Justice Scalia: “A Living Constitution Doesn’t Exist” [Speech at Texas A&M]

Texas A&M University - Aggie Daily ^ | May 5, 2005

[F.J. Mitchell]

"That's what Judges do. Interpret the Constitution."

That's what Judges are supposed to do, but too often Judges interpret the Constitution as though, English was a second language to them and they are flunking their studies.

[AntiBurr]

“It should be interpreted as it was written – nothing more, nothing less."
That is the way it should be! Whoever came up with the idea of "flexible constitution" should be deported, or if not, be defrocked as a Justice or Judge and thrown out!!!

I believe that this argument started between T. Jefferson and Chief Justice John Marshall re: Madison v. Marbury ca. 1801. Jefferson's argument was that Marshall was "construing" the meaning of the Constitution. See also "Constitutions Construed..." by John Tyler of Caroline.(1825)

[P_A_I]

I'm what you call an 'originalist,' one who believes the Constitution should be interpreted exactly as it was adopted," Scalia added.
      "It should be interpreted as it was written – nothing more, nothing less.



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At --
http://www.freerepublic.com/focus/f-news/1392339/posts

Thomas contends, & Scalia concures that:



" --- The broad phrase "any court" unambiguously includes all judicial bodies with jurisdiction to impose the requisite conviction--a conviction for a crime punishable by imprisonment for a term of more than a year.

Indisputably, Small was convicted in a Japanese court of crimes punishable by a prison term exceeding one year.

The clear terms of the statute prohibit him from possessing a gun in the United States. --- "



Show me in the Constitution where it states that a mans RKBA's can be prohibited by the decree of a Japanese court.

-- The 2nd amendment:
      "-- should be interpreted as it was written – nothing more, nothing less."

[Mr. Blonde]

I see but what about the right to privacy and so on? It isn't mentioned in the Constitution but most people (excluding Bork naturally) would say we should have that right. Isn't that an example of our rights growing larger?

[P_A_I]

Article IX:

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

This seems fairly straightforward to me. Rights enumerated in the Constitution are rights permitted to the government.

"Permitted to the government"? Governments are permitted powers. They have no 'rights". -- Read the 10th.

It really boils down to the fact that the "Bill of Rights" has always been misnamed and should have been called the "Bill of Restrictions". If you read them closely, you find that they never define anyone's rights, but certainly define what Congress is not allowed to do.

The rights of people or persons are mentioned at least six times in the BOR's. -- Agreed, neither Congress, nor any other level of government in the USA, is allowed to infringe upon those rights.

Try reading the "Founders Constitution" website for some insights.

[AntiBurr]

So far as I can determine, the nearest thing to a "right to privacy" is in:

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[AntiBurr]

Yes, must agree, I was in error. Simply too hasty to reply.

[HighlyOpinionated]

Didn't Pope John Paul II and doesn't Pope Benedict XVI say something similar about the Bible when it speaks on subjects such as homosexuality and other topics recently in the news?

Just asking.

[P_A_I]

CIDKauf wrote:

To be deprived of "life, liberty,or property without due process of law".

..so this is to say that with due process of law, then one could be deprived of life, liberty, and property?


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-- A man decreed to be a felon [in a foreign court] can be deprived of his right to keep & bear arms, according to Scalia & Thomas..

Thomas dissents against RKBA's in Small v. US
Address:http://www.freerepublic.com/focus/f-news/1392339/posts

Those of you here who are in awe of Scalia's "strict constructionism" need to realize that this dissent ignores our 2nd Amendment right to bear arms.

57 P_A_I



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You are correct CID. To interpret it any other way is to try to mould it to mean what they want it to say.

This is what Scalia was talking about. Scalia clearly meant that the constitution did not weigh in on the death penalty. Therefore it is the perview of the state or the people.
59 Texas Songwriter

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The Constitution weighs in quite clearly on the RKBA's.

Thomas & Scalia ignored that fact, and 'moulded' their dissent for political effect.

[DumpsterDiver]

I love Scalia.

