Scalia on Constitutional Interpretation

[Ogie Oglethorpe]

Originally posted by GePap


Why, exactly? Scrict consitutionalists are the guys how end up saying slaves should be sent back, or certainly people have no rights until the masses decide to give it to them.

There is no issue in which true "strict consitutionalism" would make any sense for Liberals. The notion is bsaically a conservative notion- we should act today based on rules written in 1789, and we can only demand an expansion of human rights if we get people to vote them in....

Very conservative notion.

You need to re-read Sik's post. The times are a changin... Having strict constitutionalists on the bench prevents a reversal of the gains previously made by the left, until such time when and if ever teh pedulum swings back to the lefts favor. Something I as a moderate applaud.

[Ogie Oglethorpe]

Originally posted by GePap


After Greenies sage advice vis a vi Tax cuts, I have stopped listening to him. Followers of Ayn rand don;t particulalry interest me.

I love it though how in love with Krugman you are. Its so darn CUTE

Ogie and Krugman, sitting in a tree, K I S S I N G.....

I'm not in Massachusetts, so little chance of that ring and small but intimate ceremony I was so hoping for.

[GePap]

Originally posted by Ogie Oglethorpe


You need to re-read Sik's post. The times are a changin... Having strict constitutionalists on the bench prevents a reversal of the gains previously made by the left, until such time when and if ever teh pedulum swings back to the lefts favor. Something I as a moderate applaud.

No it does not- take abortion- a strict consitutionalist would reverse it in a second, since the Constitution says nothing about that right- it says nothing about a lot of things. It is the fastest way to ignore everything that has gone on in the last 30 years, and say we need to go back to before all these "activist liberal judges". With the living constitution method, you have to acknowledge the changes in society that have occured thanks to many of those decisions.

If anything, the notion that its the majority politics of the time that will determine laws is basically what Scalia says when he says the way to make laws is to convince the majority of their need. If the majority hates gays, well, than that's how it should be, and a scrit constitutionalist, seeing nothing in the document about gay people, will say this is A OK.

[Ogie Oglethorpe]

Originally posted by GePap


No it does not- take abortion- a strict consitutionalist would reverse it in a second, since the Constitution says nothing about that right- it says nothing about a lot of things. It is the fastest way to ignore everything that has gone on in the last 30 years, and say we need to go back to before all these "activist liberal judges". With the living constitution method, you have to acknowledge the changes in society that have occured thanks to many of those decisions.

If anything, the notion that its the majority politics of the time that will determine laws is basically what Scalia says when he says the way to make laws is to convince the majority of their need. If the majority hates gays, well, than that's how it should be, and a scrit constitutionalist, seeing nothing in the document about gay people, will say this is A OK.

So given the choice that you will inevitably face a strict constituionalist or an 'activist conservative judge' you advocate the 'activist conservative judge'??? You don't get it. You need to choose the lessor of two evils, so sorry thems the breaks for following such a crappy party.

[chequita guevara]

Choosing the lesser of two evils is what got their party crappy in the first place.

[Ogie Oglethorpe]

Its a shame there is so much evil on the left to choose from.

[GePap]

Originally posted by Ogie Oglethorpe



So given the choice that you will inevitably face a strict constituionalist or an 'activist conservative judge' you advocate the 'activist conservative judge'??? You don't get it. You need to choose the lessor of two evils, so sorry thems the breaks for following such a crappy party.

An "activist conservative judge: is constrained by the times they live in. A strict constitutionalist is able to rationalize ignoring the last 30 years, saying all of it ran against the constitution.

The fact is, if conservatives control the Court, they will make conservative law. The question is, on what basis?

You statement is like saying that Moderate Catholics should pray for the next Pope to think himself a believer in a fundamental reading of the Bible and the founding documents of the Church, cause such a man will protect the reforms of Vatican II better than a Pope who is more with the times but archconservative.

[Ogie Oglethorpe]

Originally posted by GePap


The fact is, if conservatives control the Court, they will make conservative law. The question is, on what basis?

Puhhlease if anything can be learned from the 'liberul activists judges', rationale is always available and likely to be used, its just in this case teh logic/twisting will be skewed to an archconservative POV in the case of 'conservative activist judges'.

Congratulations for advocating a theocratic state as opposed to one that at least self limits itself.

[Imran Siddiqui]

Decinding on an interpretationof what it says in the text, based on the norms of the day IS "living document".

