The very idea that freedom can be "created" by lawyers is ridiculous.The less laws and regulations the government imposes the more free the people are. It's the so called collective freedoms that she is talking about aka special freedoms for special groups of people. Freedom comes from human spontaneity not from some lawyer's expertise. If freedom is the absence of force, how can it be enhanced by positive laws aka institutinalisation of force.
@Eternaldream00 The whole rationale for civil rights legislation is that lawyers and legislatures have already restricted the freedom of certain groups of people. The "Black Codes" following reconstruction after the civil war, along with Jim Crow, are an example. If the argument that freedom comes from less regulation imposed by gov't is valid, then you must also consider those laws that have already been passed to allow discrimination & disenfranchisement of people.
@prschuster You are absolutely correct on the account of unjust legislation BUT That follows the very same logic as my previous comment. Those laws should be revoked not replaced by some other laws otherwise you will still be stuck in the same circle of granting priviledges. I do not subscribe to the idea that legislation can somehow repair past damages. There should be no codes or quota for anything if we truly want to be equal.
@Eternaldream00 But when there is systematic discrimination that results from prejudice rather than legislation, then the lack of legal protections results in loss of freedom. Would you then allow businesses the liberty to curtail free access to different groups in society by failing to outlaw discrimination? According to you, the priviledge of denying service based on race creed or religion should not be infringed upon. Should we rescind the 13th 14th & 15th amendments?
@prschuster I'm not for a quota system when it comes to affirmative action, but I am in favor of antidiscrimination laws. I'm also for safety standards in the workplace and for consumer protections because we can't trust businesses to look out for the concerns of employees and consumers. This anti-gov't rhetoric is too simplistic. We have 300 million people in this country. Without gov't regulations of some sort we'd have mob rule.
@prschuster Lets say we did repeal those amendments. Do you think that there would be a great surge of openly racist conduct on the institutional or private level? I do not think so, Hardly anyone would like to be associated with racism today regardless of what the law says. This is mainly a cultural phenomenon. It is clear that banning somebody from being racist doesn't mean the person actually stops being racist. This legislature only makes racism to go into hiding and spread roots.
@Eternaldream00 "Lets say we did repeal those amendments. Do you think that there would be a great surge of openly racist conduct on the institutional or private level? I do not think so,"
Then you might as well make the same argument about the Bill of Rights, as if repealing the first 10 amendments would have no consequence on our basic freedoms like our freedom of speech.. but then there's the Patriot Act. Sorry, I just don't buy your argument.
@prschuster In other words, the first amendment sets an important precedent that can be used to fight some of the civil liberty issues associated with the Patriot Act. Likewise, the 15th amendment acted as a precedent for the civil right movement of the 1960s. Don't kid youraelf about people being so unprejudiced & open minded. The whole controversy over the "ground zero mosque" is a prime example of blatant racial & religious prejudice; but no one will admit to that.
@prschuster The Patriot Act was enacted despite it being unconstitutional....I was born in a communist country we had all sorts of fancy laws and rights none of which were enforced They only existed de jure but not de facto....the will to uphold certain values is whats important here. I give you that good laws are necessary but simply writing more legislation won't right all wrongs.
@Eternaldream00 Have you ever thought why it is very unlikely there would be a nondemocratic regime in the U.S.? It's not just because you have a robust set of rights and liberties written down somewhere but because the people believe they have them.
@Eternaldream00 You're right. Good laws are not enough. There must be the political will to abide by them and to uphold certain values. I agree with you there.
@prschuster Now don't misunderstand me I am 100% against racism but I am also 100% against hypocrisy. Let's allow the racists to express themselves publicly, so we can clearly see who they are. It seems I have much greater hope and trust in the civility of the people than you do. i might be wrong but consider this..The movement for slave liberation started because the people saw it as evil not because it was written on some paper somewhere.
Well considering no politician has followed the constitution in decades...
Yes it can be amended but not easily.That is the only way it it supposed to "evolve"...in the mean time I on behalf of every American would like our rights restored according to the constitution we have.
I would go to the prison once a week and hug the person who shoots this fat narcissistic pig. Killing him would make them a hero in my book, and while we're on the subject Rick Perry is another asshole I would love to see die in slow motion on digital film. So, if you do it, go the extra mile so I can get hard while watching it.
Scalia is the reason why presidents can't be PUSSIES (Obama) in pushing their party's agenda. Why? Because the other side is going to take advantage of your humiity and sense of fair play. Unfortunately, in this present-day American society, you must MAKE people be civil. Left to their own devices, powerful people in this day and age will always act like bloodthirsty beasts, taking more more more than they need..
@parafleet why do you believe that your (or any individual's or group of individuals for that matter) concept of civil is so objectively true that you reserve the right to "make" (you seem to imply the use of force) people abide by it ?
why don't i have the right to live by my definition of civil (even if you or a group or even a majority of people consider my definition to be uncivil)?
"Never in history has a federal court invalidated a law regulating the private ownership of firearms on Second Amendment grounds.." Dean of the Harvard Law School 1946-1967, Erwin Griswold, Washington Post, 11/4/90
200+ years yet Scalia overturns two local laws on the basis of "originalism" lol
Once again Scalia is right, its especially sweet when he sticks it right up the asses of the Anti-American Anti-Constitution ACLU(AMERICAN COMMUNIST LAWYERS UNION)
Evolving toward freedom??? Look at the TSA you idiot moron... give me a break. The current societ does not WANT fewer liberties you scumbag piece of garbage. The current ILLEGAL GOVERNMENT wants fewer liberties. Since when does any SOCIETY agree to live under facist rule you freaking piece of dog shyte?
I'm so tired of people making Scalia out to be this intellectual God when honestly, he's not. His opinions are written "well," but they are not groundbreaking! Please stop hyping this man up. Thanks
Mr. inJustice Scalie, together with his fellow inJustices: Roberts, Alito, Thomas and Kennedy have turned the U.S. Supreme Court into ONE BIG JOKE! Bush v Gore
was one of the biggest jokes ever perpetrated. It gave us the Iraq war, 4 trillion dollars in added Federal Debt, a war criminal president who became an international joke, and the Great Recession! WELL DONE, YOU JOKESTERS!
@mmmmmdatsgoodsoup hey jackass did you ever consider the idea of the NeoCons evolving the constitution?! How do you think the patriot act became legal. They took you precious evolving living constitution and USED it. Had they been forced to use the amendment process they'd of hit a road block.
@skewbuh Let me tell you about slyjoker. She's a Supreme Court Justice in her own mind. She has a 146 IQ and she doesn't mind if everyone knows it!! Scalia's point is obviously true. A living constitution approach will not always lead to greater freedoms. But clearly this video just provides an opportunity for people like sly to patronizingly assert that the only reason someone could disagree with her worldview is because they are "insane."
@skewbuh ??? anyone can easily argue with a supreme court justice. do you think scalia is a god? he is a lunatic and has his head up his ass. i would gladly take him on too. lots of other people that are very capable of refuting his nonsense would like to do so too.
@skewbuh Like anyone does. Using reason, logic, and the liberty granted to do so. This isn't a guy who got where he is by doing nothing, granted. But supreme court justices are not gods. They are unelected officials placed for political reasons. The very notion that a supreme justice is unassailable is to beckon demagoguery.
Words mean things. Lawyers often wish you to believe they mean the opposite of their clear intention.
scalia is a lunatic. this video does not sufficiently portray his biased, inane, self-righteous, insane, corporate backing, religious, mindless bs... but it is a small taste. he is devoid of common sense or genuine impartiality. if the nut bag wants to read the constitution literally, as he often laments, he should be against anyone owning a gun if they are not in a "well regulated militia". he won't do that of course, because he is a right wing maniac that caters to gun nuts, et al.
@kartman13 *you're, not your. start with an english class. i am 100% indepedent. being desperate to label someone as something you find attackable is a weak tactic kiddo. are "far lefty" people 100% against affirmative action? are they for the death penalty? you are an assuming jackass. btw, the i have read the federalist papers multiple times. stop talking out of your anus.
scalia is a full of it. his concepts only go as far as he wants it to. all you have to do is look at the decisions he's supported recently to see that.
"If it is to mean what the current society wants it to mean..." - Scalia
I gather what he's ultimately saying by this is that he can decide what the Constitution means without reference to history. That's a little unnerving. Talk about "activist" judges, this demagogue is fucking with my liberty.
@fdny9682 I don't think so. I believe what he was saying is that judicial interpretation IS subject to the will of the times and not always in the interests of freedom. Coming from a guy who defends torture I have grave doubts about his interpretations.
Watch "RE: Republicans Hate Freedom -- CONTEXT" for a more extended version of this debate and listen to Scalia elaborate on these remarks.
@brandnutopian Thats not what he's saying at all. He says that if it is subject to the will of the times it can be better or WORSE. This being said he is NOT for that.
This comment has received too many negative votesshow
scoves9484,
You said the "laws are timeless" but in today's Zionist-controlled world where the oligarchs wage wars of profit disguised as "war on terror" what we has is a situation where "the times are lawless."
