That's illegal.
"That's the 'living Constitution' I'm talking about, and I wish it would die."
While I don't know the inside out of our judges, I really love Antonin Scalia right about now, and that's for both of his arguments, but that one liner was brilliant.
He says that if the people wanted to make a law that supported the death penalty, abortion, or suicide we could do it through Congress instead of by changing the constitution. Although I agree with most of what he says, I sort of stopped in my tracks when I heard that. If Congress passed a law that conflicted with the constitution, it would quickly get stricken down. So that wouldn't work.
Yes, especially with the majority of the Court being conservative...
Ultimately, his argument is not new...this is the excuse conservatives always give for their bad decisions which are biased in favor of the aristocracy of American
society. It's their way of 'passing the buck'...their way of perpetuating their obsession with medieval social values...
@csilva85 -The majority of the court is NOT conservative. Gee wiz. You want the Supreme Court to pass all your dopey agenda. Then it becomes law is ALL 50 states. So much for democracy ... and the vote! You'd rather let 9 people change our society because it is more polictically expedient for YOU. The majority of the people in this country are center -right. And it kills you. Nobody is passing anything. You comment is BS and you are absurd. Keep trying.
The reality is that the majority voted for President Barack Obama, the commander-in-chief of the United States of America in 2008, and, as with the defeat of the conservative Confederates in the Civil War, Obama's victory is "kiliing" the conservatives.
@csilva85 : That's why the goal of the Republican Party of "NO" is to make sure
"nobody is passing anything". Their sensitive, fragile conservative egos cannot accept defeat at the ballot box. They had to let 9 people change Al Gore's victory in 2000 to a victory for George Bush II, an act of Judicial Activism engineered to
change society because it was more politically expedient for THEM....
@csilva85 -You are bringing slippery facts - Gore brought the action. The judiciary did not seek it out. What are they supposed to do - say it's not justiciable?
@socalcraigster - Careful, you're getting slippery again.... The case is known as "Bush v Gore"; Bush was the PLAINTIFF, and Gore was the defendent....The Supreme Court actually did render an activist decision because they inserted themselves into an issue that was ONLY a Florida issue. Since the vote count in Florida was not a FEDERAL issue, the Court therefore acted unconstitutionally...
@csilva85 - This was NOT only a FLorida issue. In a per curiam decision, the Court in Bush v. Gore ruled that the Florida Supreme Court's method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court had jurisdiction over this case. You are mistaken. You facts are wrong.
@csilva85 - Do you reply to yourself all the time? Obama won by maybe 7 points. It wasn't that great of an upset. "Conservative Confederates"? Where did you get that from - a history book? A. Lincoln was the first Republican. You guys always try to paint Republicans as negatively as possible. You see protecting our border as being rascist. Absurd. Keep telling minorities that they are victims so you can get their vote. Keep telling women that they are victims to justify abortion.
@socalcraigster - There you go again...'You', 'you', 'you'...'Liberal' this and 'Liberal' that...if the conservative doesn't like it, it must be "liberal"...except when they want to steal the credit for themselves...
@socalcraigster ...That's why I said, "If Congress passed a law that conflicted with the constitution, it would quickly get stricken down. So that wouldn't work." Don't be inflammatory.
@zzzbrianxxx : Don't pay him any mind, he can't help but be inflammatory...
and insulting....and factually slippery:
The Supreme Court's use of Judicial Review has no foundation in the U.S. Constitution. Judicial Review was invented by Chief Justice Marshall as the original act of Judicial Activism, a fact which Federalist Society activists such as Scalia conveniently ignore, because it is more poltically expedient for them to
You are such a typical liberal. Any opinion contrary to a liberal's is unsophisticated, medieval and racist. And of course, all conservatives, by definition are close-minded. So pay them no mind. Don't let them speak at universities. What ever happened to rigorous debate? I'll tell you - liberals have taken over the schools and the press. And still they can't become the majority.
@socalcraigster - Ah yes...the "Liberal Media", another conservative fairy tale...
What happened to 'rigorous debate' is that the corporate media have taken it over...
There is no Fairness Doctrine; the so-called "Liberal Media" is all about all Glenn Beck, Tucker Carlson, Rush Limbaugh, Bill O'Reilly, Sarah Palin, Ann Coulter, Sean Hannity....they control the "marketplace of ideas"....
@csilva85 - The 1st Am. applies to state action - federal/state GOVERNMENT from interferring with a person/company's right of speech. As far as I know, Fox is not owned by the government so they are free to put whatever programming they think people want. If it profitable, they will do it. Just like Hollywood. In any debate, the conservative wins - just like here. Liberals believe everybody is a victim. They make good props.
@csilva85 - I am a victim ... of your absurdity. Everyone is a victim to you, even yourself. Don't worry. There is a big fat government entitlement out there somewhere that you will qualify for. Why not take a look at what is going on in Greece - gov't trying to scale back entitlements and those that are entitled are rioting. At least Greece has someone to bail the out - the EU. Who is going to bail out the US if we fail?
Corporate takeover? Do you actually believe that? You want big government to regulate everything from a bowel movement to what kind of cars we can drive and to interpret the Constitution in any way they feel at the time. Conversative principles, without religion, enpower individuals far. Liberals want government in every aspect of people's lives. At some point, those who earn money will simply stop/reduce earning if the gov't is going to redistribute it to another.
@socalcraigster - And what's wrong with religion??? And I thought you were a REAL
conservative...
Are you one of those Ayn Randian [Or, "Ann RInd", as Ann Coulter says] robots??? "Objectivism"...what a joke!!! Yeah, Ann Rind was an object alright...
@james81985 -Ah you hit it on the head! True conservative principles do not need religion. Although many are devout (usually some form of Christian) and that is ok. The problem is the left attacks those who believe in tradition value. But those values are not specific to Christianity. I think people focus on the negative of the "bible-thumpers" without putting it in perspective. When the tragedy hit Haiti, mostly Christian aid groups, some who were already there, received donations.
Another Loose Constructionist interpretation of the U.S. Constittution
by the conservative...
The actual text of the 1st Amendment of the U.S. Constitution makes NO reference to "company", but it DOES specifically mention "the right of the PEOPLE
[emphasis added]."
Of course, conservatives swear up and down that corporations are the same
as "the people", or, living breathing human beings....a perfect example of
While judicial review may not be expressly stated in the Constitution, it arises by implication. Go read Marshall's opinon in Marbury. There are alot of things not mentioned in the Constitution. For example, the 1st Am states that "Congress ..." shall not abridge freedom of speech or establish religion. Technically speaking, states can regulate those rights. However, through the doctrine of incorporation, SCOTUS has included these rights. Without JR, they would have no authority. Get real.
@socalcraigster - you said it! Judicial Review IS implied, which puts the arguments of "Strict Constructionists" like Scalia to shame... If it were not
for the activism of Justice Marshall, Scalia would be out of a job!
[Just kidding, of course, he always has a home at the Federalist Society, I'm sure, or... he could be a conservative talk show host like the 'Dittomaster' -
Many things are not explicitly stated in the Constitution. In Art III, the framers created the judicial branch & vested power in the Supreme Court. Judges interpret & apply law to the facts. When Marshall established JR in Marbury how come nobody protested? Because it is common sense. Since a judge's job it to "judge", he/she is supposed to start with the actual words of the text.
To be fair, they let Scalia get the last word in. You should read Scalia's "A Matter of Interpretation" and Breyer's "Active Liberty" to get a better picture of the debate. They're both very interesting (and stubborn) positions.
@DarcPrynce - Your conservative ideology is showing.
The reality is that your political perspective informs whether your not you find one or the other argument persuasive.
Scalia is doing a poor man's Rush Limbaugh with his sarcastic mannerisms, dismissive tonality and pseudo-intellectual mockery when he makes his points.
If you find that entertaining and the darkness within you cheers for that rough handed, legalistic treatment of humanity, then you'll find him all the more compelling.
@morpheusxnyc Says you. etsneroj and other "liberally minded" people who base their opinions on logic instead of emotion disagree with you.
You clearly are of the emotion of logic type, as your comment proves. Seriously: "entertaining," "darkness within you," etc.? There's no logical reasoning in your comment at all, yet you project your flaw onto those you disagree with.
@canofsand - I can't speak to Etsneroj's views, only my own. If you disagree with me, that's fine, but don't try to delegitimize my perspective with false analogies.
I'm employing reason and observation, not emotion. And my observation is that the lack of empathy for those that are not like them is at the core of conservatism, which in turn informs their politics.
And it seems that the pathos Scalia's uses in his rhetoric do deliver his detached, inhumane perspective is what appeals to some.
@socalcraigster : Do you hate ALL liberals, and all forms of liberalism, or just the "dumbell(s)"??? Is there ANY form of liberalism that is acceptable to you???
Use the legislature, the originalist says. What he doesn't tell you is that the originalists on the court will proceed to strike down democratically passed laws as unconstitutional constraints on, say, property rights. The Framers did not understand the Constitution to protect the rights of corporations, yet there are the originalists, insisting that it does. I submit that neither left nor right applies original understanding consistently. And that neither should.
