Scalia: What a massive disruption of the social order this ruling entails.

US Supreme Court ^ | June 26, 2003 | nwrep

[irish_links]

"...However, Justice Scalia has demonstrated in the past with his "order above liberty" decisions that his grasp of the spirit of the Constitution is quite limited compared to even little ole me...."

On the basis of your comments on this thread, you know precious little of the letter of the Constitution, let alone its "spirit."

[Skywalk]

What of my argument(and I believe the actual truth) that due process applies to a discrete event or period of time, be it jury trial and imprisonment for a crime, compensation for a tort, hearings and compensation for eminent domain, etc??

It is ridiculous to assume that due process now includes any law enacted by a state legislature. Such laws are permanent and permanently and irrevocably strip a class of citizens of liberty. That is NOT due process merely because people vote for representatives.

[Skywalk]

I forgot, according to your argument, anything not listed is subject to arbitrary law-making by the politicians, so long as it's at the state level.

[irish_links]

"...Surely, then, you'll tell me what tradition Presser, Miller, Plessy v. Ferguson and the Dred Scott case fall under? The evil and tyrannical school of jurisprudence?..."

These cases were resolved through the tradition of courts considering and interpreting the Constitution, its Bill of Rights and Amendments, Common Law precedent and statute as they pertain to the facts of the case. Making up the law on the fly, thereby depriving the rights of the people to govern themselves had nothing to do with them.

As for slavery (in re Dred Scott), it was ended by the ratification of the 13th Amendment by the several states. The Emancipation Proclimation was only tangential and the Supreme Court never dictated it. Slavery was ended by the democratic action of the people.

You seem determined to deprive the people of their right of self governance. You claim that this is in the "spirit" of the Constitution. How on earth have you arrived at that conclusion?

[Skywalk]

ROFL

Now you claim that it is a matter of self-governance?

Fortunately, blacks were not being exterminated instead of enslaved because if you had your way, such would be a matter of "self-governance."

Sorry, there are certain things that are not up for any government or "majority" to decide, but I thought we all agreed with that here on FR.

I guess not. As long as you got the votes, it's cool.

No revolution, just pressure King George, that'll work. Don't demand that the OBVIOUS be acknowledged(slaves are sovereign beings and not property) but instead let's all vote on it and hope it turns out for the best.

Hey, you go ahead with that view, seems like you can justify anything with that. I'm supposed to not only go along with that view, but not even disagree unless it's done through the courts and "traditional forms of self-governance."

Fantastic.

[BaghdadBarney]

"Many of his decisions would have been abhorrent to the Framers..."

Perhaps some. But his spirited denunciations of Griswold, Roe, Casey and now Lawrence all seem to have many of the Framers guiding his hand as they tap the keyboard. The so-called "privacy" right is the most pernicious and cancerous stain on America's body politic. It's turned the Supreme Court into nothing more than a supra-legislature, totally unrecognizable to the Framers.

[Skywalk]

So we don't have any rights not listed in 1-8 then?

You're telling me that a state CAN legislate matters of conception between husband and wife(Griswold?)

LOL If you say so.

[HurkinMcGurkin]

Sorry, there are certain things that are not up for any government or "majority" to decide, but I thought we all agreed with that here on FR.

I guess not. As long as you got the votes, it's cool.

And this kind of mentallity that is demonstarted time and time again is baffling to me. I continuously hear and see people who claim to be conservatives say and write things like "This contry continues to become a cesspool" or "We keep going further down the path to destruction", but continue to argue for a democracy. It seems that they are oblivious to the fact that if this county is in deed becomming what they say, then in the near future, these "conservatives" will not be "the majority". So instead of leaving people alone to determine what private, peacefull activities they will engage in, these "conservatives" keep insisting "majority rules" when its going to come back and bite them in the arse sooner or later.

[Skywalk]

What's also depressing is that bright and knowledgeable people will seriously argue that a right does not exist if it doesn't appear in the Bill of Rights. Then no one will answer what the 9th Amendment covers when I ask. Nor do they seem to recall much of what Hamilton and other said about the BoR not being meant to grant ANY government the authority to intrude on certain areas of life.

We had one praising Scalia's dissent in the Griswold case, which was a law prohibiting(or was it merely regulating) the use of contraception between a married man and his wife. And CONSERVATIVES will support these kinds of laws, simply because one group of idiots elects another?

Way to go defenders of liberty! lol

[irish_links]

"...Hey, you go ahead with that view, seems like you can justify anything with that. I'm supposed to not only go along with that view, but not even disagree unless it's done through the courts and "traditional forms of self-governance."..."

The Framers were wise, as was Justice Marshall, the first SC Chief Justice. He established the principle of judicial review. That is, that the SCOTUS has the power to overturn laws that are inconsistent with the Constitution, its Amendments and the BoR.

The tradition of judicial review protects the people from the tyranny of a state majority. This is a critical pillar of our freedom and I cherish it.

But, the review power granted to the SCOTUS can easily be abused. Prior to the modern era, it was widely held that the SCOTUS should apply a strict reading of the Constitution when exercising its judicial supremacy power over the states. That is, it should give grave deference to the laws of the states, and it shouldn't go inventing rights that aren't set forth in the Constitution, and then start overturning state law because the laws deprive the citizens of that state of the newly minted right. The modern courts have abandoned this sensible constraint of their potentially dictatorial power. The social costs of this change have been tremendous. Although you may not understand it, the damage to our liberty has been incalculable.

The invention of a privacy right in the Constitution was the most serious breach of the traditional constraint of strict construction. Scalia clearly questions the existence of a constitutionally protected right to privacy, being the strict constructionist that he is. I agree with him. The Founders suffered under no such delusion, nor is it imbedded in the Common Law.

