Posted on 03/14/2002 5:50:19 AM PST by wwcc
Supreme Court Justice Antonin Scalia, during a luncheon in Buffalo on Wednesday, re-emphasized his view that women don't have a constitutional right to an abortion. His belief flies against the court's majority decision in the 1973 case Roe v. Wade, which found a constitutionally protected right of privacy that covers abortion.
"My votes in abortion cases have nothing to do with my pro-life views," Scalia said after his speech at the Hyatt Regency Buffalo. "They have to do with the text of the Constitution. And there is nothing, nothing in the Constitution that guarantees the right to an abortion."
At times flashing a prickly wit, Scalia also criticized the process for selecting new Supreme Court justices as being highly political today.
And he defended the court's 5-4 decision in the 2000 presidential election that stopped ballot counting in Florida and handed victory to George W. Bush.
The recurring theme throughout Scalia's 40-minute speech, and in answers to audience questions, was the importance of a strict, limited interpretation of the Constitution.
"It says what it says, and it ought not to be twisted," he said.
Scalia, who is the foremost conservative member of the Supreme Court, was appointed by President Ronald Reagan in 1986. .
Scalia devoted the bulk of his speech to the clauses in the First Amendment that ensure government may not restrict people's religious practices, nor impose religion on anyone.
Judicial rulings on those clauses - and the entire Constitution - must be based on their text, the authors' original intent or historical practice, he said.
In quoting George Bernard Shaw - using a phrase later appropriated by Robert F. Kennedy - Scalia said those who believe in judicial reshaping of the Constitution "dream things that never were."
The appropriate way to deal with an issue that demands updating judicial precedent or the Constitution is by legislative action or, where appropriate, a constitutional amendment.
"We have an enduring Constitution, not a living one," Scalia said.
After his prepared remarks, Scalia took questions and delved into several hot-button issues.
He dismissed the idea that abortion is a constitutionally protected right, but he also said the Constitution doesn't explicitly prohibit abortions, either. He indicated the issue ultimately should be decided by a constitutional amendment.
The fight over abortion rights already is heating up, as pro-choice groups dig in for a battle whenever Bush gets to make a Supreme Court appointment.
Picking up that theme, Scalia blamed the the bitter political fights over court nominations on the belief that judges are free to rethink the Constitution.
"Every time you're selecting a Supreme Court justice, you're conducting a mini-plebiscite on what the Constitution ought to mean," he said.
Scalia defended the court's decision in the 2000 balloting debacle, saying it properly returned authority in the matter to the Florida Legislature.
Organizers said 930 tickets were sold for the event, sponsored by the Chabad House of Western New York and the University at Buffalo Law School.
...a statement of the political realities which reveal that the Constitution is in fact a living document. Every time a political appointment is made the meaning of the document changes. Oliver Wendall Holmes recognized, and approved of, this more than 100 years ago. So did Chief Justice Marshall almost at the founding of the country.
I must say you are very far off the mark indeed. The words of the document do not change (except by amendment). That at least is undeniable. But when we start speaking of the change of the meaning of the Constitution we enter an intellectual battleground in which both intellect, the Constitution, an the original intent of the Founders have been sacrificed, holocaust (in the lit. Greek sense of whole burnt offering) on the altar of liberalism.
As I have posted above (#299 I think), interpretation of meaning can mean many things. There has always been varied interpretation of what the words of the document mean. Whatever Marshall may of meant by changing interpretations, he meant nothing like Holmes' "living document" theory, a subtle tactic to usurp the Constitution and substitute WILL for JUDGMENT in the words of Hamilton. I am afraid you bear the burden of proving that Marshall was of kindred spirit with Holmes for it is a wholly new argument to me, and one not espoused by any constitutional scholar I have read nor one gleaned from the Marshall's opinions which I have read.
To return to difference of opinion on meaning, or to state it better, different judgment on the meaning of laws and constitutional articles and amendments, their is variance and always has been. However, that variance is limited by the meaning of the words. The Warren Court made a mockery of interpretation and of the Constitution following the specious reasoning of one Oliver Wendal Holmes, a true pioneer for Justice Usurpation.