Judges like Scalia are protecting a political cabal of men who are growing their monopolies by misusing the military. The taxpayers foot the bill for bogus wars. The CIA/Mob/Neocon cabal gets rich by usurping our laws & nations. They serve themselves. They're the real terrorists.
This comment has received too many negative votesshow
Maggots like Scalia framed Charles Manson for a crime that child-rapist Roman Polanski did. Polanksi likely ordered a hit on his Anglo wife because he hated his Anglo wife who cheated. He raped an Anglo child.
Manson asked to speak in his own defense in court. For that he was taken into the back & beaten. Manson gave up, admittedly. He'd studied acting, he made "crazy faces" to MOCK those who framed him as a "monster." He recorded GOOD music. Zionists feared his rising fame & war protesting.
This comment has received too many negative votesshow
These evil Talmudic law practitioners like Scalia who serve Israel and violate Americans worked to keep us in Vietnam so they could traffick heroin. They worked with the Jewish mafia, the mob & they killed JFK and RFK for trying to stop them. JFK called them a secret cabal (Freemasons). RFK called them Zionists. Ronald Reagan called them Armageddonists. They killed Marilyn Monroe who was about to say what JFK told her (Who they were?).
They framed Manson for war protesting. They killed Lennon.
The CIA trained and armed Al-Qaeda. Scums like Scalia employ Al-Qaeda in order to have us fight a ghost enemy. These same douchebags illegally invaded Vietnam in order to setup heroin factories in Nam under the guise of "war." Freemason Jew Zionist Senator John Kerry's family trafficks heroin. He went to Nam to ensure soldiers were dying while hooked on heroin to increase his profits. Most who died in Nam were White Irish Americans.
This comment has received too many negative votesshow
According to Scalia the current society is a society of fat stupid oligarchs like himself who wage illegal wars of profit. Scalia probably provides the live bodies to burn as human sacrifice at the Bohemian Grove. He's likely a Freemason, they practice the Talmud because he promotes doing crimes for profit. He's pure evil. He's not honest. He's deceitful.
Scalia is there only to protect the mass murders who committed 9/11 assault to justify war profiteering and no-bid contracts.
If he had to sit there much longer he'd start sprinkling salt on the other two people at the table and eat them.
His idea of the appeals process is probably about putting a pot on a stove and cooking the body parts of innocent incarcerated people for his bedtime snack.
Scalia is a snake. He's not an administer of justice. He has a criminal mind.
This comment has received too many negative votesshow
Scalia, the one-way street is up your huge fat *ss where it comes to a dead end in your small intestine were your small backward shit for brain is located.
That's where the one-way street is you teasonous retarded fat f*ck.
Get out of my country you disgusting maggot.
We're going to make Nuremberg like like a bunch of dancing pigs in a masonic Disney cartoon.
Scalia is a treasonous fat bastard. He should eat a box of donuts and have a heart attack. I'm for him evolving that way.
The Talmud is a book of black magic written by a Jewish baby killer while in prison. The Talmud that Scalia holds higher than US Constitution says this: Jews can kill Anglos without punishment. Jews should LIE to non-Jews. Jews should never warn Anglos of danger.
Jewish students filmed non-Jews leaping to their deaths on 9/11. Scalia gave them a license return to Israel.
Scalia is NOT doing what the public wants. He's taking away liberties because he works for the fascist Zionist thugs who committed the 9/11 attacks from within using nanothermite explosives. When Scalia announced that he held the evil Talmud as a higher law than the US Constitution, he gave the Israeli students a FREE PASS to NOT WARN Americans of danger. The Talmud tells Jews to not warn non-Jews of danger. They said on tv they were flown to the US to film the attacks, they failed to warn us.
Your reading of Amendment V and XVI would logically prohibit any law that could be considered a restriction on any liberty, which is almost any law at all. Your reading of liberty would also prohibit laws banning bigamy and prostitution. There is nothing in the text of the Constitution or pre-Roe tradition justifying Roe's reading of the XIV Amend.
O'Connor, Kennedy, and Souter essentially admit this in the majority in Casey, salvaging abortion on an anemic claim of stare decisis.
Is there no significant distinction between how an unwanted pregnancy and child restricts ones life & liberty for many years and how not being able to visit a prostitute once restricts liberty?
An unwanted pregnancy certainly does not take one's life. On the count of liberty, an unwanted five year old restricts my liberty as well. What if I decide I do not want my child after trying the parent thing for a few years?
The law does not restrict me from visiting a prostitute once. It restricts me for life.
If I am in love with three people, your legal restriction against me wedding all three affects me for the rest of my life, not just this instant.
But again, everything is a degree. Not visiting a prostitute or not being allowed to marry 3 people is a lot less restrictive than having a child. Killing a fetus that has not reached a stage we would call conscious is less cruel than killing a 5 year old.
By your reasoning, killing a severely mentally retarded child who has significantly less self awareness is less cruel than killing William James. I take issue with your moral reasoning.
But that is a side topic. As the Constitution provides no guidance on abortion, I would leave those moral decisions to state legislators and to the people, not to an imperial judiciary. Note that I did not say ban abortion -- allow federalist republican democracy make those decisions.
For full disclosure, I think killing a severely mentally disabled person IS less cruel than killing someone of normal mental abilities. That doesn't mean it still isn't cruel, and not for one Nazi second am I advocating doing any such thing, but consciousness is what makes life worth living. But again, that is a side issue.
By the way, thank you for the intelligent and respectful tone. Too often, these YouTube discussions turn into ugly insults - partially a virtue of a 500 character limit, but more a virtue of less than civil interlocutors.
The same to you. I do believe in a womans right to choose, certainly during the early stages of the pregnancy, but I have lately begun to appreciate the notion of judicial activism as a non-partisan issue. As I said, 2-party rule and voter discrimination get SCOTUS support. I wouldn't mind a little more judicial restraint in those cases.
Anyway, don't be dense. My reading of those amendments had nothing to do with the rightness of life & liberty, simply pointing that the Federal Govt has every right in the Constitution to shoot down a state law deemed unacceptably restrictive.
What, essentially, do you think lies outside the realm of the federal government? In what cases would you claim that the X Amendment is actually applicable? I am honestly curious.
Thats not for me to decide. Thats why we don't have simply have umpires in the Supreme Court, calling balls and strikes on laws. We have Constitutional scholars who determine each law on a case by case basis. When you call the ruling activist, you're saying the judges have no right to make these decisions. New things not in Constitution have been coming up for 200+ years, and the Court has always ruled on them as they are challenged. Thats their job.
In a system with a written Constitution, that is exactly what we have: umpires. If we had an unwritten common law constitution like Great Britain, judges would deservedly have far more leeway.
Your option would allow judges to make moral judgments about what was "best" outside of prescribed laws. They are Constitutional scholars, not philosophers or ethics scholars.
I do accept that law has a moral component, but that is why we have a legislature.
@FAHayek89 Nothing stops judges from making moral judgments under Scalia's incoherent "philosophy." In the US, Scalia, just like the other justices on the Ct. and judges elsewhere, are quite comfortable changing the law as they see fit. Looking at the evolution of business law is a good way to check this. Scalia admittedly rejects the interpretation of the original anti-trust law for example.
Judges in the UK can't find parliament's laws unconstitutional (with some caveats), by the way.
@FAHayek89 Because of the Faith the Founding Fathers held to, this country - the USA -- has a pledge of allegiance ".. to the Flag ...One Nation under God " etc and has historically placed the words " In God We Trust" on their currency , I believe it is safe to surmise readily that this United States of America was Founded on Sound Moral Principles taken from the Judeo- Christian values (much of it Directly from the Bible) and is Indeed a Nation Under God Constitution & Bill of Rights
@seahorse1945 I don't completely disagree, but I am not sure I know where you are going with the comments. A few thoughts:
I do think the founders believed that law had an intensely moral component and that most would have rejected the extreme "neutralist" position one derives from the most extreme reading of Mill's harm principle. For many of them (though not all), Christian religion played a major role in that moral position.
@seahorse1945 I also think it is wrong to exclude religious people from the public discourse or to require them to provide exclusively non-religious justifications for their beliefs (though I do think they ought to couple religious justifications with justifications that do not require reliance on revelation.) Too often, the left in the U.S. forgets that the most important moral movements in our history – anti-slavery and civil rights – were intensely religious.
@seahorse1945 With that said, I do not think it is the concern of the Supreme Court to focus on those moral arguments, religious or secular. The role of the court to decide law based on text. The proper place for such moral debates is in the legislative branch.
As a side, I would also be very careful about using the “Pledge of Allegiance” as evidence of the founder’s intent. The pledge was written in 1892, and “under God” clause was added in the Eisenhower Administration (1954), not by the founders.
I do not know if any of that addressed your comments or not.
I would like it if the Court didn't rule that the Constitution supports a 2 party state and voting discrimination. But the word activist is telling those judges they have no right to do their job. Would you get abortion overturned in a court made up of Clinton nominees? About as unlikely as Gore getting a fair trial on Florida votes in a court of Reagan nominees. In a partisan society, thems the breaks, and the alternative is judges afraid to rule as they believe they should.
Anyway, by that argument, you're saying the Supreme Court has no right to exist, no right to do what it was formed for in the first place, and that is activist.
