Scalia On Judges Judging Morals

[elwoodblues]

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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.

[elwoodblues]

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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.

[elwoodblues]

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

[MMMMMM]

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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.

[lehighguy]

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.

[elwoodblues]

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.

[lehighguy]

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.

[lehighguy]

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.

[sam h]

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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.

[lehighguy]

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.