On this note, Scalia calls himself a constitutional textualists precisely because of all this confusion about meaning. His point is that whatever the original intent was, whatever conservative interpretation might be, whatever precedents may have been established, the words of the text have meaning in and of themselves. That meaning may be debated, but it cannot be whatever the judge wills them to be. Interpretation is restricted to the text, to the words on the page, and words have meaning ascertainable by all, and debate about meaning is very limited in scope .
Finally, and perhaps most importantly, the argument that the Constitution is "living" is absolutely contradicted by what our Founders set out to establish. A Constitution is by its very nature "dead" in a sense at least. It is living only insofar as it is binding on the living. It is dead insofar as the words are written and cannot be changed, ever. Sure, you may make amendments, but that does not change what was previously written and even those amendments once written and ratified are also dead. The Constitution by its very nature is a restriction of the dead on the living. Yet it is a restriction that the living consents to though only so long as we still have respect for the wisdom and patriotism of our Fathers, and at least some understanding of that wisdom. It restricts in the case of our Federal Constitution, the taking away of liberties from the states and from the people, and grants certain authorities to that government and by means of certain checks attempts to preserve liberty for future generations. It is, in sum, a check on tyrrany of the majority and of the federal government and a protection of the people and the states against foreign invaders, political and economic, and internal division (in some degree only). It is a check on the "living" impulsive passions of the majority or would-be tyrants. It is a check on laws that would be passed by passing fancy or by impulse to the possible ruin of life, property and liberty. And this document, uneditable though amendable, is our greatest inheritance passed down from our Founders. Holmes laid ground work to destroy those protections, and Marshall was not Holmes. The meaning of meaning has come under strong attack and you have fallen asleep to siren's tune.
Words of wisdom to ponder. . . or puzzle: "If you want to retain the Constitution, you have to allow it to change ."
I thought the constitution had been established so as not to be changeable except by amendment, so that it might endure and be retained and be difficult to change whenever the masses or the elite might flatuate and give birth to a new law or moral precept and wish to enforce it on all. The purpose was to establish a foundational and enduring law, difficult to change in order to prevent tyrrany. What you are saying is we have a document easy to change with every change in political correctness, and what is correct is determined not by the legislatures, either state of federal, nor local councils, let alone families or individuals, but five men or women on a bench and a gavel for enforcement.
Out with the Constitution, all hail the men in black. . . . and we, willing slaves.
just call me manes Cincinnati , since his spirit is surely dead.
Firstly, not all the Founders were Deists, let alone Voltairians. And that book which I have not read may be a good read but also full of error. If that book declares that our Constitution was the product of two men only then its error is great. Madison, who was foremost author of the Constitution, first of all had to moderate his opinion and tailor it so that it would gain the approval of the citizenry of the states. The Bill of Rights is the most obvious of such accomodations. And yes it was the product of politics and therefore cannot be said to be one man's constitution, or two. It was the product of much debate and Madison had the foremost place in its design, he being a moderate man and understanding of political reality and possibility, and also being a crafter of words and excellent persuasion. But he also had opponents of merit who undoubtedly caused him to refine his opinions and moderate them. They indeed lived in a different time than ours. When the word political had both a good and a bad connotation.
Regarding the immediate debate that ensued, suffice it to say that most of the ground rules were already acknowledged by all. Major points of understaning still required debate and general agreement, but all such debates were limited in scope by the general understanding and acceptance of the Constitution and none presumed that the Constitution contained words open to any interpretation. None thought they had written a meaningless document.
This leads me to your greater error: your general position that because the Constitution is amenable to different interpretation, it is open to all interpretation. The difficulty of this position is that words are not open to all interpretation. Would you say that when I write that the Constitution is in some sense dead, that therefore I am arguing that it is a buried document no longer binding on anyone?
For you there is only absolute rigidity of interpretation or complete license of interpretation. But it is in the middle ground where all political debate is waged. In law there must be strict rules of interpretation but they have been completely discarded in favor of usurpation of meaning and despotism.
