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Scalia and Breyer Go At It Once Again
The Wall Street Journal ^ | March 24, 2010 | Ashby Jones

Posted on 03/24/2010 1:22:45 PM PDT by presidio9

How is the U.S. constitution meant to be read by the judges who interpret it? As it was written and ratified back in the 1780s? Or are its words and phrases meant to change along with a society’s customs, mores and viewpoints?

It’s a debate that’s roiled the justices on the U.S. Supreme Court for years; a divide currently embodied in Justices Antonin Scalia and Justice Stephen Breyer (pictured). Scalia’s an unapologetic “originalist,” while Breyer, author of a book called Active Liberty, tends to push for a more expansive reading of the Great Document.

On Tuesday, the duo talked about their interpretive differences down at the U.S. Supreme Court. In the words of this AP story, they “tried to explain why their differing views of judging so often lead them to opposite conclusions when the topic is abortion, the death penalty, gay rights or physician-assisted suicide.” Click here for the National Law Journal story, as well.

So what did they come up with? Well, mostly, from the sound of it, some good-natured ribbing. We love this exchange:

“I never heard that before and I certainly don’t agree with it,” Scalia said in response to one point from Breyer, according to the AP.

“If I did make an argument you hadn’t thought of before, I wish you’d think about it,” Breyer replied a few minutes later.

Breyer said his view of the Constitution allows the court “to better carry out that initial intent that this document will in fact govern a changing society as society changes over the course of centuries.”

Scalia, as he’s articulated many many times before, finds that whole notion, well,

(Excerpt) Read more at blogs.wsj.com ...


TOPICS: Constitution/Conservatism; Editorial; News/Current Events; Politics/Elections
KEYWORDS: antoninscalia; scotus; stephenbreyer

1 posted on 03/24/2010 1:22:45 PM PDT by presidio9
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To: presidio9
Breyer said his view of the Constitution allows the court “to better carry out that initial intent that this document will in fact govern a changing society as society changes over the course of centuries.”

What tortured logic.

2 posted on 03/24/2010 1:25:36 PM PDT by skeeter
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To: presidio9
.
Or are its words and phrases meant to change along with a society’s customs, mores and viewpoints

It is a contract.

If you enter into contract with anyone then you are going to expect that it will mean the same thing twenty years later (or 200 years later) that it meant on the day that the contract was entered into.

3 posted on 03/24/2010 1:25:53 PM PDT by Touch Not the Cat (Where is the light? Wonder if it's weeping somewhere...)
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To: presidio9

To Breyer, the Constitution is whatever it needs to be to get the result he would prefer as super-legislator.

To Scalia, it is “the deal that was struck” at the time it was struck. If changing times and opinions call for changes in the Constitution, in Scalia’s view, then it should be formally amended via the process set out in the Constitution itself.


4 posted on 03/24/2010 1:27:33 PM PDT by pogo101
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To: presidio9

It is funny how Breyer’s interpretation of the Constitution allows him to rule in a way that almost perfectly matches what he believes politically. Almost as if he makes it up to get the outcome he wants.


5 posted on 03/24/2010 1:30:54 PM PDT by CharlesWayneCT
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To: presidio9

I truly hope that some of the particulars of a constitutional convention are brought up to several of the justices. Everything from its organization, its rules of order, its physical formation, the exclusion of federal officials and officers, and once 38 States are in agreement as to the new constitutional draft, how the changes shall be promulgated.

This would be a tremendous intellectual challenge for a Supreme Court justice. But one well worth the effort.


6 posted on 03/24/2010 1:32:13 PM PDT by yefragetuwrabrumuy
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To: Touch Not the Cat
If you enter into contract with anyone then you are going to expect that it will mean the same thing twenty years later (or 200 years later) that it meant on the day that the contract was entered into.

And if you change your mind about something, or part of the contract becomes outdated, it had enough forsight to include simple provisions for making changes as necessary. People like Bryer reject those provisions, because they reject the contract as a whole.