You should stick to cartoons. This topic seems a bit much for you. Democracy cannot overrule the Constitution---the law from it came. A corporation is a collection of individual, each of whom has rights. For you to weigh in on how the Framers understanding of our founding document is about as valuable as listening to Daffy Duck lecture on nuclear physics.
I think it's not obvious that the Framers would have shared that understanding of the corporation if they saw what it would become. Purely profit-driven, shorn of any national loyalty or sense of public responsibility. Yet originalists have no problem saying the Constitution gives these beasts the rights of a person. Since when is a collection of persons the same as an individual? Can't we at least have a debate about that instead of pretending original understanding will answer every question?
Are you saying that you and I acting together should have less rights than you acting alone? Corporations do not exist to serve government. It is government that exists to protect the people. Corporations DO serve people by providing products or services so valuable that people VOLUNTARILY offer their money in trade. Unlike government, corporations must please people in order to obtain their money. Is it you believe yourself entitled to the fruits of their efforts, using government as a weapon?
I replied more extensively to your first question in a personal message. Government needs people's votes. It is at least as responsive to people's wishes as corporations, which need only satisfy a relatively small number of people (who can afford their products) but whose activities affect everyone else in so many ways -- environmentally, politically through their financial/lobbying power.
The Constitution is the agreement made between the people and their government. It is the law from which democracy descends. Democracy cannot overrule the law. That becomes two wolves and a sheep deciding what's for lunch. Democracy over the law is the definition of mob rule. The rights of all must be respected, even those who are envied and despised. Once we begin breaching rights based on popularity, the flood gates open and no one is safe.
Off cause you can overrule a constitution with a majority - either by legal means or by setting new law - aka the invocation of "pouvoir constituant originaire" which is, by definition, not bonded to any pre-exiting law. The last the USA invoked the "pouvoir constituant originaire" was 1787, there no reason why it can't be happen in the future.
At the end any constitution is a mere piece of paper, having only as long valid as people obey to it.
@hartmut1164 - You still repeating these dopey statements. Find me an Amercian Jurist who holds your views. I do not think Britain even has a WRITTEN Constitution. Don't you rely on the Magna Carta?
I'm inclined to side with Scalia's "originalist" standpoint. It seems to be a more objective, meaningful standard of law. Judicial activism undermines the supreme law of our nation by altering the law and the Constitution without using the legislative or amending process. I like the guys, but I don't trust them that much.
You're quite right to say that Breyer is largely underrated. My sense is that the primary reason people underrate Breyer is that he's not as crisp and memorable a writer as Scalia.
Even as a liberally minded lawyer, I have always found Scalia's view more persuasive. The constitution is a law and when times require the law to change, we change it through the legislative process. We don't ask judges to "reinterpret" the old law; that would be anti-democratic. Same for the constitution. If it doesn't reflect our values today, we should amend it. It used to be that women couldn't vote and blacks didn't have equal rights, so we amended it. Its hard to do, but it can be done
@etsneroj You are soo right, Justice Scalia is incredibly smart. I would wager that he's the most persuasive debater in the history of the Supreme Court.
@etsneroj Women and blacks couldn't vote because of NOT following the Constitution. In The Declaration. "We hold these truths to be self-evident, that all men are created equal," the fact that women and blacks were treated as less than equal was wrong. There was no need for amendment, the law needed to be enforced.
@ny1t The intention was to protect Individual Rights. But if you look at almost every amendment after 1800, they include "Congress shall have the power" whereas prior to this they included "The Right of the people" and Congress shall make no law". Amendment have gone from protecting the people to oppressing the people.
Rights do not change. They are natural. All amendment should reinforce Rights.
@ny1t, First, the Declaration of Independence is not a law. It is an asperational statement (a great one) but, you cannot cite it as legal authority. Second, I agree unequal treatment of women and blacks was wrong. But it was legal. When the constutition was ratified, there was no 14th amd conferring equal protection under the law; the constitution recognized slavery as an institution; and voting rights were exclusively for men. So, you are wrong: The constitution did need to be amended.
@etsneroj I am wrong? So you are the one that makes that determination? Maybe you are wrong and too closed minded to see it...Maybe you could learn manners in a civil society. Or hide behind your keyboard and snipe at people you do not know.
The basis of all Rights is Natural Law. It predates The Constitution. Treating any human as less than equal is a violation of natural law.
@ny1t, I'm not close-minded/special/sniping. I'm debating. Here's how it works. I say you're wrong, then I make an ARGUMENT for the better position. You then EXPLAIN your position. Restating your conclusion is not an argument. My view is that natural law does not exist; its a nice idea, aimed at giving our rights a higher origin, but that it is fiction. Rights, I argued, are conferred by society, not nature. In response, try supporting your idea, instead of restating it.
@etsneroj I "disagree" with you then we debate. I can disagree with you, it doesn't mean you are wrong.
You seem to have the idea that a democracy decides Rights. So that means we can decide to murder an ethnic group and it is OK as long as society decides it. So people have no Right to Life. We are a Republic. The majority has a say, but the Law has to protect individual Rights equally which is the purpose of the Constitution.
@ny1t , killing people would not be "ok," but if we changed the laws to say killing was legal, it would be legal, and your "right to life" would be abrogated. What you say about the constitution is correct. All I'm saying is: the constitution and the laws passed thereunder are where your rights come from. In countries where they have weak laws, they have weak rights.
@etsneroj You do not have the Right to infringe on the Rights of another. You cannot make law that makes it legal to kill another unless they violate your Rights first. You do not have the Right, you cannot hire someone to do it and you cannot elect someone to do it. If you are really interested in understanding this point of view, you should read 'The 5000 Year Leap" It does a better job of explaining it.
@etsneroj Natural Law gives you the Right to Life, Right to Property, Right to Eat, Right to Barter and so on. These are Rights that exist without government. The government does not have the Right to force you to work. But you may starve if you do not provide for yourself. As for the higher origin or not, it is not the Right of another or government to decide your Rights (unless you violate the Rights of another.). This is why we have self-defense.
@ny1t, I don't know where to start. You misunderstood everything I said. I'll just ask you to ask yourself: If "natural law" exists apart from human legal systems, where does it come from? Who/what decides which rights exist and which don't, and where can you look to figure that all out? Under US law, I can look at federal and state constitutions, statutes and regualtions. Under "natural law," where do I look? You list a bunch of rights in a conclusory way; give me support.
@etsneroj Natural Law was well understood at the founding of this country. Many felt it need not be defined in The Constitution. But others felt the need to enumerate some of them and that is where the Bill of Rights came from. Amendment IX is the key. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Notice "retained". A Right, you do not have to ask permission to exercise and cannot infringe on another.
@ny1t, some founders thought the bill of rights was unnecessary, not because natural law was good enough, but because they read the constitution as not giving the federal government the powers sufficient to infringe personal freedoms. They didn't realize that Congress would eventually legislate every aspect of our lives, citing the Commerce Clause as the basis for their power.
@etsneroj Part 2...We create government to protect our Rights.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"
I have a Right to Eat, but not your food. I can barter or you can give it.
@ny1t, I like the idea, but I don't believe these rights exist apart from our wisdom in declaring them. The British did not give us all these rights, so we did not have them, until we took them for ourselves. In much of the world people have virtually no rights at all. You would say, they have them, they're just being denied to them wrongly by their government. I agree the denial of such rights is bad, sometimes even immoral, but I believe rights come from laws, not nature.
I agree with Scalia more than Breyer. If the meaning of the Constitution hinged on the values/standards of society and/or culture then the Constitution would lose authority and society and/or culture would take its place as the standard. By drawing a line in the sand, at least we have something definite to live by. Nihilism abounds in relativism. I suggest we push more towards 'conservatism' than 'liberalism' in these regards.
You seem confused on Breyer's position. He does not claim that the Constitution hinges on the society or culture. He's saying that in writing the document, the Founders established a set of broad ideals and principles. The values written into the document never change, but how we apply them does as societies evolve. I find Justice Scalia's point about the living Constitution to be illogical; he might as well be arguing against former Supreme Court cases that were overturned.
I think this response is more a strawman argument than anything else. Scalia is correct when he asks essentually "who decides?" The Constitution is a finite powers document as a Social Contract. If people want more rights, than there is a process for that - the legislature. Judges are not suppose to be asking questions and legislating from the bench to limit democratic perogatives that the Consitution in its text permits.
This is an illogical response. When Scalia asks, "who decides?" he must not understand that he decides cases all the time based on his own perception of what would be right. No one at the time the Constitution was written thought mixed race individuals could get married. The Supreme Court ruled that they could based on principles already in the Constitution. But I suppose you would have put that up to a vote-the whim of the majority-wouldn't you?
