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A Jurisprudence of Original Intent?

 
 
Setanta
 
  1  
Reply Wed 23 Nov, 2005 06:25 am
No problem, we wouldn't want you blundering around endlessly, knocking things over and breaking them . . .
0 Replies
 
joefromchicago
 
  1  
Reply Wed 23 Nov, 2005 09:21 am
Re: A Jurisprudence of Original Intent?
Thomas wrote:
Let me give you an example of what I think he means. I haven't researched the underlying facts and arguments myself, so am going by second- and third- hand accounts here. But the moral of the story does not depend on the following facts being accurate, which they may well not be.

When the constitutional convention wrote the language pertaining to slavery, the intent of the prevailing side was to sustain slavery in the South forever. But they couldn't bring themselves, or their opponents wouldn't let them, put this down in so many words. The words in the constitution are compatible both with sustaining slavery and with abolishing it. These were the words that were published and submitted for ratification in 1787. The records of the convention were not.

Let me interrupt for two brief points:

(1) When originalists like Scalia talk about "original intent," they are not talking about the long-range desires of the drafters, but rather the intent behind the words used in the text. It is not a question, then, of what the drafters wanted from the document as a whole, but what they wanted when they used particular words and phrases in that document;

(2) If you think that the constitution can be read as both compatible with and antithetical to the institution of slavery, you must be reading some constitution that I've never seen. The constitution of 1787 was most definitely a pro-slavery document.

Thomas wrote:
In the early 1830s, shortly after Madison had died, his notes on the convention were published. The intent of the authors was now much clearer, more pro-slavery than the words of the constitution would suggest to a non-member of the convention. Sure enough, pro-slavery advocates used this as an argument for demanding that the federal courts interpret the constitution in a more pro-slavery spirit than they had before. The abolishionists, by contrast, argued that what the states ratisfied was the meaning of the words, not the intentions that the members of the convention had in their mind. The courts' interpretation of the constitution should therefore remain unaffected by the publication of Madison's notes.

Again, I am not as sure as I want to be that this account of the relevant history is true. But if it is, I agree with the abolishionists' hermeneutical argument. And so, I take it, does Scalia, in the quote that you cited.

Scalia, I am quite certain, would have read the constitution the same way that the antebellum supreme court read the constitution: as permitting and protecting slavery. If any abolitionist genuinely believed that the text of the constitution was antithetical to slavery (and I sincerely doubt that such an abolitionist actually existed), they would not have prevailed on a strictly textualist reading of the constitution.

In any event, you still haven't addressed the point that I raised before: that Scalia's position on interpreting ordinary legislation (anti-original intent) is incompatible with his position on interpreting the constitution (pro-original intent).

Thomas wrote:
I don't think this story is analogous to the interpretation of laws. In your case, we want to find out something about the gangster: what did he mean, should we jail him for incitement to murder? By contrast, when we interpret laws, we ultimately want to find out something about us. Which rules shall we, the people, be bound by? (Or, more accurately, you the people.)

You can't be serious. That sounds like someone who takes a "living constitution" approach, not someone who claims to be an originalist.

Thomas wrote:
I concede that in most cases it makes no difference, because the meaning is the same whether you read the proceedings of the constitutional convention, or Blackstone's Commentaries, or Adam Smith's Lectures on Jurisprudence, or Friedrich Schiller's Don Carlos for that matter ("Geben Sie Gedankenfreiheit!") But in the rare cases where it does make a difference, the decisive question is which meaning the words convey to their reader, not which intentions led the authors to write the words.

It's official: you are not an originalist. Your avatar should be hanging his head in shame.

Thomas wrote:
I don't see the oddness in being a cultural pessimist and a libertarian at the same time. As long as one is more pessimistic about the culture of the rulers than about the culture of the ruled, lit seems to me that ibertarianism still the logical policy conclusion.

I don't see how anyone can be both a pessimist and a libertarian.

Thomas wrote:
And what role do you envision for the courts to play when such a reversion begins?

When society reverts to a Hobbesian state of nature? I would imagine that the courts, in that state, would play no role whatsoever.

Thomas wrote:
Scalia has a floor below which he will not let society decent. It's a pretty low standard -- as Debra says he would hold the hanging of horse thieves constitutionally innocent. But he would draw a line with rounding up Gypsies in their caravans and forcing them into ghettos, as it still happens occasionally in Romania, with the tacit approval of the majority population. He would not permit situations like the one where the Serbian army rounds up Albanians and executes them for no reason. He would not permit drug dealers shooting up poor street kids, again with the tacit approval of the mayor and the city population. ('At least someone is doing something about these punks.') In all these situations, Scalia would draw a line. But a 'living constitution' scholar, it seems to me, would have to conclude that the standards of decency have evolved to a point where these things are okay, and would have to permit them on those grounds.