7 posted on 03/24/2010 1:32:22 PM PDT by presidio9 (Islam is as Islam does)
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To: presidio9

Breyer simply works to find excuses to advance his leftist agenda. The actual Constitution won’t permit it and that is why he disregards the document.


8 posted on 03/24/2010 1:33:21 PM PDT by Oldpuppymax
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To: presidio9

Liberals make it up as they go. Alcee Hastings for SCOTUS!
At least we’d have some fun as OblahMao will be needing to replace that old fool Stevens with another dimwit!


9 posted on 03/24/2010 1:33:54 PM PDT by tflabo (Restore the Republic)
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To: presidio9

Scalia is truly a wise man. When liberals attack, they never bring up his logic, just that he is a dinosaur, fascist or nazi. Point being I don’t they ever thoughtfully read his positions. His wisdom is amazing, he is also a constant reminder of the greatness that once was the USA. Another debt we own thwe ‘Gipper’.


10 posted on 03/24/2010 1:34:27 PM PDT by jazzo (Resistance is Futile)
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To: presidio9

“Or are its words and phrases meant to change along with a society’s customs, mores and viewpoints?”

If it can mean anything, it means nothing. The point of writing laws down is so they can be known and outcomes can be predicted; lawmakers and legal scholars since Hammurabi have understood that. Law by fiat is tyranny.


11 posted on 03/24/2010 1:34:57 PM PDT by Spok (Free Range Republican)
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To: skeeter
Society can devolve.

When it became cool openly discriminate against white Men, Sotomayor was all too happy to piss on the constitution.

Breyer can KMA. By the time he reads this maybe the words will mean something else. In that case he can GF Himself.

12 posted on 03/24/2010 1:36:41 PM PDT by PA-RIVER
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To: presidio9
Human institutions, no matter how lofty their start, are subject to moral entropy when they stray from their foundations. Constitutionally, we end up with a "right" to abortion. Ecclesiastically, we end up with female clergy and homosexual bishops. Which is why Episcopalians cannot play chess, i.e., they can't tell the difference between a bishop and a queen.
13 posted on 03/24/2010 1:37:10 PM PDT by tbpiper
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To: presidio9

GET THE BIRT CERT. meat heads!!!!!!


14 posted on 03/24/2010 1:38:05 PM PDT by Waco (Kalifonia don't need no stenkin oil and no stenkin revenue.)
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To: PA-RIVER
People are getting p*ssed.

Good.

15 posted on 03/24/2010 1:38:12 PM PDT by skeeter
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To: presidio9

Well, we all know that the democrats changed the meaning of the word “is” a few years back so they think all words can be changed.


16 posted on 03/24/2010 1:39:12 PM PDT by McGavin999
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To: presidio9
hoperoachprompters

It is possible 3 years from now Republicans may have enough votes to remove these Judges. Since RATS cared not a wit about the people's wishes or tradition I hope we do likewise, and remove the judges who make up law or are slaves to arbitrary decisions.

17 posted on 03/24/2010 1:39:14 PM PDT by Nateman (If liberals aren't screaming you're doing it wrong.)
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To: presidio9

A living Constitution is a dead letter.

If we find fault with the Constitution, amend it. Abolish slavery. Prohibit alcohol. Repeal prohibition.

It’s not up to judges to use their opinions and tastes to unilaterally amend the Constitution. To allow them to do so makes a mockery of the principle of rule of law.


18 posted on 03/24/2010 1:39:55 PM PDT by Lonesome in Massachussets (The naked casuistry of the high priests of Warmism would make a Jesuit blush.)
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To: presidio9
The only legitimate mechanism for change in the Constitution is through the amendment process.

Period.

Any change in interpretation is inherently offensive to the clear intent of the framers, vesting the power to do so in a few, or even a single individual, within a single branch of governemnt.

How could you seriously argue that the Constititution, which established enumerated powers, separation of powers and the ultimate authority of the people, should be effectively modifiable by five judges? ...when a wholly different process for modification is explicitly prescribed within the document itself?

