Yeah, I know. little fauss and I debated Justice Scalia's position at some length in a very recent thread. IMVHO, Justice Scalia does not understand anything about jurisprudence (as opposed to law). The thread, if you have any desire at all to read it, was "faith based hiring" on this forum. Little fausss does a pretty good job of explaining the Scalia position.
Justice Scalia is an idiot who lacks the mental capacity of men such as Warren, Marshall, and other great justices of the past. I suspect the once Rehnquist (another Justice with neither the ability nor capacity to lead a real court) either passes or retires, GW will nominate Scalia as CJ. Seeing that Scalia and GW's draft dodging VP are in bed with one another (another one of Scalia's failings -- he is unable to recognize conflict of interest even when it is pretty much black and white), and the fact that Scalia represents the very narrow views of a President who also lacks the mental capacity to see the big picture, we will be stuck with a mediocre court for some time. The purpose of the judicial is to act as a check and balance. To do less is not doing your job. It is too bad our founding fathers didn't add a provision to get rid of bad justices. The way I look at it, Scalia is just jealous that he will never be remembered as a great leader - just another mediocre justice who used his legacy to further the cause of duck hunting with Cheney and not to serve his nation.
I listened to Scalia's talk and I have to say, he convinced me. I'm not a conservative by any means; however, if as a society we feel the original intent (as best as we can determine) no longer serves us as a society, then we as a nation aught to have to courage to amend the constitution. Its clear (at least to me) that the judicial branch was not created for judges to be legislators. That gives them much to much power. In my opinion, they need to be historians and legal experts so that the "original" intent is preserved. -- JoAnn Peeler
Mr Engineer is an "all around nice guy" who calls his betters like Scalia an "idiot." Right. I usally oppose Scalia and his conclusions, although I am usually either imppressed or pleased by his reasoning. Which doesn't mean I don't find him insufferably narrow! All of this applies to the present instance and the death penalty for minors case. It's too narrow for the court not to accept evidence from science, and therefore not overturn past practice; at the same time, doing so mitigates and deterent effect that a death penalty might have for states continuing to keep it. Scalia's complaint applies better to the problem of judge made "gay marriage." It usurps all democratic processes, and postures as applying like cases alike, when they clearly aren't. The equal protection clause when applied to race and marriage make logical sense since biology at least allows procreation of the heterosexual couple - and state recognition of marriage protects children's interests. But if marriage is merely a civil right (and not a regulated priviledge), then surely the marriage of bigamists and incestual couples and polygamists follow this absolutist standard. Scalia, quite properly, suffers no such foolish delusions. I champion clarity over nonsense. -Orson
Yes, I expect more from a Justice of the Supreme Court than mediocrity. I expect the same from the President (although I haven't seen it yet). Is that asking too much? Sorry, I don't think Scalia is better than me. I don't think he is better than you either (better at what? -- duck hunting?). Oh – you meant law. Yes, he is probably better versed at law than I am – so? I would hope so – that doesn’t make his arguments more valid. Clarity at being a bigot is certainly still bigoted. It is the same rhetoric that made "separate but equal" the law of the land for 50 years at the expense of African-Americans. As I said before, let’s take away the right of marriage from Christians and see them scream the loudest. (I am not advocating this – just using an analogy)
I have elsewhere posted at insufferable length on my perception that Mr. Justice Scalia does not know anything about jurisprudence. Understandable; until the University of London got hold of me, I didn't, either. I still don't, but at least they've got me asking the right questions. (This is one consequence of equating the J.D. with the Ph.D. in our Universities, IMHO) I have an uneasy feeling about Scalia, J. though...that even if he does know something of the science of law, he tailors his judicial philosophy to justify making decisions according to a rigid pre-existing political and religious philosophy. In short, he looks to his personal convictions instead of to precedent. (little fauss: In this instance, I mean the precedent of how decisions are made, not case precedent. Not the same thing, to be sure, not binding, but important for predictability) Unfortunately, his conduct as a Justice shows that there are...ummm...deficiencies in his personal and intellectual ethics. Duck hunting with a party to a suit before the Court? Very, very bad, folks. Very, very, VERY bad. That sort of thing casts suspicion of bias upon the Supreme Court which is then apparently mirrored in his actual decision process.
I'm glad you've finally decided to join me. I agree that one should never look to their personal convictions or political or religious philosophies to justify making decisions. That's all I've been saying all along--nothing more, nothing less.
To that extent I DO agree with you; always have. Our differences arise primarily from your view that the "original intent" and "original meaning" of the actual text should govern present application. I don't agree; the constitution needs to be reinterpreted anew as society changes.