There you go again, setting up your strawman. It is inconceivable that any rational human would sincerely believe that the constitution permitted mass executions of ethnic minorities.

Thomas wrote:
I believe in writing laws that don't need state-of-the-art hermeneutics to understand. I believe in courts who write into their opinions "Dear legislators, we can't make sense of this law; please write a better one." That would be in contrast to courts who just make up a meaning on the fly.

A court is not in the position of saying "we just don't know what you meant, write something better." A law is a law, whether it is well or badly drafted, and courts are entrusted with the responsibility of enforcing the law. If someone is accused of breaking a badly written law, the court cannot simply say that it has no idea what the law means. That is not an option. In that situation, the court must interpret the law to give effect to what the legislature was attempting to accomplish, notwithstanding the legislature's bad draftsmanship.
0 Replies
 
FreeDuck
 
  1  
Reply Wed 23 Nov, 2005 09:41 am
bm

I just like to read.
0 Replies
 
Thomas
 
  1  
Reply Wed 23 Nov, 2005 11:36 am
Re: A Jurisprudence of Original Intent?
joefromchicago wrote:
(1) When originalists like Scalia talk about "original intent," they are not talking about the long-range desires of the drafters, but rather the intent behind the words used in the text. It is not a question, then, of what the drafters wanted from the document as a whole, but what they wanted when they used particular words and phrases in that document;

That was my point. The words of the constitution had a well-understood meaning as they were, so any relevation about the lawmakers' intent was irrelevant. The long-range desires of the drafters don't matter.

joefromchicago wrote:
Scalia, I am quite certain, would have read the constitution the same way that the antebellum supreme court read the constitution: as permitting and protecting slavery. If any abolitionist genuinely believed that the text of the constitution was antithetical to slavery (and I sincerely doubt that such an abolitionist actually existed), they would not have prevailed on a strictly textualist reading of the constitution.

Fair enough -- that's why I hedged the story with so many "I'm not sure"s.

joefromchicago wrote:
In any event, you still haven't addressed the point that I raised before: that Scalia's position on interpreting ordinary legislation (anti-original intent) is incompatible with his position on interpreting the constitution (pro-original intent).

I don't know that the premise of your point is true. I think the important distinction for Scalia is not the category of the law, statute vs. constitution. It is the age of the statute. I would be surprised if he expressed any interest in the ratification debate on the 27th amendment, a modern (1992) piece of constitutional legislation. I would be equally surprised if he expressed indifference to the ratification debate on the alien tort claims act, if there is a surviving record. The alien tort claims act is a 1789 statute.) The reason is that Scalia is a textualist. When he interprets a law, his project is to make sense of the language, not of its speaker. The ratification debates over modern statutes do not tell him anything about 21st century legal English that he doesn't know already. He speaks this language himself.

By contrast, the ratification debates about the original constitution can teach him something he doesn't know about 19th century legal English and the meaning of constructs written in it. So can founding-era legal commentary from Blackstone (1769) to Story (1833). Or founding era court cases. Or even the behavior of founding era officials, acting in their official capacity. Scalia uses all these sources quite frequently -- not because they inform him about the legislature's intent, but because they inform him about the language that the legislature has written in. So yes, he is interested in the debates at the conventions, and yes, these conventions happen to convey the intent of the lawmakers -- but that's not the reason he is interested in them.

joefromchicago wrote:
It's official: you are not an originalist. Your avatar should be hanging his head in shame.

If I go barefoot on my upcoming pilgrimage to the Chicago University Law school, do you think he will forgive me?

joefromchicago wrote:
I don't see how anyone can be both a pessimist and a libertarian.

Watch me.

joefromchicago wrote:
There you go again, setting up your strawman. It is inconceivable that any rational human would sincerely believe that the constitution permitted mass executions of ethnic minorities.

Historically, lots of rational humans on the federal courts had no constitutional problem at all with lynching blacks, mass-executing Indians, and breaking US contracts with them at will. A good number of them sat on their benches after the 13th-15th amendments. There you go again, perpetuating your naive optimism about human nature.

joefromchicago wrote:
If someone is accused of breaking a badly written law, the court cannot simply say that it has no idea what the law means. That is not an option. In that situation, the court must interpret the law to give effect to what the legislature was attempting to accomplish, notwithstanding the legislature's bad draftsmanship.

