Posted on 02/28/2011 8:47:47 PM PST by Nachum
What Scalia was referring to was the clause in the Constitution that says a person can confront his accuser in a court of law. If the ‘accuser’ is dead, this cannot happen. It’s a tight rope to walk. If the accuser says, “John Smith shot me for no reason.” and then dies of the wound, how can the accused confront the accuser’s accusation? Also, if a person was of a mind to and wanted to frame someone else for his death, he could say the same thing, when actually another person was guilty.............
Why should a dying declaration have protection? I do not understand the logic behind this.
Has Scalia ever voted to strike down an abortion law on the grounds that it was a states’ rights issue? No.
Roe v. Wade decided that since SOME states legalized abortion, a national policy MANDATING legal abortion MUST be implemented, even if the MAJORITY of the states OPPOSED legalized abortion, otherwise a “patchwork” of “rights” creates the supposedly unreasonable situation of someone having a “right” in one state, and not another. Herein, the cynically manipulative USSC justices purposely confused “right” with “license”: If it’s not an inherent right, their argument is nonsensical, if it is a right, their argument is unnecessary.
Therefore, the “states’ rights” position in abortion isn’t truly about the rights of a state; rather, it’s an assertion that the “right to abortion” does not exist in the federal constitution, and therefore the issue of a “license” to abortion defaults to the states. Scalia has consistently supported federal regulation of abortion, therefore suggesting that the issue is not a valid case for state nullification; the federal government, indeed, does have an INTEREST in protecting life. The only question as to how “pro-life” Scalia is is whether he not he holds that the federal government may COMPELLED to protect life through judicial activism, or whether the federal government must do so through the representative process.
Hearing “Justice” Sotomeyer makes by stomach scrunch in the same way “President” Obama does. Arrrrrrrrrrrgh!
It’s like using a hammer for a scalpel, or a rock for a hammer.
Under common law there are some exceptions to the hearsay rule and the declaration of a man who is dying and is convinced of his impending doom is deemed to be reliable based on the theory that a man who is about to meet his maker is not going to go to his grave with a lie on his lips.
The constitutional guarantee that an accused has a right to confront his accuser in court is clearly stated in the constitution. The exception to the hearsay rule is not specifically stated, but it has been traditionally used (even after the inception of the constitution) to allow dying declarations to be admitted on the basis that the witness is no longer available and the hearsay testimony of the witnesses to the declaration is inherently reliable.
Here Scalia points to the fact that the victim was clearly not convinced of his impending doom and neither were the police who were interrogating him. This is a situation where even under Common Law the statement would not be admissible. But the Supreme Court has now come up with a new method of determining the admissibility of such a statement based on the seriousness of the crime. This was a bad decision. It opens the door to all kinds of judicial mischief. Scalia was right.
That's not a vote one would expect to see very often. I thought Scalia and Thomas were closely aligned in their opinion of the law.
Upon further reading, I think you are right. I think Scalia got this one right.
Thanks for the exposition.
My concern goes back to the unalienable right to life. It is stated in all the Founding Documents that those “rights” which come from God, can NEVER be denied anyone, ever, by the state. It is unjust. Of course, they can forfeit that “right” by crime.
Yet, we deny, when biology proves that there is life in the womb, that right to the “fetus”. This delineation of when life begins, can’t be denied, yet we can and do let the state destroy life in some specious argument to privacy or such irrational nonsense.
I just think that it is incredible that Scalia, who denies that the Constitution is a “breathing” document, can argue in defense of abortion in any case. Look at the history of the US. It isn’t logical. And, of course, logic derives from Natural Law Theory and it is what Postmoderns abhor and deny which is also unconstitutional and creates man-made-up law which is always political and creates unequal justice.
You know, it helps nothing to spread these lies, even in the manner you did.
All one needs to do is read Thomas' opinions and dissents to see that there are distinct differences between Scalia's and Thomas' judicial philosophy. Comparatively, I'd say Thomas has a slightly more libertarian (small-l) bent than does Scalia, among other things.
Are you reading something I haven’t? My understanding is that Thomas and Scalia are actually the two justices who HAVE taken a position that the USSC SHOULD protect life, but striking down the states’ creation of a so-called “right” to abortion. (Renquist would have overturned Roe v. Wade but would not have overturned state laws, if I understand correctly; Roberts and Alito were not on the court when the dispute between Renquist and Thomas erupted over this matter.)