Not at all. I am saying that the Supreme Court's singular role is to interpret law in terms of the Constitution.
That means first applying the text of the Constitution as written. It mean, in cases where the text clearly applies but may be vague, applying judicial history. It means that in cases where the text does not apply, i.e. where law making is required, the legislature is responsible.
It means courts rule on existing, written law, not their personal moral sentiments.
Lets set aside that every judge, including Scalia, will naturally inject his or her own philosophy into a ruling (they are human). When you attack a ruling as activist, you are saying something more than the ruling was bad, you are saying the judge had no right to rule on that law. That defeats the entire purpose of the Court. Things not explicitly in the Constitution have been coming up for 200 years and the Court rules on them when asked to within the framework of the Constitution.
A judge has every right to rule on the law, but only the law. To a degree a judge will interject personal beliefs, but I want that degree minimized. When strictly bound by the text, it is more difficult to interject personal and political agendas. Nor do I want judges paying attention to "changing norms of society."
As an example, I find it outrageous that a Justice could claim all forms of the death penalty cruel and unusual when the Constitution explicitly proscribes the death penalty.
Fine, but there you have text within the Constitution to support what you are claiming. As you state, abortion is not mentioned in the Constitution, so it is not so easy to claim one side or the other. Remember, the judges did not ask to rule on this, they were asked. With the Constitution as a guide, they ruled that the govt (state or fed) has no right to force a woman to maintain an unwanted pregnancy.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. "
yes, there is no mention of abortion in the constitution, but those issues are considered.
And the responsibility to protect the right to life, liberty and the pursuit of happiness of citizen's is a power specifically delegated to the United States, and the judges ruled that the US has a responsibility to ensure that states do not infringe a citizen's rights in this manner by forcing her to maintain an unwanted pregnancy. So?
Its probably not the literal meaning of the phrase, but somewhere in the Constitution it says a citizen is someone BORN in the US, so I suppose an argument could be made the rights of the child only come into play after birth, but that seems to me to be reading too deep into the text.
So in sum, we now have expanded habeas jurisdiction -- de facto in addition to de jure (which prejudices Congress's right to dispose of territory as it sees fit).
This is a scope of the writ never before recognized by any common law court in the history of Anglo-American law.
It is also inconsistent with precedent, which held that Constitutional privileges do not extend to foreigners in non-sovereign territory. Curtiss-Wright, In re: Ross, Verdugo, Insular Cases all follow the same logic.
Scalia if it were not for the Constitution your catholic ass would be dead now. Catholics were persecuted when they first started coming to america. The Protestants didn't want those Pope sucking PIGS fucking up the America that was founded and built by the Protestants.
I wish Alito, Roberts, Scalia, and Thomas would be on a plane together and the plane would crash and kill everyone of them. Four God Damn Catholics on the United States Supreme Court. That is like having the Vatican making decisions about what 300 million United States citizens can and can not do. I hate all four of those bastards. They want big government and to take away the freedoms and liberties of all US citizens. They are PIGS for the Pope.
When did the Constitution 'evolve' to say that the US government can own and operate land that is not subject to the Consitution, Mr. Scalia? I love how strict constitutionalists want us to adhere to the Constitution, so long as its there interpretation.
Guantanamo Bay. Part of Scalia's dissent is that the enemy combatants "at no relevant time and in no stage of...captivity, [have] been within [the Constitution's] territorial jurisdiction". He's saying the govt can own and control land that is not subject to US law, and nowhere in the Constitution is the govt given that right.
I don't think you understand the decision or dissent. His argument is Constitutional protections do not extend to the detainees just because they are in Guatanamo Bay. And they aren't. Just because the army has control of a territory, doesn't mean the people there have Constitutional protections. Since when have they? When in history have detained people been afforded Constitutional protections? Cuba isn't part of the U.S., even if we have controlled property there.
He isn't arguing that foreign detainees have no rights in, say, Rikers Island. To quote Scalia himself from another video somewhere on Youtube: "The Constitution offers protections to US citizens anywhere and foreign nationals on US soil." The citizenship status is only half of the equation. He is using both as a reason for his dissent.
To quote from the decision (not dissent): The Governments argument that the Clause affords petitioners no rights because the United States does not claim soveriegnity over the naval station is rejected.
You misquote the decision. Kennedy is saying that de jure sovereignty is NOT the sole touchstone of habeas jurisdiction. Rather, "de facto" jurisdiction is. This is of course contrary to precedent, since "de facto" control was never held as the standard for jurisdiction at common law or indeed in WWII.
I don't misquote the decision, I just wrote it badly. I should have made clear that I was stating the govt's argument, according to the decision, on which habeas was denied, in response to your comment that I misunderstood the argument. Now, I gather you know more about the law than me, but I would bet Kennedy knows more than you. When the dec. says common law habeas history does not support a de jure argument, are all 5 simply lying?
They are simply wrong. Kennedy is the dullest member of the court. The other 4 indulge Kennedy because he gets the right result. This means assigning him the opinion, however slipshod his legal reasoning, to keep his vote on board.
Common law habeas history does NOT support a de facto argument as Kennedy admits. The logic of flag cases from Eisentrager to In re: Ross to the Insular Cases to Verdugo further scuttle his reasoning. The de facto argument is unprecedented, and his own invention.
But we didn't take over a country and not afford the people there rights. We BROUGHT these detainees to a military base. Not the same thing. The logic used by the majority is wrong.
"When did the Constitution 'evolve' to say that the US government can own and operate land that is not subject to the Consitution, Mr. Scalia?"
Article IV, 3, cl. 2: "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
Guantanamo is leased, and Congress has deemed it not sovereign US territory under Art. IV.
If you are referring to Exxon, I don't see how the Constitution is relevant. It was an admiralty law case. Damages weren't limited on due process grounds. Slip op. at 28:
"Today's enquiry differs from due process review because the case arises under federal maritime jurisdiction, and we are reviewing a jury award for conformity with maritime law, rather than the outer limit allowed by due process".
For many years, the use of due process has been an argument for the court setting its own standard over the rulings of the states. BMW of America v Gore, State Farm v Campbell. While I have no doubt as to the motive behind the Exxon ruling, it was not the case I was referring to. However, in my research I discovered that Scalia dissented in both, which raises my opinion of his integrity somewhat.
In any case, Scalia has never claimed to be a hardcore originalist like Thomas. Precedent trumps originalist jurisprudence at least some of the time. Gonzales v. Raich illustrates this perfectly. Thomas - originalist dissent; Scalia - precedent-motivated concurrence.
As to what you were referring to, elsewhere you wrote that Exxon was "activist," implicating Scalia since he joined the majority opinion capping damages. I assumed you were referring to the same thing here.
I was referring there to Breyer's dissent that this ruling should have been the responsibility of lawmakers. Since activism is often called judges taking control away from lawmakers, it seemed apt.
That's not what activism means. Activism in the statutory context means ruling contrary to statute where a statute exists. In the absence of statute, judge-made common law is the only source of law by default. Many areas of law are neither covered by nor codified by statute, but rather arose organically out of the common law -- that's the whole *point* of the common law.
It doesn't mean that all law was "activist" prior to codification. Courts were simply fashioning rules in a vacuum.
How is Roe v. Wade activist according to that definition? The Supreme Court rules on whether statutes fit within the framework of the Constitution, right? The judges determined that this particular law ran contrary to the Constitution's restriction on deprivation of life, liberty and happiness. They didn't create judge-made law, they ruled that an existing law should not have been.
In the PURELY statutory context. Exxon is not a constitutional case, so why are you bringing up the Constitution again?
WTF does Exxon have to do with Roe?
The point is that activism in the statutory context means ruling contrary to statute. Since there is NO STATUTE in Exxon, there is no activism. Judge-made common law is the only source of law here.
Another thing. Even under your (wrong) definition of activism, Exxon isn't activist since Congress can trump the ruling by simply exercising its "responsibility", which the court cannot and does not "take[] away."
Under the hierarchy of laws, legislation trumps common law. Congress thus retains legislative "control" at all times. Absent legislation, common law is the sole source of law. And being the sole source of law, judge-made law cannot be "activist" contrary to legislative will. Grok?
Roe vs. Wade is activist because the text of the Constitution provides no justification whatsoever for a Constitutional protection of abortion. The court relied on its own conception of morality and rights without serious reference to the text of the Constitution. The Tenth Amendment is clear. All powers not granted to the federal government, and abortion regulation or protection is clearly not, are reserved to the states.
I'm no Constitutional scholar, but saying that a law that infringes on the life & liberty of a woman is unConsitutional because it infringes on her life & liberty, thus breaking the 5th & 14th Amendments. Surely, the 14th Amendment grants to the Federal Govt the right to deny any state law that infringes on said life & liberty. Argue the application of life & liberty, but the Constitution gives the Fed the right to remove laws for that specific reason.
The original meaning of the constitution is that only white, male landowners are "people". Scalia believes that a constitutional amendment is required to change this view.
That's not true. It counted blacks as 3/5 of a person for census taking purposes. Besdides, I'll let you in on a secret, vapor, there actually WERE Constitutuonal amendments that made things equal, the 13th, 14th, and 15th amendments. Maybe you've heard of them.