Why? If the draftsmanship is so bad the court honestly can't understand it, what's wrong with saying something like this? "We don't understand this law, we can't tell if the defendant has broken it. The defendent goes free -- innocent until proven guilty." Courts say that all the time when they can't make out what the facts are. Why not do the same when they can't make out what the law is? The only reason I see is fear of looking stupid.
0 Replies
 
Debra Law
 
  1  
Reply Wed 23 Nov, 2005 04:12 pm
Debra_Law wrote:
(1) The state may regulate the medical profession. As with ALL medical procedures, the state may require that a patient's medical decision is informed. So long as state regulation of the medical profession does not place an undue burden on an individual's liberty interests, the state regulation passes constitutional scrutiny.


Thomas wrote:
How about my liberty interest in auctioning off my kidney on Ebay? As long as I am informed about the risks of living with just one kidney, is it unconstitutional in America that a state prohibit me from doing this? Or to prohibit a doctor from operating? I doubt that.


I said, "The people never delegated powers to the government to arbitrarily or oppressively deny or disparage their liberty interests."

In response, you asked if it was my "opinion that all restrictions to abortion prior to the third trimester are arbitrary and oppressive."

It has already been determined that the Constitution protects a woman's liberty interest to decide to terminate a pregnancy free of undue interference by the State. A "restriction" that immediately comes to mind is the one day waiting period imposed by some state laws. As with all medical procedures, a state has a legitimate interest in requiring that an individual's medical decision is informed and considered. The requirement of a one day waiting period after the woman is provided the relevant information to give her time to consider the information is rationally related to a legitimate government interest. Therefore the waiting period is not arbitrary or oppressive. The statutory waiting period does not place an undue burden on the woman's liberty interest in determining her own procreative destiny.

To determine whether the Constitution protects your liberty interest in selling your kidney, a court would have to determine whether the government has a legitimate interest in banning the sale of human organs. If the ban is rationally related to a legitimate government interest, the ban would not be arbitrary or oppressive and, therefore, not unconstitutional.


Debra_Law wrote:
If your argument is that the state is depriving the fetus of its interest in life by failing to protect that life, case precedent firmly establishes that the government has no affirmative duty under the due process clause to protect any person. The Supreme Court is without power to impose that duty on a state to affirmatively protect life through state laws.


Thomas wrote:
Let's assume your assertion is true in the broad and sweeping form in which you made it. It would follow that if a state were to legalize murder, the Supreme Court would be without power to do anything about it. It couldn't impose a duty to protect its citizens' life through state laws. This conclusion cannot be true, so there must be some qualifications to your statement it follows from. (And the equal protection clause would not give it that power either, because every murder would be legal. )


See DESHANEY v. WINNEBAGO CTY. SOC. SERVS. DEPT., 489 U.S. 189 (1989):

The Supreme Court wrote:
But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.


I stand by my statement that the Supreme Court would never rule that a state violates the constitution when a state "permits" abortions. The Due Process Clause does not impose an affirmative duty on the state to protect fetuses from harm at the hands of private parties.


Debra_Law wrote:
In short, a court would NEVER rule that a state violates the federal constitution if a state "permits" abortion. Abortion will never be a fetus's right to life or equal protection issue.



Quote:
I wouldn't be so sure of that.


See above. The Due Process Clause is inapplicable and a fetus is not a person protected by the Equal Protection Clause.


Quote:
General language, like the one in which legal philosophy talks about concepts like "life" and "liberty", tends to be unhelpful in deciding cases where fundamental principles are on both sides of the balance that the court has to strike.



Legal principles are always based on the legitimacy and reasonableness of government action with respect to the private interests that the government action affects. Our courts routinely apply balancing tests in the course of reviewing cases and controversies.

With respect to a challenged government action that denies or disparages fundamental liberty interests, our courts ask whether the government action serves a compelling state interest, and if so, whether the means used are necessary and narrowly tailored to serve a compelling state interest.

For other liberty interests, our courts ask whether the challenged government action serves a legitimate government interest, and if so, whether the means used are rationally related to the legitimate government interest.

It is of no consequence that balancing competing interests to determine the constitutionality of challenged government actions might be difficult at times. When called upon to decide a case or controversy arising under the Constitution, our courts are required to issue decisions. The United States Supreme Court is the final authority on the meaning of the Constitution.


Debra_Law wrote:
What if it's an unlocked facility with several stalls with doors, several sinks, and mirrors, and I'm standing in front of a mirror with my skirt hiked up to my waist while I'm straightening my skewed and uncomfortable panty hose. Is your hypothetical man in the ladies bathroom to straighten his panty hose too? I can't analyze the situation until all the facts are in.


