Scalia Rails Against the 'Judge-Moralist'

AP on Yahoo ^ | 3/15/06 | AP

[xzins]

I think there is a difference between the words 'could' and 'would.'

I don't think we would, but if 'could' means "is it possible with the current rules," then it is possible with the current rules.

We could amend the constitution to add "A chocolate sundae once a week for every citizen" if we simply ask "do the rules allow it."

[tpaine]

Sorry, but I see discussing whether we "could" repeal the 2nd as just wordplay. As Barnett says, there is a 'presumption of liberty' in our Constitution that cannot be ignored by we the people, or by any of our officials.

Address:http://www.nationalreview.com/script/printpage.p?ref=/comment/comment-barnett071003.asp


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Scalia is wrong.
The public has no right to decide important moral questions. 'Majority rule' does not trump our Constitution's rule of law.

[Congressman Billybob]

I am always grateful for your explanations to me of what the Constitution means, as written and amended to date. Every time you write, I am amazed that I had missed your point in a mere forty years of study, teaching, testifying, and practicing in the Supreme Court.

I look forward to your next ever-so-educational post on the subject. There, does that cover the waterfront?

Your Obedient Servant,

J. Armor, Esq.

[xzins]

It is not wordplay to state the limits of a particular design.

As remote as it might be, it is still what the words say. Just because no one has yet attempted to change them does not prevent someone from attempting in the future to do so.

[tpaine]

B-Bob insists:

--- the Supreme Court CAN "legalize" anything they want, simply by finding that there is a new "right" under the Constitution which protects such activity.

That is Justice Scalia's point. And if you do not understand that, you need to read his Dissent in the Texas sodomy case. He lays it out chapter and verse.


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I've read it, and Barnett best counters Scalias dissent, "chapter & verse".


National Review Online Address:http://www.nationalreview.com/script/printpage.p?ref=/comment/comment-barnett071003.asp

Barnett:

" --- judicial conservatives say that there is no textual basis for the protection of a general right to liberty.

Unlike "privacy," however, both Due Process clauses explicitly mention "liberty."

The judicial-conservative response to this is to argue that liberty may properly be restricted so long as "due process" is followed.

As Justice Scalia wrote in his dissent:

"The Fourteenth Amendment expressly allows States to deprive their citizens of liberty, so long as due process of law is provided." (his emphases)

This is wrong on two counts.
First of all, the "due process of law" includes judicial review. And judicial review includes an examination of whether the government is acting within its delegated powers.
That is why, in U.S. v. Lopez and U.S. v. Morrison, the Supreme Court could properly strike down a federal statute that exceeded the power of Congress under the Commerce Clause.

Second, both the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment authorize the protection of unenumerated (and unenumerable) liberty rights "retained by the people."

The Ninth protects against federal violations of liberty rights; the Privileges or Immunities Clause protects against violations by states like Texas of liberty rights plus the Bill of Rights and other privileges or immunities of its U.S. citizens. --"


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B-Bob asserts his authority:

"--- I am always grateful for your explanations to me of what the Constitution means, as written and amended to date. Every time you write, I am amazed that I had missed your point in a mere forty years of study, teaching, testifying, and practicing in the Supreme Court.
I look forward to your next ever-so-educational post on the subject. There, does that cover the waterfront? ---"

Your Obedient Servant,
J. Armor, Esq.


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'It' covers nothing Bob. --- I'm always amazed that you claim to have a "mere forty years of study, teaching, testifying, and practicing in the Supreme Court", yet you can't be bothered to dash off an actual counter to a mere layman's comments. --- Much less Barnetts arguments, -- a man who actually has argued before the USSC.

[tpaine]

Sorry, but I see discussing whether we "could" repeal the 2nd as just wordplay. As Barnett says, there is a 'presumption of liberty' in our Constitution that cannot be ignored by we the people, or by any of our officials.

Address:http://www.nationalreview.com/script/printpage.p?ref=/comment/comment-barnett071003.asp


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xzins:

It is not wordplay to state the limits of a particular design.

As remote as it might be, it is still what the words say. Just because no one has yet attempted to change them does not prevent someone from attempting in the future to do so.


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So you insist that we could repeal the 2nd through a flaw in the design of our Constitution.
-- Lordy, -- save our Republic from those who think as you.

[Congressman Billybob]

I countered your arguments with Scalia's Dissent. You don't want to believe it, that's your business. But that means two things: 1) you are not a "judicial conservative," and 2) you are wrong.

You give the surface appearance of being reasonable and being able to read with comprehension. But it's all a cover for your "layman's comments" which consist of your chronic misreading of the Constitution.

I will exercise more restraint in the future, and not waste time posting to you. "Never try to teach a pig to sing. It wastes your time and it annoys the pig."

Sorry for annoying you. It won't happen again.