Why this as opposed to ammending the constitution when society changes? IMO, the living constitution concept gives judges more power they should have based on our system of government. Having a living constitution introduces unneeded chaos into our society.
A good question. I suggest that, if you really want to know why Scalia is talking nonsense (in my not very humble opinion) go read the thread faith based hiring on this forum.
I'm with you JoAnn, as are many of my legal brethren. I'll admit that there are many on Nosborne's side as well, but of course, he and his compatriots have a right to be wrong! If the interpretation of the Constitution can change with the whim of a judge based upon his or her perceptions of the "state-of-the-art in societal evolution" (as vague as that may be to define), I fail to see how this is in practice one mite different from simply imposing one's own opinions upon the law irregardless of precedent. I think such a practice is abhorrent and evidently, so does Nosborne--at least in theory. I also fail to see the utility of Article V of the Constitution if, to achieve a de facto amendment of the Constitution and create any right the judge deems beneficial or to obliterate any right the judge deems deleterious, all the judge need do is: a). Identify a change in public opinion, and b). create a new right/destroy an old one in accordance with this societal standard. What is the use of the amendment power in the first place if to amend the Constitution in effect, a judge need only re-interpret its provisions without regard to context, history, etc, and put a new spin on the words to conform to what the judge thinks best in light of modern society? Draw for me the bright line between the effect on the common law and society of that and a constitutional amendment. In fact, that the Founding Fathers even included an amendment power says a great deal about their view of the role of the judiciary, and is strong circumstantial evidence that it more closely lines up with that of the strict constructionists that the judicial activists. If to change the Constitution, one only needs 5/9 judges willing to identify a brand new right, then whatever is Article V but ornamentation? The reason that Scalia may be wrong on many counts, but is most certainly right on his view of judicial activism, is that he understands the proper role of the judiciary, while the activists view the judiciary as a tool to use for political purposes. And just because they are using it now for liberal causes to which most in the intellectual class--that is, most on this forum--agree, that does not mean that a change in a few seats on the Supreme Court will not turn the whole matter around and put the activist de facto amendment power in the hands of the less "enlightened". The Constitution was written to protect the rights of the states by limiting the rights of the national government--plenary versus enumerated; the Bill of Rights was written to protect the rights of the people (and the states). The Supreme Court was established as a third branch to do precisely what, no one knows for certain, but since 1803, it has been clearly understood that the primary role was to ensure that the other two branches did not trod upon the Constitution--and therefore the states and the people--and keep the legislative ruffians from storming the gates and shifting powers to the national government. It would seem as if the legislative ruffians have not only stormed the gates, they have infiltrated the institution itself, and now we have the "proud tradition" of legislators having peopled the Court, such "giants" as Warren and T. Marshall and W.O. Douglas, who never saw a liberal social policy not fit for enactment into the common law under the auspices of jurisprudence. Again, it is not jurisprudence, it is legislation; I do not see how the Founders or logic or reason or anything that smacks of common sense could justify the destruction of jurisprudence in the name of social policy legislating. We didn't elect these black robed lawyers, why we should be legislated to by them is beyond me.
Little Fauss -- we are in agreement then ! While I care little for Scalia's political positions, I fear that the Supreme Court may have usurped too much power with this "living" constitution concept. However given that, I do wonder whether the bar for amending the constitution has been set too high by the founding fathers. Has the sophistication of politics risen to a level that only matters of ridiculously EXTREME import can sway the populace into action? If it has then perhaps the living constitution concept has been forced upon us by "progress?" I am a moderate having some very liberal positions and some very conservative positions; however, our legislatures have failed us by not having the courage to address the pressing issues of today. Instead they seem to prefer to play hot potato with the Supreme Court who can impose "legislative" decisions by fiat. I believe we live in an age of little courage.