You see, if words can mean anything, they mean nothing. All that is remaining is WILL.
Rereading one of your many posts, I see you do agree that laws are not open to all interpretation. Your problem then is that you are inconsistent. Here you correctly understand that laws can change with the passage of new laws and that even the foundation and undergirding structure of those laws can change, as the Founders intended, through amendment.
The difficulty we have today is that Oliver Wendell Holmes has bamboozled us into thinking that interpretation can change and that the document is actually constantly changing. By using the chinanagins laid out by Holmes, his prodigees subsequently usurped our liberties, especially our freedom to make laws for ourselves.
But perhaps you are a willing slave.
in that case bahhhh...gards.
Your points about limits of interpretation are well-taken. No one wants to say that any interpretation has validity. But practically speaking establishing objective limits is not possible - they have no meaning except an operational one; whatever the Supreme Court says is a valid interpretation is one.
Your demonization of Oliver Wendell is simply wrong. We fought a Civil War, in part, on differing interpretations of the Constitution a half-century before him - and are still arguing on FR about it.
Marshall established the Supreme Court as the ultimate (in practice) arbiter of Constitutional meaning. What his relationship to Holmes was I leave to the scholars. Suffice it to say that the founders approved of his ruling.
My judgement is that the Constitution serves its function and serves it well. It defines our bedrock principles, insures conformity with them, and makes them difficult to change - forces continuity and stability. We do well by comparison with any other society. This is not to say we've found a cure for all human ills. Washington himself despaired of partisanship (tribalism). Our history is filled with disputes great and small. Political Correctness is only the latest outrage.
Isn't that some regional expression popularized by Hollywood? In any case it has no place in reasoned discussion.
Your argument is religious (surprise!).
I don't share your religious beliefs. I think they're bogus. So what do you want to do? Return to the middle ages? Torture? Burning heretics at the stake? The Inquisition? Torquemada? Or perhaps the Stalinist psychiatric solution to political problems would be more to your taste?
H.Akston, as one former germ to another, really the development of your reason since your germstate demonstrates some clear deficiencies.
Firstly let's clarify the whole seizure question. The seizure refered to in the constitution is a restriction laid down against the federal government (and you could incorrectly extend that restriction to the state). However, this is "seizure" by one individual (even though you argue that the zigot is not a person -- how inconsistent you are) of another. Such seizures, the feds have no authority (except by usurpation) to regulate. It is a state matter.
More germane to the central theme of your arguments, however. It is remarkable that you have fallen for the fallacy that a fetus or a zigot is the same as a germ. An infection whether it be a virus or bacterium lives by destroying the cells or structures of its undersiege host. The life in the womb of the mother does no such thing. Now it is true that from time to time the immune system of the mother attacks the different life in utero, but that is because it mistakes that different life for infectious bacteria. In truth the mothers cells and systems usually welcome the "germ" and nourish it.
To your other point, you wrongly assume that the father's "germ", the sperm I assume you mean, invade the mother's body. The sperm do not initiate the invasion, it is the rapist who invades the mother phallicly. They are merely the projectile and as such as innocent as the mother. They have no will of their own, just as a bullet or even a gun has no will of its own though it could be argued certainly that the penus seems to have a will of its own. We don't prosecute bullets. Indeed we often regard them as trophies. But that is somewhat too flippant.
As to the zigot, should it be created, and which is the central issue here. It is neither wholly of the mother nor wholly of the father. Now setting aside my above argument, even if the sperm of the rapist were implicated, though they have no will of their own, the sperm may perhaps still be correctly implicated as accomplices in the intrusion. However, the zigot is neither the mother nor the father and yet in a sense both of the mother and of the father whether that father be rapist or husband. I will admit that I do not think that the zigot is a human being, but science seems to have proven beyond reasonable doubt that it is definitely human. And whatever you may assert and however forcefully and impetously you may assert to the contrary, the zigot is not a willing intruder. And if it should be, certainly you should entirely lose your argument. Indeed if a zigot has a will, there are few who would argue that it is not human. So let us not here personify the zigot and question whether it has ill or good will. The bottom line is right now we presume it has no will: it is given no choice on whether it is to become a human being, if it isn't already. Undeniably it is a pesky damn little thing to create so much contraversy.