If it was intended to be reinterpreted according to the language, times and whims of a few judges, the framers could easily have described that process.

19 posted on 03/24/2010 1:40:19 PM PDT by TChris ("Hello", the politician lied.)
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To: presidio9
The Breyers never consider how originalism fits with democratic government. Elected representatives of the people, be they the conventions who ratified the Constitution or the Congress and States in the amendment process, should decide what rights are or are not in the Constitution, not unelected judges. Originalism preserves our republican form of government.
20 posted on 03/24/2010 1:43:29 PM PDT by colorado tanker
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To: pogo101
" To Scalia, it is “the deal that was struck” at the time it was struck. If changing times and opinions call for changes in the Constitution, in Scalia’s view, then it should be formally amended via the process set out in the Constitution itself. "

The leftist know that every well ( at least in the leadership knows this ) and they know that if they try to pass a constitutional amendment with their leftist ideas, it won't pass so they have to come up with under handed ways to pass their wicked plans...
21 posted on 03/24/2010 1:43:31 PM PDT by American Constitutionalist (There is no civility in the way the Communist/Marxist want to destroy the USA)
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To: CharlesWayneCT
Breyer’s interpretation of the Constitution allows him to rule in a way that almost perfectly matches what he believes politically.

Exactly. The one true test of whether you are actually trying to 'interpret' the Constitution or whether you are lying through your teeth as cover for doing what you want is whether it causes you to make a different decision than you would if the document didn't exist.

If, like the Brits, our form of government had just evolved along the way, then we would still have courts and some sort of adminstering government. The real issue is whether the US Constitution makes a difference that matters today. For the statists, it does not. All that matters is power, and how much power you can personally wield.
22 posted on 03/24/2010 1:44:40 PM PDT by Phlyer
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To: CharlesWayneCT

“Almost as if he makes it up to get the outcome he wants.”

Bingo! and not even *almost*.

It would be tough for me (or you) to be an unbiased judge. At least we would have some moral authority and not whatever the left has.


23 posted on 03/24/2010 1:44:57 PM PDT by wolfcreek (http://www.youtube.com/watch?v=Lsd7DGqVSIc)
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To: tbpiper

Are we to go down to socialism because none of these eggheads will demand the birth cert.??? It doesn’t matter what else anyone thinks,, if the B.C. verifies that he was born in Kenya to unwed parents and the father was a British subject at the time, the games over, no runs, no hits, 1 BIG error.


24 posted on 03/24/2010 1:46:36 PM PDT by Waco (Kalifonia don't need no stenkin oil and no stenkin revenue.)
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To: skeeter
Breyer said his view of the Constitution allows the court “to better carry out that initial intent that this document will in fact govern a changing society as society changes over the course of centuries.”

So it means nothing, really. Or rather, it means what YOU say it means. Because society doesnt sit on the court, Justice Breyer, you do. And if the constitution has no meaning except what the court says it does in the moment, then it's you that really run things. You, an unelected and unaccountable judge. So basically he admits he considers himself our overlord. Great.

By the way, if the constitution is totally flexible and doesnt have any long term meaning, then precedent cannot exist. How can legal rulings made in the past last longer than the document itself? So assuming precedent does not exist in his world, how does Justice Breyer feel about the prior rulings that say basically we all work for the government because of the interstate commerce clause? I say "Oh that was in the 1930s! But this is the 21st century and now it means the government cannot meet unless the states all agree to convene it!" How's that work!?

25 posted on 03/24/2010 1:48:34 PM PDT by pepsi_junkie (Who is John Galt?)
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To: Lonesome in Massachussets
If we find fault with the Constitution, amend it. Abolish slavery. Prohibit alcohol. Repeal prohibition.

I have wondered if it would be permitted for individual states to remove their ratification of amendments. And if the number of states to pull their approval of an amendment (the 16th perhaps) is three quarters of the whole could the amendment be repealed by that means rather than going through the federal government.

