Scalia On Judges Judging Morals

[elwoodblues]

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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.

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Either way the abortion decision would have come down would have made profound constitutional impact.

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And while the courts ruling on abortion may favor you now...

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My opinion on abortion in this context is irrelevant and, as an aside, making assumptions about on'es opinion on abortion based on perceived political affiliation is unwise.

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Originalism means that on issues where the constitution is clear (death penalty, eminient domain, civil liberties, and free speech were all around back then)

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To suggest that any of these constitutional questions are clear borders on the absurd.

[sam h]

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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).

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The principle function was ultimately pragmatic - to set up a more defined, useful, and unitary system of law than that provided by the articles of confederation in order to help society attain certain basic goals: "to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty."

[lehighguy]

Intent is mixed up in meaning. It's a matter of which we try to go to first. For instance, if the meaning can be discerned without delving to far into conjecture about intent then we should try to base our analysis on the meaning. For instance, the meaning of "public use" in eminient domain law can be discerned without having to delve too deeply into intent (see Thomas's dissent in Kelo). However, it can sometimes be used to better understand original meaning.

If we go straight to original intent then you get very different explanations as to what the intent was and what is the best way to achieve that goal.

[elwoodblues]

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Then you don't understand Roe v Wade. Nor did I until fairly recently...Roe v Wade makes all anti-abortion laws unconstitutional.

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No offense, but to comment negatively on my understanding of the Roe decision and then to absolutely bastardize its central holding is either intellectual dishonest or lacking in intelligence. Your pick.

[lehighguy]

Had the court simply abdicated, said that it was up to the legislator and that is wouldn't have interfered either way because it wasn't mentioned in the constitution, then I believe it would have remained less politicized. It may even have been much better for political discourse in this country, but that is conjecture.

I've seen very good arguement on those issues based on the method outlined. Thomas's arguement in Kelo. Scalia's arguement in Atkins or McCain Feingold. I could name others. I've read them all and came away feeling like they did a good job of interpreting.

[elwoodblues]

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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.

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And, lo and behold, those who believe Scalia's method is intellectually superior happen to ascribe to his belief that original meaning interpretation makes for better government and those who find it lacking believe other methods of interpretation (i.e. following our common-law tradition of an evolving body of law) believe their method produces a better government.

[sam h]

I agree that for many words and phrases you will not need to dig too far into intent. At the extreme, a word like "the" is pretty obvious! But for many others, multiple possible meanings cannot be adjudicated among just by using an old dictionary. And this is why this method would not be taken seriously by historians.

[lehighguy]

"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."

See that isn't the case. The legislator basically decided that a fetus in that stage of developement was worth protecting, and the court struck it down.

[lehighguy]

I also think lower taxes and smaller government are better for our country. I have reasons I believe in them. I can cite and support them in debate. Same with Scalia's method of constitutional interpretation. I have reasons I believe it is best, reasons I've mentioned and discussed and am willing to discuss further if need be.

I know you have reasons you believe in your method of interpretation, I just find them inadequet. They don't address the concerns I have, and I think the costs of your method (which you still haven't really explained very well) outweigh the benefits.

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.

[lehighguy]

It can be effective in a lot of situations though. Such as Kelo, Atkins, McCain Feingold, and others. Reading those gives you an appreciation for the method of interpretation and leave you fealing like it is fairly effective. Which is why I intend to use it.

There are many situations where it is inadequet. For instance, abortion. Which is why I wish the court would tread more carefully in that area.