NationStates Jolt Archive

I think this speaks for itself.

Scalia Dismisses 'Living Constitution'

Scalia criticized those who believe in what he called the "living Constitution."
"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."

"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.
http://news.yahoo.com/s/ap/20060215/ap_on_go_su_co/scalia_constitution;_ylt=AtK3rdj0wUks_oYywhoFyYtMEP0E;_ylu=X3oDMTBjMHVqMTQ4BHNlYwN5bnN1YmNhdA--

I find him endlessly fascinating. Did he call anyone you know an ‘idiot?’

Yes, and peple were arguing about what the Constitution say or implies before the ink was dry, before the guys who wrote the damn thing were dead!

We have a long history of bending that document to suit the needs of the country and the only idiots I see are the ones who insist that it ain't so.

On another note, damn... how many chins does that guy have? I mean, he's seriously packing in the weight in his face...

He has a point. Laws are set in place to do one thing, and if you want another thing done you should create a new law to do that thing. The same thing goes for the Constitution, the meaning in it shouldn't change based on who ever is looking at it, it should be a set of ground rules that are absolute.
If those rules are unjust, or aren't covering some issue (like abortion), then we have an amendment process to revise or expand it.

I don't care about the Constitution. What matters is decent governance, and I support Supreme Court decisions in accordance with what I think decent governance should be, irrelevantly of the judicial principles behind them.

He has a point. Laws are set in place to do one thing, and if you want another thing done you should create a new law to do that thing. The same thing goes for the Constitution, the meaning in it shouldn't change based on who ever is looking at it, it should be a set of ground rules that are absolute.
If those rules are unjust, or aren't covering some issue (like abortion), then we have an amendment process to revise or expand it.

Because terms like "due process" simply define themselves and never change in meaning. :rolleyes:

Scalia is a crank. He is fighting a battle that was lost 200 years ago.

Problem is, who decides what the "new" Constitution would be? Our current leaders? Republicans? Democrats and Republicans at the same time?

Sorry, but no.

Our Constitution is fine. It was meant as a way to govern a nation based on the ideas and ideals and the reasons why we decided to be independent in the first place.

In our day to day society, we've forgotten that. All we have is the Constitution. Don't take that away.

Curse you and your lack of "both/and" statement appreciation.

here are just a few examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens[/B]:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity


Do you really wish to insist that none of these are protected by the Constitution?

here are just a few examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens[/B]:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity


Do you really wish to insist that none of these are protected by the Constitution?
In the same vein, no where in the Constitution does it state that the goverment should be invloved in weddings.

Oh dear.

And of course we have President George W. "The Constitution gives me power to wiretap as Commander-in-Chief" Bush.

It gets a new meaning all the time.

Scalia is a crank and probably a liar.

He once remarked that no founding father ever used the phrase seperation of church and state.....

Because terms like "due process" simply define themselves and never change in meaning. :rolleyes:

Scalia is a crank. He is fighting a battle that was lost 200 years ago.


I suspect that this 'crank' and his comrades in robes are about to disagree with you in such a fierce manner that they will give re-birth a brand of judicial interpretation not favored for a few generations (to say the least).

Do you really wish to insist that none of these are protected by the Constitution?
Yes, I'd like them to be protected, which is exactly why I don't want a living Constitution. What is to stop the next batch of Justices from declaring:
"Hey, you know that thing about having kids? Our bad! It seems that you don't have the right to reproductive control after all. Chemical sterilization for everybody!"

Yes, I'd like them to be protected, which is exactly why I don't want a living Constitution. What is to stop the next batch of Justices from declaring:
"Hey, you know that thing about having kids? Our bad! It seems that you don't have the right to reproductive control after all. Chemical sterilization for everybody!"

1. So you'd rather there be no reproductive rights at all unless 3/4 of the states agree on an Amendment? That hasn't happened.

2. This is where stare decisis comes in. Another concept Scalia has trouble with when it interferes with his activism.

It's not that the Constitution is alive--it's that it's abstract, and therefore malleable to changes in society. That's a simple fact of language, and it's a large part of the reason one can dismiss Scalia as a crank.

It's not that the Constitution changes--it's that as society changes, our interpretations of the abstract language in it changes. Why have there been interminable debates over the 2nd Amendment? The Founders, had they really been interested in making that language clear, could have--they certainly made other parts of the Constitution clear enough. Their deliberate vagueness left room for argument, which they recognized as a healthy thing.