But that was ONLY for census taking purposes. For other purposes that actually affected people (owning property, voting, jury duty, constitutional rights) others were not people at all. They did not enjoy 3/5 of a vote, for example.
Scalia believes in whats called origional intent which says that you must only consider what the constitution originally said and it cannot be interperted to adjust to our modern world. That belief of his is an extreme position in the legal world and the net result is it reduces our freedoms in this country to only what he believes the origional intent is. The supreme court is most admired when it takes a step slightly beyond the legal norm and attempts to better the plight of mankind.
Actually, Justice Scalia associates himself with the theory of original meaning, not original intent. The two are very different. Original meaning is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be, as opposed to what it presumably meant by the people who drafted or ratified it, as the original intent theory suggests.
What about the right to a court appointed lawyer, a right to birth control,a right to privacy or the Miranda rights. Those rights are not in the origional meaning of the Constitution and would be gone under Scalia's origional meaning view. There are hundreds of these rights that we take for granted that would be taken away under origional meaning. He also believes that a Cop or the Military can touture you if he's trying to "Extract" information. Origional meaning belief is dangerous viewpoint.
A right to an attorney, right to privacy and Miranda rights are inferred through the 14th amendment. Where a "right to birth control" is I have no idea. But since you think originalism is so bad, if the Supreme Court had interpreted the Constitution originally in Plessy v. Ferguson, there would have been no need for Brown v. Board. When we don't adhere to the original intent and make up the rules as we go, we're on a very slippery slope.
Look up 2000 Dickerson vs. U.S. It was about Maranda rights and both Thomas and Scalia disented. Scalia does not think the Miranda rights are in the 14th admendent and did vote to overturn them. He also stated multiple times that there is no right to privacy in the constitution and in Lawrence vs. Texas 2003 he voted to uphold a Texas law banning sodimy, which is really a ban against being Gay. Origional intent would wipe out hundreds of freedoms we now take for granted.
The argument is privacy does not extend to sodomy rights. Texas had a statute making it illegal. That statute was passed by the legislature, the only voice of the people. If you interpret the Constitution originally, that statute does not violate the Constitution. That isn't to say a legislature cannot do away with that statute. It is to say nine unelected judges have no right to take my a right away of a state to pass a statute, so long as that statute does not violate the constitution.
Let me correct something since I was typing so fast. I meant it is to say 9 unelected judges have no right to take a state's right to pass a statute, so long as the statute does not violate the Constitution. And the statute in question does not.
Lawrence v. Texas is not a ban against being gay. The reasoning is the statute does not violate the intent Constitution. When we let judges interpret it as THEY wish instead of what the intent was, we start on a very slippery slope. I for one have always disagreed with changing the rules as we go along.
Robislost, I have your back. Don't you love how Rednecks who've never even read Lawrence v. Texas have an opinion on it?
Both Scalia and I are currently angry, however, as to how the Neo-Cons have infilitrated the G.O.P.
I say take the White Trash agenda back across the aisle to the Southern Democrats, where it belongs. (i.e. pre-1996, when the Religious Right was in the South and not part of our beloved Republican Party).
I don't think its as much original intent that is the problem as Scalia's attempts to twist original intent to mean conservative. If you study some of the Founder's ideas, you will see some pretty amazingly radical stuff in there that modern conservative Originalists pretend doesn't exist. The Left should fight them on their own ground.
@fdny9682 A couple of quick ones without doing too much research: welfare, restrictions on monied corporations before they become our aristocrats, religion out of public life, govt out of public life, the right to education. Does that help?
@eirefrance The Articles of confederation were an absoulte disaster thats why there was a constitutional convention. But your an absolute statest Marxist
@eirefrance The Articles of confederation were an absoulte disaster thats why there was a constitutional convention. But your an absolute statest Marxist
The very idea that freedom can be "created" by lawyers is ridiculous.The less laws and regulations the government imposes the more free the people are. It's the so called collective freedoms that she is talking about aka special freedoms for special groups of people. Freedom comes from human spontaneity not from some lawyer's expertise. If freedom is the absence of force, how can it be enhanced by positive laws aka institutinalisation of force.
Eternaldream00 1 month ago
@Eternaldream00 The whole rationale for civil rights legislation is that lawyers and legislatures have already restricted the freedom of certain groups of people. The "Black Codes" following reconstruction after the civil war, along with Jim Crow, are an example. If the argument that freedom comes from less regulation imposed by gov't is valid, then you must also consider those laws that have already been passed to allow discrimination & disenfranchisement of people.
prschuster 1 month ago
@prschuster You are absolutely correct on the account of unjust legislation BUT That follows the very same logic as my previous comment. Those laws should be revoked not replaced by some other laws otherwise you will still be stuck in the same circle of granting priviledges. I do not subscribe to the idea that legislation can somehow repair past damages. There should be no codes or quota for anything if we truly want to be equal.
Eternaldream00 1 month ago
@Eternaldream00 But when there is systematic discrimination that results from prejudice rather than legislation, then the lack of legal protections results in loss of freedom. Would you then allow businesses the liberty to curtail free access to different groups in society by failing to outlaw discrimination? According to you, the priviledge of denying service based on race creed or religion should not be infringed upon. Should we rescind the 13th 14th & 15th amendments?
prschuster 1 month ago
Comment removed
prschuster 1 month ago
This has been flagged as spam show
@prschuster I'm not for a quota system when it comes to affirmative action, but I am in favor of antidiscrimination laws. I'm also for safety standards in the workplace and for consumer protections because we can't trust businesses to look out for the concerns of employees and consumers. This anti-gov't rhetoric is too simplistic. We have 300 million people in this country. Without gov't regulations of some sort we'd have mob rule.
prschuster 1 month ago
@prschuster Lets say we did repeal those amendments. Do you think that there would be a great surge of openly racist conduct on the institutional or private level? I do not think so, Hardly anyone would like to be associated with racism today regardless of what the law says. This is mainly a cultural phenomenon. It is clear that banning somebody from being racist doesn't mean the person actually stops being racist. This legislature only makes racism to go into hiding and spread roots.
Eternaldream00 1 month ago
@Eternaldream00 "Lets say we did repeal those amendments. Do you think that there would be a great surge of openly racist conduct on the institutional or private level? I do not think so,"
Then you might as well make the same argument about the Bill of Rights, as if repealing the first 10 amendments would have no consequence on our basic freedoms like our freedom of speech.. but then there's the Patriot Act. Sorry, I just don't buy your argument.
prschuster 1 month ago
@prschuster In other words, the first amendment sets an important precedent that can be used to fight some of the civil liberty issues associated with the Patriot Act. Likewise, the 15th amendment acted as a precedent for the civil right movement of the 1960s. Don't kid youraelf about people being so unprejudiced & open minded. The whole controversy over the "ground zero mosque" is a prime example of blatant racial & religious prejudice; but no one will admit to that.
prschuster 1 month ago
@prschuster The Patriot Act was enacted despite it being unconstitutional....I was born in a communist country we had all sorts of fancy laws and rights none of which were enforced They only existed de jure but not de facto....the will to uphold certain values is whats important here. I give you that good laws are necessary but simply writing more legislation won't right all wrongs.
Eternaldream00 1 month ago
@Eternaldream00 Have you ever thought why it is very unlikely there would be a nondemocratic regime in the U.S.? It's not just because you have a robust set of rights and liberties written down somewhere but because the people believe they have them.
Eternaldream00 1 month ago
@Eternaldream00 You're right. Good laws are not enough. There must be the political will to abide by them and to uphold certain values. I agree with you there.
prschuster 1 month ago
@prschuster Now don't misunderstand me I am 100% against racism but I am also 100% against hypocrisy. Let's allow the racists to express themselves publicly, so we can clearly see who they are. It seems I have much greater hope and trust in the civility of the people than you do. i might be wrong but consider this..The movement for slave liberation started because the people saw it as evil not because it was written on some paper somewhere.
Eternaldream00 1 month ago
@dumbadventurer
Well said, well said.
drbayoms 2 months ago
This has been flagged as spam show
Sometimes I wish there WAS a hell for this son of a bitch to go to after he finally ends his miserable life here in Earth.
zerogullibility 2 months ago
Well considering no politician has followed the constitution in decades...
Yes it can be amended but not easily.That is the only way it it supposed to "evolve"...in the mean time I on behalf of every American would like our rights restored according to the constitution we have.
xxDogsoldierxx 3 months ago
Where is the full interview?
3888799 3 months ago
Scalia, once again, at his best!
hawkeyery14 5 months ago
The U.S. constitution is amendable because it's imperfect.
parafleet 5 months ago
scalia is three or four steps below satan
iago68 7 months ago
@iago68
Well then you must be in Satan's buttcrack.
