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Scalia’s Absolutely Wrong About Absolute Rights
The Independent Institute ^ | 9 April 2003 | Anthony Gregory

Posted on 04/09/2003 10:19:45 PM PDT by sourcery

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1 posted on 04/09/2003 10:19:45 PM PDT by sourcery
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To: sourcery
I love Justice Scalia dearly. He is my favorite justice. But from time to time he lets his law and order gene overrule his liberty gene as some conservatives are wont to do, in particular his stance on property seizures. I don't think the wife whose car was seized because her husband solicited a prostitute in it received good justice.

Check my profile page for links to Scalia's magnificent opinions. If you've never really read any Scalia opinions I urge you to do so. They are masterpieces.
2 posted on 04/09/2003 10:30:49 PM PDT by Arkinsaw
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3 posted on 04/09/2003 10:31:40 PM PDT by Support Free Republic (Your support keeps Free Republic going strong!)
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To: Arkinsaw
No one's perfect. I agree with many of Scalia's legal opinions. He is a brilliant jurist. But he is wrong on this particular issue.
4 posted on 04/09/2003 10:33:36 PM PDT by sourcery (The Oracle on Mount Doom)
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To: sourcery
IOW, what part of "shall not be infringed" do they NOT understand.
5 posted on 04/09/2003 10:51:34 PM PDT by The Shootist
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To: sourcery
I agree with S C Justice Goldberg who said the following:

"THE BILL OF RIGHTS IS NOT A SUICIDE PACT"

The Bill of Rights is not a Suicide Pact - Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)
6 posted on 04/09/2003 11:08:53 PM PDT by Az Joe
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To: Arkinsaw
ditto.
7 posted on 04/09/2003 11:11:31 PM PDT by Huck
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To: sourcery
From the case I cited above.

"We deal with the contending constitutional arguments in the context of certain basic and sometimes conflicting principles. Citizenship is a most precious right. It is expressly guaranteed by the Fourteenth Amendment to the Constitution, which speaks in the most positive terms. The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency.

The powers of Congress to require military service for the common defense are broad and far-reaching,
for while the Constitution protects against invasions of individual rights, it is not a suicide pact.
Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government."
8 posted on 04/09/2003 11:11:44 PM PDT by Az Joe
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To: sourcery
Taking the SC approval during WWII, for the Draft, and for Internment--

How would one argue against such measures, if failure to do both would GREATLY imperil National Security?

That was precisely the issue, then, and the basis for the approval.

Most Americans don't even know that Germans and Italians were also interned.

Likewise, few Americans know that Japan shelled our West Coast in California and Oregon, and that they launched thousands of baloons with explosives. These came to North America.

Then we have the Germans who tried to come ashore from a submarine (one or more a citizen).

We now have subversives, including our own citizens, operating in "sleeper cells."

I feel safer under Scalia's interpretations, than with the ideologically pure "interpretations."

The Constitution is Not a Suicide Pact.
9 posted on 04/09/2003 11:30:08 PM PDT by truth_seeker
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To: Az Joe
I agree that the Constitution is not a suicide pact. But that point is Consitutionally irrelevant. For one thing, no one has ever suggested that the Constitution requires anyone to commit suicide, nor is any such policy being suggested.

But more importantly, the Constitution is not a contract where citizens cede their inalienable rights to the government. Instead, the Constitution is a grant of limited and specifically enumerated power to the Federal government. The Constitution does not exist to specify what rights the government grants to individuals. It exists to limit the power of government within specified bounds. Nowhere does the Constitution grant the government many of the powers that it now claims to exercise by right.

As for the "general welfare" and "necessary and proper" clauses, it is not logically possible for them to mean what many seem to think they do. To be granted the general power to do whatever may be "necessary and proper," and in the "general welfare," is to be given absolutely unlimited power. Almost anything can be claimed to be in the general welfare, and almost anything may be "necessary and proper" in order to accomplish some Consitutionally-sanctioned goal. Or at least, government officials will so argue, and expect the courts to defer to their discretion in the matter. Clearly, to hold that either of these clauses justifies any government action that violates the inalienable rights of individuals makes the Bill of Rights meaniningless. And to hold that either clause grants any power not specifically enumerated makes the enumeration of those powers pointless.

The only fair way to interpret those clauses is that they grant the government the same power to act that any private individual would have. In other words, they empower the government to do whatever is necessary in order to fulfill its Constitutionally-mandated powers, provided a private individual would have the right to do those things. These clauses give the government the power to buy and sell property, enter into contracts, drive vehicles down the street, erect buildings, open and maintain bank accounts, and all the other everyday actions that any private person would have the right to do, without any explicit enumeration of those powers in the Constitution. The point to the enumerated powers is that they involve actions which would not be rightful for a private individual to perform without the consent of everyone affected. The point to the clauses in question is that they make it unnecessary to explicitly enumerate every action which the government may rightfully perform.
10 posted on 04/09/2003 11:37:05 PM PDT by sourcery (The Oracle on Mount Doom)
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To: truth_seeker; Az Joe

Veto of federal public works bill

March 3, 1817

To the House of Representatives of the United States:

Having considered the bill this day presented to me entitled "An act to set apart and pledge certain funds for internal improvements," and which sets apart and pledges funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense," I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

James Madison,
President of the United States


Text Version Selected Works of James Madison | Home | Constitution Society

11 posted on 04/09/2003 11:44:52 PM PDT by sourcery (The Oracle on Mount Doom)
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To: sourcery
In view of your citation, I ask: How did we then wind up with a national highway system?

