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Scalia: Abortion not in the Constitution
Life Site News ^ | January 4, 2011 | JOHN JALSEVAC

Posted on 01/04/2011 2:50:43 PM PST by NYer


Supreme Court Justice Antonin Scalia (Photo: Stephen Masker)

January 4, 2011 (LifeSiteNews.com) – In a recent interview with California Lawyer, Supreme Court Justice Antonin Scalia stated that abortion is not included in the U.S. Constitution.

Scalia, who is opposed to the notion of an “evolving” or “living” Constitution, told interviewer Calvin Massey that by giving some of the “necessarily broad” provisions of the Constitution an “evolving meaning,” these provisions fail to do their job, which is to put in place limitations on what society can or cannot do.

Even if “the current society has come to different views [than the original framers],” he said, “you do not need the Constitution to reflect the wishes of the current society.”

Instead, he said, when something isn’t found in the Constitution, it should be taken up by legislators. One of the examples that he used to illustrate this point was abortion.

“You want a right to abortion? There’s nothing in the Constitution about that,” he said. “But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law.

“That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

While Scalia said that sometimes Constitutional interpretation can be difficult, especially when the intent of the original framers isn’t clear, he said that some issues are abundantly clear, such as whether or not there is a constitutional right to abortion.

“I do not pretend that originalism is perfect,” he said. “There are some questions you have no easy answer to, and you have to take your best shot.

“We don’t have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on.”

The 74-year-old jurist, who was appointed to the high court by President Ronald Reagan in 1986, made similar remarks in November, when he told those present at a University of Richmond luncheon that the idea of a living Constitution has allowed “five out of nine hotshot lawyers to run the country.”

At the time Scalia said that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That, he said, has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.


TOPICS: Business/Economy; Constitution/Conservatism; Culture/Society; Government
KEYWORDS: abortion; abortions; antoninscalia; babies; prolife; righttolife; roevwade; scalia; scotus

1 posted on 01/04/2011 2:50:50 PM PST by NYer
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To: wagglebee; little jeremiah

Ping!


2 posted on 01/04/2011 2:51:34 PM PST by NYer ("Be kind to every person you meet. For every person is fighting a great battle." St. Ephraim)
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To: NYer

Last line says....some behaviors...like abortion...are criminal


3 posted on 01/04/2011 2:56:02 PM PST by Sacajaweau
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To: NYer
But it is in the Declaration of Independence
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
and YHvH commanded us
Deu 5:17 'You shall not murder.
shalom b'SHEM Yah'shua HaMashiach

4 posted on 01/04/2011 2:58:10 PM PST by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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To: NYer
A ban on abortion is in the Constitution.

I posted here the idea that the Constitution actually does have a ban on abortion.

In the Preamble, it says "...and secure the Blessings of Liberty to ourselves and our Posterity..."

I suggested that the "Blessings of Liberty" refers to rights granted from God (Blessings and Liberty being capitalized, and Liberty being one of three capitalized rights from the Declaration from our Creator), and "secure... our posterity" means for our children and their children.

How can we "secure" "Blessings" for "our posterity" if we allow "our posterity" to be aborted?

-PJ

5 posted on 01/04/2011 3:10:35 PM PST by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: UriĀ’el-2012
Ping to my #5.

-PJ

6 posted on 01/04/2011 3:11:23 PM PST by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: UriĀ’el-2012

You got it... they hate it... but GOD knows! We Conservatives know too! Abortion is murder... end of story.

LLS


7 posted on 01/04/2011 3:20:51 PM PST by LibLieSlayer (WOLVERINES!)
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To: NYer

Abortion not in the Constitution?!?

Oh, it’s there, right under “Treason...Enemies, giving them Aid and Comfort.”

And if the genocidal murder of 50 million unborn Americans isn’t giving aid and comfort to our enemies, not to mention being a crime against humanity, then what is?


8 posted on 01/04/2011 3:21:16 PM PST by Carl Vehse
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To: NYer; 185JHP; 230FMJ; AKA Elena; Albion Wilde; Aleighanne; Alexander Rubin; Amos the Prophet; ...
Moral Absolutes Ping!

Freepmail wagglebee to subscribe or unsubscribe from the moral absolutes ping list.

FreeRepublic moral absolutes keyword search
[ Add keyword moral absolutes to flag FR articles to this ping list ]

I am not sure why Scalia says abortion in the Constitution, he seems to be saying that it's a states' rights issue. But he does say it was a crime. If anyone understands this more clearly, let me know!