Here's another example--the crimes for which federal officials can be impeached. They are treason, bribery, and other high crimes and misdemeanors. Why that last part? Why not iterate the crimes for which a federal official can be impeached and removed from office? Because they realized that there were contingencies for which they could not plan, and which future generations might have to deal with that they could not even begin to envision (blowjob in the Oval Office, for instance). So they left it vague.

It's the vagueness, the abstractness of certain sections of the Constitution that make it malleable, that make it applicable to a world that exists over 200 years after it was ratified. In that sense, it is living, and Scalia is a fool to argue otherwise.

On a side note, Scalia's not above using that malleability when it suits his own political ends. The most intellectually honest (honest in the sense that he's consistent to his theories, even when they're stupid) justice on the Court is Clarence Thomas. His theories lead him down some pretty fucked up paths, and I think he's wrong way more often than right, but at least he's consistent.

I suspect that this 'crank' and his comrades in robes are about to disagree with you in such a fierce manner that they will give re-birth a brand of judicial interpretation not favored for a few generations (to say the least).

We'll see. It has been predicted before.

EDIT: It does worry me that we now have a court where Roberts and Kennedy are the "moderate" swing-votes.

It's not that the Constitution is alive--it's that it's abstract, and therefore malleable to changes in society. That's a simple fact of language, and it's a large part of the reason one can dismiss Scalia as a crank.

It's not that the Constitution changes--it's that as society changes, our interpretations of the abstract language in it changes. Why have there been interminable debates over the 2nd Amendment? The Founders, had they really been interested in making that language clear, could have--they certainly made other parts of the Constitution clear enough. Their deliberate vagueness left room for argument, which they recognized as a healthy thing.

Here's another example--the crimes for which federal officials can be impeached. They are treason, bribery, and other high crimes and misdemeanors. Why that last part? Why not iterate the crimes for which a federal official can be impeached and removed from office? Because they realized that there were contingencies for which they could not plan, and which future generations might have to deal with that they could not even begin to envision (blowjob in the Oval Office, for instance). So they left it vague.

It's the vagueness, the abstractness of certain sections of the Constitution that make it malleable, that make it applicable to a world that exists over 200 years after it was ratified. In that sense, it is living, and Scalia is a fool to argue otherwise.

On a side note, Scalia's not above using that malleability when it suits his own political ends. The most intellectually honest (honest in the sense that he's consistent to his theories, even when they're stupid) justice on the Court is Clarence Thomas. His theories lead him down some pretty fucked up paths, and I think he's wrong way more often than right, but at least he's consistent.

Exactically!

Also, anyone that has ever looked at the OED knows that language changes over time.

Exactically!

Also, anyone that has ever looked at the OED knows that language changes over time.
Dealing with language is my job--that's why hearing Scalia talk about originalism just drives me nuts. Does commerce mean today what it meant in 1789? Of course not--so why should we base our interpretations of the commerce clause on a reading that's over 200 years old? The Founders could never have envisioned the world we live in today, but Scalia wants us to look at their definitions of terms when it comes to making decisions and interpretations of modern law written by modern legislators.

I think that we need to use the amending system to try and keep the Constitution up to date. At the same time we don't need to be putting every single right that we have into the Constitution. Congress can pass some bills that cover some of those issues without going through the whole amendment process. I just don't like it when justices say that there is a right to something in the Constitution when it is clearly not there. A couple examples are abortion and the wiretapping issues. I have skimmed through the Constitution a couple times, and I don't see a right to an abortion anywhere in there. Now while that doesn't mean there isn't a right to an abortion, I don't want a justice to say that the right exists in a document where it clearly does not. Same thing arises with the wiretapping issue. Bush might very well be able to legally wiretap people with terrorist ties without a warrant, but you have to be kidding to say that it says that in the Constitution.

Scalia ignores the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment is one of the many reasons that the Supreme Court has held that the list of fundamental rights in the first 8 Amendments is not to be taken as exhaustive.

Furthermore, the Fourteenth Amendment was an amendment to the Constitution - it amended and changed the Constitution.

Without incorporation through the 14th, you have no protection under the Constitution against state infringement of free speech, free press, due process, etc.