Um... not when it is based on the interpretation of the text at the time it was written. Or do you really think the norms of the day changed so much from 1789 to 1803? Hamilton, in Federalist 79 (IIRC), talked about how the Court was able to invalidate unconstitutional law. Deciding a case based on the interpretation of the words of the time the law was enacted is in no way propogating a 'living constitution' ideal.

[Berzerker]

What is judicial activism? If you are a judge and you decide a law is unconstitutional and rule against it, does that make you an activist? I thought judicial activism was legislating from the bench.

For example, imagine Jim Crow times. The literalist applying the 14th Amendment says Jim Crow is unconstitutional. The activist rules the same way but then decides that because of Jim Crow, our taxes must be raised to provide equal educations for the children of those victimised by Jim Crow.

[Imran Siddiqui]

The fact is, if conservatives control the Court, they will make conservative law. The question is, on what basis?

The Rehnquist court has sure found good basis in their resurrection of federalism. The basis is there, as Ogie put it. Rehnquist wanted to have more states rights and he got it, and he'll be forever remembered for that. He didn't seem to be that restrained in his goal.

[GePap]

Originally posted by Imran Siddiqui

Um... not when it is based on the interpretation of the text at the time it was written. Or do you really think the norms of the day changed so much from 1789 to 1803? Hamilton, in Federalist 79 (IIRC), talked about how the Court was able to invalidate unconstitutional law. Deciding a case based on the interpretation of the words of the time the law was enacted is in no way propogating a 'living constitution' ideal.

HOw could you say this was the "norm" when the text was writen? Hamilton was part of the administration that passed the Alien and Sedition Act, which seemed an obvious violation of the 1st Ammednment. One wonders why that law was not judged unconstitutional?

What you fail to acknowledge is that people disagree with the interpretation of language. that's why "strict reading" is such bull****- you still have to try to annalyze unless the language is explicit, and the language is NOT explicit on a variety of things, like not giving the Courts the explicit power to void acts of Congress. What federalists says is not the same as the Constitution- Hamilton and Adams did not pen the Constitution by themselves.

[Imran Siddiqui]

One wonders why that law was not judged unconstitutional?

You have to bring the case to the Supreme Court for it to be judged unconstitutional.

And Hamilton was not a part of the Adams' administration. Please read your history books more closely next time.

What you fail to acknowledge is that people disagree with the interpretation of language.

Which is why you look at the interpretation of the words as defined in the era the law was passed. 'Judicial power' most definetly gives the court the power to void acts of Congress. A look at English Constitutional history will show the power of courts to void royal prerogative using the common law. It would be silly to argue that the 'judicial power' did not include weighing a law against the Constitution and deciding which one wins out.

[GePap]

Originally posted by Imran Siddiqui

One wonders why that law was not judged unconstitutional?

You have to bring the case to the Supreme Court for it to be judged unconstitutional.

And Hamilton was not a part of the Adams' administration. Please read your history books more closely next time.

Yup, Hamilton was not.

If it was assumed that the Court was able to overturn an act of Congress, why did no one bring the issue to the Court, including any of the mutliple journalists found guilty under the law? Heck, you had Jefferson saying that States might have the power to overturn Federal laws in the Kentucky Declaration- if the Court's power to overturn acts of Congress was assumed, why did no one bring this issue up to them?

Which is why you look at the interpretation of the words as defined in the era the law was passed. 'Judicial power' most definetly gives the court the power to void acts of Congress. A look at English Constitutional history will show the power of courts to void royal prerogative using the common law. It would be silly to argue that the 'judicial power' did not include weighing a law against the Constitution and deciding which one wins out.

As I don't know enough about this, I will leave it sans debate.

[Imran Siddiqui]

If it was assumed that the Court was able to overturn an act of Congress, why did no one bring the issue to the Court, including any of the mutliple journalists found guilty under the law? Heck, you had Jefferson saying that States might have the power to overturn Federal laws in the Kentucky Declaration- if the Court's power to overturn acts of Congress was assumed, why did no one bring this issue up to them?

It was probably because they thought the justices were more sympathetic to Adams. Only 10 people were convicted of Sedition (and one alien deported), but they were probably all vociferous Democratic-Republicans and feared that a Federalist Supreme Court would not be very sympatheic to them.

Politics is not a new thing on the bench.

As I don't know enough about this, I will leave it sans debate.

What it says is that Scalia's ideas are not moronic or withoiut any merit. You may think they are wrong (and I don't agree with them - I'm a "living Constitution" textualist), but its not a badly concieved judicial theory.