Califacience 7 months ago
@Califacience one thing's for sure, i am FAR less evil than scalia. so are you. so is charles manson...
iago68 7 months ago
@Califacience i'm not. but if i were, i could tell you that lucifer wouldn't allow the likes of that wop therein.
iago68 7 months ago
I would go to the prison once a week and hug the person who shoots this fat narcissistic pig. Killing him would make them a hero in my book, and while we're on the subject Rick Perry is another asshole I would love to see die in slow motion on digital film. So, if you do it, go the extra mile so I can get hard while watching it.
imaginativelads 7 months ago
Scalia is a fat pig ideologue but he has the upper hand in this
EMPERORMIKI 7 months ago
sorry im more of a rocky blues guy so your reference has no meaning to me.
ememes1234 8 months ago
@bornthug213, wrong. because he uses the constitution so eruditely, you cant argue with him
Iobi123 9 months ago
This has been flagged as spam show
ANTONIN "KOCH SUCKER" SCALIA...
HUMANSAREBENEATHME 10 months ago
Scalia is the reason why presidents can't be PUSSIES (Obama) in pushing their party's agenda. Why? Because the other side is going to take advantage of your humiity and sense of fair play. Unfortunately, in this present-day American society, you must MAKE people be civil. Left to their own devices, powerful people in this day and age will always act like bloodthirsty beasts, taking more more more than they need..
parafleet 10 months ago
@parafleet why do you believe that your (or any individual's or group of individuals for that matter) concept of civil is so objectively true that you reserve the right to "make" (you seem to imply the use of force) people abide by it ?
why don't i have the right to live by my definition of civil (even if you or a group or even a majority of people consider my definition to be uncivil)?
ememes1234 8 months ago
@ememes1234 Good questions. Listen to Megadeth for the answers.
parafleet 8 months ago
This has been flagged as spam show
Scalia is just another activist judge.
"Never in history has a federal court invalidated a law regulating the private ownership of firearms on Second Amendment grounds.." Dean of the Harvard Law School 1946-1967, Erwin Griswold, Washington Post, 11/4/90
200+ years yet Scalia overturns two local laws on the basis of "originalism" lol
USAHistory1 11 months ago
can't wait for Scalia to die
carygoleman 1 year ago
This has been flagged as spam show
@carygoleman
"can't wait for Scalia to die"
--But no, the "violent and hateful rhetoric" is only from the right. Right?
NoGuff 8 months ago
Once again Scalia is right, its especially sweet when he sticks it right up the asses of the Anti-American Anti-Constitution ACLU(AMERICAN COMMUNIST LAWYERS UNION)
nytmstr 1 year ago
I thought this was Scalia arguing against evolution itself. I wouldn't put it past him, the backwoods brushape.
blindthrall 1 year ago
Evolving toward freedom??? Look at the TSA you idiot moron... give me a break. The current societ does not WANT fewer liberties you scumbag piece of garbage. The current ILLEGAL GOVERNMENT wants fewer liberties. Since when does any SOCIETY agree to live under facist rule you freaking piece of dog shyte?
liliokilani 1 year ago
I'm so tired of people making Scalia out to be this intellectual God when honestly, he's not. His opinions are written "well," but they are not groundbreaking! Please stop hyping this man up. Thanks
bornthug213 1 year ago
Scalia is awesome awesome awesome!! :D
RockyBalboa211 1 year ago
This has been flagged as spam show
Mr. inJustice Scalie, together with his fellow inJustices: Roberts, Alito, Thomas and Kennedy have turned the U.S. Supreme Court into ONE BIG JOKE! Bush v Gore
was one of the biggest jokes ever perpetrated. It gave us the Iraq war, 4 trillion dollars in added Federal Debt, a war criminal president who became an international joke, and the Great Recession! WELL DONE, YOU JOKESTERS!
charliebergy101239 1 year ago
@mmmmmdatsgoodsoup Really? Seems like he's making an obviously true point....
kwalk30 1 year ago
MONEY!
kwalk30 1 year ago
Scalia is a genius
smartspick 1 year ago
Scalia is awesome!! :D
RockyBalboa211 1 year ago
@mmmmmdatsgoodsoup hey jackass did you ever consider the idea of the NeoCons evolving the constitution?! How do you think the patriot act became legal. They took you precious evolving living constitution and USED it. Had they been forced to use the amendment process they'd of hit a road block.
russkeller 1 year ago
@skewbuh Let me tell you about slyjoker. She's a Supreme Court Justice in her own mind. She has a 146 IQ and she doesn't mind if everyone knows it!! Scalia's point is obviously true. A living constitution approach will not always lead to greater freedoms. But clearly this video just provides an opportunity for people like sly to patronizingly assert that the only reason someone could disagree with her worldview is because they are "insane."
azbrougar 1 year ago
how the fuck is this bitch going to argue with a fucking supreme court justice
skewbuh 1 year ago
@skewbuh ??? anyone can easily argue with a supreme court justice. do you think scalia is a god? he is a lunatic and has his head up his ass. i would gladly take him on too. lots of other people that are very capable of refuting his nonsense would like to do so too.
slyjokerg 1 year ago
@skewbuh Like anyone does. Using reason, logic, and the liberty granted to do so. This isn't a guy who got where he is by doing nothing, granted. But supreme court justices are not gods. They are unelected officials placed for political reasons. The very notion that a supreme justice is unassailable is to beckon demagoguery.
Words mean things. Lawyers often wish you to believe they mean the opposite of their clear intention.
OneVoiceMore 1 year ago
scalia is a lunatic. this video does not sufficiently portray his biased, inane, self-righteous, insane, corporate backing, religious, mindless bs... but it is a small taste. he is devoid of common sense or genuine impartiality. if the nut bag wants to read the constitution literally, as he often laments, he should be against anyone owning a gun if they are not in a "well regulated militia". he won't do that of course, because he is a right wing maniac that caters to gun nuts, et al.
slyjokerg 1 year ago
@slyjokerg @slyjokerg, You claim your "Independent politically" on your profile.
It's clear from your comment you are a far lefty. I just love your tolerance!
You need to read the federalists papers.
kartman13 1 year ago
@kartman13 *you're, not your. start with an english class. i am 100% indepedent. being desperate to label someone as something you find attackable is a weak tactic kiddo. are "far lefty" people 100% against affirmative action? are they for the death penalty? you are an assuming jackass. btw, the i have read the federalist papers multiple times. stop talking out of your anus.
slyjokerg 1 year ago
@slyjokerg, apparently you are also part of the Spelling Police.
Your comments and behavior is clearly similar to Keith Olbermann.
If it smells like a duck, walks like a duck, quacks like a duck, it's a duck.
Time to deal with reality and stop with the lies.
kartman13 1 year ago
@kartman13 did your last comment have any point?
slyjokerg 1 year ago
scalia is a full of it. his concepts only go as far as he wants it to. all you have to do is look at the decisions he's supported recently to see that.
ComicFreak2099 1 year ago
scalia is right.
werealldoodshey 1 year ago 2
Scalia is such an a__hole as are his Republican clones.
LoserBushShrub 1 year ago
The ACLU's motto - We don't hate religion, we just hate christianity!
andro89 1 year ago 2
"If it is to mean what the current society wants it to mean..." - Scalia
I gather what he's ultimately saying by this is that he can decide what the Constitution means without reference to history. That's a little unnerving. Talk about "activist" judges, this demagogue is fucking with my liberty.
brandnutopian 1 year ago
@brandnutopian dude you misunderstood what scalia was saying. He said that statement to disagree with it
fdny9682 1 year ago
@fdny9682 I don't think so. I believe what he was saying is that judicial interpretation IS subject to the will of the times and not always in the interests of freedom. Coming from a guy who defends torture I have grave doubts about his interpretations.
Watch "RE: Republicans Hate Freedom -- CONTEXT" for a more extended version of this debate and listen to Scalia elaborate on these remarks.
brandnutopian 1 year ago
@brandnutopian Thats not what he's saying at all. He says that if it is subject to the will of the times it can be better or WORSE. This being said he is NOT for that.
fdny9682 1 year ago
The Constitution says nothing about "progress" towards more freedom and equality. Our founding fathers were not Leninists.
ToxicOdiousOne 1 year ago
Scalia....... the best......
HOUSEOFFOURDOORS 1 year ago
This has been flagged as spam show
Looks like someone is forcing Roberts out of office, say good bye to America and say hello to AMERIKA comrad.
mrfellowship 1 year ago
omg. Scalia is an asshole.
He's destroying this nation.
ehealthy222 2 years ago
This comment has received too many negative votes show
scoves9484,
You said the "laws are timeless" but in today's Zionist-controlled world where the oligarchs wage wars of profit disguised as "war on terror" what we has is a situation where "the times are lawless."
Judges like Scalia are protecting a political cabal of men who are growing their monopolies by misusing the military. The taxpayers foot the bill for bogus wars. The CIA/Mob/Neocon cabal gets rich by usurping our laws & nations. They serve themselves. They're the real terrorists.
ExoticGawdess 2 years ago
get laid dude!
socalcraigster 2 years ago
This comment has received too many negative votes show
Maggots like Scalia framed Charles Manson for a crime that child-rapist Roman Polanski did. Polanksi likely ordered a hit on his Anglo wife because he hated his Anglo wife who cheated. He raped an Anglo child.
Manson asked to speak in his own defense in court. For that he was taken into the back & beaten. Manson gave up, admittedly. He'd studied acting, he made "crazy faces" to MOCK those who framed him as a "monster." He recorded GOOD music. Zionists feared his rising fame & war protesting.