Interesting strawman argument. But, if you actually READ Loving v. Virginia, you will note that it goes under the 14th Ammendment, which was post-Civil War. Scalia would have agreed that if the people want to democratically change the consitution, (like the 14th A.) then great! But, if the people don't want to change it legislatively (aka democratically), then don't go asking the court to magically discover some right to be married.
Again, illogical. You don't seem to have understood what I was saying. I know that Loving v. Virginia was post Civil War. The point is, however, that no one at the time thought that the 14th amendment's equal protection clause applied to marriage. And certainly no one at the time thought that a marriage between an African American and a white person was legitemate. But the court ruled in favor of marriage anyway.
And to say that the legislative institution of the 14th amendment was DUE to unfair marraige practices is one of the most idiotic arguments I've ever heard anyone make. It just so happens that the Supreme Court decided that the words which represented the ideal of the 14th amendment applied to marriage as well. And if you admit that Loving v. Virginia was a fair ruling based upon the 14th amendment, how can you be against gay marriage based on the same principle? You can't have it both ways.
I need to preface that I never stated I was against gay marriage. Second, you strawman me again by saying I made some "idiotic" argument about the 14th Am. being constructed because of marriage. Read above. I NEVER said that. But you like to tack that on as an insult. The 14th deals with equal protection under law. That means ALL marriages under the law should be treated equally. The 14th's constructors might not have construed gay or interracial marriage.
But they DID say they wanted the institution of marriage upheld, as was cited in Loving, which I agree with. However, states do have the right to oppose gay marriage, and they do have the right to construe marriage as they wish. But, under the Constitution, if ONE state wants to provide racially blind or gay marriage, the consitution requires all states to recognize those marriages regardless of their state laws, which is why I think DOMA is unconstitutional.
So you agree then that no one at the time of the inception of the 14th amendment viewed the equal protection clause as applicable to marriage, let alone interracial marriage? And yet the court ruled that it did apply. Watch the video. Scalia's entire argument is that something viewed one way during its inception can't be construed to mean something else later on. But in Loving v. Virginia, the 14th amendment WAS taken to mean something else later on. Would you say it was an unfair ruling?
Sorry, was in Morocco for a few weeks. No, I don't think its an unfair ruling because the 14th Am. discusses racial laws. Equality is expressly mentioned there. They don't have to mention "marriage" at all. By doing that, it retains the original meaning.
That's irrelevant. The reason cited in Loving was the equal protection clause of the 14th amendment, which DOESN'T actually mention race. "...Nor deny to ANY PERSON within its jurisdiction the equal protection of the laws."
If interracial marriage was construed as equal protection during the time of Loving but not during the time of its inception, and you think it was a fair ruling, you'd have to disagree not only with Scalia's main point, but with his entire philosophy of the judicial system.
You can't seriously be arguing that the legislators of the 14th Am. which came at the end of the Civil War didn't discuss racial laws. And that includes the state legislatures involved. But you show me where there is discussion about state prohibition of abortion or assisted suicide in the original.
If there is a clause in the 14th that provides a right to the individual, it doesn't matter what the state legislatures say. Now back to the point I was making which you skipped over entirely: whether or not the legislators of the 14th Am. discussed racial laws is irrelevant. What matters is what they ACTUALLY WROTE in the Constitution. And, as I've already said, the equal protection clause applies to all people, not just blacks or emancipated slaves.
If it is the case that the 14th says "people" and not "black people" (which it does), if it is the case that that amendment was not construed to apply to interracial marriage when it was written (which it certainly was not), and if it is also the case that you believe that things construed one way during their inception cannot come to mean or be interpreted another way later on, then you MUST be against interracial marriage. This is one example of the many flaws in the Originalist outlook.
To put in a single word: No. First of all, Scalia's position is that someone had to have conceived of the statute being used in a certain way. That's legislative intent. Read the Crawford case on the confrontation clause which is now good law. They literally read what the founders thought in 1789. For the 14th you can read what the leg. said or what the state leg. said. That isn't irrelevant at all because they have to agree to the constitutional changes too.
Wrong again. If the legislators had discussed that the first amendment actually only was meant to be applied to people over 6 feet tall, then would that stand now? Obviously not, because they simply DIDN'T WRITE that into the first amendment, regardless of what they may or may not have discussed. Obviously legislators have their initial impressions of how a certain statute will be applied in the near future, but they certainly don't consider the distant future.
Ok, well, now you're onto a substantive argument. You may not LIKE that interpretation, but that's what "Original Intent" means. Legislators do think about the future. Which is why they wanted their original intent enshrined in a finite constitutional scheme. The Founding Fathers worried future generations might erode liberties. And just so you know...the 1st Amendment wasn't suppose to apply to states at all, but the 14th changed the Bill of Rights to apply to all states.
And it says equal protection of the laws. If the legislators thought "this can apply to racial statutes" then they don't have to say "racial intermarriage"...that's irrelevant. Jim Crow can take many forms. Originalism just keeps the scope of Constitutional challenges smaller. I think you strawman here again.
Whether or not they "thought" it was applicable to racial laws is irrelevant to our argument. By that logic, every single amendment before the 14th was enacted would not apply to free black people, since it was "thought" during the inception of those amendments that they would apply only to free white men. More important than what they "think" is what they actually WRITE.
The very genius of the founders is in their recognition of the fact that we live in an ever changing world. If the constitution had been written a few thousand years ago, we might be talking about how people are put to death by stoning. Obviously, that would now be considered "cruel and unusual punishment," even if it wasn't before. The Founders used broad words to describe ideals. Those ideals never change, but how we apply them in an ever changing world does.
That's right...IF it were written a thousand years ago, but it wasn't. Stoning might or might not be considered Cruel and Unusual, I don't know. But that would be up to those looking at what the Orignal Intent was of the Founders. You know? Fine. If you want these ideological principles applied to the law, then do it through the Congress. That's what they're elected to do. All the judges restrict are various democratic perogatives the Founders said were prohibited: ie C/U, Speech, Gun Rights..
So with Scalia's logic, the Warren court should not have outlawed segregation because it existed in 1787 and is not expressly prohibited by the Constitution. This ranks up with his "torture isn't punishment" comment as woefully misguided.
no not really this speaks to the fact that u dont know the basics. The reason segregation was outlawed was not because the justices legislated that it was wrong, but bc it didnt go along with what the 14th amendment said. That is equal protection of all under the constitution. And Thurgood Marshall had good evidence that seperate and equal clause in the plessy vs. ferguson did not support the 14amendment and that is why it was unianimously rejected by the warren court.
Were you aware that Scalia was the only justice who ruled in 1996 that VMI did not have to admit women as long as it established a separate but equal program elsewhere? Tell me that kind of thinking doesn't violate the Equal Protections clause. Scalia dismisses the idea of an evolving Constituion by citing tradition and textualism as the cure for all consitutional worries. Justices have mutilated the Constitution in the past, so your example only proves the necessity of a living Constitution.
not exactly.The problem with people implying the living constitution is not that certain things needs to be retooled for current generation like for example free speech applying to the internet, tv, radio etc. But that does not mean that you can legislate by making a decision based on a broad interpretation that does not exist in the constitution. Supreme court justices are not elected democratically, and for majority of justices to legislated throws the separation of powers out of order.
secondly i am not supporting all the decisions scalia has made in the court, nor can you i believe support all the decisions activist judges have made, i.e. eminent domain case (Kelo case). But since u made the argument that the brown decision was a decision based on a living constitution is wrong. Since it was decided unianimously, most of the justices in the court were textualist and originalist that scalia based his ideologies on thats where my problem was with ure argument.
Brown was not unanimous until Justice Warren talked to the four dissenters and urged consensus on so momentous a decision. If Fred Vinson hadn't died after the first Brown v. Board, "strict construction," as you say might have gone out the window in favor of continued segregation. But regardless of that fact, living constitution and strict construction are not opposites -- living constitution is the opposite of orignal intent, and strict construction the opposite of loose construction.
An interpretation under living Constitution can be arrived at with strict or loose construction; the same with orginal intent, as D.C. v. Heller showed. In the end, it all comes down to how rigidly a Justice wants to adhere to his ideology. Scalia does it in a far more rabid way than did moderates such as Rehnquist. I only justfiy Brown as being a living Constitution case because it overturned precedent, overturned Southern institutions, & was a product of its time (clearly not original intent).
see i dont have problem with the fact that you apply a law that was 200 years ago, and interpret it to the current situation. The problem comes when it is misused. Brown decision overturned a previous saying that the reasons posed in Plessy was untrue and did not apply. But the problem people like scalia and thomas have is recent cases like Roe v. Wade and the Kelo case on eminent domain, where there was no overturn, but an interpretation that did not exist in the constitution.
And that is the problem many originals or strict constructionist or whatever you want to call them. Issues like abortion and eminent domain has no place when it comes to interpretation of the law, but a passing of a law. And that law was passed I believe undemocratically, by 5 justices to over 300 million americans. I dont think that was what the founding fathers had in mind when they created the supreme court and thats my basic argument against the living constitution.
