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Old 09-06-2005, 01:20 AM
MMMMMM MMMMMM is offline
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Default 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
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Old 09-06-2005, 01:30 AM
KDawgCometh KDawgCometh is offline
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Default 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
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Old 09-06-2005, 01:38 AM
MMMMMM MMMMMM is offline
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Default 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?
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Old 09-06-2005, 01:39 AM
Zygote Zygote is offline
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Default 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?
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Old 09-06-2005, 01:45 AM
jokerthief jokerthief is offline
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Default Re: Scalia On Judges Judging Morals

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

[/ QUOTE ]

But the amendment process is too hard!
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Old 09-06-2005, 01:46 AM
sam h sam h is offline
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Default 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.
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Old 09-06-2005, 01:47 AM
KDawgCometh KDawgCometh is offline
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Default Re: Scalia On Judges Judging Morals

[ QUOTE ]
what about the Amendment process?

[/ QUOTE ]


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
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Old 09-06-2005, 01:48 AM
coffeecrazy1 coffeecrazy1 is offline
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Default 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.
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Old 09-06-2005, 01:52 AM
slickpoppa slickpoppa is offline
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Default 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.)
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Old 09-06-2005, 02:04 AM
sam h sam h is offline
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Default Re: Scalia On Judges Judging Morals

[ QUOTE ]
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?

[/ QUOTE ]

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.
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