Thomas wrote:
I have no intuition about how the details of the facts would affect the legal analysis. The thrust of my legal argument (which I don't believe in as a point of ethics) is going to be that prudishness justifies segregation no more than racism does.

But before we get there, I am interested in finding out if there is any non-trivial scenario in which the Supreme Court would find a violation of equal protection. So let's start with a harmless case, then turn up the volume as needed. Say the women's toilet is divided into booths, and the man is trying to use one of those booths. But he doesn't even get to enter the toilet -- the cleaning lady keeps him out before security gets him -- so there is no specific harrassment of women in the toilet to consider, or anything like that.



The issue presented appears to be whether a government actor may exclude you from a ladies' rest room located in a government building simply because you are a man.

Here's one analysis:

Quote:
When reviewing gender classifications under the Fourteenth Amendment, the classification may not be completely unjustified because genuine differences between men and women do exist. A specific gender classification or policy might be entirely justified. Vigilant inquiry into the substance of the classification will reveal whether the policy is, in fact, justified. Lower courts have noted that “[w]hen . . . a gender classification is justified by acknowledged differences, identical facilities are not necessarily mandated. Rather[,] the nature of the difference dictates the type of facility permissible for each gender.” An illustrative example is “society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns.” The need for privacy justifies the separate facilities, and the differences between the genders demand different facilities.“ In the end, distinctions in separate facilities provided for males and females may be based on real differences between the sexes, both in quality and quantity, so long as the distinctions are not based on stereotyped or generalized perceptions of differences.


http://www.law.siu.edu/lawjour/22_2/dawes.pdf
0 Replies
 
Mortkat
 
  1  
Reply Fri 25 Nov, 2005 12:55 am
Debra LAW fulminates, using doubtful viewpoints which allegedly conform with Constitutional Law. I have already pointed out that Judges Roberts and Alito will not disturb "Roe vs. Wade" but that it will be torn to pieces by peripheral decisions.

If Debra LAW will look at the real world of courts and judges she will find that my prediction that states will erode Roe vs, Wade is coming true.

Chicago Sun- Times- Nov. 24th 2005

quote

The Indiana Supreme Court on Wednesday upheld a law that requires women seeking an abortion to get counseling about medical risks and alternatives and to wait at least 18 hours after the session before going through with the procedure.

The court rule in a 4-1 vote that opponents of the law could not pursue their law suit which argued that privacy is a core right under the state Constitution that extends to women seeking to end their pregnancies. The court said that such a challenge would fail because the law " does not impose a material burden on any right to privacy or abortion that may be provided or protected " under the state Constitution.
0 Replies
 
Debra Law
 
  1  
Reply Fri 25 Nov, 2005 10:45 am
Mortkat wrote:
Debra LAW fulminates, using doubtful viewpoints which allegedly conform with Constitutional Law. I have already pointed out that Judges Roberts and Alito will not disturb "Roe vs. Wade" but that it will be torn to pieces by peripheral decisions.

If Debra LAW will look at the real world of courts and judges she will find that my prediction that states will erode Roe vs, Wade is coming true.

Chicago Sun- Times- Nov. 24th 2005

quote

The Indiana Supreme Court on Wednesday upheld a law that requires women seeking an abortion to get counseling about medical risks and alternatives and to wait at least 18 hours after the session before going through with the procedure.

The court rule in a 4-1 vote that opponents of the law could not pursue their law suit which argued that privacy is a core right under the state Constitution that extends to women seeking to end their pregnancies. The court said that such a challenge would fail because the law " does not impose a material burden on any right to privacy or abortion that may be provided or protected " under the state Constitution.



Stating a fact is fulminating? Inasmuch as you are fond of accusing people of not paying attention in school, it doesn't appear that you mastered the elementary use of a thesaurus during your creative writing class.

I already said that a one-day waiting period was not an undue burden. How do you intend to cast doubt on what I just said by giving an example that demonstrates rather than contradicts the very thing that I said?

Your previous less-than-stellar argument was when Alito sits on the newly-constituted Roberts' Court, Roberts and Alito will follow stare decisis. However, the Court will refuse to hear the onslaught of cases that will undoubtedly arise as the states begin to run amok tearing Roe v. Wade to shreds by passing bans on "partial birth abortions" and passing parental notification requirements in anticipation of the Roberts' Court turning a blind eye. ROFL

I informed you that Supreme Court precedent already exists on these issues: A state ban on "partial birth abortion" is unconstitutional and a state may require parental notification so long as the state provides a judicial bypass procedure. Accordingly, lower courts are required to follow established precedent.