It's true, most of the Founders didn't want the Supreme Court to have the last say in interpretation of the law (although Marshall fulfilled that role, short of amendment, that is), but I really don't think that there is a gauge of "misuing" judicial perogative--unless for ideological gain. When the majority of Southerners supported segregation, a majority denied women abortions, and a majority wanted prayer in schools, it's the judge's duty to figure out the most just interpretation of the law.
if u want evidence, the justices that i believe were strict constructionist in the brown case were justice hugo black, justice william o douglas, justice tom c. clark, justice sherman minton and frankfurter was proponent of judicial constraint which many conservative judges believe originalism will lead to. So ure wrong to imply brown case was decided in part by the idea of a living constitution
The Equal Protection Clause didn't even give women the right to vote. By its very terms, the Fourteenth Amendment assumes that only men will be permitted to vote. (See section 2 of the Amendment, which says that something bad will happen to any state that denies adult MALES the right to vote.) So if you're going to interpret the Fourteenth Amendment as requiring gender neutrality, you have to ignore, not only the original intent, but also the language of the Constitution itself.
no not really this speaks to the fact that u dont know the basics. The reason segregation was outlawed was not because the justices legislated that it was wrong, but bc it didnt go along with what the 14th amendment said. That is equal protection of all under the constitution. And Thurgood Marshall had good evidence that seperate and equal clause in the plessy vs. ferguson did not support the 14amendment and that is why it was unianimously rejected by
The title should be Living Constitutionalist vs. Originalists. Originalists have been activists as well, Scalia is the finest example.
KungfuCow5 1 month ago
Scalia an originalist? Randy Barnett would disagree with that characterization.
seriussam101 3 months ago
I totally agree with Justice Breyer. I don't think his ideas are just the more reasonable, but also the more likely to be true. The big problem for a textualist and originalist like Scalia is how can he explain the 13th and 14th amendment, but the power of judicial review to begin with.
refugee15985 8 months ago
This is a carved up mess to make it look like Scalia "won" the conversation.
Pernoctate 9 months ago
Justice Kennedy<3 lmao
strawberEfieldz4ever 1 year ago
Tldw;
Scalia Suggest: The Constitution should not be interpreted but be viewed Objectivity. One cannot rely on judges to always interpret The Constitution with good ethics/morality 100% of the time; therefore textualism is the best way to view The Constitution.
Breyer Suggest: The Constitution should be interpreted and viewed Subjectively. Because as our culture changes we need judges who look at the context of the text which is relative to the people/culture today/future.
freyness 1 year ago
@freyness Exactly. And should law be objective or subjective?
As John Adams said, we are "a nation of laws, not of men."
canofsand 1 year ago
@canofsand - And yet Men created the laws, which in turn are a snapshot and reflection of their values, beliefs as well as the philosophical zeitgeist of their times.
As society changes, so must the law to reflect those changes.
The constitution IS a living document because it serves as both landmark AND a set of guideline for democracy.
But let us not forget to practice democracy, not just enforce it. If laws can be changed and amended, then so can the constitution, which is just more laws.
morpheusxnyc 1 year ago
@morpheusxnyc Wrong. It is a living document in that it can be amended. But living in terms of it means what it means in the context of the times we live in is rediculous. That means that the document in effect means nothing.
DANJULLMANN44 1 year ago
@DANJULLMANN44 - Oh, really? !What are amendments if not recognition of the fact that the times have changed?
Almost every amendment has been brought about as the result of new sociocultural considerations, usually after abuse by officials or large powerful bodies.
Just read the history of the amendments and see what triggered each one and you'll see a history of social advancement prompted them.
Just why exactly did you think the constitution was amended so many times over such a long time?
morpheusxnyc 1 year ago
@morpheusxnyc EXACTLY amend it. That is Scalia's point. We the people should amend it if needed. Not judges. So is that your point as well ??
DANJULLMANN44 1 year ago
@DANJULLMANN44 - The Constitution is a guideline - rules of the road that govern our society, but their application are based on interpretation of its wording - wording which was written before the existence of much of what it governs today.
Slavery was constitutional - so it had to be amended. But not everything is enshrined in the constitution therefore requiring an amendment.
Some things are written into the spirit of the law and fall under jurisprudence and interpretation of the law.
morpheusxnyc 1 year ago
@morpheusxnyc Yep, so the const clearly delinates limited powers of a fed gov. Prior to the const the states opporated independently. The founders and the citizens of the states had come from gov that were centralized and powerful. The founders wanted to ensure that power would resid primarily in the states and that gov power in general would be limited. These basic principles have been undone by both congress and the court. An activist court. That is what Scilia argues against.
DANJULLMANN44 1 year ago
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"From bondage to spiritual faith; From spiritual faith to great courage;From courage to liberty; From liberty to abundance;From abundance to complacency; From complacency to apathy; From apathy to dependence; From dependence back into bondage." -Alexander Tyler on the Democratic Cycle
freyness 1 year ago
The living constitution preamble: We the Oligarchy of the US, in Order to form a more perfect central government, establish only criminal Justice, insure controlling Tranquility, provide for the common redistribution, promote social Welfare, and secure Liberty to the Oligarchy and our Posterity, do establish this erratic constitution for the US.
We the people are on the road to serfdom.
Mike10four 1 year ago
@Mike10four "From bondage to spiritual faith; From spiritual faith to great courage;From courage to liberty; From liberty to abundance;From abundance to complacency; From complacency to apathy; From apathy to dependence; From dependence back into bondage." -Alexander Tyler on the Democratic Cycle
freyness 1 year ago
@freyness Thanks for Tyler's cycle quote. Relative to today we are in bondage. Therefore, the next cycle phase should bring us back to faith hence, our Constitution. According to John Adams: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." I hope we could live long enough to experience the "liberty to abundance" phase.
Mike10four 1 year ago
@Mike10four Oligarchy only exist due to an apathetic society. You are to blame if: You watch TV religiously, consume yourself with credit, obsess over ambiguous laws: abortion, gay rights, etc. And in general consume yourself with.... consumerism.
freyness 1 year ago
@Mike10four You're a fool. The US Constitution was written over 200 years ago by people, who by todays standards, would probably be considered mentally retarded. The Framers themselves were living constitutionalists they wanted discussion, they wanted ammendments, they just didn't expect the parlous level of polarisation you have at the moment.
KungfuCow5 1 month ago
@KungfuCow5 Read the constitution, it has an amendment process. Also, the design of our Constitution of 1778 promotes the “parlous level of polarization” I wish we had today. Remember, anytime congress passes anything, you lose a little bit of your freedom. The “living constitution” effectively bypasses the amendment process. I challenge you to find out how many laws and regulations we have on the books today. And you want more?!?
Mike10four 1 month ago
@Mike10four Look at the seal on a 1 dollar bill, it is of an unfinished pyramid, a permantly unfinshed pyramid; the USA is unfinished, the Framers intended for the USA to change and grow as its people did, they wanted discussion and co-operation, they didn't want gridlock and a filibusters and Contract with America.
KungfuCow5 1 month ago
@KungfuCow5 “Contract with America” is our Constitution of 1778. In the 5th Amendment, government is to protect our “life, liberty, or property,” found in our Declaration of Independence of “Life, Liberty, and the pursuit of Happiness,” for Happiness, in part, is ownership of property. Growth in the USA is the freedom to acquire property as in wealth. For freedom is a function of wealth. The more laws, the less freedom, as we move towards tyranny in today’s “living constitution.”
Mike10four 1 month ago
@Mike10four Happiness isn't the ability to acquire property. That may a a small factor for some, a veeeeeery small factor. True happiness comes from other people and within.
KungfuCow5 1 month ago
@KungfuCow5 That is your philosophy of Happiness. Each and every one of us have our own unique philosophy. Therefore, nor you or government should define what Happiness is. That is why our Constitution of 1778 was design to give each individual the Liberty to pursue their own Happiness.
Mike10four 1 month ago
Since When were we a democracy?
movingtodie 1 year ago 2
It never fails to amaze me that two of the most powerful men in America can sit down in spite of their significant differences of opinion and just... converse!
The nature of this debate is a perfect example of why we are so fortunate to live and work in a country like the United States.
CarcharodonMeg 1 year ago
Scalia crushed Breyer!!!
louiethe20th 1 year ago
u dont have to be a lawyer to know the truth of the constitution. this country is drowning because of fools like breyer.
fallfly1 1 year ago
SO SAD he thinks we are a democracy. How much education does a person have to have to figure out we are a REPUBLIC? And to the REPUBLIC...for which it stands.
combatvetlawstudent 1 year ago
@combatvetlawstudent To be fair, we're a democratic republic. However, I agree that many people somehow seem to overlook this.