ExoticGawdess 2 years ago
This comment has received too many negative votes show
These evil Talmudic law practitioners like Scalia who serve Israel and violate Americans worked to keep us in Vietnam so they could traffick heroin. They worked with the Jewish mafia, the mob & they killed JFK and RFK for trying to stop them. JFK called them a secret cabal (Freemasons). RFK called them Zionists. Ronald Reagan called them Armageddonists. They killed Marilyn Monroe who was about to say what JFK told her (Who they were?).
They framed Manson for war protesting. They killed Lennon.
ExoticGawdess 2 years ago
The CIA trained and armed Al-Qaeda. Scums like Scalia employ Al-Qaeda in order to have us fight a ghost enemy. These same douchebags illegally invaded Vietnam in order to setup heroin factories in Nam under the guise of "war." Freemason Jew Zionist Senator John Kerry's family trafficks heroin. He went to Nam to ensure soldiers were dying while hooked on heroin to increase his profits. Most who died in Nam were White Irish Americans.
Scalia's law, Talmudic law, tells Jews to LIE & KILL ANGLOS.
ExoticGawdess 2 years ago
This comment has received too many negative votes show
According to Scalia the current society is a society of fat stupid oligarchs like himself who wage illegal wars of profit. Scalia probably provides the live bodies to burn as human sacrifice at the Bohemian Grove. He's likely a Freemason, they practice the Talmud because he promotes doing crimes for profit. He's pure evil. He's not honest. He's deceitful.
Scalia is there only to protect the mass murders who committed 9/11 assault to justify war profiteering and no-bid contracts.
WE KNOW
ExoticGawdess 2 years ago
Oligarch are always fat stupid shits like Scalia.
His fat *ss and retarded brain gives him away.
If he had to sit there much longer he'd start sprinkling salt on the other two people at the table and eat them.
His idea of the appeals process is probably about putting a pot on a stove and cooking the body parts of innocent incarcerated people for his bedtime snack.
Scalia is a snake. He's not an administer of justice. He has a criminal mind.
Know thy enemy.
ExoticGawdess 2 years ago
This comment has received too many negative votes show
Scalia, the one-way street is up your huge fat *ss where it comes to a dead end in your small intestine were your small backward shit for brain is located.
That's where the one-way street is you teasonous retarded fat f*ck.
Get out of my country you disgusting maggot.
We're going to make Nuremberg like like a bunch of dancing pigs in a masonic Disney cartoon.
ExoticGawdess 2 years ago
Scalia is a treasonous fat bastard. He should eat a box of donuts and have a heart attack. I'm for him evolving that way.
The Talmud is a book of black magic written by a Jewish baby killer while in prison. The Talmud that Scalia holds higher than US Constitution says this: Jews can kill Anglos without punishment. Jews should LIE to non-Jews. Jews should never warn Anglos of danger.
Jewish students filmed non-Jews leaping to their deaths on 9/11. Scalia gave them a license return to Israel.
ExoticGawdess 2 years ago
Scalia is NOT doing what the public wants. He's taking away liberties because he works for the fascist Zionist thugs who committed the 9/11 attacks from within using nanothermite explosives. When Scalia announced that he held the evil Talmud as a higher law than the US Constitution, he gave the Israeli students a FREE PASS to NOT WARN Americans of danger. The Talmud tells Jews to not warn non-Jews of danger. They said on tv they were flown to the US to film the attacks, they failed to warn us.
ExoticGawdess 2 years ago
Scalia is so on the mark!
mainsqueeze1977 3 years ago 24
@mainsqueeze1977 --LOL the mark of a loser.
LoserBushShrub 1 year ago
@mainsqueeze1977 but should be so on weight watchers.
jbond5150 1 year ago
@jbond5150
Better a little fat on his belly than a lot of fat in your brain, as the ACLU woman seems to have.
mainsqueeze1977 1 year ago
Your reading of Amendment V and XVI would logically prohibit any law that could be considered a restriction on any liberty, which is almost any law at all. Your reading of liberty would also prohibit laws banning bigamy and prostitution. There is nothing in the text of the Constitution or pre-Roe tradition justifying Roe's reading of the XIV Amend.
O'Connor, Kennedy, and Souter essentially admit this in the majority in Casey, salvaging abortion on an anemic claim of stare decisis.
FAHayek89 3 years ago
Is there no significant distinction between how an unwanted pregnancy and child restricts ones life & liberty for many years and how not being able to visit a prostitute once restricts liberty?
eirefrance 3 years ago
An unwanted pregnancy certainly does not take one's life. On the count of liberty, an unwanted five year old restricts my liberty as well. What if I decide I do not want my child after trying the parent thing for a few years?
The law does not restrict me from visiting a prostitute once. It restricts me for life.
If I am in love with three people, your legal restriction against me wedding all three affects me for the rest of my life, not just this instant.
FAHayek89 3 years ago
But again, everything is a degree. Not visiting a prostitute or not being allowed to marry 3 people is a lot less restrictive than having a child. Killing a fetus that has not reached a stage we would call conscious is less cruel than killing a 5 year old.
eirefrance 3 years ago
By your reasoning, killing a severely mentally retarded child who has significantly less self awareness is less cruel than killing William James. I take issue with your moral reasoning.
But that is a side topic. As the Constitution provides no guidance on abortion, I would leave those moral decisions to state legislators and to the people, not to an imperial judiciary. Note that I did not say ban abortion -- allow federalist republican democracy make those decisions.
FAHayek89 3 years ago
For full disclosure, I think killing a severely mentally disabled person IS less cruel than killing someone of normal mental abilities. That doesn't mean it still isn't cruel, and not for one Nazi second am I advocating doing any such thing, but consciousness is what makes life worth living. But again, that is a side issue.
eirefrance 3 years ago
By the way, thank you for the intelligent and respectful tone. Too often, these YouTube discussions turn into ugly insults - partially a virtue of a 500 character limit, but more a virtue of less than civil interlocutors.
FAHayek89 3 years ago
The same to you. I do believe in a womans right to choose, certainly during the early stages of the pregnancy, but I have lately begun to appreciate the notion of judicial activism as a non-partisan issue. As I said, 2-party rule and voter discrimination get SCOTUS support. I wouldn't mind a little more judicial restraint in those cases.
eirefrance 3 years ago
Anyway, don't be dense. My reading of those amendments had nothing to do with the rightness of life & liberty, simply pointing that the Federal Govt has every right in the Constitution to shoot down a state law deemed unacceptably restrictive.
eirefrance 3 years ago
And, thus, is not activist.
eirefrance 3 years ago
What, essentially, do you think lies outside the realm of the federal government? In what cases would you claim that the X Amendment is actually applicable? I am honestly curious.
FAHayek89 3 years ago
Thats not for me to decide. Thats why we don't have simply have umpires in the Supreme Court, calling balls and strikes on laws. We have Constitutional scholars who determine each law on a case by case basis. When you call the ruling activist, you're saying the judges have no right to make these decisions. New things not in Constitution have been coming up for 200+ years, and the Court has always ruled on them as they are challenged. Thats their job.
eirefrance 3 years ago
In a system with a written Constitution, that is exactly what we have: umpires. If we had an unwritten common law constitution like Great Britain, judges would deservedly have far more leeway.
Your option would allow judges to make moral judgments about what was "best" outside of prescribed laws. They are Constitutional scholars, not philosophers or ethics scholars.
I do accept that law has a moral component, but that is why we have a legislature.
FAHayek89 3 years ago 15
@FAHayek89 Nothing stops judges from making moral judgments under Scalia's incoherent "philosophy." In the US, Scalia, just like the other justices on the Ct. and judges elsewhere, are quite comfortable changing the law as they see fit. Looking at the evolution of business law is a good way to check this. Scalia admittedly rejects the interpretation of the original anti-trust law for example.
Judges in the UK can't find parliament's laws unconstitutional (with some caveats), by the way.
peterfdrucker 1 year ago
@FAHayek89 Because of the Faith the Founding Fathers held to, this country - the USA -- has a pledge of allegiance ".. to the Flag ...One Nation under God " etc and has historically placed the words " In God We Trust" on their currency , I believe it is safe to surmise readily that this United States of America was Founded on Sound Moral Principles taken from the Judeo- Christian values (much of it Directly from the Bible) and is Indeed a Nation Under God Constitution & Bill of Rights
seahorse1945 1 year ago
@seahorse1945 I don't completely disagree, but I am not sure I know where you are going with the comments. A few thoughts:
I do think the founders believed that law had an intensely moral component and that most would have rejected the extreme "neutralist" position one derives from the most extreme reading of Mill's harm principle. For many of them (though not all), Christian religion played a major role in that moral position.
FAHayek89 1 year ago 2
@seahorse1945 I also think it is wrong to exclude religious people from the public discourse or to require them to provide exclusively non-religious justifications for their beliefs (though I do think they ought to couple religious justifications with justifications that do not require reliance on revelation.) Too often, the left in the U.S. forgets that the most important moral movements in our history – anti-slavery and civil rights – were intensely religious.
