Scalia On Judges Judging Morals
 

Interesting little AP report here.

(excerpt)[b]...Speaking before a packed auditorium, Scalia said he was saddened to see the U.S. Supreme Court deciding moral issues not addressed in the Constitution, such as abortion, assisted suicide, gay rights and the death penalty. He said such questions should be settled by Congress or state legislatures beholden to the people.

"I am questioning the propriety indeed, the sanity of having a value-laden decision such as this made for the entire society … by unelected judges," Scalia said.

"Surely it is obvious that nothing I learned during my courses at Harvard Law School or in my practice of law qualifies me to decide whether there ought to be, and therefore is, a fundamental right to abortion or assisted suicide," he said.

Scalia also railed against the principle of the "living Constitution," saying it has led the U.S. Senate to try to appoint so-called politically "moderate' judges instead of focusing on professional credentials and ability.

"Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?" he said, to laughter and applause.

"Once one adopts this criteria, of course, the Constitution ceases to perform its principal function, which is to prevent the majority from doing what it wants to do."

Scalia didn't make any direct references to the looming confirmation battle for Supreme Court nominee John Roberts, but he did allude to it as he spoke of the politicizing of the judicial process.

"Each year the conflict over judicial appointments has grown more intense," he said. "One is tempted to shield his eyes from the upcoming spectacle."...(end excerpt)

Comments anyone?

http://www2.presstelegram.com/news/ci_2984562

Re: Scalia On Judges Judging Morals
 

I think looking at the constitution as a "dead" constitution is wrong. By looking at it as a "living" constitution we have been able to address modern issues that have come up. WHile the Federalist Papers addressed slavery, the constitution didn't address until the 13th and 14th amendmants. THe income tax amendmant was neccessary because there was no logical way for us to keep obscenely high tariffs if we were to enter global trade full time in the early part of the 20th century.

NOw, does that mean that assited suicide, gay rights, and fetal rights belong in the judicial arena, I cannot say. I think that they do fall under human rights and that is addressed by the constitution and bill of rights.

The constitution needs to be able to live so that it can address situations that may crop up in the future that wasn't predicted in 1787. The fact that it has been able to be a living document has prevented a lot of civil strife in this country and more radical means of changing the constitution

Re: Scalia On Judges Judging Morals
 

I agree the Constitution needs some mechanism to change with the times, but what about the Amendment process? That's the purpose for which it was designed, so why do we need more than that for that purpose? And doesn't opening the door to very wide interpretation and wide definition, or to decisions stemming from the personal morals of the the Supreme Court Justices, in essence put at risk the very foundation of our legal system?

Re: Scalia On Judges Judging Morals
 

in what way does he think congressmen are qualified? why does he think voters are qualified? Judges are deemed as the most objective and highly regarded thinkers with respect to legal issues. We are only discussing the legality of these issues from the federal or state perspective anyways. So who better to decide legal issues? Legal insight is the only useful and valuable guide for these issues. What qualifications do you think are necessary?

Re: Scalia On Judges Judging Morals
 

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I agree the Constitution needs some mechanism to change with the times, but what about the Amendment process?

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But the amendment process is too hard!

Re: Scalia On Judges Judging Morals
 

It seems like a few things are getting confused in this news story. I don't know whether to pin that on Scalia or the journalist.

First, the "originalism" that Scalia ardently defends should be equally opposed to any extension of the constitution outside of a fairly strict understanding of original meaning. I'm not sure why moral issues per se should be singled out here.

Second, it is very unclear why the doctrine of the living constitution should lead to the appointment of politically moderate judges. Isn't one of the critiques of the living constitution that it leads to a politicization of the court, as extremist judges are given too much leeway?

Third, it seems pretty wrongheaded to claim that the "principal function" of the constitution is to "prevent the majority from doing what it wants to do." I wonder if there was some other context to this quote.

Re: Scalia On Judges Judging Morals
 

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what about the Amendment process?

