Posted on 11/14/2004 10:59:20 AM PST by Ed Current
On the "right" to sodomy:"[The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to 'liberty' under the Due Process Clause, though today's opinion repeatedly makes that claim. . . . The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided. . . ."
On women as a victim group:"It is hard to consider women a 'discrete and insular minority' unable to employ the 'political processes ordinarily to be relied upon' when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns."
On abortion:"The notion that the Constitution of the United States, designed, among other things, 'to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,' prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."
On stare decisis (adhering to judicial precedent):"The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the 'central holding.' It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version."
On the "living Constitution":"I am left to defend the 'dead' Constitution."
"Justice Antonin Scalia is the most principled conservative jurist in my lifetime. This book is the proof. Kevin Ring has done us all a great favor in compiling this volume of extraordinary opinions." -- Tom DeLay, Majority Leader, U.S. House of Representatives
Justice Curtis's warning is as timely today as it was 135 years ago:
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought tomean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges--leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"--with the somewhat more modest role envisioned for these lawyers by the Founders.
"The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . ." The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration ("There is a limit to the amount of error that can plausibly be imputed to prior courts," ante, at 24), with the more democratic views of a more humble man:
"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).
The Avalon Project : Federalist No 78
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.
The Avalon Project : Federalist No 51
But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)
"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.
Clarke's Commentary - <a href="/library/topics/topic1606.htm"> ... ROMANS 13
For there is no power but of God] As God is the origin of power, and the supreme Governor of the universe, he delegates authority to whomsoever he will; and though in many cases the governor himself may not be of God, yet civil government is of him; for without this there could be no society, no security, no private property; all would be confusion and anarchy, and the habitable world would soon be depopulated. In ancient times, God, in an especial manner, on many occasions appointed the individual who was to govern; and he accordingly governed by a Divine right, as in the case of Moses, Joshua, the Hebrew judges, and several of the Israelitish kings. In after times, and to the present day, he does that by a general superintending providence which he did before by especial designation. In all nations of the earth there is what may be called a constitution-a plan by which a particular country or state is governed; and this constitution is less or more calculated to promote the interests of the community. The civil governor, whether he be elective or hereditary, agrees to govern according to that constitution. Thus we may consider that there is a compact and consent between the governor and the governed, and in such a case, the potentate may be considered as coming to the supreme authority in the direct way of God's providence; and as civil government is of God, who is the fountain of law, order, and regularity, the civil governor, who administers the laws of a state according to its constitution, is the minister of God. But it has been asked: If the ruler be an immoral or profligate man, does he not prove himself thereby to be unworthy of his high office, and should he not be deposed? I answer, No: if he rule according to the constitution, nothing can justify rebellion against his authority. He may be irregular in his own private life; he may be an immoral man, and disgrace himself by an improper conduct: but if he rule according to the law; if he make no attempt to change the constitution, nor break the compact between him and the people; there is, therefore, no legal ground of opposition to his civil authority, and every act against him is not only rebellion in the worst sense of the word, but is unlawful and absolutely sinful.
Nothing can justify the opposition of the subjects to the ruler but overt attempts on his part to change the constitution, or to rule contrary to law.
When the ruler acts thus he dissolves the compact between him and his people; his authority is no longer binding, because illegal; and it is illegal because he is acting contrary to the laws of that constitution, according to which, on being raised to the supreme power, he promised to govern. This conduct justifies opposition to his government; but I contend that no personal misconduct in the ruler, no immorality in his own life, while he governs according to law, can justify either rebellion against him or contempt of his authority. For his political conduct he is accountable to his people; for his moral conduct he is accountable to God, his conscience, and the ministers of religion. A king may be a good moral man, and yet a weak, and indeed a bad and dangerous prince.
Verse 2. Whosoever resisteth the power] Æo antitassomenov, He who sets himself in order against this order of God; th tou qeou diatagh, and they who resist, oi anqesthkotev, they who obstinately, and for no right reason, oppose the ruler, and strive to unsettle the constitution, and to bring about illegal changes, Shall receive to themselves damnation.] krima, condemnation; shall be condemned both by the spirit and letter of that constitution, which, under pretense of defending or improving, they are indirectly labouring to subvert.
CHIEF Justice Scalia, anyone?
SCALIA IS THE PERSON I PREFER AS SCCJ!
HE IS SIMPLY GREAT.
Scalia: "On abortion: "The notion that the Constitution of the United States, designed, among other things, 'to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,' prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.""
Exactly.
Count me in,and the book appears to be a "must read'
"Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, ROE is impervious to logical or historical argument; it is what some people, including a majority of the justices, want, and that is that....Science and rational demonstration prove that a human exists from the moment of conception....Scalia is quite right that the Constitution has nothing to say about abortion."
bttt!
If you want to worry about him being replaced sooner, yeah, then go for it.
Thomas is younger and a very good justice. He would be the better choice.
I would feel safe with Scalia at the helm- yet I think his age will go in favor of Thomas.
so beautiful to read the emissions of a sound mind.
It's basically an extended essay written by Justice Scalia, which lays out his defense of pure textualism and rejection of the current fad of loose constructionism on the part of judicial activists.
There follows a series of responses from his fellow judges and judicial scholars, which in turn, leads to a final rebuttal by Scalia.
It's definitely worth a read, or at the very least, a cursory glance.
How right you are and thanks for posting the title.
This might be a minority opinion, but I also think that Clarence Thomas-for a variety of reasons-would have a much easier time being confirmed for that post by the U.S. Senate.
Thank you so much for this link- I've bookmarked it after scanning it- this is one to read over and over. Clarence Thomas is a great gift to our Supreme Court.
How old is Scalia?
Justice Thomas - Born June 28, 1948 in the Pinpoint community, near Savannah, Georgia.
self-ping
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