Scalia On Judges Judging Morals

[elwoodblues]

That comment was in the context of the original Roe decision, not the subsequent body of federal abortion case law.

[ QUOTE ]
legislator basically decided that a fetus in that stage of developement was worth protecting, and the court struck it down.

[/ QUOTE ]

They did not define it as a life (i.e. being entitled to all of the same rights as you or I.) If they did, the outcome (in my opinion) would have to be different because abortion law right now is basically a balancing of rights. In the balance is the right of privacy/autonomy on the one hand and the state's interest in protecting the fetus. By legislatively elevating a fetus to the status of a "life" the balance changes significantly. So significantly, in my opinion, that abortion jurisprudence would be fundamentally changed with the stroke of a pen.

[lehighguy]

Why did the legislator decide that the fetus was worth protecting. If not because they thought it a life, then perhaps because they intended to wear it as a hat.

I still think the court would strike down the law if it was resubmitted declaring a fetus that far developed "alive". The court can simply declare "no it isn't" and case closed. That's effectively what they did by striking down the law. What can congress do? What can the American people do? Nothing. And if it's a living constitution where the justices can interpret it however they choose, what arguement can you come up with the say otherwise.

[elwoodblues]

[ QUOTE ]
I'm not sure what your goal here is. If your goal is to disagree but not really back up with ideas and arguement as to why you think your method is better for our society then the one I've presented then I'm not sure what you hope to accomplish.

[/ QUOTE ]

My goal was to respond to the assertion that you have never met anyone with a serious objection to Original Intent as a method of interpreting the constitution. I am a person who has serious objections to that methodology both in terms of its practical application and in terms of the general idea that a 21st century society should read their founding document based on what an 18th century society meant the words to be. I fundamentally believe that the framers were smarter than that...that they wrote the language of the constitution in terms that were open to many reasonable interpretations and that those interpretations would change over time. Not only do I believe that the framers intended this, but I also think that leads to a better government. Funny how my opinion so closely matches up with what I believe to be the original intent of the framers...

[elwoodblues]

[ QUOTE ]
Why did the legislator decide that the fetus was worth protecting

[/ QUOTE ]

Irrelevant. But I can tell you with 100% certainty that they legislature didn't decide that the fetus was worth protecting because it is a life with the same rights and privileges as you and I.

[lehighguy]

There are however practicle concerns with your method. The constitution can change, and it has. Women can vote, slaves are free, senators are elected rather then appointed. It is not as if the constitution can't change with the times, it can be amended.

Perhaps these things would have come sooner with you version of interpretation. However, there would have been inevitable problems with this method. There are issues that the court could have decided on that are not generally accepted today. Today's court could make cloning illegal if it choose too. There is no way to know if that decision will be accepted 100 years from now. It's quite impossible to know. Just as the court can get it right it can get it wrong. Korematsu and the japanese internment camps are a good example.

Even leaving that aside, giving the court such immense power and a liscence to use it as it wishes politicizes the court. One look no further then my local politics to understand the effects. New Jersey has an independent supreme court that is well respected. The Pensylvania supreme court is done by election. That court is not very respected. From what I understand one of the justices tried to run another over with his car. Supreme court appointments are becomming like little elections, and it will have a long term detrimental effect on the court and our country.

Moreover, none of the issues decided by the supreme court have solved anything. Roe v Wade didn't settle the abotion debate. All it did was push it underground and allowed it to fester and poison our political process.

Your method might lead to more beneficial changes happening quicker. But there is no gurantee all those changes will be beneficial or accepted. Moreover, it causes damage to the court and our political process.

If one wishes to change the constitution, they should amend it. If they wish to write a law to govern an issue not addressed in the constitution (like abortion, or cloning, or artificial intelligence) they should be able too without being restricted by the court.

[lehighguy]

It's not irrelevent, if you don't agree with the reasoning present an alternative motive.

[elwoodblues]

[ QUOTE ]
Even leaving that aside, giving the court such immense power and a liscence to use it as it wishes politicizes the court.

[/ QUOTE ]

Do you honestly expect that a political appointment not be political? Do you really think that Scalia's method of Constitutional interpretation isn't political?

[thatpfunk]

I haven't read any of the responses.

This is not new, this has been Scalia's opinion for as long as I can remember now.

I would like him to tell me why he is making the moral decision to not allow me to put whatever I want in my body (drugs of any sort). He seems to have conveniently forgotten to address that topic in his little BS diatribe.

[lehighguy]

It's not a political appointment.

No, his method makes sense. I respect his reasoning. Even though my own political beliefs are often at odds with the result of that reasoning (death penalty, gay marraige) I think that the benefits of using his method are good for society. If I want to get my way on the above issues I have to lobby congress and convince fellow Americans. It may take longer, but I think it will be better for the system.

[Easy E]

[ QUOTE ]
Scalia also railed against the principle of the "living Constitution,"

of course, the Constitution ceases to perform its principal function, which is to prevent the majority from doing what it wants to do


[/ QUOTE ]

I guess we should bring back the slaves and deregulate the Internet porn sites, then.

I wonder if Scalia also believes that a purpose of the Constitution should be preventing the vocal minority, or the well-connected power broker, from doing what they want to do?