It would make for an interesting states rights battle.

26 posted on 03/24/2010 1:52:02 PM PDT by Not an Obomunist
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To: pepsi_junkie

What he is saying that just because our rights descend from God doesn’t mean God can’t change his mind.


27 posted on 03/24/2010 1:52:17 PM PDT by skeeter
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To: presidio9
Do you think Scalia interpreted the Commerce Clause in accordince with its original understanding?

...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

J. Scalia, concurring in Raich

28 posted on 03/24/2010 1:56:18 PM PDT by Ken H
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To: Not an Obomunist

Precedent seems to be that once an amendment is ratified, it’s forever. The “equal rights” amendment was not ratified by the requistite 3/4 of states within seven years of introduction and was “deemed” to have failed. The Constitution does not impose a time limit, but by tradition an proposed amendment has seven years to be approved by the legislatures of 3/4 of the states.

If we’re in a repealing mood, I could go for the XIXth, the source of most of our troubles.


29 posted on 03/24/2010 1:56:27 PM PDT by Lonesome in Massachussets (The naked casuistry of the high priests of Warmism would make a Jesuit blush.)
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To: wolfcreek

Other than Abortion, I think I would make a fine judge. I’m pretty good at seeing what a law requires separate from what I want.

But if I were a judge, I could NEVER rule in favor of an abortion, no matter how many precedents I was ignoring.


30 posted on 03/24/2010 1:58:15 PM PDT by CharlesWayneCT
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To: skeeter
What he is saying that just because our rights descend from God doesn’t mean God can’t change his mind.

Indeed. In fact, he is saying God = Steven Breyer.

31 posted on 03/24/2010 1:58:51 PM PDT by pepsi_junkie (Who is John Galt?)
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To: CharlesWayneCT

Yeah, but could you sit on your hands with someone like Barry scolding you in a public forum? LOL!


32 posted on 03/24/2010 2:02:51 PM PDT by wolfcreek (http://www.youtube.com/watch?v=Lsd7DGqVSIc)
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To: American Constitutionalist

There once were potent liberal voices (on policy matters) who disapproved of Roe and similar “make stuff up” cases, like the late Prof. Gerald Gunther. Sadly, that breed is all but extinct. Nearly all liberals in the legal field ALSO are of the Breyer “Make Stuff Up” mentality. The Constitution is whatever 5 Justices say it is, this week (to such people).


33 posted on 03/24/2010 2:05:47 PM PDT by pogo101
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To: TChris

“The only legitimate mechanism for change in the Constitution is through the amendment process.”

Right on. And let’s make a clear amendment, now, that if Daddy is a Brit then you don’t qualify to be Prez!!!


34 posted on 03/24/2010 2:08:40 PM PDT by kiltie65
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To: Lonesome in Massachussets
I agree that our troubles arise from changing the original document. If we could go back to just the original ten amendments it would be ideal. But I still think if we could starve the dragon by taking away the gushing flow of tax dollars it would be a good start, although we would probably need to require currency of gold, silver and copper to prevent their inflating their way to free spending.

I have always thought seizure of accounts and property by the IRS without going before a judge and getting a legal warrant is a violation of the 4th amendment protections and should be prohibited.

35 posted on 03/24/2010 2:10:48 PM PDT by Not an Obomunist
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To: presidio9

Serious money could be made in a raffle to punch out this dirtbag.

36 posted on 03/24/2010 2:17:32 PM PDT by Jacquerie (Tyrants should fear for their personal safety.)
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To: PA-RIVER; tflabo

The only good news to come out of this health care fiasco is that Republicans in the Senate are now uniformly pissed off, and looking at being in control of their house in 2011. Given the the animosity Republicans have put up with in confirmations going back to Justice Thomas, I hope it’s safe to assume that Obama won’t be getting any more suspect appointments like Sotamayor or Breyer through if he needs to make one in the next three years.


