Posted on 05/05/2005 3:22:31 PM PDT by Constitutionalist Conservative
May 5, 2005 Criticizing those who believe the Constitution should be flexible and adapted to modern times, Associate Supreme Court Justice Antonin Scalia said Thursday during a speech at Texas A&M University that there is no such thing as the living Constitution.
Scalia was speaking as part of the Twanna M. Powell Lecture at the George Bush Presidential Conference Center.
Im what you call an originalist, one who believes the Constitution should be interpreted exactly as it was adopted, Scalia added.
It should be interpreted as it was written nothing more, nothing less. Rights do not grow smaller or larger. Some legal experts say you have to interpret the Constitution broadly, but thats not true under any circumstance.
Scalia, who was appointed to the Supreme Court in 1986 by President Ronald Reagan, added, You hear the phrase the living Constitution and that its a living document. Im a believer in the dead Constitution. Maybe we should better phrase it the enduring Constitution.
The Constitution is not a living document. Its a legal document, and legal documents do not change.
Scalia said that such controversial subjects as the death penalty and abortion are really not Constitutional issues because theres not one word about them in the Constitution. People who believe in a living Constitution would like to see such things as un-Constitutional.
The Constitution, he added, does exactly what its supposed to do: It provides stability, he said.
Bush , when introducing Scalia, said that he was a free spirit and deep thinker. He shares his views openly, and he is certainly thought-provoking.
Among the overflow crowd to hear Scalia were members of the Texas Supreme Court, the Fifth Court of Circuit Appeals and numerous federal and state judges.
A native of Trenton, N.J., Scalia graduated from Harvard Law School and was a Sheldon Fellow of Harvard University. He was also a law professor at the University of Virginia and the University of Chicago and visiting law professor at Stanford and Georgetown. He served the federal government as General Counsel of the Office of Telecommunications Policy and was appointed judge of the U.S. Court of Appeals for District of Columbia in 1982.
He and his wife, Maureen, have nine children.
Scalia, who was approved as a Supreme Court justice by a vote of 98-0, said such approval would never happen today. Congress wants moderates and a moderate interpretation of the Constitution. The living Constitution idea is seductive to the man on the street, and even to some judges.
But we must apply the words as they were originally written and we must be bound by their original meaning. We must think of what the words are and what the words meant when the people adopted them.
The Constitution doesnt morph to be what we want it to be.
Scalia said if there were one change he could make to the Constitution, it would be to make amendments to it an easier process.
Amendments are not easy to do, he added.
They must be ratified by three-fourths of the states. But someone figured out that with the population disparity of states today, only two percent of the total population could prevent an amendment from being passed. Its very difficult to get an amendment passed.
"That's what Judges do. Interpret the Constitution."
That's what Judges are supposed to do, but too often Judges interpret the Constitution as though, English was a second language to them and they are flunking their studies.
I believe that this argument started between T. Jefferson and Chief Justice John Marshall re: Madison v. Marbury ca. 1801. Jefferson's argument was that Marshall was "construing" the meaning of the Constitution. See also "Constitutions Construed..." by John Tyler of Caroline.(1825)
I see but what about the right to privacy and so on? It isn't mentioned in the Constitution but most people (excluding Bork naturally) would say we should have that right. Isn't that an example of our rights growing larger?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This seems fairly straightforward to me. Rights enumerated in the Constitution are rights permitted to the government.
"Permitted to the government"? Governments are permitted powers. They have no 'rights". -- Read the 10th.
It really boils down to the fact that the "Bill of Rights" has always been misnamed and should have been called the "Bill of Restrictions". If you read them closely, you find that they never define anyone's rights, but certainly define what Congress is not allowed to do.
The rights of people or persons are mentioned at least six times in the BOR's. -- Agreed, neither Congress, nor any other level of government in the USA, is allowed to infringe upon those rights.
Try reading the "Founders Constitution" website for some insights.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Yes, must agree, I was in error. Simply too hasty to reply.
Didn't Pope John Paul II and doesn't Pope Benedict XVI say something similar about the Bible when it speaks on subjects such as homosexuality and other topics recently in the news?
Just asking.
Me too. Here's a bit from the Houston Chronicle with some added material: Justice Scalia critical of 'living Constitution'
Scalia said if the American people want to ban or uphold issues like abortion, the death penalty or gay rights, they need to convince their fellow citizens to do so and not leave it up to judges. "The Constitution has nothing to say about it either way," said Scalia, who has discussed his stance in many other speeches.
snip
When the public supported the right of women to vote, Scalia said, Congress passed the 19th Amendment to the Constitution. Scalia said that would not happen today, but instead judges would simply read in such a right into the Constitution's equal protection clause, which doesn't address the subject. "You should not use the Constitution as a means to enforce your own social views," he said.
snip
"We want a moderate judge. What in the world is a moderate judge?" he said. "What is a moderate interpretation of the Constitution? Halfway between what it really says and what you'd like it to say?"
snip
Trying to make it live & breathe is killing it.
Scalia asked:
"What is a moderate interpretation of the Constitution? Halfway between what it really says and what you'd like it to say?"
______________________________________
-- The right of the people to keep and bear arms shall not be infringed.
A man decreed to be a felon [in a foreign court] can be deprived of his right to keep & bear arms, according to Scalia & Thomas..
http://www.freerepublic.com/focus/f-news/1392339/posts
RELOAD.
A&M, give us room.
Trajan88; TAMU Class of '88; Law Hall (may it R.I.P.) Ramp 9 Mule; f.u.p.!
The thinking that the fifth amendment allows for the death penalty is what gives the left its power and lets lawyers distort the law. Reading between the lines does not make a case for the legality of an action. This is what the left is always guilty of perpetuating. The left and it scummy lawyers twist the law and its intent to get what they want all the time. The legality of the death penalty can only be decided by the congress.
I'll have to go read that thread.
Short broke an American law...
http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000922----000-.html
TITLE 18 > PART I > CHAPTER 44 > § 922
(a) It shall be unlawful
(1) for any person
(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce; or
(B) except a licensed importer or licensed manufacturer, to engage in the business of importing or manufacturing ammunition, or in the course of such business, to ship, transport, or receive any ammunition in interstate or foreign commerce;
Odds are, the treaty the US has with Japan covers offenses of American citizens of this nature, when they occur on Japanese soil. Even treaties signed by our government are "American law", something our citizens should take into account when they are on foreign soil.
Reading between the lines? What do you think it says? Please, put it in your own words. I await edification.
Short broke an American law...
That point was not even at issue.
The US Government wanted his RKBA's prohibited because of the Japanese Court conviction. Incredibly, Thomas & Scalia agreed. They will pay the political price.
Odds are, the treaty the US has with Japan covers offenses of American citizens of this nature, when they occur on Japanese soil. Even treaties signed by our government are "American law", something our citizens should take into account when they are on foreign soil.
Do you agree that anyone convicted of a one year 'offense' should lose their RKBA's, forever? Why?
If it wasn't even at issue, why was the Federal Code cited in the ruling?
Do you agree that anyone convicted of a one year 'offense' should lose their RKBA's, forever? Why?
It depends.
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