Well back to the determination as to willy nilly the zigote is an intruder. Leaving aside the question as to whether it is the boon or blight of society, the fact is that the zigot is neither sperm nor ovum, but something different from both. Modern science has shown that it is living, human life. No one argues against this point because -- mark one up for modern medicine -- it has been proven. Now if that zigot were an intruder, the mother's immune system should as a rule reject it, but to the contrary the mother's entire reproductive sytem is so established as to welcome it. Moreover, the placenta attempts to protect it and nourish immediately after conception (from concipio: to receive together or absorb). Amazingly the mother not only makes peace with this "intruder" but uses her own nourishment to foster and nourish it. It establishes a main thoroughfare with direct access to the first fruits of the bloodstream. Amazing intruder!! That it should so vanquish and dominate its enemy, myriad fold more powerful than itself, and gain the first and best of all that the host has to offer its own cells and systems. And the mother does this willingly for ten months.
Nay, this is no intruder. Let us call it what it is: a welcome guest. The rapist may have violated a woman, but in spite of his wrongful and willful intrusion, the mother still welcomes this different life who is also part of herself and in no way culpable of its father's crime. It had no choice as to whether it should come into existence. Once in existence, as much a victim as the mother, should we commit another wrong on this poor little zigot by terminating it. Typical knee-jerk solution: attack the symptom not the cause. Typical liberal fix: equality and justice by applying terms of justice to the result.
But let us address your specious argument that because it cannot exist independently, it ought not
"It's not really alive, it requires the help of another's life, until it achieves independence. An abortion doesn't have to kill the fetus, just remove all life support that is not autonomous. If it can't sustain its own life after that, it dies of natural causes."
Continuing
But let us address your specious argument that because it cannot exist independently, it has no right to live. Our society is based on the presumption that we have the right to live.
Moreover, there is a little heard, muted term that accompanied any such rights, namely duty. They were never delineated in the Constitution because duties were primarily the responsibility of the family and the community and to a lesser extent the states, by no means the business of the feds.
Not only do we have a right to life and liberty, we also have a duty to foster whatever life comes into existence by our free choice to engage in sexual activity. This is where the question of choice comes into play. The mother and the father of a zigot have a choice before conception. After conception they have a duty to bring that child to term and then once born to provide for its sustenance and education -- for some the best provision may be giving up the child for adoption.
Now you may argue that a mother who has conceived because of rape had no choice. This is true. But the father had a choice and should be duly punished for his violation. Indeed most of the best societies punished rape as heavily as murder and rightly so. (Indeed most states at the time of Founding prosecuted it as a capital offense.) But the resultant child who is as much a victim as the mother should not be executed for having given no offense. The mother may be traumatised for the rest of her life and if she should seek termination of the unwanted child, her crime might be mitigated, perhaps even completely, because of such trauma. But make no mistake, that child is not an intruder. That zigot committed no violation of natural nor political law. What fools argue forcedly and vehemently in opposition, mixing metaphors, twisting logic, and contradicting themselves in order to prosecute a human life, if not human being, who has done nothing wrong.
It is most fascinating to me that the father of Western medicine, without the advice of modern medical knowledge and without aid of divine revelation could get it so right and require an oath against performing or providing tools for performing abortion. Only thirty years ago doctors took the Hippocratic Oath, now it is spurned as an old dusty document conceived by a sexist backward Greek.
But regarding your absurd argument that it is merely cutting of the cord and that unless it can live independently it is not really alive. No one can live independently or if they had a choice would want to. We are all indebted first to our parents (and dare I say God) but also to our community, our country for our life. We could not live life as we would today if it were not for the thoughts of the ancients and their recordings, if not for the blood of patriots of the Founding, who had wisdom and foresight, prudence and courage. We could not snivel about our intruding unborn and argue about our right to execute these dependents, our obligation and progeny, if since our own very conception we did not depend on the laws and the men who died for them and those who made them.