Scalia's insistence on "explicit" Constitutional rights is inconsistent with: (a) the original Bill of Rights (i.e., the 9th Amendment), (b) the intentions of the Founding Fathers (e.g., the motives behind the 9th Amendment), (c) the 14th Amendment, (d) the intentions of the drafters of the 14th Amendment, and (e) well over 100 years of Supreme Court decisions.

Here is yet a quote from the Supreme Court - this one written by Chief Justice Rhenquist and joined by Justices O'Connor, Thomas], Kennedy, and Scalia himself. (emphasis added):

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (Due Process Clause "protects individual liberty against `certain government actions regardless of the fairness of the procedures used to implement them' ") (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301 -302 (1993); Casey, 505 U.S., at 851 . In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U.S., at 278 -279.

-- Washington v. Glucksberg (http://laws.findlaw.com/us/000/96-110.html), 521 U.S.702 (1997).

Same thing arises with the wiretapping issue. Bush might very well be able to legally wiretap people with terrorist ties without a warrant, but you have to be kidding to say that it says that in the Constitution.

To the contrary, the 4th Amendment says Bush cannot.

To the contrary, the 4th Amendment says Bush cannot.
I was more so talking about the people who claim the Constituation says that Bush can do the wiretapping. But we don't need to argue about this issue in this thread.

To the contrary, the 4th Amendment says Bush cannot.
Unfortunately, the Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/2006/02/14/AR2006021401812.html) is reporting that Congress--strike that--the Republican majority may yet again toss their oversight responsibility out the window for partisan reasons. Mike DeWine is apparently going to sponsor legislation that would exempt the NSA program from FISA requirements.

This is an example of "Living Constitution" IMO.

He (Justice Breyer) decided a display of the commandments in front of two Kentucky courthouses was unconstitutional because he concluded their display would cause religious conflict. But he found that removing a similar display that had been in front of the Texas State Capital for years would not, so he ruled it constitutional.
http://news.yahoo.com/s/ap/20060208/ap_on_go_su_co/breyer_chicago;_ylt=AorUDXViO2nF7x6kdxYJFjlMEP0E;_ylu=X3oDMTBjMHVqMTQ4BHNlYwN5bnN1YmNhdA--

How exactly is it stable law to 'determine' (without measurable criteria apparently) that something may or may not cause "religious conflict?" And since when is "religious conflict" itself essentially undesirable and unconstitutional?

This is an example of "Living Constitution" IMO.

He (Justice Breyer) decided a display of the commandments in front of two Kentucky courthouses was unconstitutional because he concluded their display would cause religious conflict. But he found that removing a similar display that had been in front of the Texas State Capital for years would not, so he ruled it constitutional.
http://news.yahoo.com/s/ap/20060208/ap_on_go_su_co/breyer_chicago;_ylt=AorUDXViO2nF7x6kdxYJFjlMEP0E;_ylu=X3oDMTBjMHVqMTQ4BHNlYwN5bnN1YmNhdA--

How exactly is it stable law to 'determine' (without measurable criteria apparently) that something may or may not cause "religious conflict?" And since when is "religious conflict" itself essentially undesirable and unconstitutional?

That is not an accurate description of the two 10 Commandment cases. Yahoo is way, way oversimplifying.

Van Orden v. Perry (http://laws.findlaw.com/us/000/03-1500.html)
McCreary v. ACLU (http://laws.findlaw.com/us/000/03-1693.html)

The question was a fine line regarding the establishment of religion. The context of the one posting of the commandments made it an establishment and unconstitutional. Breyer found the setting of the other set of commandments to not be as troubling. The facts make clear why.

This is an example of "Living Constitution" IMO.

He (Justice Breyer) decided a display of the commandments in front of two Kentucky courthouses was unconstitutional because he concluded their display would cause religious conflict. But he found that removing a similar display that had been in front of the Texas State Capital for years would not, so he ruled it constitutional.
http://news.yahoo.com/s/ap/20060208/ap_on_go_su_co/breyer_chicago;_ylt=AorUDXViO2nF7x6kdxYJFjlMEP0E;_ylu=X3oDMTBjMHVqMTQ4BHNlYwN5bnN1YmNhdA--

How exactly is it stable law to 'determine' (without measurable criteria apparently) that something may or may not cause "religious conflict?" And since when is "religious conflict" itself essentially undesirable and unconstitutional?

It is the intent of the action.