Oops. You didn't know that. You then changed your argument. According to you, the Roberts' court, instead of turning away these cases as you previously predicted, will now be FORCED to REVISIT the issue of "partial birth abortion." Inasmuch as you stated that Roberts and Alito will adhere to stare decisis, how would the Court's "forced revisitation" of the issue change the outcome of its previous precedent?

You painted yourself into a corner with your own arguments and you won't respond when this is pointed out to you:

http://www.able2know.com/forums/viewtopic.php?p=1685845#1685845

So tell us, how will Roe v. Wade be torn to pieces by peripheral decisions? Is showing us the Indiana 18 hour waiting period the best you can do? ROFL
0 Replies
 
Mortkat
 
  1  
Reply Sat 26 Nov, 2005 03:34 pm
Of course, you are the resident expert on Abortion and allied issues. You may not be so smug if you venture to go outside of your constricted tent.
I am sure that you cannot explain, given your sanguine remarks about the inviolability of Roe Vs. Wade why the feminists and the left wing are running around in terror about the possibility Roe and Wade will be overturned.

Does Debra LAW know that the Attorney General made a statement that Judge Roberts could indeed vote to overturn Roe Vs. Wade?

Does Debra LAW know

http://womensissues.about.com/od/abortionlaw/f/faqroevwade.htm

that the feminists are horrified that"eighteen states have laws that were enacted before the Roe vs. Wade decision. These laws eithr completely or partially ban any access to abortion, A reversal of Roe vs. Wade in these states would mean that the ban could be immediately enforced."


I hope I am on these posts when that happens. It will show that even someone yclept LAW doesn't really know what is going to occur.
0 Replies
 
Debra Law
 
  1  
Reply Sun 27 Nov, 2005 03:18 am
Gee Mortkat, you are again avoiding the fact that you repeatedly contradict your own feeble arguments.

You said that both Roberts and Alito will adhere to Roe v. Wade as stare decisis.

You claimed Roe v. Wade would stand, but would be torn to shreds by "peripheral" decisions while the Roberts Court turned a blind eye. As soon as the demerits of your argument were pointed out, you changed your tune. When the inconsistencies in your argument were pointed out, you avoided the issue by failing to respond.

Then you reverted to your original feeble argument that was previously debunked. When this is pointed out to you, you change your tune again.

So what is your argument now?

Is it now your position that Roberts and Alito will NOT adhere to stare decisis? Will they vote to overrule Roe v. Wade and declare that a woman has NO RIGHT protected by the Constitution to determine her own procreative destiny?

We're trying to NAIL DOWN your position, if that's possible.
0 Replies
 
Debra Law
 
  1  
Reply Sun 27 Nov, 2005 03:38 am
Mortkat wrote:
Of course, you are the resident expert on Abortion and allied issues. You may not be so smug if you venture to go outside of your constricted tent.

I am sure that you cannot explain, given your sanguine remarks about the inviolability of Roe Vs. Wade why the feminists and the left wing are running around in terror about the possibility Roe and Wade will be overturned.

Does Debra LAW know that the Attorney General made a statement that Judge Roberts could indeed vote to overturn Roe Vs. Wade?


I haven't been addressing the alleged "terror" of the "feminists" and the "left wing." I've been addressing YOUR original assertions that Roberts and Alito will adhere to Roe v. Wade as stare decisis and trying to discern whether you still stand by your assertion in the face of the contradictory statements you have made.

Do you want me to provide the links to all the times you have said that? (I've already pointed out your many contradictions and conflicting arguments--which you strenuously avoid addressing with your feeble attempts at deflection.) Did your research on the Attorney General's alleged statement make YOU change YOUR mind that Judge Roberts would vote to sustain the holding in Roe v. Wade as stare decisis?

What exactly is your position now?
0 Replies
 
Joe Nation
 
  1  
Reply Sun 27 Nov, 2005 04:04 am
book (an actual discussion!)mark
0 Replies
 
lmur
 
  1  
Reply Sun 27 Nov, 2005 05:29 am
bm
0 Replies
 
joefromchicago
 
  1  
Reply Sun 27 Nov, 2005 03:18 pm
Re: A Jurisprudence of Original Intent?
Thomas wrote:
That was my point. The words of the constitution had a well-understood meaning as they were, so any relevation about the lawmakers' intent was irrelevant. The long-range desires of the drafters don't matter.