So even at that early date disagreements over the meaning of the document were very serious.
I am correct in demonizing Holmes. For to question the meaning of meaning which is essentially what Holmes did, poisoned the water. The result, we have seen, is substition of WILL for JUDGMENT. Judgment presumes that words have a particular meaning. If they do not, all that remains is WILL. For the judiciary to impose their WILL on the Constitution requires the help of the executive as Hamilton pointed out in Federalist 78, which is what has occurred in the usurpation by the Court and also the federal legislature, all precipated by FDR's court packing.
The effect of this is much more poisonous than you think. Our Republic is crumbling in part because of it. And I have a couple friends who think it has crumbled.
Call me radical, apocolyptic, what you will. It does not contravert the facts. The fact is that the federal government has usurped our power to rule ourselves. We shall be slaves. Many already are.
It is not the fact that they are arbiters that is in question.
Far more importantly, "leaving it to the scholars" does not suffice. Among intellectual scholars, it is taboo, the unspeakable that is most significant. Even very conservative scholars rarely come out and say what has happened, namely that a usurpation has occurred. Why not? Very simple. If it becomes generally known and accepted that the court and the federal government have usurped the Constitution, legitimacy for the present government is undermined. It is the hope of most of these consevatives that the evil can be undone subtly without drawing a lot of attention.
However, more and more conservative constitutional scholars, lawyers and judges are realizing that the battle is being lost. They are beginning to crack. It began with Borke. And now apparently Scalia has decided to confess. More will follow.
Demonizing Holmes. really. He was a demon. Our Constitution is breaking at the seams, proven by the recent Bush-Gore battle.
You may like the present system. However, I think I have enough political realism to know where it is headed: worse tyranny. And I am not happy with it. More and more are agreeing. We live in bad times and on the precipice.
I am telling you like it is. You must snap out of your complacency and see things as they are.
Would that we had such "crises" today.
Many Supreme Court decisions resulted in heated debate, but heated words only, because the reasoning in the opinions was reasonable even if disagreeable.
Today we cannot agree about the principles of debate. There is less and less common ground. The stakes are being raised higher and higher.
I do not feel tyranized. I feel freer than ever before in my life. I do agree with you that the world is getting to be an ever more dangerous place. I do agree that the power of the federal government has increased at the expense of other government bodies and could be a threat to personal freedom. But I disagree about the causes.
For me the causes are demographic and technological. The enormous increase in numbers and technological power forces the concentration of political and economic power. How that will end I can't say. We'll be very lucky if we avoid a nuclear holocaust.
Slavery was legal for the first 75 years of this government's existance. So was indentured servitude. The Industrial revolution resulted in a lot of "wage slavery" (to use a Marxist term which had a lot of truth). Slavery in one form or another has been the lot of the common man forever. I maintain we are doing better now than every before.
Well, I too might have said the same before I was married and we had our first child, now expecting our second.
But, now I must attempt some foresight in exercise of my duty as father to provide for and educate our children. And though I know that education and upbringing is the foremost obligation or duty that I have as a husband and father, what dim foresight I have shows a truly unhopeful future for that enterprise.
I care less about economy, technological progress, but education is my foremost concern, and I am now a more political than spiritual man. I honestly do not know how I can raise my children well, to be excellent citizens. The word, excellence, has been pretty much denigrated as racist or sexist, except in the sports arena and even there, children are not taught that winning is important.
In any case my realization is that education is not an enterprise for the individual. It requires good laws, good schools, good music, good entertainment and a community. We have become an atomistic society. There is no longer neighborhood. Schools have ostracized God, our Founders, Western Culture, the great books. Environmentalism poses as science. Multiculturalism as history. We have turned on religion and our past, cutting off our roots. An individual cannot raise a family on his own. It requires, if Aristotle is right, a whole city, with common laws, common customs, common entertainment and music. We have none of these.
I am afraid to say it but our country is dying. The signs are all around, all that is needed is the seeing.