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not all legal issues can be solved through amendmants. THe law is very much shades of grey and not just black and white


edit: I do like the question that is posed though. This is something that provokes thought

Re: Scalia On Judges Judging Morals
 

Congressmen are qualified by the will of their constituency...that is the nature of a republic. Now...whether or not the voters are qualified to make that decision is a different story, but honestly, it doesn't matter because the Constitution empowers us to make that decision, qualified or not.

And appellant courts(which the Supreme Court really is) are designed to examine the commission of court proceedings, not make value judgments based on the particular leanings of the justice on the bench. I think that's what Scalia is driving at, at least.

Re: Scalia On Judges Judging Morals
 

(First of all, I love how he managed to drop the fact that he went to Harvard Law School)

I don't have the time or energy to write a full response. But I will say that the fears of the Supreme Court deciding moral issues is unfounded. The Supreme Court never actively limits the rights of citizens. It only limits the power of the government. Even the most "activist" judges never impose duties on citizens. At the end of any Supreme Court decision, no citizen has less freedom than they would if we were in the state of nature free from government. As far as I know, the SC has never said "On our own authority, if you do X or don't do Y, you will go to prison." The Supreme Court only says, "The government can't send you to prison for doing X." Or at the very worst, the Supreme Court may say, "We won't stop the legislature from sending people to prison for doing X."

Take abortion as an example. The Supreme Court has not made a value-laden decision for society. It has allowed people to make value decisions for themselves without any coercion from the government. There are still plenty of societal mechanisms that can operate to discourage someone from having an abortion. (Note that this has nothing to do with whether or not Roe v. Wade was a good decision from a legal perspective. I am merely pointing out that the Court's decisions never really limit the freedom of the people to make value-laden decisions.)

Re: Scalia On Judges Judging Morals
 

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And doesn't opening the door to very wide interpretation and wide definition, or to decisions stemming from the personal morals of the the Supreme Court Justices, in essence put at risk the very foundation of our legal system?

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Here is the Devil's Advocate argument in brief. I am personally of mixed feelings.

1) How would you determine the original intent of the framers when there is not a consensus among historians on many major points? What sources are fair game for doing this? Should judges root around in peoples' diaries and the like in order to do their job?

2) What if the original intent of the framers was precisely that the constitution establish major principles that would then be flexibly adapted by later generations?

3) If anything, our legal tradition a common-law tradition, in which the value of precedent and established patterns of legal adjudication is very high. Many legal principles and settled rulings that are part of our day-to-day lives derive from precedent. Should we now just overturn all con law precedents that don't jibe with the original intent after, in many cases, decades of use?

4) Many scholars of the court argue convincingly that supreme court jurisprudence in America has always been intensely political, calling into question the common tendency among Scalia-ites to decry the ruination of an idealized apolitical system of jurisprudence. Maybe a politicized judiciary is basically unavoidable, and maybe thats not such a bad thing in the end.

Re: Scalia On Judges Judging Morals
 

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The Supreme Court never actively limits the rights of citizens. It only limits the power of the government.

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Except for the latest decision on eminent domain.

Re: Scalia On Judges Judging Morals
 

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The Supreme Court never actively limits the rights of citizens. It only limits the power of the government.

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Except for the latest decision on eminent domain.

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The Supreme Court does whatever it wants, and nobovy can overrule them.

The supreme court trumps Congress
The supreme court trumps the President
The supreme court trumps the people
The supreme court trumps the Constitution

Re: Scalia On Judges Judging Morals
 

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The Supreme Court does whatever it wants, and nobovy can overrule them.

The supreme court trumps Congress
The supreme court trumps the President
The supreme court trumps the people
The supreme court trumps the Constitution

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Wow, this thread was going so well before this.

Obviously, the Supreme Court trumps none of these. The SC simply interprets the Constitution, and the Constitution mandates how government entities act.

BGC, I don't know what you don't like about the SC right now anyway. Mostly conservatives.

Re: Scalia On Judges Judging Morals
 

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The SC simply interprets the Constitution, and the Constitution mandates how government entities act.

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If by "interpret" you mean whatever they say becomes law. Aren't you aware of all that constitutional law that is not even mentioned in the constitution? Where did you think it came from?