True, but that's not the kind of "intent" that "original intent" jurists like Scalia are talking about anyway, so I'm not exactly sure why you brought it up.

Thomas wrote:
I don't know that the premise of your point is true. I think the important distinction for Scalia is not the category of the law, statute vs. constitution. It is the age of the statute.

I have no reason to accept that as true. Certainly Scalia has never said that the distinction is one based on the age of the statute or constitutional provision.

Thomas wrote:
I would be surprised if he expressed any interest in the ratification debate on the 27th amendment, a modern (1992) piece of constitutional legislation.

The 27th amendment is not a modern piece of constitutional legislation. It was drafted by the same people who drafted the bill of rights, and was submitted to the states at the same time as the first ten amendments to the constitution. It was, however, only ratified by the necessary three-fourths of the states in the 1990s.

Thomas wrote:
I would be equally surprised if he expressed indifference to the ratification debate on the alien tort claims act, if there is a surviving record. The alien tort claims act is a 1789 statute.) The reason is that Scalia is a textualist. When he interprets a law, his project is to make sense of the language, not of its speaker. The ratification debates over modern statutes do not tell him anything about 21st century legal English that he doesn't know already. He speaks this language himself.

Scalia is only a textualist when it comes to statutes (although he is not a consistent textualist even there). He is not a textualist when it comes to the constitution.

Thomas wrote:
By contrast, the ratification debates about the original constitution can teach him something he doesn't know about 19th century legal English and the meaning of constructs written in it. So can founding-era legal commentary from Blackstone (1769) to Story (1833). Or founding era court cases. Or even the behavior of founding era officials, acting in their official capacity. Scalia uses all these sources quite frequently -- not because they inform him about the legislature's intent, but because they inform him about the language that the legislature has written in. So yes, he is interested in the debates at the conventions, and yes, these conventions happen to convey the intent of the lawmakers -- but that's not the reason he is interested in them.

If you're drawing a distinction between what the framers intended their words to mean and what they understood their words to mean, I think that's a distinction without any meaningful difference. Surely the framers intended their words to mean what they understood them to mean, and their intentions would be thwarted if someone were to read their words to mean something that they didn't understand them to mean. It's splitting some pretty fine hairs to distinguish between the intent behind the words and the understanding behind them.

Thomas wrote:
If I go barefoot on my upcoming pilgrimage to the Chicago University Law school, do you think he will forgive me?

Maybe Posner will grant you absolution -- he's still on the faculty there.

Thomas wrote:
Historically, lots of rational humans on the federal courts had no constitutional problem at all with lynching blacks, mass-executing Indians, and breaking US contracts with them at will. A good number of them sat on their benches after the 13th-15th amendments. There you go again, perpetuating your naive optimism about human nature.

I'm not naively optimistic about human nature. Indeed, I'm not optimistic about it at all. But in suggesting that judges can interpret the constitution in any manner that they see fit, you've set up a strawman version of "living constitution" jurisprudence. Like the gospel of John, in the beginning of any constitutional exegesis is "the word." Judges cannot simply depart from the text in order to achieve some desired outcome.

Thomas wrote:
Why? If the draftsmanship is so bad the court honestly can't understand it, what's wrong with saying something like this? "We don't understand this law, we can't tell if the defendant has broken it. The defendent goes free -- innocent until proven guilty."

Of course the court can say that -- but then that's a function of interpreting the statute.

Thomas wrote:
Courts say that all the time when they can't make out what the facts are. Why not do the same when they can't make out what the law is? The only reason I see is fear of looking stupid.

If the legislature has drafted a law so badly that no one can understand it, then it is the court's function to say so. And if it is a criminal law, then it would be a violation of due process to convict someone under such a statute. But if the law can be interpreted to make sense, then the court must interpret it in that fashion.
0 Replies
 
joefromchicago
 
  1  
Reply Tue 14 Feb, 2006 12:30 pm
Scalia Dismisses 'Living Constitution'[/b]

By JONATHAN EWING, Associated Press Writer 2 hours, 14 minutes ago

PONCE, Puerto Rico - People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."

"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.

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.

Scalia was invited to Puerto Rico by the Federalist Society for Law and Public Policy Studies. The organization was founded in 1982 as a debating society by students who believed professors at the top law schools were too liberal. Conservatives and libertarians mainly make up the 35,000 members.
0 Replies
 
Thomas
 
  1  
Reply Tue 14 Feb, 2006 05:37 pm
joefromchicago, quoting Yahoo, wrote:
Scalia Dismisses 'Living Constitution'


Gee, I'm so surprised! Razz

(Yahoo doesn't provide a link to the original text, but judging by their report, he gave his standard stump speech.)
0 Replies
 
joefromchicago
 
  1  
Reply Wed 15 Feb, 2006 08:59 am
Quote:
"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.

It's interesting that Scalia is now a self-identified "originalist." I don't know if he has ever adopted that label before.