9 posted on 01/04/2011 3:26:27 PM PST by little jeremiah
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To: UriĀ’el-2012
The Declaration of Independence is not the Constitution.

Deuteronomy is not the Constitution.

Whatever may or may not be written in them tells us nothing of what is required, prohibited, or unaddressed by the Constitution.

Scalia is right. Roe v Wade is wrong. The Constitution does not address abortion. Consequently the Congress and the several State Legislatures, Roe's errors to the contrary notwithstanding, are free to prohibit and penalize the abhominable practice.

10 posted on 01/04/2011 3:30:56 PM PST by ArrogantBustard (Western Civilization is Aborting, Buggering, and Contracepting itself out of existence.)
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To: LibLieSlayer

>> Abortion is murder... end of story.

It is unfortunately the legal, violent killing of nascent human life. It is not murder nor manslaughter. It is not “child abuse”, not “abandonment”, not “neglect”, not even “bullying”. It is, however, among the greatest and most violent atrocities perpetrated against humanity.


11 posted on 01/04/2011 3:33:00 PM PST by Gene Eric (Your Hope has been redistributed. Here's your Change.)
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To: ArrogantBustard
Has the Declaration of Independence been abrogated ?
shalom b'SHEM Yah'shua HaMashiach

12 posted on 01/04/2011 3:35:11 PM PST by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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To: Political Junkie Too
I think you're stretching things, just like the misguided authors of Roe were stretching things to find a right to abortion in "emanating from the penumbra" of the 4th Amendment.

The Constitution is not Divine Scripture; there's no need to pretend that it's perfect.

I doubt that the founders ever conceived the idea that anyone would be perverted enough to argue abortion as a good. They simply did not address the topic; they had no need to do so.

13 posted on 01/04/2011 3:36:18 PM PST by ArrogantBustard (Western Civilization is Aborting, Buggering, and Contracepting itself out of existence.)
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To: UriĀ’el-2012
Has the Declaration of Independence been abrogated ?

How can it be? It is not, and never was, the law of these United States.

It's a wonderful document, outlining some of the political philosophy of our founders. Its authorship and signing marked the beginning of the end of British rule in parts of North America. Every American should be familiar with it.

But it is not law.

14 posted on 01/04/2011 3:39:07 PM PST by ArrogantBustard (Western Civilization is Aborting, Buggering, and Contracepting itself out of existence.)
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To: little jeremiah
“You want a right to abortion? There’s nothing in the Constitution about that,” he said. “But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law."

*******************************

Imho, he is saying that the Constitution does not give citizens the right to abortion (unlike what is implied in Roe vs. Wade). However, with the Constitution, we do have a way to prohibit abortion via state's rights. I also see nothing here that would disallow an amendment to the Constitution, although he didn't address that issue, probably because that would be much more difficult, but I am only guessing here.

I'm no lawyer, obviously.

15 posted on 01/04/2011 3:40:49 PM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: ArrogantBustard

abortion has no place in the federal government, either for or against. All power not specifically granted to the federal government, is reserved by the states, respectively. Abortion is a states right issue, according to our constitution. Anyone who believes otherwise, does not believe in our constitution, and thus wished to impose his or her beliefs upon the rest of society by means of passing laws. That makes this person a socialist. Any questions????


16 posted on 01/04/2011 3:41:59 PM PST by joe fonebone (The House has oversight of the Judiciary...why are the rogue judges not being impeached?)
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To: NYer

Nothing is silent in our founding documentation. It clearly states those limited responsibilities not outlined herein are left to the people.

Government should not be involved.


17 posted on 01/04/2011 3:50:00 PM PST by edcoil (Democrat's and vampires should never be invited in your home.)
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To: Gene Eric

So what’s the distinction between abortion and murder or abortion and manslaughter? Is it a question of the acknowledged humanity of the victim?


18 posted on 01/04/2011 3:53:57 PM PST by sthguard (The DNC theme song: "All You Need is Guv")
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To: NYer

Justice Scalia is a right smart man...

His statement should be understood to mean that there is no expressed “right to abortion” in the Constitution like there is a right to freedom of religion, speech, assembly, etc.

That DOES NOT MEAN, however, that Scalia (or anyone else) can assume that ONLY those rights specified or else denied in the Constitution itself are reserved to the People or the States.

Furthermore, Scalia, I’m sure, was speaking specifically about the Constitution, but he wasn’t purposefully excluding the Declaration of Independence, which is technically considered as much a part of American Jurisprudence as the Constitution.