So "interpret" means "make it say whatever you want."

When was the last time the President, Congress, or the Constitution won against a decision by the court?

Andrew Jackson was probably the last to person to beat the court, and he did it by ignoring them.

Re: Scalia On Judges Judging Morals
 

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The Supreme Court never actively limits the rights of citizens. It only limits the power of the government.

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Except for the latest decision on eminent domain.

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That's not true. The SC merely deferred to the legislatures and adminstrative bodies of the states.

Re: Scalia On Judges Judging Morals
 

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That's not true. The SC merely deferred to the legislatures and adminstrative bodies of the states.

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If they struck down Roe vs Wade, would you say the same thing?

Re: Scalia On Judges Judging Morals
 

The question isn't so much original intent, but original meaning. After all, intent can be impossible to determine from a document. The recent campaign finance legislation is seen by some as intended to clean up the system and by others as an attempt to restrict the kinds of fundraising and campaining that tends to hurt incumbents. Was congresses's intent pure or malicious. You can't really tell. In fact, every legislator had a different intent when he/she voted yea or nea. Intent can't be devined.

In the absense of intent we look for original meaning. We look to historical texts to determine what the words and phrases used in that time meant. To further explain it we look at how the law was interpreted when it was first written (say the first 50 years). While this is not an exact science it can be done pretty well on a large variety of cases. For a good example see Thomas's dissent in Kelo vs New London this year.

It's not perfect, but it is certainly a more solid method of dealing with constitutional law then any others I've seen. Scalia is one of the few who I've actually seen apply a specific method in interpreting the constitution irregardless of the case involved. A lot of the other judges just seem like thier winging it.

I've never met someone with a serious objection to this method. Most objections boil down to one of two things:
1) That method won't result in my political objectives being achieved.
2) It doesn't make the constitution flexible enough.

Number 2 is the only serious one, and I think the amendment process has done a pretty good job. Most big changes like letting women vote were able to be added to the constitution. Hell, for a brief time you could convince people to ban booze.

Re: Scalia On Judges Judging Morals
 

The principle function is the restriction of the majority. The constitution is a list of things the government (majority of voters) are not allowed to do (to the minority).

Re: Scalia On Judges Judging Morals
 

Leaving out things like eminient domain, the patriot act, and a million others (the court takign away our freedoms), I want to tackle your other questions.

Is the court allowed to determine what laws we as a society are allowed to govern ourselves by if there is nothing said about it in the constitution. For instance In Atkins (2003) the court outlawed using the death penalty against people that were slightly mentally retarded. A reading of the case brings one to the obvious conclusion that the logic used will neccessitate and outlawing of the death penalty in general. Under what grounds does the court decide this?

Roe v Wade is basically the court determining that a fetus isn't alive. If it is alive, then it is protected by homicide law like any other citizen. It would be rediculous if the court ruled that a 30 year old person wasn't in fact alive so murdering him is legal. On what grounds therefore does it determine what constitutes live?

Re: Scalia On Judges Judging Morals
 

But they shouldn't defer. The constitution says that they shouldn't defer. That's the whole point. The constitution says what the legislator can't do. Ignoring that is akin to writing something out of the constitution, which is just as bad as writing something in.

Re: Scalia On Judges Judging Morals
 

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Leaving out things like eminient domain, the patriot act, and a million others (the court takign away our freedoms), I want to tackle your other questions.

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Explain to me how the Patriot Act and eminent domaint are examples of the COurt taking away people's freedom. Last time I checked it was the New London zoning board that decided to take Kelo's house, not the Supreme Court. By your logic, every single law which the Court declines to hold unconstitutional is an example of the COurt taking away people's freedom.

Don't blame the Supreme Court for the Patriot Act, blame Congress.

Re: Scalia On Judges Judging Morals
 

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But they shouldn't defer. The constitution says that they shouldn't defer. That's the whole point. The constitution says what the legislator can't do. Ignoring that is akin to writing something out of the constitution, which is just as bad as writing something in.