Klatiola 1 year ago
the main problem with scalia's argument is that its a load of crap. I lost most of my belief in him after this most recent opinion in Mcdonald. After all that bitching and moaning about substantive due process and applying "original understanding," he agreed we should apply the 2nd amendment to the states. originalist my ass
BOOLsheet 1 year ago
@BOOLsheet
As he explained in another interview, he can't go around reinventing the wheel all the time. The doctrine of incorporation is much older than scalia and is established precedent, in loads of cases.
therealsylvos 1 year ago
The problem with Scalia's argument is that judgments do have consequences. Every judgment, especially at the supreme court sets precedent, which lower court judges must follow. To not consider the precedent one is setting is insane.
EinahpetsElah 1 year ago
The Constitution is a legal document. Much like a last will and testament, an executor follows what it says and doesn't bend or alter the words to fit their need. That's illegal.
KRKahn87 1 year ago
"That's the 'living Constitution' I'm talking about, and I wish it would die."
While I don't know the inside out of our judges, I really love Antonin Scalia right about now, and that's for both of his arguments, but that one liner was brilliant.
wesleywildcat84 1 year ago
He says that if the people wanted to make a law that supported the death penalty, abortion, or suicide we could do it through Congress instead of by changing the constitution. Although I agree with most of what he says, I sort of stopped in my tracks when I heard that. If Congress passed a law that conflicted with the constitution, it would quickly get stricken down. So that wouldn't work.
zzzbrianxxx 1 year ago
@zzzbrianxxx
Yes, especially with the majority of the Court being conservative...
Ultimately, his argument is not new...this is the excuse conservatives always give for their bad decisions which are biased in favor of the aristocracy of American
society. It's their way of 'passing the buck'...their way of perpetuating their obsession with medieval social values...
csilva85 1 year ago
@csilva85 -The majority of the court is NOT conservative. Gee wiz. You want the Supreme Court to pass all your dopey agenda. Then it becomes law is ALL 50 states. So much for democracy ... and the vote! You'd rather let 9 people change our society because it is more polictically expedient for YOU. The majority of the people in this country are center -right. And it kills you. Nobody is passing anything. You comment is BS and you are absurd. Keep trying.
socalcraigster 1 year ago
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csilva85 1 year ago
@socalcraigster
Typical conservative response straight out of the Karl Rove play book which says:
"When the facts are not on your side, INVENT them, and if that doesn't work, attack your opponent personally."
csilva85 1 year ago
@csilva85
The reality is that the majority voted for President Barack Obama, the commander-in-chief of the United States of America in 2008, and, as with the defeat of the conservative Confederates in the Civil War, Obama's victory is "kiliing" the conservatives.
csilva85 1 year ago
@csilva85 : That's why the goal of the Republican Party of "NO" is to make sure
"nobody is passing anything". Their sensitive, fragile conservative egos cannot accept defeat at the ballot box. They had to let 9 people change Al Gore's victory in 2000 to a victory for George Bush II, an act of Judicial Activism engineered to
change society because it was more politically expedient for THEM....
csilva85 1 year ago
@csilva85 -You are bringing slippery facts - Gore brought the action. The judiciary did not seek it out. What are they supposed to do - say it's not justiciable?
socalcraigster 1 year ago
@socalcraigster - Careful, you're getting slippery again.... The case is known as "Bush v Gore"; Bush was the PLAINTIFF, and Gore was the defendent....The Supreme Court actually did render an activist decision because they inserted themselves into an issue that was ONLY a Florida issue. Since the vote count in Florida was not a FEDERAL issue, the Court therefore acted unconstitutionally...
csilva85 1 year ago
@csilva85 - This was NOT only a FLorida issue. In a per curiam decision, the Court in Bush v. Gore ruled that the Florida Supreme Court's method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court had jurisdiction over this case. You are mistaken. You facts are wrong.
socalcraigster 1 year ago
@socalcraigster - Ooooh..."a per curiam decision"...another one of those conservative taliking points!!!.....
csilva85 1 year ago
@csilva85 - Do you reply to yourself all the time? Obama won by maybe 7 points. It wasn't that great of an upset. "Conservative Confederates"? Where did you get that from - a history book? A. Lincoln was the first Republican. You guys always try to paint Republicans as negatively as possible. You see protecting our border as being rascist. Absurd. Keep telling minorities that they are victims so you can get their vote. Keep telling women that they are victims to justify abortion.
socalcraigster 1 year ago
@socalcraigster - There you go again...'You', 'you', 'you'...'Liberal' this and 'Liberal' that...if the conservative doesn't like it, it must be "liberal"...except when they want to steal the credit for themselves...
csilva85 1 year ago
@socalcraigster If he were alive today Lincoln would probably have been a Democrat.
KungfuCow5 1 month ago
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csilva85 1 year ago
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csilva85 1 year ago
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csilva85 1 year ago
@zzzbrianxxx -The Constitution is LAW. If anything violates it, it must be struck down. This is 101. You need to take a government civics class.
socalcraigster 1 year ago
@socalcraigster ...That's why I said, "If Congress passed a law that conflicted with the constitution, it would quickly get stricken down. So that wouldn't work." Don't be inflammatory.
zzzbrianxxx 1 year ago
@zzzbrianxxx : Don't pay him any mind, he can't help but be inflammatory...
and insulting....and factually slippery:
The Supreme Court's use of Judicial Review has no foundation in the U.S. Constitution. Judicial Review was invented by Chief Justice Marshall as the original act of Judicial Activism, a fact which Federalist Society activists such as Scalia conveniently ignore, because it is more poltically expedient for them to
mislead the American people...
csilva85 1 year ago
You are such a typical liberal. Any opinion contrary to a liberal's is unsophisticated, medieval and racist. And of course, all conservatives, by definition are close-minded. So pay them no mind. Don't let them speak at universities. What ever happened to rigorous debate? I'll tell you - liberals have taken over the schools and the press. And still they can't become the majority.
socalcraigster 1 year ago
@socalcraigster - Ah yes...the "Liberal Media", another conservative fairy tale...
What happened to 'rigorous debate' is that the corporate media have taken it over...
There is no Fairness Doctrine; the so-called "Liberal Media" is all about all Glenn Beck, Tucker Carlson, Rush Limbaugh, Bill O'Reilly, Sarah Palin, Ann Coulter, Sean Hannity....they control the "marketplace of ideas"....
csilva85 1 year ago
@csilva85 - The 1st Am. applies to state action - federal/state GOVERNMENT from interferring with a person/company's right of speech. As far as I know, Fox is not owned by the government so they are free to put whatever programming they think people want. If it profitable, they will do it. Just like Hollywood. In any debate, the conservative wins - just like here. Liberals believe everybody is a victim. They make good props.
socalcraigster 1 year ago
@socalcraigster - Are you a victim???
csilva85 1 year ago
@csilva85 - Another question: Does the conservative think victims make good props???
csilva85 1 year ago
@csilva85 - I am a victim ... of your absurdity. Everyone is a victim to you, even yourself. Don't worry. There is a big fat government entitlement out there somewhere that you will qualify for. Why not take a look at what is going on in Greece - gov't trying to scale back entitlements and those that are entitled are rioting. At least Greece has someone to bail the out - the EU. Who is going to bail out the US if we fail?
socalcraigster 1 year ago
@socalcraigster - Let record reflect your non-responsive "answer"....
I guess you DON'T hate all forms of liberalism though...so, "don't worry"
so much about it....just relax and enjoy the corporate takeover of America...
csilva85 1 year ago
Corporate takeover? Do you actually believe that? You want big government to regulate everything from a bowel movement to what kind of cars we can drive and to interpret the Constitution in any way they feel at the time. Conversative principles, without religion, enpower individuals far. Liberals want government in every aspect of people's lives. At some point, those who earn money will simply stop/reduce earning if the gov't is going to redistribute it to another.
socalcraigster 1 year ago
@socalcraigster - And what's wrong with religion??? And I thought you were a REAL
conservative...
Are you one of those Ayn Randian [Or, "Ann RInd", as Ann Coulter says] robots??? "Objectivism"...what a joke!!! Yeah, Ann Rind was an object alright...
james81985 1 year ago
@james81985 -Ah you hit it on the head! True conservative principles do not need religion. Although many are devout (usually some form of Christian) and that is ok. The problem is the left attacks those who believe in tradition value. But those values are not specific to Christianity. I think people focus on the negative of the "bible-thumpers" without putting it in perspective. When the tragedy hit Haiti, mostly Christian aid groups, some who were already there, received donations.
socalcraigster 1 year ago
@socalcraigster -
Another Loose Constructionist interpretation of the U.S. Constittution
by the conservative...
The actual text of the 1st Amendment of the U.S. Constitution makes NO reference to "company", but it DOES specifically mention "the right of the PEOPLE
[emphasis added]."
Of course, conservatives swear up and down that corporations are the same
as "the people", or, living breathing human beings....a perfect example of
"common sense conservatism" in action....
csilva85 1 year ago
@socalcraigster -That comment was obviously meant for another poster. Since we are agreeable, there was no need for you to respond. Don't be obtuse.
socalcraigster 1 year ago
@socalcraigster: You seem to take great pleasure in telling people what to do, not to mention insulting them...