Quote:
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."

It is a shame, perhaps, that the term "living constitution" has been adopted for the position that the constitution must be interpreted in the context of the times. The term makes it far too easy for people like Scalia to create these ridiculous kinds of strawmen arguments.

And make no mistake: Scalia is just as much a believer in the "living constitution" as any of the jurists he criticizes. Anyone who doesn't believe that should take a look at Bush v. Gore to see how he completely ignores the original intent of the framers of the fourteenth amendment.
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Thomas
 
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Reply Wed 15 Feb, 2006 09:20 am
joefromchicago wrote:
And make no mistake: Scalia is just as much a believer in the "living constitution" as any of the jurists he criticizes. Anyone who doesn't believe that should take a look at Bush v. Gore to see how he completely ignores the original intent of the framers of the fourteenth amendment.

You could similarly argue that Jefferson and Madison didn't believe in liberty because they owned slaves. This argument might be technically valid, and does prove some hypocrisy of the two. But I would consider it hairsplitting in a discussion about political philosophy. It does not discredit a belief, nor the believers' allegiance to it, when they sin sometimes. Specifically, it doesn't discredit originalism, nor the originalists' belief in it, when originalist judges occasionally write activist opinions.

You could convince me that "Scalia is just as much a believer in the 'living constitution' as any of the jurists he criticizes." To do that, you would have to show me that he departs from the constitution's original understanding as often as they do. But occasional breaking of the limits Scalia set for himself are insufficient evidence for your conclusion.
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joefromchicago
 
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Reply Wed 15 Feb, 2006 09:44 am
Thomas wrote:
You could similarly argue that Jefferson and Madison didn't believe in liberty because they owned slaves.

They didn't believe in liberty, at least not liberty for all people.

Thomas wrote:
And while the argument might be technically valid, and does prove some hypocrisy of the two, I would consider it hairsplitting in a discussion about political philosophy. It does not discredit a belief, nor the believers' allegiance to it, when they sin sometimes. Specifically, it doesn't discredit originalism, nor the originalists' belief in it, when they occasionally write activist opinions.

Your position leaves me baffled, Thomas. If Scalia thinks he is adhering to a consistent jurisprudential philosophy, then his departures from that philosophy are not trivial, especially if they amount to the adoption of his opponents' philosophy. It would be like saying that stealing is wrong in all cases, except in the few cases where I choose to steal.

Thomas wrote:
To convince me that "Scalia is just as much a believer in the 'living constitution' as any of the jurists he criticizes, you would have to show me that he departs from the original understanding of the constitution as often as they do. Occasional breaking of the limits he set for himself are insufficient evidence for the conclusion you draw.

That assumes that the believers in the "living constitution" depart from the original understanding of the constitution.

I've already identified one opinion in which Scalia joined which departed significantly from the intent of the constitutional framers. Show me an instance where someone from the "living constitution" camp made a similar departure. Then we can drop the generalities and talk specifics.
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Thomas
 
  1  
Reply Wed 15 Feb, 2006 10:12 am
joefromchicago wrote:
Your position leaves me baffled, Thomas. If Scalia thinks he is adhering to a consistent jurisprudential philosophy, then his departures from that philosophy are not trivial, especially if they amount to the adoption of his opponents' philosophy. It would be like saying that stealing is wrong in all cases, except in the few cases where I choose to steal.

I disagree. It's like saying that stealing is wrong in all cases, but that I will sometimes steal nevertheless: Because I'm imperfect, I will sometimes act wrongfully. Thus, if Scalia writes an activist opinion, that may make him a negligent originalist (he doesn't know he's breaking his originalist principles, so he breaks them). It may even make him a reckless originalist (he knows he's breaking his originalist principles, but he breaks them anyway). But it wouldn't necessarily make him a non-originalist (as in, he has no originalist principles to break.)

joefromchicago wrote:
Thomas wrote:
To convince me that "Scalia is just as much a believer in the 'living constitution' as any of the jurists he criticizes, you would have to show me that he departs from the original understanding of the constitution as often as they do. Occasional breaking of the limits he set for himself are insufficient evidence for the conclusion you draw.

That assumes that the believers in the "living constitution" depart from the original understanding of the constitution.