Me too. Here's a bit from the Houston Chronicle with some added material: Justice Scalia critical of 'living Constitution'

Scalia said if the American people want to ban or uphold issues like abortion, the death penalty or gay rights, they need to convince their fellow citizens to do so and not leave it up to judges. "The Constitution has nothing to say about it either way," said Scalia, who has discussed his stance in many other speeches.

snip

When the public supported the right of women to vote, Scalia said, Congress passed the 19th Amendment to the Constitution. Scalia said that would not happen today, but instead judges would simply read in such a right into the Constitution's equal protection clause, which doesn't address the subject. "You should not use the Constitution as a means to enforce your own social views," he said.

snip

"We want a moderate judge. What in the world is a moderate judge?" he said. "What is a moderate interpretation of the Constitution? Halfway between what it really says and what you'd like it to say?"

snip

[GoLightly]

Trying to make it live & breathe is killing it.

[P_A_I]

Scalia asked:

"What is a moderate interpretation of the Constitution? Halfway between what it really says and what you'd like it to say?"


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-- The right of the people to keep and bear arms shall not be infringed.


A man decreed to be a felon [in a foreign court] can be deprived of his right to keep & bear arms, according to Scalia & Thomas..

http://www.freerepublic.com/focus/f-news/1392339/posts

[Trajan88]

Load. Ready. Aim. Fire. Boom!

RELOAD.

A&M, give us room.

Trajan88; TAMU Class of '88; Law Hall (may it R.I.P.) Ramp 9 Mule; f.u.p.!

[satchmodog9]

The thinking that the fifth amendment allows for the death penalty is what gives the left its power and lets lawyers distort the law. Reading between the lines does not make a case for the legality of an action. This is what the left is always guilty of perpetuating. The left and it scummy lawyers twist the law and its intent to get what they want all the time. The legality of the death penalty can only be decided by the congress.

[DumpsterDiver]

A man decreed to be a felon [in a foreign court] can be deprived of his right to keep & bear arms, according to Scalia & Thomas..
http://www.freerepublic.com/focus/f-news/1392339/posts

I'll have to go read that thread.

[GoLightly]

Short broke an American law...

http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000922----000-.html

TITLE 18 > PART I > CHAPTER 44 > § 922
(a) It shall be unlawful—
(1) for any person—

(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce; or

(B) except a licensed importer or licensed manufacturer, to engage in the business of importing or manufacturing ammunition, or in the course of such business, to ship, transport, or receive any ammunition in interstate or foreign commerce;

Odds are, the treaty the US has with Japan covers offenses of American citizens of this nature, when they occur on Japanese soil. Even treaties signed by our government are "American law", something our citizens should take into account when they are on foreign soil.

[P_A_I]

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;
nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law;
nor shall private property be taken for public use without just compensation.

22 SAJ


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The second provision actually allows the federal government to deprive people of all those things WITH due process of law.

The second is the only one of the two that MIGHT tangentially touch on the death penalty--and then because it PERMITS it.

31 LibertarianInExile


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satchmodog9 wrote:

Reading between the lines does not make a case for the legality of an action.
The legality of the death penalty can only be decided by the congress.

---

No tween line reading necessary, the 5th clearly says that life can be 'deprived' using due process.

Seeing that the BORs apply to both State & Fed governments, properly written laws establishing the death penalty are Constitutional.

-- Neither Congress nor the USSC have any ability to dictate to the States about their power to write such laws.

[LibertarianInExile]

Reading between the lines? What do you think it says? Please, put it in your own words. I await edification.

[P_A_I]

GoLightly wrote:

Short broke an American law...

That point was not even at issue.
The US Government wanted his RKBA's prohibited because of the Japanese Court conviction. Incredibly, Thomas & Scalia agreed. They will pay the political price.

Odds are, the treaty the US has with Japan covers offenses of American citizens of this nature, when they occur on Japanese soil. Even treaties signed by our government are "American law", something our citizens should take into account when they are on foreign soil.

Do you agree that anyone convicted of a one year 'offense' should lose their RKBA's, forever? Why?

[GoLightly]

That point was not even at issue

If it wasn't even at issue, why was the Federal Code cited in the ruling?

Do you agree that anyone convicted of a one year 'offense' should lose their RKBA's, forever? Why?

It depends.