Activist vs Originalist - Part I

A revealing conversation featuring Justice Stephen Breyer and Justice Antonin Scalia regarding different methods of judicial interpretation. The jurists discuss the value of "Purpose and Consequence," as well as "the living Constitution. http://www.libertypen.com

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[Mike10four]

@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.

[KungfuCow5]

@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.

[Mike10four]

@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.”

[KungfuCow5]

@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.

[Mike10four]

@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?!?

[KungfuCow5]

@socalcraigster If he were alive today Lincoln would probably have been a Democrat.

[KungfuCow5]

@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]

The title should be Living Constitutionalist vs. Originalists. Originalists have been activists as well, Scalia is the finest example.

[seriussam101]

Scalia an originalist? Randy Barnett would disagree with that characterization.

[refugee15985]

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.

[Pernoctate]

This is a carved up mess to make it look like Scalia "won" the conversation.

[ny1t]

@etsneroj

.hillsdale.edu/KirbyCenter/res­ources/constitutionreader/intr­o/default.asp

[ny1t]

@etsneroj That, I can agree on.

[etsneroj]

@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]

@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.

[ny1t]

@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]

@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]

@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]

@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]

@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.

[ny1t]

@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]

@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.

[etsneroj]

@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.

[ny1t]

@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.

[etsneroj]

@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.