Scalia on Constitutional Interpretation

[Odin]

Originally posted by Imran Siddiqui
So he's only reactionary some of the time? Is that your position?

I'm saying he swiches back and forth between principle and politics, and usually he leaves principle for less imprtant cases. On most imprtant issues, especially on social issues like gay rights, he is a nutter.

[Sikander]

Originally posted by Drake Tungsten
I see Poly has produced its usual level of discourse...

When do the grown-ups get here?

Now.

[Sikander]

Originally posted by Rufus T. Firefly

" You think slavery is a good idea: persuade your fellow citizens and adopt it. You think it's a bad idea: persuade them the other way and eliminate it."
--- Justice Scalia's spiritual forebearers, "Bleeding Kansas," 1855

And that is exactly what happened, after the south panicked about the election of Lincoln and destroyed their way of life and political power by seceding.

It amuses me to see that the proponents of a "living constitution" in this forum are lefties, because they are about to see that living constitution lit on fire and roughly shoved up their collective ass. It is happening already. Conservatives are the majority these days and a living constitution is an instrument of the majority. All that is required for sweeping change is 5 justices on the Supreme Court to say the word. No filibuster can protect the minority from the true nuclear option.

The living constitution is a bad idea regardless of who is in power, and we can see that the left realizes this on particular points, like when the administration decides to expand executive power in the name of the war on terror etc. But they reflexively defend the idea of the living constitution in general because for some reason they still seem to think that they are in power. Their only hope is that the right will remain true to its ideological roots and not use the tremendous power that is falling into their hands. Good luck with that, oh sowers of the wind.

[SpencerH]

It seems to me that 'living constitution' means different things to different people. To some it means the possibility of constitutional amendment and for others it is judicial activism. Personally, I'd rather have my rights determined by the people than by a handful of non-elected lawyers.

[asleepathewheel]

Originally posted by GePap
2. I don;t give a **** what ANY of the "Supremes" think. Not Renquist, not O'Connor, not Kennedy, Not Ginsburg, not Scalia, and most definitely NOT Thomas.

And yet you take the time to post to this thread.

[GePap]

Originally posted by Imran Siddiqui
With much struggle, especially when a good number of future judges have agreed with the reasoning in the precedent. Not to mention the power of precedent itself.

How hard it is to overturn does not change the fact prescedent can and is overturned.

If you think positivism and natural law have gotten 'left behind', you are nuts and totally off your rocker. There is reason, the Rehnquist philosophy is called "neo-federalism". It means it came back in vogue.

So? 1970's fashions come back too?
Neo-federalism is NOT federalism, anymore than neo-classical architecture is the same as actual classical architecture- past ideas are taken and modified to fit the current times. What does not change is the underlying popularity of any of a limited number of world views.

No, I have the answers (and they are quite simple to answer), but it wouldn't matter, because you have obviously demonstrated no clue on Constitutional law or historical practices. It's like discussing sex with a 3 year old, you have no idea what the Hell is going on.

:yawn:. You need better comebacks.

Hint: when Congress is said to have the power in the text, saying they have the power isn't deciding a 'living document'; and, two, perhaps you should try to under what 'the judicial power' means.

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

But lets go back to the most activist decision of all times:

Marbury v. Madison (1803)

Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.

Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during "good behavior." Thus, when the opposing Republicans won the election of 1800, the Jeffersonians found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.

The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.

Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm

If that is not an example of judicial activism, I don;t know what is- and to think, the very foundation of the powers of the court are built on judicial activism... Maybe Scalia would liek to return to a stricter interpretation of the actual document?

[GePap]

Originally posted by asleepathewheel


And yet you take the time to post to this thread.

Yup

[Sava]

BTW, I don't know if Sikander is lumping me with the "living document" crowd. I really don't have that strong an opinion on the matter.

I just hate Scalia because he is scum.

[Ogie Oglethorpe]

Originally posted by GePap
So Scalia is a hypocrite. Again, why does anyone care what this guy thinks?

Let me see if I get this right. Scalia a supreme should be ignored and Greenspan in charge of teh Fed should be ignored, but all hail teh all knowing KURGMAN!!

[GePap]

Originally posted by Ogie Oglethorpe


Let me see if I get this right. Scalia a supreme should be ignored and Greenspan in charge of teh Fed should be ignored, but all hail teh all knowing KURGMAN!!

What have I said about Greenspan??

Come on Ogie, stop taking stuff out of your ass. It ain't pretty.

Second, Krugman writes on economic and political issue, last time I noted, Scalia does NOT.

Been smoking again?

[Ogie Oglethorpe]

Originally posted by Sikander


And that is exactly what happened, after the south panicked about the election of Lincoln and destroyed their way of life and political power by seceding.

It amuses me to see that the proponents of a "living constitution" in this forum are lefties, because they are about to see that living constitution lit on fire and roughly shoved up their collective ass. It is happening already. Conservatives are the majority these days and a living constitution is an instrument of the majority. All that is required for sweeping change is 5 justices on the Supreme Court to say the word. No filibuster can protect the minority from the true nuclear option.

The living constitution is a bad idea regardless of who is in power, and we can see that the left realizes this on particular points, like when the administration decides to expand executive power in the name of the war on terror etc. But they reflexively defend the idea of the living constitution in general because for some reason they still seem to think that they are in power. Their only hope is that the right will remain true to its ideological roots and not use the tremendous power that is falling into their hands. Good luck with that, oh sowers of the wind.

Hear hear!!

Good insight into why it would be beneficial for the left to embrace strict constitutionalists.

[Ogie Oglethorpe]

Originally posted by GePap


What have I said about Greenspan??

Not much because you've been ignoring his calls for SS privatization in favor of HACKMAN.

[GePap]

Originally posted by Ogie Oglethorpe


Hear hear!!

Good insight into why it would be beneficial for the left to embrace strict constitutionalists.

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.

[GePap]

Originally posted by Ogie Oglethorpe


Not much because you've been ignoring his calls for SS privatization in favor of HACKMAN.

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.....

[chequita guevara]

I'm not so worried about conservatives holding the courts. After all, it's been Republican judges who've been striking down laws against gay marriage. Warren was appointed by Eisenhower. The fact that one is conservative doesn't mean that they will always rule against freedom and human rights.

It's the reactionaries that scare me.