In a speech to students and faculty members at Stetson University College of Law Wednesday, Scalia criticized those who believe the U.S. Constitution is a living document that can be re-interpreted over time.
"The Constitution is not a living organism for Pete's sake," an often witty Scalia told an audience of several hundred people. "It's a legal document....
Scalia said we should rely on the bare text of the Constitution and its intent when written rather than expect the justices on the high court to breathe their opinions into the document....
http://www.sptimes.com/2007/04/05/Tampabay/Scalia_at_Stetson_pra.shtml
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35"36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
http://supreme.justia.com/us/554/07-290/opinion.html
Justice Scalia made a point of saying that neither the left nor the right should be allowed to insert ideology into the interpretation of the Constitution. He pointed out that as a conservative, he is sometimes made uncomfortable by the consequences of this belief. Giving an example, he commented that his was the deciding vote in the flag-burning case. He came down on the side of the flag burner, despite his very strong personal feelings against such actions. He noted that the those who drafted the Constitution clearly intended to protect even what might be considered provocative speech against the government. Being an originalist can be uncomfortable at times for the jurist. It is not a philosophy that can make the jurist "feel good" about all of his or her decisions, because, unlike those who would interpret a "living Constitution," the decision does not depend upon a personal interpretation of the needs of a changing society. It is instead dependent upon trying to determine the intent of the Framers of the Constitution at the time they were establishing the framework of our government.
http://www.dcba.org/brief/decissue/2002/art41202.htm
Scalia says the constitution’s framers were trying to create not just separation of powers, but “equilibration” of powers between branches to that no branch can overwhelm the other two, which led to the bi-cameral legislature we have -- the House of Representatives and the Senate.
“How many of you have read the Federalist Papers?” Scalia asked. Relatively few hands went up. “You should be ashamed of yourselves,” Scalia lightly scolded the audience. “It should be required reading. Buy a copy.
“If you read the Federalist Papers you can understand how brilliant our framers were. If you want to understand the constitution; if you want to understand why they did what they did; and why we shouldn’t have another constitutional convention today, you gotta read the Federalist Papers.
"If you remember nothing else from today’s lecture. It costs a couple of bucks. It comes in paperback.”
To Scalia, the most important way to look at the constitution and its definition of judicial power is to know what its framers intended. “Look at what it means now by looking at what it meant then,” he said. “Otherwise, you have no standard.”
He calls himself an “originalist,” because he believes his task as a jurist is to determine the intent of the constitution’s framers. “That’s what they meant by Judicial Power,” he explained. “Otherwise there would be a radical departure from the constitution.”
Federalist No. 51:
The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments
Excerpts:
“It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself….
“It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure….
“In a free government the security for civil rights must be the same as that for religious rights….
“Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful….”
The Federalist No. 78
The Judiciary Department
Excerpts:
“For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing….
“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community….”
http://thomas.loc.gov/home/histdox/fedpapers.html
1. I resist a concept of a 'conservative wing' and 'liberal wing' of the U.S. Supreme Court as normal. As I believe the Court was intended, it should consist of nine justices who share an ideal of what the role of the Court is. I do not think either 'conservative ideology' or 'liberal ideology' should be imposed on the decision making process, but rather all the justices should apply Constitutional principles to evaluate a law or judicial opinion. They may or may not reach the same conclusion, but they should all be using the same criteria to arrive at one. Justice Scalia I believe generally follows the original intent of what the Court should be and that is the proper thing to do according to conservative principles. Whether he would describe himself as conservative or liberal, I don't have a clue and really don't care.
My reasoning is that there is no constitutional right to get married though there is a constitutional basis re the 10th Amendment by which the various states may establish a contractual basis for marriage and a definition of marriage. All 50 states have done so. There is no constitutional basis that I can think of that would deny any state the ability to give the people the option via referendum or constitutional amendment to establish their preference for a definition of marriage.
The definition, so long as it is applied equally without prejudice to all persons, violates nobody's unalienable, civil, legal, or constitutional rights.
Therefore there is no constitutional basis by which a court should be able to overturn the will of the people on that issue.
My reasoning is that there is no constitutional right to get married . . . .
It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Carta, obtained by the Barons, sword in hand, from king John...It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government....
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
You accuse me of bigotry, Cyclop, but why would anyone object to a reasonable, practical, and effective solution that was totally non discriminatory unless one was bigoted? I offer a solution that gives everybody what they need. You offer to tear down a cherished American tradition that has stood the test of time.
Which do you think is the conservative point of view?
(And of course the Constitution confers rights. The right to vote for the leaders of our choice. The right to have certain protections as a citizen of the United States. The right to certain freedoms that cannot be infringed. It cannot guarantee protection for rights that have not been conferred.)
There are several factors involved, but the interest of the state is that marriage presumes the presence of children. Of course all marriages do not include children or intend the presence of children, but the reasoning behind the basis of marriage is that a stable two-parent home is the best and most practical condition for rearing children and such family units have proved to be an asset for the community. Despite exceptions--there are always exceptions--the state has an interest in encouraging marriage as it is the best possible insurance that the children will receive adequate supervision and training to become a responsible, productive adult and will not be raised in poverty. Marriage with children is also the best way to establish and be able to trace clear bloodlines and family records that can be important both in management of property and for health purposes. Married with kids is a long standing and conservative tradition/value in this country and most countries that our ancesters emigrated from.
(And of course the Constitution confers rights. The right to vote for the leaders of our choice. The right to have certain protections as a citizen of the United States. The right to certain freedoms that cannot be infringed. It cannot guarantee protection for rights that have not been conferred.)
Debra -- the most frequently cited case for the claim that marriage is a fundamental civil right is Loving v. Virginia. ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man,'fundamental to our very existence and survival.'" (paragraph break omitted, T.))
In this sentence, the court makes implicitly assumes that marriage is closely related to sex and procreation. This assumption is no longer true. For one thing, couples of all sexual orientations now live together without marrying, and it hasn't led to disorder in society, in spite of conservative anxieties to the contrary. Additionally, the marriages in question here are, by definition, unrelated to procreation. So on the face of it, it seems consistent with Loving to claim that a) marriage is no longer a fundamental right, because it's no longer necessary to procreate in an ordinary manner. Certainly it's no longer "fundamental to our very existence and survival"; and that b) homosexuals don't have the right to marry, because they can't procreate.
What consequences does the changing role of marriage in society have on it being a fundamental civil right? Is there any post-Loving caselaw on this question?
Well I'll let Thomas and Debra hash out the gay marriage debate to their little hearts' desire as it is obvious that any other point of view will be labeled with quite unattractive adjectives.
Fundmental rights are defined as those rights that are implicit in our concepts of "ordered" liberty. Marriage has never been, nor will it ever be, a prerequisite for procreation.
The right to marry is a fundamental civil right.
How about the
DECLARATION PARTY?
or the
INDEPENDENCE PARTY?
or the
CONSTITUTION PARTY?