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I am not saying that the Court's decision is or is not bad from a Constitutional persepective. I am saying that no matter what the Court does, it does not limit people's freedom. It is always the legislature that is actually limiting people's freedom.

Re: Scalia On Judges Judging Morals
 

If congress passes a law that is unconstitutional, and the supreme court doesn't strike it down, they have evaded thier duty.

Take for instance Koremetsu. Congress passed a law putting all Japanese people into camps. It was unconstitutional. The court should have struck it down. Instead, they allowed it to become law.

Inaction is action. Not doing your job is a failure of teh court.

Re: Scalia On Judges Judging Morals
 

It's thier job to stop the legislator when something they do is unconstitutional. When you allow the legislator to make law that is unconstitutional simply because your personal political believes favor that law then you are evading your responsibility as an agent of the court.

Re: Scalia On Judges Judging Morals
 

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I've never met someone with a serious objection to this method

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You must not get out much [img]/images/graemlins/smile.gif[/img]


I'm just curious where in the Constitution Scalia find the provision claiming that there should be an original intent interpretation of the document.

Not only do I think the concept itself is flawed, but its application is often flawed as well. You will often see decisions authored by Scalia hinge on a definition he found in a 19th century dictionary. That seems a bit ridiculous to me.

Re: Scalia On Judges Judging Morals
 

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Roe v Wade is basically the court determining that a fetus isn't alive. If it is alive, then it is protected by homicide law like any other citizen. It would be rediculous if the court ruled that a 30 year old person wasn't in fact alive so murdering him is legal. On what grounds therefore does it determine what constitutes live?

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It is abundantly clear, is it not, that the original framers of the constitution did not consider a fetus a person? Roe v. Wade is just using original intent. [img]/images/graemlins/grin.gif[/img]

Re: Scalia On Judges Judging Morals
 

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The Supreme Court does whatever it wants, and nobovy can overrule them.

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Except that they can through legislation and/or the Amendment process.

Somebody has to have last word on Constitutional issues to lead to some semblance of order and certainty. If not the court, who do you think should have the last word?

Re: Scalia On Judges Judging Morals
 

There is nothing in the constitution about a fetus's status. Thusly, the court should not address it. It should leave it up the the legislator.

I know your just kidding around to avoid arguement.

Re: Scalia On Judges Judging Morals
 

Why is the concept itself flawed?

Re: Scalia On Judges Judging Morals
 

Being able to change the meaning of the constitution is immense power. Your basically giving these judges to power to rule on issues and they can only be overuled by the amendment process, which requires a super majority. So essentially, on any issue where the country is divided the court can rule as it pleases with almost no risk of being overturned. It would be akin to giving George Bush a life tenure and the ability to write law as he pleased, only to be overuled by a supermajority.

Such power can't just be thrown around as judges please. Champoning thier particular moral and political believes means that the supreme court becomes a political rather then a judicial office. They make law rather then interpret it. The problems arising from a lack of independent courts should be self evident.

In order to prevent this justices need a simple, clear, and well understood method by which they interpret law. Rather then focusing on the specific political outcome, citizens will view the process as fair and understandable. They will understand and respect the method by which justices reach thier decisions even if they disagree with the political implications.

Re: Scalia On Judges Judging Morals
 

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There is nothing in the constitution about a fetus's status

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Sure there is. When the Constitution talks about Censuses it deals with counting people --- we can look see that the original censuses did not count pregnant women twice, thus it is clear that the original intent was the fetuses were not people.

The 14th Amendment says talks about people "born or naturalized in the United States" having certain rights. Had the framers intended rights to befall fetuses they would have included unborn here --- rather, they specifically omitted unborn.

Re: Scalia On Judges Judging Morals
 

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They make law rather then interpret it

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Our system is based, in part, on a common law tradition --- that is, judge-made law. It is as deeply rooted as concepts we take for granted like "innocent until proven guilty" and "elwood is always right."

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Your basically giving these judges to power to rule on issues and they can only be overuled by the amendment process, which requires a super majority.

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Not true. There are many issues that could be dealt with legislatively as well.