When the Declaration (AND the 14th Amendment of the Constitution, for that matter) specifically guarantee all Americans the right to “Life, Liberty and the Pursuit of Happiness,” within that context, abortion is most certainly addressed.

One last point, which Scalia is ultimately right about. The real solution of the Abortion issue, at least in the legal sense, is legislative, NOT legal. This should be dealt with by State Legislatures, and the Congress. Perhaps another clearly worded Constitutional Amendment one day.

Of course, the only solution that will END abortion is spiritual — changing human hearts. But that addresses the issue in a realm Scalia cannot comment on officially.

Scalia is a smart man. A good justice. But he’s not perfect. If given the opportunity, at least we know he’d overturn Roe v. Wade. Save your stones for someone who would actually kill children.


19 posted on 01/04/2011 3:55:58 PM PST by patriot preacher
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To: joe fonebone

No questions. Your post was quite clear.


20 posted on 01/04/2011 3:56:46 PM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: ArrogantBustard; wagglebee; BykrBayb; metmom
I doubt that the founders ever conceived the idea that anyone would be perverted enough to argue abortion as a good. They simply did not address the topic; they had no need to do so.

**********************************

I agree, which is why I believe that they only way to address this problem is a constitutional amendment. If we rely on "states rights" the murder of the unborn will likely continue.

21 posted on 01/04/2011 4:01:06 PM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: joe fonebone
Abortion is a states right issue, according to our constitution.

Should a state be allowed to permit the killing of persons who engage in criminal mischief (vandalism) against other people's property during the night time? In some state, such a homicide would be regarded as murder. In at least one state, it would likely be regarded as praiseworthy.

I see no Constitutional basis for the federal government preventing states from writing a prohibition against abortion with so many loopholes as to be essentially ineffective, nor any basis by which it could prevent states from forbidding abortion except in cases where it was necessary to prevent the imminent and certain death of the mother. Just as different states have the authority to impose different requirements for homicide to be considered justifiable, so to with abortion.

22 posted on 01/04/2011 4:20:58 PM PST by supercat (Barry Soetoro == Bravo Sierra)
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To: ArrogantBustard
“That’s what democracy is all about. It’s not about nine superannuated..."

Do you trust this jackwad: Scalia ?

Does he really think this a Democracy
and not a Constitutional Republic.

If he does think it is a democracy
he does not deserve to be on the court.

shalom b'SHEM Yah'shua HaMashiach
23 posted on 01/04/2011 4:23:18 PM PST by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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To: joe fonebone
BTW, I wonder what would happen if a state were to not prohibit abortion, but were to forbid paying for one (either directly or indirectly)? I would think that in those rare cases where abortion was genuinely necessary to prevent death or severe bodily harm, a doctor's Hippocratic Oath would require that he be willing to perform one without regard for whether he was paid; such cases, however, are rare enough that they shouldn't pose a severe hardship for the doctors who perform them.

I'm not saying such a rule would necessarily be a good idea, but it would remove a an abortionist's incentive to declare "risk to the mother" when little such risk actually exists.

24 posted on 01/04/2011 4:30:56 PM PST by supercat (Barry Soetoro == Bravo Sierra)
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To: UriĀ’el-2012

I knew you might check in with that quote. Good to see you Uri’el, either I’ve not been paying attention or you’ve been missing, I suspect the former.

Always enjoy the paintings, yours, right? ...and of course, the dawgs, can’t be without them.

Blessings,
BC


25 posted on 01/04/2011 4:34:09 PM PST by brushcop (CW4 Matthew Lourey CW2 Joshua Scott/ Kiowa pilots KIA Iraq '05. Thank you for our son's life.)
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To: brushcop
Bless you and yours for your concern.

The wife and I just relocated to Taos New Mexico.

We have been among the missing.

shalom b'SHEM Yah'shua HaMashiach

26 posted on 01/04/2011 4:39:58 PM PST by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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Oops - why Scalia says that abortion isn't addressed in the Constitution.
27 posted on 01/04/2011 5:00:03 PM PST by little jeremiah
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To: sthguard

>> So what’s the distinction

Legal killing is not murder.


28 posted on 01/04/2011 5:25:02 PM PST by Gene Eric (Your Hope has been redistributed. Here's your Change.)
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To: Gene Eric

Humor me. Couldn’t a case be made, for instance, for treating the murder of a pregnant woman as a double homicide?