FAHayek89 1 year ago 2
@seahorse1945 With that said, I do not think it is the concern of the Supreme Court to focus on those moral arguments, religious or secular. The role of the court to decide law based on text. The proper place for such moral debates is in the legislative branch.
FAHayek89 1 year ago 5
@seahorse1945
As a side, I would also be very careful about using the “Pledge of Allegiance” as evidence of the founder’s intent. The pledge was written in 1892, and “under God” clause was added in the Eisenhower Administration (1954), not by the founders.
I do not know if any of that addressed your comments or not.
FAHayek89 1 year ago
I would like it if the Court didn't rule that the Constitution supports a 2 party state and voting discrimination. But the word activist is telling those judges they have no right to do their job. Would you get abortion overturned in a court made up of Clinton nominees? About as unlikely as Gore getting a fair trial on Florida votes in a court of Reagan nominees. In a partisan society, thems the breaks, and the alternative is judges afraid to rule as they believe they should.
eirefrance 3 years ago
Anyway, by that argument, you're saying the Supreme Court has no right to exist, no right to do what it was formed for in the first place, and that is activist.
eirefrance 3 years ago
Not at all. I am saying that the Supreme Court's singular role is to interpret law in terms of the Constitution.
That means first applying the text of the Constitution as written. It mean, in cases where the text clearly applies but may be vague, applying judicial history. It means that in cases where the text does not apply, i.e. where law making is required, the legislature is responsible.
It means courts rule on existing, written law, not their personal moral sentiments.
FAHayek89 3 years ago
Lets set aside that every judge, including Scalia, will naturally inject his or her own philosophy into a ruling (they are human). When you attack a ruling as activist, you are saying something more than the ruling was bad, you are saying the judge had no right to rule on that law. That defeats the entire purpose of the Court. Things not explicitly in the Constitution have been coming up for 200 years and the Court rules on them when asked to within the framework of the Constitution.
eirefrance 3 years ago
A judge has every right to rule on the law, but only the law. To a degree a judge will interject personal beliefs, but I want that degree minimized. When strictly bound by the text, it is more difficult to interject personal and political agendas. Nor do I want judges paying attention to "changing norms of society."
As an example, I find it outrageous that a Justice could claim all forms of the death penalty cruel and unusual when the Constitution explicitly proscribes the death penalty.
FAHayek89 3 years ago
Fine, but there you have text within the Constitution to support what you are claiming. As you state, abortion is not mentioned in the Constitution, so it is not so easy to claim one side or the other. Remember, the judges did not ask to rule on this, they were asked. With the Constitution as a guide, they ruled that the govt (state or fed) has no right to force a woman to maintain an unwanted pregnancy.
eirefrance 3 years ago
...
and I quote
"Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. "
yes, there is no mention of abortion in the constitution, but those issues are considered.
ninjaturtle11754 2 years ago
And the responsibility to protect the right to life, liberty and the pursuit of happiness of citizen's is a power specifically delegated to the United States, and the judges ruled that the US has a responsibility to ensure that states do not infringe a citizen's rights in this manner by forcing her to maintain an unwanted pregnancy. So?
eirefrance 2 years ago
That's true, good point, so then the rights of the people, in this case are held over the right of state legislation to regulate abortion.
so which right is it then that is being infringed on? privacy? life? liberty? pursuit of happiness?
I do believe that at least one is depending on the law that you are considering, but what about the child?
Scalia says , I beleive, that an unborn child is not a person as meant in the 14th... idk
ninjaturtle11754 2 years ago
Its probably not the literal meaning of the phrase, but somewhere in the Constitution it says a citizen is someone BORN in the US, so I suppose an argument could be made the rights of the child only come into play after birth, but that seems to me to be reading too deep into the text.
eirefrance 2 years ago
So then where do you balance the right of the unborn child vs. the mother?
ninjaturtle11754 2 years ago
Roe vs. Wade
Gravy2468 2 years ago
what a traitor
D54BH64WB72 3 years ago
corpulent
oh well, at least he showed up, he must believe in some democracy
too bad he never practiced it
8data 3 years ago
scalito!!
youve been scalitod, american public
8data 3 years ago
So in sum, we now have expanded habeas jurisdiction -- de facto in addition to de jure (which prejudices Congress's right to dispose of territory as it sees fit).
This is a scope of the writ never before recognized by any common law court in the history of Anglo-American law.
It is also inconsistent with precedent, which held that Constitutional privileges do not extend to foreigners in non-sovereign territory. Curtiss-Wright, In re: Ross, Verdugo, Insular Cases all follow the same logic.
sklanger 3 years ago
Scalia if it were not for the Constitution your catholic ass would be dead now. Catholics were persecuted when they first started coming to america. The Protestants didn't want those Pope sucking PIGS fucking up the America that was founded and built by the Protestants.
cypresseert 3 years ago
I wish Alito, Roberts, Scalia, and Thomas would be on a plane together and the plane would crash and kill everyone of them. Four God Damn Catholics on the United States Supreme Court. That is like having the Vatican making decisions about what 300 million United States citizens can and can not do. I hate all four of those bastards. They want big government and to take away the freedoms and liberties of all US citizens. They are PIGS for the Pope.
cypresseert 3 years ago
When did the Constitution 'evolve' to say that the US government can own and operate land that is not subject to the Consitution, Mr. Scalia? I love how strict constitutionalists want us to adhere to the Constitution, so long as its there interpretation.
eirefrance 3 years ago
Um? Not sure what you're getting at. Where does it say we can't? What operation of what land are you referring to?
robislost 3 years ago
Guantanamo Bay. Part of Scalia's dissent is that the enemy combatants "at no relevant time and in no stage of...captivity, [have] been within [the Constitution's] territorial jurisdiction". He's saying the govt can own and control land that is not subject to US law, and nowhere in the Constitution is the govt given that right.
eirefrance 3 years ago
I don't think you understand the decision or dissent. His argument is Constitutional protections do not extend to the detainees just because they are in Guatanamo Bay. And they aren't. Just because the army has control of a territory, doesn't mean the people there have Constitutional protections. Since when have they? When in history have detained people been afforded Constitutional protections? Cuba isn't part of the U.S., even if we have controlled property there.
robislost 3 years ago
He isn't arguing that foreign detainees have no rights in, say, Rikers Island. To quote Scalia himself from another video somewhere on Youtube: "The Constitution offers protections to US citizens anywhere and foreign nationals on US soil." The citizenship status is only half of the equation. He is using both as a reason for his dissent.
eirefrance 3 years ago
To quote from the decision (not dissent): The Governments argument that the Clause affords petitioners no rights because the United States does not claim soveriegnity over the naval station is rejected.
eirefrance 3 years ago
Another quote: de jure sovereignity is the touchstone of habeas corpus jurisdiction.
eirefrance 3 years ago
You misquote the decision. Kennedy is saying that de jure sovereignty is NOT the sole touchstone of habeas jurisdiction. Rather, "de facto" jurisdiction is. This is of course contrary to precedent, since "de facto" control was never held as the standard for jurisdiction at common law or indeed in WWII.
Kennedy pulled that out of his ass.
sklanger 3 years ago
I don't misquote the decision, I just wrote it badly. I should have made clear that I was stating the govt's argument, according to the decision, on which habeas was denied, in response to your comment that I misunderstood the argument. Now, I gather you know more about the law than me, but I would bet Kennedy knows more than you. When the dec. says common law habeas history does not support a de jure argument, are all 5 simply lying?
eirefrance 3 years ago
They are simply wrong. Kennedy is the dullest member of the court. The other 4 indulge Kennedy because he gets the right result. This means assigning him the opinion, however slipshod his legal reasoning, to keep his vote on board.
Common law habeas history does NOT support a de facto argument as Kennedy admits. The logic of flag cases from Eisentrager to In re: Ross to the Insular Cases to Verdugo further scuttle his reasoning. The de facto argument is unprecedented, and his own invention.
sklanger 3 years ago
Now "own". Leased. That authority is granted in Article IV under the Territorial Clause.
The Court erroneously overreached by prejudicing the claims of Congress on that point.
Scalia, like the Eisentrager Court, is in fact correct that Constitutional privileges do not extend overseas to non-sovereign territory.
sklanger 3 years ago
But we didn't take over a country and not afford the people there rights. We BROUGHT these detainees to a military base. Not the same thing. The logic used by the majority is wrong.
robislost 3 years ago
"When did the Constitution 'evolve' to say that the US government can own and operate land that is not subject to the Consitution, Mr. Scalia?"
Article IV, 3, cl. 2: "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
Guantanamo is leased, and Congress has deemed it not sovereign US territory under Art. IV.
I love how you fail to read the Constitution.
sklanger 3 years ago
I concede, I missed that. Still, the Constitution definitely does not mention punitive damages.
eirefrance 3 years ago
If you are referring to Exxon, I don't see how the Constitution is relevant. It was an admiralty law case. Damages weren't limited on due process grounds. Slip op. at 28:
"Today's enquiry differs from due process review because the case arises under federal maritime jurisdiction, and we are reviewing a jury award for conformity with maritime law, rather than the outer limit allowed by due process".
sklanger 3 years ago
For many years, the use of due process has been an argument for the court setting its own standard over the rulings of the states. BMW of America v Gore, State Farm v Campbell. While I have no doubt as to the motive behind the Exxon ruling, it was not the case I was referring to. However, in my research I discovered that Scalia dissented in both, which raises my opinion of his integrity somewhat.
eirefrance 3 years ago
You make my point.