Have you always been this way, or were you once more open-minded???
csilva85 1 year ago
While judicial review may not be expressly stated in the Constitution, it arises by implication. Go read Marshall's opinon in Marbury. There are alot of things not mentioned in the Constitution. For example, the 1st Am states that "Congress ..." shall not abridge freedom of speech or establish religion. Technically speaking, states can regulate those rights. However, through the doctrine of incorporation, SCOTUS has included these rights. Without JR, they would have no authority. Get real.
socalcraigster 1 year ago
@socalcraigster - you said it! Judicial Review IS implied, which puts the arguments of "Strict Constructionists" like Scalia to shame... If it were not
for the activism of Justice Marshall, Scalia would be out of a job!
[Just kidding, of course, he always has a home at the Federalist Society, I'm sure, or... he could be a conservative talk show host like the 'Dittomaster' -
Rush Limbaugh....]
csilva85 1 year ago
Many things are not explicitly stated in the Constitution. In Art III, the framers created the judicial branch & vested power in the Supreme Court. Judges interpret & apply law to the facts. When Marshall established JR in Marbury how come nobody protested? Because it is common sense. Since a judge's job it to "judge", he/she is supposed to start with the actual words of the text.
socalcraigster 1 year ago
Breyer is completely out of his league here. Scalia's arguments are brilliant, and Breyer's are embarrassingly foolish.
DarcPrynce 2 years ago 20
@DarcPrynce
To be fair, they let Scalia get the last word in. You should read Scalia's "A Matter of Interpretation" and Breyer's "Active Liberty" to get a better picture of the debate. They're both very interesting (and stubborn) positions.
flavoredwallpaper 1 year ago
@DarcPrynce - Your conservative ideology is showing.
The reality is that your political perspective informs whether your not you find one or the other argument persuasive.
Scalia is doing a poor man's Rush Limbaugh with his sarcastic mannerisms, dismissive tonality and pseudo-intellectual mockery when he makes his points.
If you find that entertaining and the darkness within you cheers for that rough handed, legalistic treatment of humanity, then you'll find him all the more compelling.
morpheusxnyc 1 year ago
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canofsand 1 year ago
@morpheusxnyc Says you. etsneroj and other "liberally minded" people who base their opinions on logic instead of emotion disagree with you.
You clearly are of the emotion of logic type, as your comment proves. Seriously: "entertaining," "darkness within you," etc.? There's no logical reasoning in your comment at all, yet you project your flaw onto those you disagree with.
canofsand 1 year ago
@canofsand - I can't speak to Etsneroj's views, only my own. If you disagree with me, that's fine, but don't try to delegitimize my perspective with false analogies.
I'm employing reason and observation, not emotion. And my observation is that the lack of empathy for those that are not like them is at the core of conservatism, which in turn informs their politics.
And it seems that the pathos Scalia's uses in his rhetoric do deliver his detached, inhumane perspective is what appeals to some.
morpheusxnyc 1 year ago
@DarcPrynce Agreed. Liberals should what this post. We need 8 more like him.
DANJULLMANN44 1 year ago
Scalia is fucking brilliant if you really listen to him.
socalcraigster 2 years ago 9
@socalcraigster
Oh yeah..a real silver tounged devil....
csilva85 1 year ago
@csilva85 - You are another Liberal dumbbell - I bet you are so far-minded and honest. NOT. Know thyself!
socalcraigster 1 year ago
@socalcraigster : Do you hate ALL liberals, and all forms of liberalism, or just the "dumbell(s)"??? Is there ANY form of liberalism that is acceptable to you???
csilva85 1 year ago
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csilva85 1 year ago
@csilva85 - and we're still waiting for the answer to this one...
csilva85 1 year ago
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csilva85 1 year ago
@csilva85 - and with all the hot air the conservative blows, defending Fox, racism,
sexism, and the Confederacy....why can't he/she answer this question....???
csilva85 1 year ago
@csilva85 - and the simple question is: Do you hate all forms of liberalism???
csilva85 1 year ago
Use the legislature, the originalist says. What he doesn't tell you is that the originalists on the court will proceed to strike down democratically passed laws as unconstitutional constraints on, say, property rights. The Framers did not understand the Constitution to protect the rights of corporations, yet there are the originalists, insisting that it does. I submit that neither left nor right applies original understanding consistently. And that neither should.
dylanvalente 2 years ago
You should stick to cartoons. This topic seems a bit much for you. Democracy cannot overrule the Constitution---the law from it came. A corporation is a collection of individual, each of whom has rights. For you to weigh in on how the Framers understanding of our founding document is about as valuable as listening to Daffy Duck lecture on nuclear physics.
fzqlcs 2 years ago
I think it's not obvious that the Framers would have shared that understanding of the corporation if they saw what it would become. Purely profit-driven, shorn of any national loyalty or sense of public responsibility. Yet originalists have no problem saying the Constitution gives these beasts the rights of a person. Since when is a collection of persons the same as an individual? Can't we at least have a debate about that instead of pretending original understanding will answer every question?
dylanvalente 2 years ago
Are you saying that you and I acting together should have less rights than you acting alone? Corporations do not exist to serve government. It is government that exists to protect the people. Corporations DO serve people by providing products or services so valuable that people VOLUNTARILY offer their money in trade. Unlike government, corporations must please people in order to obtain their money. Is it you believe yourself entitled to the fruits of their efforts, using government as a weapon?
fzqlcs 2 years ago
I replied more extensively to your first question in a personal message. Government needs people's votes. It is at least as responsive to people's wishes as corporations, which need only satisfy a relatively small number of people (who can afford their products) but whose activities affect everyone else in so many ways -- environmentally, politically through their financial/lobbying power.
dylanvalente 2 years ago
The Constitution is the agreement made between the people and their government. It is the law from which democracy descends. Democracy cannot overrule the law. That becomes two wolves and a sheep deciding what's for lunch. Democracy over the law is the definition of mob rule. The rights of all must be respected, even those who are envied and despised. Once we begin breaching rights based on popularity, the flood gates open and no one is safe.
fzqlcs 2 years ago
Off cause you can overrule a constitution with a majority - either by legal means or by setting new law - aka the invocation of "pouvoir constituant originaire" which is, by definition, not bonded to any pre-exiting law. The last the USA invoked the "pouvoir constituant originaire" was 1787, there no reason why it can't be happen in the future.
At the end any constitution is a mere piece of paper, having only as long valid as people obey to it.
hartmut1164 1 year ago
@hartmut1164 - You still repeating these dopey statements. Find me an Amercian Jurist who holds your views. I do not think Britain even has a WRITTEN Constitution. Don't you rely on the Magna Carta?
socalcraigster 1 year ago
I'm inclined to side with Scalia's "originalist" standpoint. It seems to be a more objective, meaningful standard of law. Judicial activism undermines the supreme law of our nation by altering the law and the Constitution without using the legislative or amending process. I like the guys, but I don't trust them that much.
onewkirk 2 years ago
Stephen Breyer is an underrated judge. Uninformed people think Scalia is the smartest justice. He isn't. It's Breyer.
Dream23fb 2 years ago
You're quite right to say that Breyer is largely underrated. My sense is that the primary reason people underrate Breyer is that he's not as crisp and memorable a writer as Scalia.
ProfMTH 2 years ago
Even as a liberally minded lawyer, I have always found Scalia's view more persuasive. The constitution is a law and when times require the law to change, we change it through the legislative process. We don't ask judges to "reinterpret" the old law; that would be anti-democratic. Same for the constitution. If it doesn't reflect our values today, we should amend it. It used to be that women couldn't vote and blacks didn't have equal rights, so we amended it. Its hard to do, but it can be done
etsneroj 2 years ago 26
@etsneroj What kind of law do you practice?
ZDWmiamicane 1 year ago
@etsneroj You are soo right, Justice Scalia is incredibly smart. I would wager that he's the most persuasive debater in the history of the Supreme Court.
RajaRickin 1 year ago
@etsneroj
So then the Bill of Rights are outdated?
AntonBatey 1 year ago
@etsneroj Well said. Simple and to the point. Bryers viewpoint is driven by an elitist ego that believes it knows better than us simple folk.
DANJULLMANN44 1 year ago
@etsneroj Women and blacks couldn't vote because of NOT following the Constitution. In The Declaration. "We hold these truths to be self-evident, that all men are created equal," the fact that women and blacks were treated as less than equal was wrong. There was no need for amendment, the law needed to be enforced.
ny1t 1 year ago
@ny1t The intention was to protect Individual Rights. But if you look at almost every amendment after 1800, they include "Congress shall have the power" whereas prior to this they included "The Right of the people" and Congress shall make no law". Amendment have gone from protecting the people to oppressing the people.