You feel freer than ever before in your life. But what is freedom and what is tyranny? Hobbes thought that man in the natural state had "a right to everything even to another's body." By social contract, men band together to form the Leviathan agreeing to curtail that primordial right. The end of society is to curtail the fear of death and to obtain such things as are necessary to commodious living. If we are free from the fear of death and free to attain by our industry a commodious living, are we free?
A libertarian might say that such a life is truly free. If so we are indeed free. Although our country did not begin as the Leviathan, it has come to pass.
However, in my opinion such freedom is a guise for the worst slavery. Plato thought the passions were a bad ruler. I think they are if not the worst tyrant, at least the most bestial.
Physical servitude is hardly the worst form of slavery. Indeed I know some who refuse to even speak of the condition of our country. It is too terrible to utter. Indeed the words of Hamlet apply well. There was something rotten in the state of Denmark. Had it not been rotten, Hamlet would never have been in the position, he found himself. What was that rottenness and have we avoided it?
I live in a Jeffersonian world. In a house I constructed with my own hands and own as my own - without obligation to a bank, or need to pay onerous taxes. In a county with a small population and a large land area. I serve on two government bodies and my voice is heard. To get on these bodies I only had to impress my neighbors as a man of reason and substance. That's all. At the same time - by virtue of the Internet - I can participate actively in the full richness and complexity of the larger world. And here too my voice is heard. Each morning I get up and do exactly as I please (except for the unavoidable duties of daily life). That's freedom. And I live it. And I enjoy it.
When I was younger I lived in a huge metropolis. My solution there was to find a part of it I liked, work at a job I liked, and keep company with the people I liked. There too I was free.
Perhaps I was exceptionally lucky. I don't know. But I do know that many others today, and in the past, did as I did. And raised, and are raising, their kids in an exceptionally civilized way. The world has always been dangerous and difficult - but one has always had choices. The picture you paint is too bleak. The brilliance of the past lives on and is there for those who can see. Nor are you alone in wanting to see. And to contribute.
Well with certitude I can say that I have been very lucky or blessed (as you will). And you are correct that the picture I paint is bleak . . . perhaps too bleak. I do concede you may be right and I simply need to get out of my rather despondent thinking. And I have emphasized the bleakness.
At the same time I cannot ignore certain very strange signs I have perceived only of very late. I have good friends and am in contact with good organizations in which I have participated. Indeed I have helped out on numerous campaigns and even my brother is running for State Assembly in Wisconsin. A cousin also though as Democrat, he is fairly level headed and I hope to convert him and turn the State Senate over to the Republicans (the dems own a one seat majority only in the Senate).
However, I will say it has been strange of late. As I said we live in an atomistic society, undeniably. The revolutionists have successfully forced God out of the schools, they continue to attempt to establish anti-American revisionist history, propogate moral relativism in our children, preach evolution and environmentalism as religion. This isn't the strange thing I've noticed.
The strangeness is in my friends and family. Less and less I hear from them. When we get together, setting aside whatever discussions we have, our conversation is less joyous. We don't have as naturally a good time as we had even three years ago.
Some might respond by saying, "hey, Cinci, clearly you haven't got the friends you thought" or "maybe your just a sour puss." I have considered that. However, I have several circles of friends and it is true of all of them. Moreover, the organizations I was involved are losing their focus and enthusiasm, both the local, statewide, national and international organizations. The same is true of my places of employment. Even more true of my family whose political and social status is all over the map, as well as their beliefs, both political and religious.
My conclusion is simply this. The moral crisis we face is real and is having a direct affect on all. Moreover, we cannot run to the suburbs to escape the blight of the city. It has followed and it continues to chase at our heels.
The real challenge is how to fight it. And we have not even begun to find an answer if there is one.
The world has always been dangerous indeed.
However, there are certain fundamental principles necessary for the survival let alone the flourishing of any civilization. We have rejected these principles in our laws and in our schools.
As such we can perhaps survive individually, but as a society we cannot. We must restore those fundamental mores in order to survive as a country or perish. The how and the motivation is all that is wanting
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