In any case, Scalia has never claimed to be a hardcore originalist like Thomas. Precedent trumps originalist jurisprudence at least some of the time. Gonzales v. Raich illustrates this perfectly. Thomas - originalist dissent; Scalia - precedent-motivated concurrence.
As to what you were referring to, elsewhere you wrote that Exxon was "activist," implicating Scalia since he joined the majority opinion capping damages. I assumed you were referring to the same thing here.
sklanger 3 years ago
I was referring there to Breyer's dissent that this ruling should have been the responsibility of lawmakers. Since activism is often called judges taking control away from lawmakers, it seemed apt.
eirefrance 3 years ago
That's not what activism means. Activism in the statutory context means ruling contrary to statute where a statute exists. In the absence of statute, judge-made common law is the only source of law by default. Many areas of law are neither covered by nor codified by statute, but rather arose organically out of the common law -- that's the whole *point* of the common law.
It doesn't mean that all law was "activist" prior to codification. Courts were simply fashioning rules in a vacuum.
sklanger 3 years ago
How is Roe v. Wade activist according to that definition? The Supreme Court rules on whether statutes fit within the framework of the Constitution, right? The judges determined that this particular law ran contrary to the Constitution's restriction on deprivation of life, liberty and happiness. They didn't create judge-made law, they ruled that an existing law should not have been.
eirefrance 3 years ago
In the PURELY statutory context. Exxon is not a constitutional case, so why are you bringing up the Constitution again?
WTF does Exxon have to do with Roe?
The point is that activism in the statutory context means ruling contrary to statute. Since there is NO STATUTE in Exxon, there is no activism. Judge-made common law is the only source of law here.
sklanger 3 years ago
I wasn't talking about the Exxon case at that point, so wtf are you bringing it up for?
eirefrance 3 years ago
You were talking about the Exxon case. Specifically, you were characterizing Exxon as activist based on Stevens' dissent in Exxon. Roe is irrelevant.
sklanger 3 years ago
Another thing. Even under your (wrong) definition of activism, Exxon isn't activist since Congress can trump the ruling by simply exercising its "responsibility", which the court cannot and does not "take[] away."
Under the hierarchy of laws, legislation trumps common law. Congress thus retains legislative "control" at all times. Absent legislation, common law is the sole source of law. And being the sole source of law, judge-made law cannot be "activist" contrary to legislative will. Grok?
sklanger 3 years ago
Roe vs. Wade is activist because the text of the Constitution provides no justification whatsoever for a Constitutional protection of abortion. The court relied on its own conception of morality and rights without serious reference to the text of the Constitution. The Tenth Amendment is clear. All powers not granted to the federal government, and abortion regulation or protection is clearly not, are reserved to the states.
FAHayek89 3 years ago
I'm no Constitutional scholar, but saying that a law that infringes on the life & liberty of a woman is unConsitutional because it infringes on her life & liberty, thus breaking the 5th & 14th Amendments. Surely, the 14th Amendment grants to the Federal Govt the right to deny any state law that infringes on said life & liberty. Argue the application of life & liberty, but the Constitution gives the Fed the right to remove laws for that specific reason.
eirefrance 3 years ago
Sorry, I mean Stevens.
eirefrance 3 years ago
The original meaning of the constitution is that only white, male landowners are "people". Scalia believes that a constitutional amendment is required to change this view.
vaporgenie 3 years ago
That's not true. It counted blacks as 3/5 of a person for census taking purposes. Besdides, I'll let you in on a secret, vapor, there actually WERE Constitutuonal amendments that made things equal, the 13th, 14th, and 15th amendments. Maybe you've heard of them.
robislost 3 years ago
But that was ONLY for census taking purposes. For other purposes that actually affected people (owning property, voting, jury duty, constitutional rights) others were not people at all. They did not enjoy 3/5 of a vote, for example.
vaporgenie 3 years ago
But again, that was rectified by the 14th amendment. Originalism doesn't mean these amendments need to be done away with.
robislost 3 years ago
Which amendment outlawed slavery?
YIUsed2be 3 years ago
Scalia believes in whats called origional intent which says that you must only consider what the constitution originally said and it cannot be interperted to adjust to our modern world. That belief of his is an extreme position in the legal world and the net result is it reduces our freedoms in this country to only what he believes the origional intent is. The supreme court is most admired when it takes a step slightly beyond the legal norm and attempts to better the plight of mankind.
padraicbg 3 years ago
Actually, Justice Scalia associates himself with the theory of original meaning, not original intent. The two are very different. Original meaning is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be, as opposed to what it presumably meant by the people who drafted or ratified it, as the original intent theory suggests.
quickbiscuit1 3 years ago 4
Thank You for saying this...
sigapoop 3 years ago
Actually, that's incorrect. It protects us from an out of control judiciary that grants freedoms or takes those away at their whim.
robislost 3 years ago
What about the right to a court appointed lawyer, a right to birth control,a right to privacy or the Miranda rights. Those rights are not in the origional meaning of the Constitution and would be gone under Scalia's origional meaning view. There are hundreds of these rights that we take for granted that would be taken away under origional meaning. He also believes that a Cop or the Military can touture you if he's trying to "Extract" information. Origional meaning belief is dangerous viewpoint.
padraicbg 3 years ago
A right to an attorney, right to privacy and Miranda rights are inferred through the 14th amendment. Where a "right to birth control" is I have no idea. But since you think originalism is so bad, if the Supreme Court had interpreted the Constitution originally in Plessy v. Ferguson, there would have been no need for Brown v. Board. When we don't adhere to the original intent and make up the rules as we go, we're on a very slippery slope.
robislost 3 years ago
Look up 2000 Dickerson vs. U.S. It was about Maranda rights and both Thomas and Scalia disented. Scalia does not think the Miranda rights are in the 14th admendent and did vote to overturn them. He also stated multiple times that there is no right to privacy in the constitution and in Lawrence vs. Texas 2003 he voted to uphold a Texas law banning sodimy, which is really a ban against being Gay. Origional intent would wipe out hundreds of freedoms we now take for granted.
padraicbg 3 years ago
The argument is privacy does not extend to sodomy rights. Texas had a statute making it illegal. That statute was passed by the legislature, the only voice of the people. If you interpret the Constitution originally, that statute does not violate the Constitution. That isn't to say a legislature cannot do away with that statute. It is to say nine unelected judges have no right to take my a right away of a state to pass a statute, so long as that statute does not violate the constitution.
robislost 3 years ago
Let me correct something since I was typing so fast. I meant it is to say 9 unelected judges have no right to take a state's right to pass a statute, so long as the statute does not violate the Constitution. And the statute in question does not.
robislost 3 years ago
Lawrence v. Texas is not a ban against being gay. The reasoning is the statute does not violate the intent Constitution. When we let judges interpret it as THEY wish instead of what the intent was, we start on a very slippery slope. I for one have always disagreed with changing the rules as we go along.
robislost 3 years ago
Robislost, I have your back. Don't you love how Rednecks who've never even read Lawrence v. Texas have an opinion on it?
Both Scalia and I are currently angry, however, as to how the Neo-Cons have infilitrated the G.O.P.
I say take the White Trash agenda back across the aisle to the Southern Democrats, where it belongs. (i.e. pre-1996, when the Religious Right was in the South and not part of our beloved Republican Party).
FrankieJenkins 3 years ago
I don't think its as much original intent that is the problem as Scalia's attempts to twist original intent to mean conservative. If you study some of the Founder's ideas, you will see some pretty amazingly radical stuff in there that modern conservative Originalists pretend doesn't exist. The Left should fight them on their own ground.
eirefrance 2 years ago
@eirefrance example of the radical stuff?
fdny9682 1 year ago
@fdny9682 A couple of quick ones without doing too much research: welfare, restrictions on monied corporations before they become our aristocrats, religion out of public life, govt out of public life, the right to education. Does that help?
eirefrance 1 year ago
@eirefrance Your saying Scalia is for those things?
fdny9682 1 year ago
@fdny9682 No, idiot, I'm not saying that at all. I'm saying your an idiot.
eirefrance 1 year ago
@eirefrance marxist loser
fdny9682 1 year ago
@fdny9682 Oh, and there's the lesson of the Articles of Confederation concerning what a disaster a weak federal govt does.
eirefrance 1 year ago
@eirefrance The Articles of confederation were an absoulte disaster thats why there was a constitutional convention. But your an absolute statest Marxist
fdny9682 1 year ago
@fdny9682 I apologize. I didn't realize you were a child butting yourself into a man's conversation. You might try the Youtube cartoon channel.
eirefrance 1 year ago
@eirefrance The Articles of confederation were an absoulte disaster thats why there was a constitutional convention. But your an absolute statest Marxist
fdny9682 1 year ago
Just go die, seriously, go off in your hole somewhere and die. No one needs you on this earth, you're unwanted and unloved.
clockworkmike83 3 years ago