Rights do not change. They are natural. All amendment should reinforce Rights.
ny1t 1 year ago
@ny1t, First, the Declaration of Independence is not a law. It is an asperational statement (a great one) but, you cannot cite it as legal authority. Second, I agree unequal treatment of women and blacks was wrong. But it was legal. When the constutition was ratified, there was no 14th amd conferring equal protection under the law; the constitution recognized slavery as an institution; and voting rights were exclusively for men. So, you are wrong: The constitution did need to be amended.
etsneroj 1 year ago
@etsneroj I am wrong? So you are the one that makes that determination? Maybe you are wrong and too closed minded to see it...Maybe you could learn manners in a civil society. Or hide behind your keyboard and snipe at people you do not know.
The basis of all Rights is Natural Law. It predates The Constitution. Treating any human as less than equal is a violation of natural law.
ny1t 1 year ago
@ny1t, I'm not close-minded/special/sniping. I'm debating. Here's how it works. I say you're wrong, then I make an ARGUMENT for the better position. You then EXPLAIN your position. Restating your conclusion is not an argument. My view is that natural law does not exist; its a nice idea, aimed at giving our rights a higher origin, but that it is fiction. Rights, I argued, are conferred by society, not nature. In response, try supporting your idea, instead of restating it.
etsneroj 1 year ago
@etsneroj I "disagree" with you then we debate. I can disagree with you, it doesn't mean you are wrong.
You seem to have the idea that a democracy decides Rights. So that means we can decide to murder an ethnic group and it is OK as long as society decides it. So people have no Right to Life. We are a Republic. The majority has a say, but the Law has to protect individual Rights equally which is the purpose of the Constitution.
ny1t 1 year ago
@ny1t , killing people would not be "ok," but if we changed the laws to say killing was legal, it would be legal, and your "right to life" would be abrogated. What you say about the constitution is correct. All I'm saying is: the constitution and the laws passed thereunder are where your rights come from. In countries where they have weak laws, they have weak rights.
etsneroj 1 year ago
@etsneroj You do not have the Right to infringe on the Rights of another. You cannot make law that makes it legal to kill another unless they violate your Rights first. You do not have the Right, you cannot hire someone to do it and you cannot elect someone to do it. If you are really interested in understanding this point of view, you should read 'The 5000 Year Leap" It does a better job of explaining it.
ny1t 1 year ago
@etsneroj Natural Law gives you the Right to Life, Right to Property, Right to Eat, Right to Barter and so on. These are Rights that exist without government. The government does not have the Right to force you to work. But you may starve if you do not provide for yourself. As for the higher origin or not, it is not the Right of another or government to decide your Rights (unless you violate the Rights of another.). This is why we have self-defense.
ny1t 1 year ago
@ny1t, I don't know where to start. You misunderstood everything I said. I'll just ask you to ask yourself: If "natural law" exists apart from human legal systems, where does it come from? Who/what decides which rights exist and which don't, and where can you look to figure that all out? Under US law, I can look at federal and state constitutions, statutes and regualtions. Under "natural law," where do I look? You list a bunch of rights in a conclusory way; give me support.
etsneroj 1 year ago
@etsneroj Natural Law was well understood at the founding of this country. Many felt it need not be defined in The Constitution. But others felt the need to enumerate some of them and that is where the Bill of Rights came from. Amendment IX is the key. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Notice "retained". A Right, you do not have to ask permission to exercise and cannot infringe on another.
ny1t 1 year ago
@ny1t, some founders thought the bill of rights was unnecessary, not because natural law was good enough, but because they read the constitution as not giving the federal government the powers sufficient to infringe personal freedoms. They didn't realize that Congress would eventually legislate every aspect of our lives, citing the Commerce Clause as the basis for their power.
etsneroj 1 year ago
@etsneroj That, I can agree on.
ny1t 1 year ago
@etsneroj
.hillsdale.edu/KirbyCenter/resources/constitutionreader/intro/default.asp
ny1t 1 year ago
@etsneroj Part 2...We create government to protect our Rights.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"
I have a Right to Eat, but not your food. I can barter or you can give it.
ny1t 1 year ago
@ny1t, I like the idea, but I don't believe these rights exist apart from our wisdom in declaring them. The British did not give us all these rights, so we did not have them, until we took them for ourselves. In much of the world people have virtually no rights at all. You would say, they have them, they're just being denied to them wrongly by their government. I agree the denial of such rights is bad, sometimes even immoral, but I believe rights come from laws, not nature.
etsneroj 1 year ago
stephen breyer = fail
namelessronin 2 years ago
Comment removed
tarique18 2 years ago
Scalia gets it....he just totally gets it.
bucjason 2 years ago 4
lol at scalia's last comment
dgdgolden7 2 years ago
wow what a matchup. put this on PPV and lets get ready to rumMmmmble
SFBoxers 2 years ago 3
I agree with Scalia more than Breyer. If the meaning of the Constitution hinged on the values/standards of society and/or culture then the Constitution would lose authority and society and/or culture would take its place as the standard. By drawing a line in the sand, at least we have something definite to live by. Nihilism abounds in relativism. I suggest we push more towards 'conservatism' than 'liberalism' in these regards.
snowtrot 3 years ago
You seem confused on Breyer's position. He does not claim that the Constitution hinges on the society or culture. He's saying that in writing the document, the Founders established a set of broad ideals and principles. The values written into the document never change, but how we apply them does as societies evolve. I find Justice Scalia's point about the living Constitution to be illogical; he might as well be arguing against former Supreme Court cases that were overturned.
chikmagnet7 3 years ago
I think this response is more a strawman argument than anything else. Scalia is correct when he asks essentually "who decides?" The Constitution is a finite powers document as a Social Contract. If people want more rights, than there is a process for that - the legislature. Judges are not suppose to be asking questions and legislating from the bench to limit democratic perogatives that the Consitution in its text permits.
paramedicpat 3 years ago
This is an illogical response. When Scalia asks, "who decides?" he must not understand that he decides cases all the time based on his own perception of what would be right. No one at the time the Constitution was written thought mixed race individuals could get married. The Supreme Court ruled that they could based on principles already in the Constitution. But I suppose you would have put that up to a vote-the whim of the majority-wouldn't you?
chikmagnet7 3 years ago
Interesting strawman argument. But, if you actually READ Loving v. Virginia, you will note that it goes under the 14th Ammendment, which was post-Civil War. Scalia would have agreed that if the people want to democratically change the consitution, (like the 14th A.) then great! But, if the people don't want to change it legislatively (aka democratically), then don't go asking the court to magically discover some right to be married.
paramedicpat 3 years ago
Again, illogical. You don't seem to have understood what I was saying. I know that Loving v. Virginia was post Civil War. The point is, however, that no one at the time thought that the 14th amendment's equal protection clause applied to marriage. And certainly no one at the time thought that a marriage between an African American and a white person was legitemate. But the court ruled in favor of marriage anyway.
chikmagnet7 3 years ago
And to say that the legislative institution of the 14th amendment was DUE to unfair marraige practices is one of the most idiotic arguments I've ever heard anyone make. It just so happens that the Supreme Court decided that the words which represented the ideal of the 14th amendment applied to marriage as well. And if you admit that Loving v. Virginia was a fair ruling based upon the 14th amendment, how can you be against gay marriage based on the same principle? You can't have it both ways.
chikmagnet7 3 years ago
I need to preface that I never stated I was against gay marriage. Second, you strawman me again by saying I made some "idiotic" argument about the 14th Am. being constructed because of marriage. Read above. I NEVER said that. But you like to tack that on as an insult. The 14th deals with equal protection under law. That means ALL marriages under the law should be treated equally. The 14th's constructors might not have construed gay or interracial marriage.
paramedicpat 3 years ago
But they DID say they wanted the institution of marriage upheld, as was cited in Loving, which I agree with. However, states do have the right to oppose gay marriage, and they do have the right to construe marriage as they wish. But, under the Constitution, if ONE state wants to provide racially blind or gay marriage, the consitution requires all states to recognize those marriages regardless of their state laws, which is why I think DOMA is unconstitutional.
paramedicpat 3 years ago
So you agree then that no one at the time of the inception of the 14th amendment viewed the equal protection clause as applicable to marriage, let alone interracial marriage? And yet the court ruled that it did apply. Watch the video. Scalia's entire argument is that something viewed one way during its inception can't be construed to mean something else later on. But in Loving v. Virginia, the 14th amendment WAS taken to mean something else later on. Would you say it was an unfair ruling?
chikmagnet7 3 years ago
Sorry, was in Morocco for a few weeks. No, I don't think its an unfair ruling because the 14th Am. discusses racial laws. Equality is expressly mentioned there. They don't have to mention "marriage" at all. By doing that, it retains the original meaning.
paramedicpat 3 years ago
That's irrelevant. The reason cited in Loving was the equal protection clause of the 14th amendment, which DOESN'T actually mention race. "...Nor deny to ANY PERSON within its jurisdiction the equal protection of the laws."