29 posted on 01/04/2011 5:38:35 PM PST by sthguard (The DNC theme song: "All You Need is Guv")
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To: supercat
if a state were to not prohibit abortion, but were to forbid paying for one (either directly or indirectly)?

The hospital, doctor or "other party" would charge for the tools and materials involved, but not the process. Somehow they would get their money. It is not possible to fully prevent "indirect payment," though the idea you propose is certainly interesting.
30 posted on 01/04/2011 5:43:29 PM PST by HushTX (Yep. It's confirmed. Liberals are all idiots.)
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To: trisham

Yes, that is what it sounds as though he’s saying.

And also, at the time the Constitution was written and signed, those men would never have been able to envision a time when (a) a SCOTUS would force a “right to abortion” on the country or (b) people would have become so degraded that illicit sex and abortion were considered normal and proper.


31 posted on 01/04/2011 5:49:36 PM PST by little jeremiah
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To: Gene Eric

All of what you say is true and it is an innocent life... it is all of those things that you say that it is... and it is murder.

LLS


32 posted on 01/04/2011 5:49:48 PM PST by LibLieSlayer (WOLVERINES!)
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To: trisham

“I agree, which is why I believe that they only way to address this problem is a constitutional amendment. If we rely on “states rights” the murder of the unborn will likely continue.”

Prospects for doing that in this country which elected Obama is very, very low.


33 posted on 01/04/2011 5:55:20 PM PST by truth_seeker
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To: NYer

Attacking the Constitution because it is over 200 years old.....

I have a question:

How old are the Ten Commandments?????
Those don’t seem to be in need of changing.


34 posted on 01/04/2011 6:08:02 PM PST by ridesthemiles
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To: NYer; little jeremiah
“That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

Actually, it's a representative republic, but other than that, he's right.

Sack the judges.

35 posted on 01/04/2011 6:11:25 PM PST by metmom (Welfare was never meant to be a career choice.)
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To: supercat

but were to forbid paying for one (either directly or indirectly)?

******************************************************

Unworkable ,, take blood for instance ,, the powers that be had it declared an organ making it illegal to be sold ,, stupid people give it away for free thinking the “non-profit” that receives and distributes it is some kind of charity... existing only for the public good ... in reality the hospitals don’t pay for the blood but pay to have it delivered and pay a ridiculous amount (10 to 20 times cost) for testing of the blood... in the end having an open market where the sellers were paid would increase the supply , save lives and be much more equitable.


36 posted on 01/04/2011 6:17:42 PM PST by Neidermeyer
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To: sthguard

>> Humor me.

You’re right. The law is inconstant.


37 posted on 01/04/2011 6:39:02 PM PST by Gene Eric (Your Hope has been redistributed. Here's your Change.)
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To: UriĀ’el-2012
among these are Life, Liberty and the pursuit of Happiness.

And in that order. The "pro-choice" crowd think their liberty (i.e. freedom from self-centered, demanding babies) and the pursuit of happiness (the happiness of the mother, of course) take precedence over the life of the child. But the order is important. First life, then liberty, then happiness. Liberty trumps happiness, life trumps liberty. Remember that, and difficult issues like abortion become much more clear.

38 posted on 01/05/2011 12:35:24 AM PST by giotto
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To: ArrogantBustard

But it is not law...

Simply not true. It is not “enacted” law.
But it is part of the organic law of the United States.

United States laws are broken up and reported in the volumes, The Statutes at Large.

Currently, we are up to about the 125th volume, each one corresponding to a two year session of the house.

I have all of them in PDF format. It took two weeks to download the entire collection.

After the introductions and dedications by various delegates, after the tables and maps and list of chapters, Volume One of the United States Statutes at large, page 1, starts as follows:

When in the course of human events...

This is detailed over the first three pages.

Pages 4-9 are the Articles of Confederation.

Pages 10-19 are the original, unamended Constitution.

Pages 20-23 are the first 12 Amendments


39 posted on 01/05/2011 1:01:12 AM PST by djf (Touch my junk and I'll break yur mug!!!)
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To: little jeremiah
And also, at the time the Constitution was written and signed, those men would never have been able to envision a time when (a) a SCOTUS would force a “right to abortion” on the country or (b) people would have become so degraded that illicit sex and abortion were considered normal and proper.

***********************************

Agreed. It's shocking, what our culture has become.

40 posted on 01/05/2011 5:51:11 AM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: NYer

The Declaration of Independence is not the highest law of the land. It is not even a statute. It was a statement of our intent to become independent as a country.