Very Truly Yours,

John / Billybob

[tpaine]

B-Bob asserts his 'authority':

"--- I am always grateful for your explanations to me of what the Constitution means, as written and amended to date. Every time you write, I am amazed that I had missed your point in a mere forty years of study, teaching, testifying, and practicing in the Supreme Court.
I look forward to your next ever-so-educational post on the subject. There, does that cover the waterfront? ---"
Your Obedient Servant, J. Armor, Esq.

'It' covers nothing Bob. --- I'm always amazed that you claim to have a "mere forty years of study, teaching, testifying, and practicing in the Supreme Court", yet you can't be bothered to dash off an actual counter to a mere layman's comments.
--- Much less Barnetts arguments, -- a man who actually has argued before the USSC.

I countered your arguments with Scalia's Dissent.

And I countered Scalias dissent with Barnetts argument citing Scalia.
- An argument you cannot refute.

You don't want to believe it, that's your business. But that means two things: 1) you are not a "judicial conservative,"

Silly conclusion. I'll match my conservative chops to yours, -- anyday.

and 2) you are wrong.

Sorry, but you've just made another argument with yourself as the 'authority'.

You give the surface appearance of being reasonable and being able to read with comprehension. But it's all a cover for your "layman's comments" which consist of your chronic misreading of the Constitution.

Another baseless comment. - Hardly the arguments of a man with a "mere forty years of study, teaching, testifying, and practicing in the Supreme Court".

I will exercise more restraint in the future, and not waste time posting to you. "Never try to teach a pig to sing. It wastes your time and it annoys the pig."

I posted here to you, commenting on your misconceptions about Scalia's positions. -- No one forced you to reply about flying pigs.

Sorry for annoying you. It won't happen again.

How droll. You haven't annoyed me at all. -- This little exchange has been a pleasure. -- I look forward to commenting on your next misconception.

[tpaine]

Kennedy's Libertarian Revolution. Lawrence's reach.
Address:http://www.freerepublic.com/focus/f-news/943979/posts?q=1&&page=101

Previous thread on this same controversy.

[xzins]

I am not the only one who thinks so.

Of course we could.

Tell me....why are folks afraid of a constitutional convention? No one wants one. Why would that possibly be?

So, it's not people who think like me about whom you should be afraid. It's people who don't realize what changes could be wrought about whom you need to be concerned.

This constitution has already seen other amendments....why not an amending of the 2nd amendment? You honestly don't think that is impossible, do you?

[tpaine]

xzins:

It is not wordplay to state the limits of a particular design.
As remote as it might be, it is still what the words say. Just because no one has yet attempted to change them does not prevent someone from attempting in the future to do so.

So you insist that we could repeal the 2nd through a flaw in the design of our Constitution.

Of course we could.

-- Lordy, -- save our Republic from those who think as you.

I am not the only one who thinks so.

I'm well aware that there even may be a majority who think like you.

Tell me....why are folks afraid of a constitutional convention? No one wants one. Why would that possibly be?

Because if enough thought like you, having one could end up in civil war.

So, it's not people who think like me about whom you should be afraid. It's people who don't realize what changes could be wrought about whom you need to be concerned. This constitution has already seen other amendments....why not an amending of the 2nd amendment?

An attempt to repeal our inalienable right to bear arms would likely mean the end of our union.

You honestly don't think that is impossible, do you?

It would never succeed, I can guarantee you that. Parts of America would never submit.

[xzins]

It would never succeed, I can guarantee you that. Parts of America would never submit.

In this comment, you acknowledge that such a change would be within the rules, and that it would, therefore, have to be resisted.

That is all I've been saying.

[Bigun]

"The Framers deliberately rejected the idea that any equivalent of the Council of Revision should be part of the US Constitution. Yet in our day, the Court has become exactly such a creature, in the grip of Justices who do not obey their oath of office to respect and defend the Constitution.

Hear Here! I agree entirely but would quickly point out that judges are not the only ones who fail to adhere to their oaths and that the only ones with the ability to correct that deficiency is US!

[Bigun]

Addendum to 133.

If we had lawmakers and a chief executive who all upheld THEIR oaths the judges would not have nearly so much opportunity for their mischief would they? (I refer to a recent case in which our chief executive was quoted in the press as beliving parts of a proposed new law to be unconstitutional but signed it into law anyway!)

[Howlin]

Looks like you have a new tagline. :-)

[Congressman Billybob]

You are absolutely right, my friend,

The Framers wrote at the time that the balance of powers they put in the Constitution would be upset "if two branches of the government conspired to usurp the power of the other." They did not anticipate that all three branches of the government would conspire to usurp the Constitution itself, which happened in the passage and then upholding of the McCane-Feingold CFR law.

John / Billybob

[Bigun]

They did not anticipate that all three branches of the government would conspire to usurp the Constitution itself...

How could they? WHY would they anticipate such a thing given the context of THEIR time?

I find the following quote to be quite comprehensive in the context of OUR time.

"We have staked the whole of all our political institutions upon the capacity of mankind for self-government, upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God." - James Madison