Take Roe v. Wade for example. I believe that if congress declared legislatively that a fetus is a life entitled to protection, the idea that there isn't a compelling state interest to overcome the right to privacy would be overcome. That the legislature has chosen not to do so isn't, nor should it be, the court's problem.

Re: Scalia On Judges Judging Morals
 

Because the assumption that this is how we are to interpret the constitution is, itself, not founded in the Constitution. Kind of ironic, huh?

Re: Scalia On Judges Judging Morals
 

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Because the assumption that this is how we are to interpret the constitution is, itself, not founded in the Constitution. Kind of ironic, huh?

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If the standard is original intent, then yeah, pretty much. But if the standard is original meaning, then I don't see a problem or irony.

By the way, which is Scalia's standard? Which is Thomas' standard? I believe these and related matters were discussed at length some months ago but I don't recall the correct answers.

Re: Scalia On Judges Judging Morals
 

People also didn't have the ability to kill a fetus back then. You can't read a pro-abortion rights clause into the constitution when the practice was not even possible at the time of authoring.

Technological changes bring about situations that did not exist at the time of authoring, and thus are not addressed. Abortion is one, but I imagine there will be a great deal many more as technology advances in the next century that will bring about situations not addressed in our constitution.

Since these situations are not addressed specifically in the constitution, nor through extensive precedent, the court would do best to show restraint in making profound constitutional decisions.

We're going to have to deal with a lot of new questions going foward. Should cloning be allowed, is a clone alive, is artificial intelligence alive, how do we govern genetic modification. Who knows what else? The question before us is who will make these decisions. Should the court make these decisions or should elected legislaters?

Personally, I'd like to have some input on those questions. I'm sure you would too. And while the courts ruling on abortion may favor you now, imagine if instead of judicial conservatives like scalia the court was packed with political conservatives. They could outlaw abortion in all 50 states with a single ruling, and they wouldn't need to back it up with anything other then thier own personal believes. Future courts may disagree with you on the issues above, and you will have no recourse against them.

Originalism means that on issues where the constitution is clear (death penalty, eminient domain, civil liberties, and free speech were all around back then) you try to remain true to that original interpretation. You update it as best you can for technological changes (internet journalism is protected just like print journalism), but some situtaions are simply not addressed by the constitution. When those arise the court should show restraint.

Re: Scalia On Judges Judging Morals
 

But even the concept of original meaning doesn't have its roots in the original meaning of the constitution. It's just a means of interpretation that Scalia happens to like over others. However, the basis for choosing that method of interpretation is no more based in original meaning or intent or the text of the document itself than is the notion of a living constitution.

Re: Scalia On Judges Judging Morals
 

If it is not found in the constitution, the justices have to decide for themselves how to interpret the law. Scalia's is the best I've seen for reasons I've mentioned. Especially in light of the fact that I don't think many of the other justices have any discernable method at all.

Re: Scalia On Judges Judging Morals
 

Scalia doesn't need to claim his method is in the constitution so long as his method can be proven to be a superior one through debate over its merits versus the other options.

Re: Scalia On Judges Judging Morals
 

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The question isn't so much original intent, but original meaning. After all, intent can be impossible to determine from a document.

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I agree that intent is very difficult to discern. But I believe that the "meaning" of the document, as well as most other historical documents, is also very difficult to discern without recourse to intent. A historiography based on the idea that written evidence should be considered "authorless" is going to be fundamentally flawed. Very few serious historians, the people who are best practiced in thinking about these questions, would take this approach.

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I've never met someone with a serious objection to this method.

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See my point above, as well as the argument Elwood makes (as I did in the previous post too) that perhaps the text was not intended to be interpreted through an "original meaning" approach.

Re: Scalia On Judges Judging Morals
 

Then you don't understand Roe v Wade. Nor did I until fairly recently.

Roe v Wade makes all anti-abortion laws unconstitutional. Take for instance partial-birth abortion. A vast majority of the population believes that a fetus at that stage of developement is alive. Congress acted on that by passing a law banning the practice. However, the court ruled that ban unconstitutional based on Roe v Wade.