The Law of the Land is the Constitution (and the treaties negotiated under it).

Now, it is true that the Declaration holds up the Lockean triad of life, liberty, and property (property included under the jeffersonian phrase “pursuit of happiness.”) This is part of our culture and tradition, derived from British Enlightenment philosophy.

As for the commandment “Though shalt not commit murder,” it probably did not have abortion in mind, judging by subsequent Jewish law, which allows abortion under specific circumstances.

But note that there has been considerable advance in biology since the olden days. We now know that genetically a fetus is a distinct individual from the very time of conception. It is not simply a blob of its mother’s cell, to become a “person” at some later “ensoulment.” If one is to be modern (as liberals pretend), then look at what science shows: a fetus is a new human being.

Abortion is a killing, and of that there can be no doubt whatsoever. Whether it is to be called legally murder, is a matter of whether one thinks that abortion is a justifiable killing, such as a legitimate punishment, or a defensive measure against an attacker.

As a fetus has committed no crime, and has not been convicted in any court of law, it cannot in justice be made to suffer capital punishment. Nor is a fetus a dangerous attacker, like a murderous home-invader, or a terrorist of some sort. So it is really completely irrational to allow abortion, which usually is merely a form of convenience killing, except perhaps if the safety of the mother’s life is at issue. That latter exception is allowed by most authorities in Jewish Law, and is favored by the overwhelming proportion of our people. With modern medicine available, it is a rare case where such abortions might be necessary, and should always be a occasion of sadness and regret — and we should never dehumanize the process by calling it merely a “procedure,” or by some other euphemism.

I was having a discussion with a neighbor before the last election. She asked me how I could support the Republicans when they opposed the “right to chose.” I told her that I supposed that it was because we oppose the killing of unborn children. She skoffed, and said that it might have bothered her as a nurse to be involved in abortions, but now that she has helped with many, she sees them as done cleanly and carefully, and she is quite used to it.

I must say that I was shocked, rather than reassured by her first-hand report. Here was a neighbor, a nice Jewish woman, who instantly made me recall the guards at prison camps during the Holocaust: “At first it bothered us, but then we got used to it.” That seems to be the way the Devil works.

The clincher in the abortion issue, I think, is the support of abortion-advocates for “partial-birth abortions.” Almost all of them support this totally unnecessary form of killing. From this we should all see that it is not the woman’s life or other interests which are their concern, but that something truly diabolical is at work here.


41 posted on 01/05/2011 6:12:57 AM PST by docbnj
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To: UriĀ’el-2012
Do you trust this jackwad: Scalia ?

You just ratcheted your personal credibility down one notch. Congratulations: You've achieved a new low.

42 posted on 01/05/2011 6:22:53 AM PST by ArrogantBustard (Western Civilization is Aborting, Buggering, and Contracepting itself out of existence.)
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To: djf
OK, First I'm curious: Does anybody ever cite the DoI or the Articles of Confederation in court? Does it do them any good?

Second: even if the DoI can be called "law" in any meaningful way, to claim a prohibition of abortion "emanating from its penumbra" is as absurd as claiming a right to abortion "emanating from the penumbra" of the 4th Amendment.

The founders never addressed the issue, and would be horrified to find out that we have to address it.

43 posted on 01/05/2011 6:28:33 AM PST by ArrogantBustard (Western Civilization is Aborting, Buggering, and Contracepting itself out of existence.)
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To: ArrogantBustard
scalia>“That’s what democracy is all about. It’s not about nine superannuated..."

U-2012>Do you trust this jackwad: Scalia ?

You just ratcheted your personal credibility down one notch. Congratulations: You've achieved a new low.

By your comments, I can only assume that you agree with Scalia,
Marxists, Lenin, Progressives and communists that America
is no longer a Free Republic based upon a Constitution and
now is a democracy subject to the whims of the elite, who
govern because the masses are too stupid for self government.
shalom b'SHEM Yah'shua HaMashiach
44 posted on 01/05/2011 8:26:20 AM PST by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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To: UriĀ’el-2012
I can only assume

Yes, that does seem to be the limit of your capabilities.

Sad, really.

Have a splendid day!

45 posted on 01/05/2011 8:29:36 AM PST by ArrogantBustard (Western Civilization is Aborting, Buggering, and Contracepting itself out of existence.)
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To: UriĀ’el-2012

Among other things, your language is repugnant.


46 posted on 01/05/2011 9:16:29 AM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: trisham

.


47 posted on 01/05/2011 10:47:15 AM PST by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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