37 posted on 03/24/2010 2:23:27 PM PDT by presidio9 (Islam is as Islam does)
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To: presidio9
Given the the animosity Republicans have put up with in confirmations going back to Justice Thomas, I hope it’s safe to assume that Obama won’t be getting any more suspect appointments like Sotamayor or Breyer through if he needs to make one in the next three years.

Republicans better keep an eye on this clown (Goodwin Liu), who Obama is fast-tracking for the next Supreme Court opening:
Goodwin Liu: Obama’s Most Radical Judicial Nominee

38 posted on 03/24/2010 2:30:37 PM PDT by Azzurri
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To: presidio9

bookmark


39 posted on 03/24/2010 2:41:25 PM PDT by TheThinker (Communists: taking over the world one kooky doomsday scenerio at a time.)
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To: Azzurri

That’s just it: In getting healthcare, Obama threw away any chance of appointing any radical socialists like Liu to the SC. As far as I’m concerned, the left looked at it like: This is certainly going to hurt us in the short run, and maybe for the next couple of cycles, but Socialized Medicine is going to be the gift that keeps giving for the rest of eternity. Meanwhile, Obama is convinced that his own personal popularity will be enough for him to rise above it all.


40 posted on 03/24/2010 2:55:05 PM PDT by presidio9 (Islam is as Islam does)
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To: skeeter
I once heard Breyer make a comment that he found the answer to a Louisiana property case in a California law.

I'm not an attorney, but even I'm smart enough to know Louisiana and California are based on completely different codes, in fact Louisiana property laws are different than any other state because it was based on French codes whereas every other state is based on Spanish/English.

41 posted on 03/24/2010 3:13:49 PM PDT by IMR 4350
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To: presidio9
I understand that Scalia, Thomas, et al. don't want to start a war with other justices, but I sometimes find myself wanting them to come out and say what needs to be said: the job of a Supreme Court justice is not to decide how he wants people to regard the Constitution, but to make decisions that comply with the Constitution as it actually exists. Justices have no legitimate authority to do anything else; any decision which does not comply with the Constitution is illegitimate.

Further, precedent should only be considered in cases which would be genuinely ambiguous without it. If in a given case the Constitutional course of action would be clear without regard for precedent, then any precedents would either be redundant, inapplicable, or illegitimate. Unfortunately, the Court likes to look at precedent before it looks at other factors, when in reality it should examine it last.

42 posted on 03/24/2010 4:10:39 PM PDT by supercat (Barry Soetoro == Bravo Sierra)
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To: supercat
Unfortunately, the Court likes to look at precedent before it looks at other factors, when in reality it should examine it last.

I suppose that depends on your perspective, and the particular issue at hand.

43 posted on 03/24/2010 4:38:29 PM PDT by presidio9 (Islam is as Islam does)
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To: CharlesWayneCT

He reads the Constitution just like theological liberals read the Bible.


44 posted on 03/24/2010 4:38:40 PM PDT by therut
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To: skeeter
Breyer usually flies under the popular radar. He is among the least qualified yet most arrogant of the judges currently on the bench. Have heard him speak in a couple of settings, explaining why the Constitution means just what he wants it to mean. This is an evil man who needs some Texas justice for all the harm he has done the Republic.
45 posted on 03/24/2010 9:09:19 PM PDT by hinckley buzzard
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To: presidio9
I suppose that depends on your perspective, and the particular issue at hand.

The only time I can think of where cases would be unambiguous without precedent, but the justices should examine precedent anyway, would be when it is necessary to explicitly deal with the fallout from previous illegitimate decisions. Since the Constitution (or any other foundation document) must rely upon the honesty of the people charged with upholding it, it cannot possibly prescribe the remedies for all possible breaches.

I'm curious in what other circumstances you would regard adherence to precedent as more important than adherence to the law.

46 posted on 03/25/2010 3:19:35 PM PDT by supercat (Barry Soetoro == Bravo Sierra)
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