If you want a right of privacy, pass a constitutional amendment. Until such an amendment is passed, you are free to move to a state that does not prohibit your private act of gratification. If no such state exists, you are free to move to another country where it is.

This ability of self governance, the right to property and the freedom of movement is the bedrock of our freedom. The imposition of the high minded opinions of several justices who deem it unnecessary to support their opinions with any kind of compelling legal argument is not freedom, rather tyranny.

For the record, I am with Thomas on the appropriateness of sodomy laws. Indeed, I have great respect even for O'Conner's comments regarding the equal protection issue of whether a sodomy law should apply only to homosexual conduct (although ultimately Scalia's legal argument on this matter is more compelling). I do not advocate sodomy laws. But it is clear to me that the Constitution gives states the right to have them, just as it gives them the right to outlaw prostitution, suicide or drug possession, even when these activities occur in the privacy of one's home.

You may believe that these "victimless" crimes should not be crimes at all. If so, petition your state government to act in that manner. But please, don't use the dictatorial powers of the supreme court to impose your views on the rest of us. Many of us disagree and wish to live in a different type of society. That’s what Federalism is all about.

[irish_links]

"...What's also depressing is that bright and knowledgeable people will seriously argue that a right does not exist if it doesn't appear in the Bill of Rights. Then no one will answer what the 9th Amendment covers when I ask. Nor do they seem to recall much of what Hamilton and other said about the BoR not being meant to grant ANY government the authority to intrude on certain areas of life...."

The Ninth Amendment protects the people and the states from the Federal government. In other words, the Federal government can't deny the people and the states of rights that they have. It in no way gives the Supreme Court the power to invent a right and then impose it on the states and the people.

If that power exists, if must be held in the penumbra of some other Amendment.

[irish_links]

"...We had one praising Scalia's dissent in the Griswold case, which was a law prohibiting(or was it merely regulating) the use of contraception between a married man and his wife. And CONSERVATIVES will support these kinds of laws, simply because one group of idiots elects another?

Way to go defenders of liberty! lol..."

You seem to be confusing conservatives and libertarians. Conservatives have a profound respect for tradition and are skeptical of those who would have us abandon it. Granted, some are extreme or intemperate in these views. Criticize them appropriately for their extremism. Do not fault them for their respect for tradition.

Libertarians may have respect for tradition (the Lew Rockwell crowd comes to mind), but they value absolute personal freedom to a greater extent. Clearly, you are a libertarian. Fine.

Please do not criticize conservatives for not being libertarians. The two terms are not synonymous.

[Skywalk]

But the existence of a law is the imposition, though I grant the imposition may be wholly justified and moral(law against murder, for instance.)

Therefore, it's really the laws and those that support them that are imposing on the rest of us. The case is even stronger when one discusses laws against drug possession. There are a host of issues associated with criminalizing possession of a substance, but that's for another day.

The fact is, through demagoguery a couple of these laws were passed and the government worked so hard to propagandize the populace that people commonly believe the law to be just. Anyone who really believe marijuana should be illegal and alcohol legal is an example of this phenomenon.

I do not trust the government as you do.

[Skywalk]

The 10th applies to the States, not the 9th.

The 9th only mentions the people.

But maybe that's a collective right, like the gun-grabbers argue with the 2nd.

But you knew that.

[smith288]

...deprivation of liberty for an entire class of persons...

Homosexuals? An entire "class" deprived the liberty of an unnatural act that is proven to spread STDs? Are those beastiality folks deserving of their "liberties" as well?...and those incestual folks?

[kegler4]

"Remember this: What is the MAIN means of AIDS transfer in the Western World? Homosexuality.

If anyone in this country had any guts back even before Reagan (including Reagan) the AIDS epidemic could have been halted in its tracks in the Western World (RACIST!!)"

Well, we can see that all those sodomy laws brought homosexuality to a sceeching halt in the states that had the laws, can't we? Worked extremely well -- NOT. And in my state all of the married heterosexuals never had oral sex because it was outlawed. Worked very well, too.

[MississippiMan]

As it was in the days of Lot, so shall it be in the day of the coming of the Lord.

I could have a word or two wrong there, but the meaning is intact. Prophecy continues to unfold.

MM

[Skywalk]

Heteros spread disease too, right?

Illegitimacy is a Faaaaaaaar greater problem, so you will join with me in my call to ban heterosexual sex between unmarried persons.

Oh, also let's ban contraceptives as that encourages promiscuity.

You're still with me, right?

[HurkinMcGurkin]

What's also depressing is that bright and knowledgeable people will seriously argue that a right does not exist if it doesn't appear in the Bill of Rights. Then no one will answer what the 9th Amendment covers when I ask.

Of course not. They'd have to admit it covers all private, peaceful activity that does not initiate force or fraud against another and thus violate the equal rights of others.

Many also don't see how the 9th an 10th work together:

Amendment IX.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Clearly, this says that the rights people possess are not just what is stated in the BoR. Of course that true. Jefferson and Hamilton, and others, were afraid people would think that only rights listed in 1-8 were actual rights. Their fears were founded in the regonition of human nature and were correct.

Amendment X.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Some people read this and think its talking about rights. Its not. Its about powers. And as you correctly stated earlier, there are some issues that no level of government can be given the power to make decisions on. People actually have limited "powers" as powers are what are given to government. People retain ALL rights. The power to protect those rights is partially given to government. I say partially because obviously every individual has the right to self-defense.

This is the way I look at it. Righst exist exclusive of government. Governments eitehr choose to recognize the rights, or they choose not to. Regardless of laws or edicts, the rights still exist.