Joann: You're probably right about our age being populated by the faint of heart. Isn't it interesting that when judges try to "do justice" by forever re-interpreting the Constitution anew, how much this upsets the balance of powers, how the ripples run through so many institutions and spoil them all? Perhaps if the federal judiciary paid a bit more attention to their proper roles and quit plucking the activist apple from the tree, they would no longer give the political cover to Congress that has encouraged them to abdicate their proper roles as well. Perhaps we would have a legislature more likely to do what they are ELECTED to do if we had a judiciary more likely to do what they are APPOINTED to do. As for the bar being set high, it certainly was! But of course, this was intentional; the Founding Fathers knew full well that getting 3/4 of state legislatures and 2/3 of both houses of congress behind anything in particular would be a difficult task. I do not believe the Constitution was supposed to be merely another piece of legislation, something that can be changed on a whim, the Founding Fathers were too wise to allow it. Too bad they couldn't foresee the damage that a judiciary acting as an unelected legislature would wreak upon the system; surely they would've done something to curtail such a power; I don't suppose it ever occurred to them that such an abomination would come about. I can hear them saying: Rule by the judiciary? Overturning valid legislation without clear constitutional language? Absurd, it would never happen! The people would never allow rule by a group of effete and virtually unremovable snobs, why we fought a 6 year war to free ourselves from such tyranny, why would anyone calling themselves an American allow it until the end of time? Alas... But I don't suppose they saw the Constitution as a mere suggestion, something to be cast aside in the perfunctory manner that the federal judiciary now prefers; the Founding Fathers had this quaint notion that it was the supreme Law of the Land, and they saw fit to put this notion to pen in Article VI.
It's nice to see the two of you being so cozy and all but consider for a moment what it is that Scalia, J. is actually PROPOSING. He would bind society to old concepts thus FORCING the citizenry to go through the deliberately difficult amendement process whenever social progress renders those old concepts irrelevant. I absolutely REFUSE to restate the arguments I exchanged with little fauss in the earlier thread. Life's none so long. BUT the system of tacit acceptance I elsewhere described means that the people govern themselves NOW according to what they think right, or at least acceptable NOW.
No, the people don't govern themselves, that's evidently up to the 5/9 unelected lawyers in robes. The people govern themselves through the legislatures, that's our system, but under the living document theory, they are governed to through the judiciary. You would tie the people to the decisions of a handful of intellectually elite judges as to what's best for them, forcing them to use that deliberately difficult amendment process to overcome their whims. It's a matter of balance of powers. the people can govern themselves through those they elect; your tacit acceptance theory is perhaps the most elitist position one could possibly imagine: let the judges do what they will, the legislatures be damned, the people be damned, and should the people not rise up in sufficient numbers to amend the Constitution, well, it's rule by judges because they were able to get away with it. Again, I put it to you: why would anyone in their right mind not see how this mindset more closely resembles the paternalistic autocracy of King George III than the freedom fighters of our Revolution? It's either the judges or the Constitution--I'll stick with the Constitution and the Founding fathers, thank you. Leave legislation to the legislators. Boy this irritates me! How could an otherwise highly intelligent person such as you be so hoodwinked?
Sooo you would RATHER be bound by the elitist thoughts of 250 years ago?? Look, if in fact the people DIDN'T ever fail to accept tacitly a Supreme Court decision, or whatever, I'd agree with you. But they DO. The people CAN and DO amend the constitution when that's necessary. The people CAN and DO force their representatives to either change what the people want changed or face removal from office. The people CAN and DO govern themselves. I suggest that what really bothers you is that you don't want to accept that the people CAN and DO support access to abortion or whatever thing you consider socially or morally unacceptable. And, little fauss, the people CAN and DO elect right wing Congresses and I have to live with it. The people CAN and DO support this Administration's foreign policy, that I consider suicidal. The people CAN and DO accept a tax policy dwesigned, in my opinion, to make the wealthy ever more powerful. I do, as a matter of fact, agree with you that as much government as possible should take place as close to the people as possible. The voice of the people is more easily heard at a state or local level. But if the people WANT to execute teenage murderers, believe me, they will make it known!
I would rather be bound by the rules of 250 yr old elitists than ruled by the today's elitists whose decisions are unbounded by the constitution. I only want to be rules by legislators who are elected by the people and who serve at the pleasure of those same people -- not an appointed-for-life royale. BTW, I like this discussion, I just hope no one is getting too caught up in the emotion of the argument.
You know, little fauss, you and JoAnn and Justice Scalia are actually behaving in exactly the way one would expect under the constituion as I understand it to work. You as members of "the people" are upset with the way your agents, the Supreme Court, are deciding certain cases. So, you speak out and support others who speak out. If a "critical mass" of citizens come to agree with you, the Court will be reversed, either by a constitutional amendment or, more likely, by a change in the Court's makeup through retirements and appointments. I ask you to remember, though, that it really DOES take a majority. We are members of the people but we are far from being the whole of the people. If the whole of the people are insufficiently annoyed by the actions of our Court, as appears to be the case with abortion, no change will take place. I also ask you to consider that the voice of the people in this way is utterly unconstrained by the concepts of the Founders. They gave us a framework. We apply our own values to that framework.