Something must have intervened after 1817

I'm not very clear what your citation has to do with the Draft, and with Internment--the two subjects I raised.

Would you comment as to why you would object to the Draft, if doing so spelled GREAT peril to National Security?
12 posted on 04/10/2003 12:21:09 AM PDT by truth_seeker
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To: sourcery
All that phrase means is that ANYTHING carried to an illogical extreme is harmful.

Like it or not, there is no such thing as an absolute right to do anything. Not here or anywhere else under heaven
13 posted on 04/10/2003 1:14:48 AM PDT by Az Joe
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To: sourcery
"he is wrong on this particular issue. "

He's just made to seem that way by taking his comment out of context.

Freeper Steelerfan was at that speech and here's what he had to say about the remark:
"I was at the speech and that is not what he said. As usual the paper got it completely backwards. His point was that all sorts of "rights" such as a constitutional right to abortion have been grafted onto the constitution when the document is silent about the issue. His argument was that such "rights", if they exist, are not constitutional in nature. He started the speech by explaining his four principles of constitutional interpretation: text; tradition; original intent and Permanency . As he put it, "we have an enduring constitution, not a living one." On the whole, and for what it is worth, I was very favorably impressed with the speech. "

http://www.freerepublic.com/focus/f-news/868606/posts

14 posted on 04/10/2003 6:30:01 AM PDT by mrsmith
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To: sourcery
The Constitution "just sets minimums" alright - on Government. It doesn't give us our rights, they are already there.
15 posted on 04/10/2003 6:32:33 AM PDT by Wolfie
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To: truth_seeker
The Constitution is Not a Suicide Pact.

Correct. It's a "living" document, whose meaning is determined by zeitgeist and the ever changing winds of history. In short, it means nothing at all.

16 posted on 04/10/2003 6:36:28 AM PDT by Wolfie
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To: Arkinsaw
"I love Justice Scalia dearly. He is my favorite justice."

I gotta say that I have to admire a guy who has a favorite justice - especially when he agrees with me. Thanks for the links on Scalia.
17 posted on 04/10/2003 6:43:54 AM PDT by bucephalus (Baghdad Bob is immortal)
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To: Az Joe
there is no such thing as an absolute right to do anything

Yes, that's true--if by 'absolute right' one means that having such a right justifies violation of the rights of others. But the principle that no such right is valid applies just as much to the government as it does to any individual.

However, I assume (or at least hope) that the author of the article didn't mean 'absolute' in that sense. I think he meant 'inalienable,' which means that the right is intrinsic to an individual, not a privilege that can be granted or revoked by others.

The fundamental right is the right to Liberty, which is the right to do whatever is not wrong. In other words, it is the right to do anything that does not violate the rights of others. This right is analogous to the presumption of innocence, where the burden of proof is on those who would claim that someone is guilty of a crime. Similarly, the right to Liberty requires that those who object to the rightfulness of an action prove that it is wrong, by showing it violates the rights of others.

Without the assumption of virtue provided by the right to Liberty, no one would even have the right to present an argument regarding what might or might not be a right. To deny the right to Liberty is to deny your own right to claim anything whatsoever.

18 posted on 04/10/2003 9:56:55 AM PDT by sourcery (The Oracle on Mount Doom)
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To: truth_seeker
In view of your citation, I ask: How did we then wind up with a national highway system?

Something must have intervened after 1817

Yes, society's understanding of the Constitution went from bad to worse. One major turning point came during the Great Depression, when the Supreme Court changed its mind on the meaning of the Commerce Clause due to political pressure from Roosevelt.

I'm not very clear what your citation has to do with the Draft, and with Internment--the two subjects I raised.

Would you comment as to why you would object to the Draft, if doing so spelled GREAT peril to National Security?

The fundamental principle involved is that one person's need, no matter how dire, justifies his violating the rights of someone else. My need for cash, no matter how dire, does not justify my taking it out of your bank account without your consent. My need for a heart transplant does not justify my taking your son's heart out of his chest. My need for self defense does not justify my forcing you to serve as a personal guard or police force.

If the needs of one person do jot justify violation of the rights of others, then the same is true of any group of persons, even society as a whole. No group can have any rights that none of its members possess as individualsj, because the rights of any group derive solely from the individual memebers.

19 posted on 04/10/2003 11:24:04 AM PDT by sourcery (The Oracle on Mount Doom)
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To: sourcery
"My need for self defense does not justify my forcing you to serve as a personal guard or police force."

You are stating your opinion, or preference. That is not the same thing as a fact.

The factg is the draft has been utilized, and upheld in court. That is a fact.

I deal with reality. I would not make a good Information Minister for Iraq.
20 posted on 04/10/2003 11:41:46 AM PDT by truth_seeker
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