In the matter of Kentucky, it was to push a Religion.

In the matter of Texas, the statue was a movie promotion.

Cecil B. DeMille(sp?) sent many cities those statues when when he brought the 10 commandments to the big screen.

Not an act of a goverment trying to push a religion.....

It is the intent of the action.

In the matter of Kentucky, it was to push a Religion.

In the matter of Texas, the statue was a movie promotion.

Cecil B. DeMille(sp?) sent many cities those statues when when he brought the 10 commandments to the big screen.

Not an act of a goverment trying to push a religion.....

That seems doubtful I think. I have no doubt that the 'intent' of an action can be an important factor in determining a proper response/ruling by a judicial body, but the public display of a burning cross, for example, is a public display of a burning cross regardless of the intent of the person who struck the match. Both require a fire extinguisher as a response.

If the display of two identical monuments (not that they were identical in the cases mentioned, but for new hypothesis) on equally public grounds but presented as different cases, can be both legal in one ruling and illegal in another ruling by the same judicial body, I would suspect that the law was in need of clarification or that the law was applied with partiality from the court. Neither of which would be an acceptable condition, IMO, and either condition should be remedied as soon as possible.

That is not an accurate description of the two 10 Commandment cases. Yahoo is way, way oversimplifying.

Van Orden v. Perry (http://laws.findlaw.com/us/000/03-1500.html)
McCreary v. ACLU (http://laws.findlaw.com/us/000/03-1693.html)

The question was a fine line regarding the establishment of religion. The context of the one posting of the commandments made it an establishment and unconstitutional. Breyer found the setting of the other set of commandments to not be as troubling. The facts make clear why.

I have no doubt that you are absolutely correct in saying that the reporting of the ruling was way, way oversimplifying. The article claims to be a direct quote of Breyer's though, and if so, it was he, and not the journalist, guilty of the oversimplification. I find it suspect and unsettling if from Breyer, I find it irrelevant and easily dismissed if the fault of the journalist (a quick letter to the editor to pay more attention would suffice ;) ).

I think this speaks for itself.

Scalia Dismisses 'Living Constitution'

Scalia criticized those who believe in what he called the "living Constitution."
"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."

"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.
http://news.yahoo.com/s/ap/20060215/ap_on_go_su_co/scalia_constitution;_ylt=AtK3rdj0wUks_oYywhoFyYtMEP0E;_ylu=X3oDMTBjMHVqMTQ4BHNlYwN5bnN1YmNhdA--

I find him endlessly fascinating. Did he call anyone you know an ‘idiot?’

The problem is, Scalia is both right and wrong.... Correct in the sense that the Constitution is a legal document, and wrong in the sense that it is not a "living" document. Scalia is part of the side which assumes the rights granted in the Constitution to the people are under specific enumeration, and that it does not grant any rights past what is enumerated (The Constitution, as a legal document declares Scalia wrong on this [Amendments IX and X]). The Constitution is constructed to define the scope of power (and limit the power) of government. not the people... There exists an extension of rights (non-enumerated) which exist because of the extension of the Common Law principles under which the Constitution extends from [Cat-Tribe's list enumerates several of these Constitutionally non-enumerated rights].

That seems doubtful I think. I have no doubt that the 'intent' of an action can be an important factor in determining a proper response/ruling by a judicial body, but the public display of a burning cross, for example, is a public display of a burning cross regardless of the intent of the person who struck the match. Both require a fire extinguisher as a response.

If the display of two identical monuments (not that they were identical in the cases mentioned, but for new hypothesis) on equally public grounds but presented as different cases, can be both legal in one ruling and illegal in another ruling by the same judicial body, I would suspect that the law was in need of clarification or that the law was applied with partiality from the court. Neither of which would be an acceptable condition, IMO, and either condition should be remedied as soon as possible.Here's the problem--and I suspect where a lot of the dispute comes from.

There is no law to deal with here, at least not in the sense that a legislature sat down and said "this is acceptable and this is not." There's only the First Amendment and the subsequent interpretations of that Amendment from Supreme Courts since the founding of the republic, which, again, is the primary reason Scalia and other so-called "originalists" are so full of shit.

If there were a statute regarding this issue, then ruling on it would be easy, but there isn't. There's only the question of what is considered the establishing of a state religion, and that, due to the wording of the 1st Amendment and the nature of language in general, is very much open to debate.