Posted on 06/06/2005 2:09:50 PM PDT by P_A_I
It's simply an idle thought on my part. I'm still wondering what Justice Scalia thinks of those that label him "conservative," and then chastise him for not being "conservative" enough.
Worth repeating.
Is that what is confusing you? You expect judges to vote according to their political views?
You confuse conservative [constitutional] principles with political views? I'm not the one confused here rudeeboy, you are.
If so, how do you explain Scalia's vote in this case? Maybe it was "political?"
Indeed, it might be.. Seems, imo, -- to be lobbying for chief justice.
I refer you to my reply #42.
Exactly right...in my opinion, judicial activism is wilfully ignoring the written Constitution...whether you are following a prior decision that did so...or whether you are doing so for the first time on a particular issue
No, but it its general expression does tend to have the form of "deciding that existing law is wrong and should be overturned."
In that sense, Thomas is indeed leaning toward the "activist" label, whereas Scalia, in his reference to the law as written, is more in line with the "interpret the law, don't make it" position.
We can certainly debate whether or not Congress ought to change marijuana laws. I'd just as soon not let the Supremes do it.
Well, I don't really have a dog in your fight regarding Scalia's judicial philosophy, but I did have a dispute about your framing of the rights question. I have a serious problem with people who ask: "Where in the Constitution is there a right to .. etc, etc, etc?" That should never be the first question. The first question should be: "Where does the Constitution grant government the authority to regulate .. etc, etc, etc?"
Only once the first question has been answered in the affirmative, only then should one ask: "How does the government exercise this authority without violating any Constitutional rights?" If the first question has been answered in the negative, there is no way for the government to exercise authority it does not have without violating Constitutional rights (the 9th & 10th amendments).
I'm still waiting for the explanation of why the War on Alcohol required a constitutional amendment, but the War on Other Drugs doesn't.
It's beyond rational explanation from either prohibitionist faction, - the socialists - or the moralists.
I don't think you understand. It's Thomas who wants to go back to the written law - the Constitution itself, which does not give Congress power over intrastate transactions of any kind, whether they involve marijuana or matchbooks.
Give me 9 like Thomas or 9 like Scalia or any combination thereof. I will not criticize either for there differing positions in this matter.
All of those 'sins' can be reasonably regulated by state or local governments, using constitutional due process.
Yep.
they may appoint teachers in every State, county and parish and pay them out of their public treasury;
Yep.
they may take into their own hands the education of children,
Yep.
establishing in like manner schools throughout the Union;
Yep.
they may assume the provision of the poor;
Yep.
they may undertake the regulation of all roads other than post-roads;
Yep.
in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.
Yep.
Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.
Yep.
Stare decisis is wrong, pure and simple. To accept it is to accept the legislative 'power' of the courts. I dare not say 'authority' since the courts do not possess such an authority under the consitution.
As to 'order', that is achieved over a long period of time of consistent rulings one way or the other. That is how legal precedent should be established by the courts in a well ordered society.
I'm certain that Jefferson and Madison who considered the court to be the weakest of the branches by design would consider the exercise of stare decisis as an an egregious violation of the court's authority.
As for Thomas, he is the only true strict constructionist on the court today though Rehnquist seems close. Any one who holds to stare decisis is by definition not a strict constructionist, since it gives the courts absolute legislative power.
For example, would a "true" conservative justice on SCOTUS uphold a conviction for violating a gun control law, because the law was on the books, and the law was violated on its face, or overturn conviction because the law violates the Second Amendment on it's face?
What is the non-activist thing to do, when interpreting the law as written conflicts with recognizing the Constitution as the supreme law of the land?
Wow, that is an awesome quote! How prescient he was.
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