A bit of history:
The several states comprising America unanimously (but not United) prohibited abortion after quickening, while remaining silent on treatments which are now recognized to be medical abortions. The left heralds this fact as if abortions were permitted at the time of the ratification of the constitution, ignoring the fact that such treatments were marketed as preventing pregnancies, not ending them.
As the medical establishment weighed in on the unseen effects of such “anti-quickening” pills, such treatments were prohibited in every state. (It’s noteworthy that the pioneers in prohibiting such pills were the early Suffragists, who held that their use relieved men of responsibility for procreation, which would result in a large class of unmarried mothers and their children, which would in turn result in widespread poverty and the decline of standards of living.)
Would Alito and Roberts join Thomas and Scalia, in asserting that the state has no right to license abortion? If so, could the courts force Congress or several states to pass legislation protecting fetuses against abortion? Could the federal courts nullify state courts’ interpretation of their own constitutions?
None of that means that there is any Natural Law other than what men say it is. In Islamic nations they believe sharia law is “natural” law. It all sounds nice until the complexities of the modern world intervene or different religions try and impose their views on non-believers. Then the theory collapses.
Not really “Natural” law is what man or men declare it is. And there is no agreement there. The term is not mentioned in our Constitution and for good reason.
If the testimony of the dying man is sufficient for probable cause for an arrest (and it is) then the same testimony should be admissible in court. As to the Confrontation Clause there is no real issue. Though the witness is not available for cross-examination his testimony can still be challenged by the defense. Evidence could be produced (if it exists) that impugns the witness’ integrity, eyesight, disinterestedness.
I don’t think people are arguing that such testimony would be sufficient by itself to convict but the jury should be able to assign the proper weight to it.
I am talking about Natural Law Theory which has been defined by Aristotle, Cicero, Aquinas, and John Locke in Western Tradition. This is a fundamental theory which has been established for over 2400 years and since Cicero...has not really changed—that the nature of man is always the same —that nature is immutable....there is Objective Truth, reason and logic which define it.
Islam clashes with Western Civ because it requires no logic and no reason and denies freedom to men and esp. women. It is the antithesis of Christianity which demands freedom of thought and persons and worth for every single human being—even if not of their faith.
That is why Christianity goes hand in hand with Western Civilization....because Aquinas aligned Catholic Theology to Natural Law Theory in the 13th century unlike all other religions (except those that flow from the Apostolic Church)—he disregarded the Arab translations of Aristotle and went to the Greek source itself to align Catholic thought to that of the Father of Logic. He went to the Latin of Cicero and the genius of Aquinas is beyond refute. He stated that Truth in nature and Catholic Theology would always be one because God is the Truth and the Light. Reason and Logic could never deviate or clash with Catholicism for it to be true. That is why the Catholic church never allows abortion....never allows contraception, etc. It comes from the fundamental principles of the nature of man and that need to never compromise on the dignity and worth of man because we are made in God’s image. There is Objective Truth....that is what Postmoderns/marxists/progressives deny. It is what is so evil....they replace God with themselves to redesign man into what they (gods) want and think is “good”. All governments that are not based on Natural Law Theory....force the unnatural on the populous which according to the NL theory will result in unhappiness and evil. When people declare themselves gods, they make all others slaves. That is the evil of marxism, progressivism, islam, etc.
Arabs twisted the writings of Aristotle. The translations were inaccurate and completely changed the meaning of Aristotle’s thought. Islam is filled with ideas that take dignity and worth away from man, especially women and grant humans no free will. You can not be free under Islam which goes against the fundamental principle of Natural Law Theory and the right for each individual to own private property—esp. their own mind and body...for without private property they would have no ability to preserve themselves or their posterity, and therefore, could never be free. Freedom is what is necessary for human happiness and laws that help them coincide with natural laws—which when allowed creates contentment and meaning to life. All else is worthless.
If the victim did NOT believe he was dying, and there’s nothing else to tie the implicated person to the killing, then the Court has just loosed a big turd on the Constitution.
Very odd that the Court’s most arch conservative and most screaming liberal united in leaving the pack to do the “right” thing.
And what if such dispositive evidence doesn't exist. What if the credentials of your dying person are unimpeachable, yet, for whatever reason, he was mistaken in what he saw or heard. Such an error can not be extracted from third party testimony. Only through direct examination of the witness.
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