No, it presumes that everyone departs from the original understanding to some extent, which may or may not be zero.

joefromchicago wrote:
I've already identified one opinion in which Scalia joined which departed significantly from the intent of the constitutional framers. Show me an instance where someone from the "living constitution" camp made a similar departure. Then we can drop the generalities and talk specifics.

Let's start with Gonzalez v. Raich as an interpretation of the Commerce Clause. Yeah I know, Scalia qualifies as a "living constitution" type in this case. (And he admits this. He has called himself a "fainthearted originalist" because he follows precedents like Wickardt v. Filburn. Justice Thomas wouldn't do that, and I wouldn't either.)

(UPDATE: To avoid any loyalty conflict that might arise from my having to attack Scalia the activist, maybe we'd better start with the dissents in United States v. Lopez. The point of law is the same, but friend and foe are more conveniently separated. Wink The same is true of the dissents in United States v. Morrison.)
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joefromchicago
 
  1  
Reply Wed 15 Feb, 2006 01:10 pm
Thomas wrote:
I disagree. It's like saying that stealing is wrong in all cases, but that I will sometimes steal nevertheless: Because I'm imperfect, I will sometimes act wrongfully.

With all due respect, that's nonsense. Scalia, remember, is advocating a jurisprudential philosophy. This is not a case where "we sin because we are all sinners." This is a case where Scalia says there is a right way to decide cases and a wrong way. If the right way is right only most of the time, then it's not the right way.

Thomas wrote:
Thus, if Scalia writes an activist opinion, that may make him a negligent originalist (he doesn't know he's breaking his originalist principles, so he breaks them). It may even make him a reckless originalist (he knows he's breaking his originalist principles, but he breaks them anyway). But it wouldn't necessarily make him a non-originalist (as in, he has no originalist principles to break.)

No, it doesn't make him a negligent originalist or a reckless originalist or even just a careless originalist, it makes him a hypocrite. And that's because he is not an originalist.

Thomas wrote:
No, it presumes that everyone departs from the original understanding to some extent, which may or may not be zero.

No, but I won't belabor the point.

Thomas wrote:
Let's start with Gonzalez v. Raich as an interpretation of the Commerce Clause. Yeah I know, Scalia qualifies as a "living constitution" type in this case. (And he admits this. He has called himself a "fainthearted originalist" because he follows precedents like Wickardt v. Filburn. Justice Thomas wouldn't do that, and I wouldn't either.)

Fainthearted, hypocritical. Tomato, tomahto.

Thomas wrote:
(UPDATE: To avoid any loyalty conflict that might arise from my having to attack Scalia the activist, maybe we'd better start with the dissents in United States v. Lopez. The point of law is the same, but friend and foe are more conveniently separated. Wink The same is true of the dissents in United States v. Morrison.)

For those who may be unfamiliar with the cases: In United States v. Morrison, the court struck down a federal sexual assault law on commerce clause grounds. In United States v. Lopez, the court struck down the Gun Free School Zones Act on similar grounds. In both cases, the dissenters argued that the commerce clause was broad enough to authorize congress to enact these penal statutes.

Part of the problem with criticizing dissents for failing to adhere to the original intent of the constitution is that the dissents didn't attract a majority of the court. So the best response to that criticism is "it doesn't matter, they lost." For that reason, Raich would be a better case to review. But since Scalia was on the wrong side of the commerce clause debate in that case, I suppose it doesn't count.

I will assume, Thomas, that you think the dissenters in Morrison and Lopez departed from the original intent of the framers in their interpretation of the commerce clause. But how did they depart? Was it in their interpretation of the word "commerce?" Or was it in their argument that the commerce clause allows for regulation of local activities that "affect" interstate commerce?

As to the former, the constitution is designed to be interpreted. It is not a statute that enumerates specific categories of subjects, but rather it outlines large doctrines that are intended to be refined by the courts, according to both the text of the document and its purpose. As Chief Justice Marshall stated in Gibbons v. Ogden
    What do gentlemen mean, by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the constitution is to be expounded.
In other words, the text must be given not only its plain meaning, but it also must be interpreted to effectuate the intent behind the words. If the commerce clause was meant to grant congress the power to create a continental "free trade zone," then congress not only has the power to regulate commerce but also the power to effectuate that purpose through appropriate measures.

As for the latter, the supreme court has said since at least Gibbons (1824) that local, purely intrastate activities that impinge upon interstate commerce can be regulated by congress. A broad reading of the commerce clause was not the invention of the majority in Wickard v. Filburn. Certainly the decisions of the early supreme court, when many of the framers of the constitution were still alive, deserve some special consideration.
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