If interracial marriage was construed as equal protection during the time of Loving but not during the time of its inception, and you think it was a fair ruling, you'd have to disagree not only with Scalia's main point, but with his entire philosophy of the judicial system.
chikmagnet7 3 years ago
You can't seriously be arguing that the legislators of the 14th Am. which came at the end of the Civil War didn't discuss racial laws. And that includes the state legislatures involved. But you show me where there is discussion about state prohibition of abortion or assisted suicide in the original.
paramedicpat 3 years ago
If there is a clause in the 14th that provides a right to the individual, it doesn't matter what the state legislatures say. Now back to the point I was making which you skipped over entirely: whether or not the legislators of the 14th Am. discussed racial laws is irrelevant. What matters is what they ACTUALLY WROTE in the Constitution. And, as I've already said, the equal protection clause applies to all people, not just blacks or emancipated slaves.
chikmagnet7 3 years ago
If it is the case that the 14th says "people" and not "black people" (which it does), if it is the case that that amendment was not construed to apply to interracial marriage when it was written (which it certainly was not), and if it is also the case that you believe that things construed one way during their inception cannot come to mean or be interpreted another way later on, then you MUST be against interracial marriage. This is one example of the many flaws in the Originalist outlook.
chikmagnet7 3 years ago
To put in a single word: No. First of all, Scalia's position is that someone had to have conceived of the statute being used in a certain way. That's legislative intent. Read the Crawford case on the confrontation clause which is now good law. They literally read what the founders thought in 1789. For the 14th you can read what the leg. said or what the state leg. said. That isn't irrelevant at all because they have to agree to the constitutional changes too.
paramedicpat 3 years ago
Wrong again. If the legislators had discussed that the first amendment actually only was meant to be applied to people over 6 feet tall, then would that stand now? Obviously not, because they simply DIDN'T WRITE that into the first amendment, regardless of what they may or may not have discussed. Obviously legislators have their initial impressions of how a certain statute will be applied in the near future, but they certainly don't consider the distant future.
chikmagnet7 3 years ago
Ok, well, now you're onto a substantive argument. You may not LIKE that interpretation, but that's what "Original Intent" means. Legislators do think about the future. Which is why they wanted their original intent enshrined in a finite constitutional scheme. The Founding Fathers worried future generations might erode liberties. And just so you know...the 1st Amendment wasn't suppose to apply to states at all, but the 14th changed the Bill of Rights to apply to all states.
paramedicpat 3 years ago
And it says equal protection of the laws. If the legislators thought "this can apply to racial statutes" then they don't have to say "racial intermarriage"...that's irrelevant. Jim Crow can take many forms. Originalism just keeps the scope of Constitutional challenges smaller. I think you strawman here again.
paramedicpat 3 years ago
Whether or not they "thought" it was applicable to racial laws is irrelevant to our argument. By that logic, every single amendment before the 14th was enacted would not apply to free black people, since it was "thought" during the inception of those amendments that they would apply only to free white men. More important than what they "think" is what they actually WRITE.
chikmagnet7 3 years ago
The very genius of the founders is in their recognition of the fact that we live in an ever changing world. If the constitution had been written a few thousand years ago, we might be talking about how people are put to death by stoning. Obviously, that would now be considered "cruel and unusual punishment," even if it wasn't before. The Founders used broad words to describe ideals. Those ideals never change, but how we apply them in an ever changing world does.
chikmagnet7 3 years ago
That's right...IF it were written a thousand years ago, but it wasn't. Stoning might or might not be considered Cruel and Unusual, I don't know. But that would be up to those looking at what the Orignal Intent was of the Founders. You know? Fine. If you want these ideological principles applied to the law, then do it through the Congress. That's what they're elected to do. All the judges restrict are various democratic perogatives the Founders said were prohibited: ie C/U, Speech, Gun Rights..
paramedicpat 3 years ago
wow, scalia comes off as so much more impressive - and honest - than breyer
he made a monkey out of the jew
dkjaerwdww 3 years ago
Scalia is a good man, I am grateful that we have common sense people like him making wise decisions for America.
USA04July1776 3 years ago
YouTube appreciates your comment, Mrs. Scalia.
amtk019 3 years ago
So with Scalia's logic, the Warren court should not have outlawed segregation because it existed in 1787 and is not expressly prohibited by the Constitution. This ranks up with his "torture isn't punishment" comment as woefully misguided.
amtk019 3 years ago
#19 Oh boy outlawed segregation has worked wonders here in Occupied Maryland!!!Activist = Spinning communist lies!!!
icetrout2 3 years ago
no not really this speaks to the fact that u dont know the basics. The reason segregation was outlawed was not because the justices legislated that it was wrong, but bc it didnt go along with what the 14th amendment said. That is equal protection of all under the constitution. And Thurgood Marshall had good evidence that seperate and equal clause in the plessy vs. ferguson did not support the 14amendment and that is why it was unianimously rejected by the warren court.
nader85021 3 years ago
Were you aware that Scalia was the only justice who ruled in 1996 that VMI did not have to admit women as long as it established a separate but equal program elsewhere? Tell me that kind of thinking doesn't violate the Equal Protections clause. Scalia dismisses the idea of an evolving Constituion by citing tradition and textualism as the cure for all consitutional worries. Justices have mutilated the Constitution in the past, so your example only proves the necessity of a living Constitution.
amtk019 3 years ago
not exactly.The problem with people implying the living constitution is not that certain things needs to be retooled for current generation like for example free speech applying to the internet, tv, radio etc. But that does not mean that you can legislate by making a decision based on a broad interpretation that does not exist in the constitution. Supreme court justices are not elected democratically, and for majority of justices to legislated throws the separation of powers out of order.
nader85021 3 years ago
secondly i am not supporting all the decisions scalia has made in the court, nor can you i believe support all the decisions activist judges have made, i.e. eminent domain case (Kelo case). But since u made the argument that the brown decision was a decision based on a living constitution is wrong. Since it was decided unianimously, most of the justices in the court were textualist and originalist that scalia based his ideologies on thats where my problem was with ure argument.
nader85021 3 years ago
Brown was not unanimous until Justice Warren talked to the four dissenters and urged consensus on so momentous a decision. If Fred Vinson hadn't died after the first Brown v. Board, "strict construction," as you say might have gone out the window in favor of continued segregation. But regardless of that fact, living constitution and strict construction are not opposites -- living constitution is the opposite of orignal intent, and strict construction the opposite of loose construction.
amtk019 3 years ago
An interpretation under living Constitution can be arrived at with strict or loose construction; the same with orginal intent, as D.C. v. Heller showed. In the end, it all comes down to how rigidly a Justice wants to adhere to his ideology. Scalia does it in a far more rabid way than did moderates such as Rehnquist. I only justfiy Brown as being a living Constitution case because it overturned precedent, overturned Southern institutions, & was a product of its time (clearly not original intent).
amtk019 3 years ago
see i dont have problem with the fact that you apply a law that was 200 years ago, and interpret it to the current situation. The problem comes when it is misused. Brown decision overturned a previous saying that the reasons posed in Plessy was untrue and did not apply. But the problem people like scalia and thomas have is recent cases like Roe v. Wade and the Kelo case on eminent domain, where there was no overturn, but an interpretation that did not exist in the constitution.
nader85021 3 years ago
And that is the problem many originals or strict constructionist or whatever you want to call them. Issues like abortion and eminent domain has no place when it comes to interpretation of the law, but a passing of a law. And that law was passed I believe undemocratically, by 5 justices to over 300 million americans. I dont think that was what the founding fathers had in mind when they created the supreme court and thats my basic argument against the living constitution.
nader85021 3 years ago
It's true, most of the Founders didn't want the Supreme Court to have the last say in interpretation of the law (although Marshall fulfilled that role, short of amendment, that is), but I really don't think that there is a gauge of "misuing" judicial perogative--unless for ideological gain. When the majority of Southerners supported segregation, a majority denied women abortions, and a majority wanted prayer in schools, it's the judge's duty to figure out the most just interpretation of the law.
amtk019 3 years ago
if u want evidence, the justices that i believe were strict constructionist in the brown case were justice hugo black, justice william o douglas, justice tom c. clark, justice sherman minton and frankfurter was proponent of judicial constraint which many conservative judges believe originalism will lead to. So ure wrong to imply brown case was decided in part by the idea of a living constitution
nader85021 3 years ago
The Equal Protection Clause didn't even give women the right to vote. By its very terms, the Fourteenth Amendment assumes that only men will be permitted to vote. (See section 2 of the Amendment, which says that something bad will happen to any state that denies adult MALES the right to vote.) So if you're going to interpret the Fourteenth Amendment as requiring gender neutrality, you have to ignore, not only the original intent, but also the language of the Constitution itself.
wilverbal 3 years ago
no not really this speaks to the fact that u dont know the basics. The reason segregation was outlawed was not because the justices legislated that it was wrong, but bc it didnt go along with what the 14th amendment said. That is equal protection of all under the constitution. And Thurgood Marshall had good evidence that seperate and equal clause in the plessy vs. ferguson did not support the 14amendment and that is why it was unianimously rejected by