(author of the infamous column from post #6)You have just been unceremoniously FISKED within an inch of your life..
Nice job, reactionary.
BTW, I just realized that I screwed up the hyperlink to her full column in post #6. Here, is the proper link.
Posted on 04/11/2003 5:07:27 PM PDT by bourbon
04/10/2003
UNIVERSITY, Miss. - U.S. Supreme Court Justice Antonin Scalia told a standing-room-only crowd at the University of Mississippi Thursday afternoon to beware of the concept of the Constitution as a "living document."
Scalia, 67, a conservative justice known for legal decisions based on strict interpretations of the U.S. Constitution, said people who want change in society should use the democratic process, not the courts, to bring it about.
"What makes you think that a living Constitution is going to evolve in the direction of greater freedoms?" Scalia asked. "It could evolve in the direction of less freedom, and it has."
The controversial jurist drew more than 900 students, faculty, staff and others to Fulton Chapel for the James McClure Memorial Lecture in Law. The event was free and open to the public.
Scalia, a Reagan appointee who has served on the nation's highest court since 1986, has angered both liberals and conservatives at times with his opinions. In 1989, he cast the deciding fifth vote in Texas v. Johnson, the decision that struck down laws against burning the American flag. At the time, conservatives were incensed. Thursday afternoon, Scalia told the UM crowd in that case and others, he was handcuffed by the Constitution.
"I would have been delighted to throw Mr. (Gregory Lee) Johnson in jail," Scalia said of the man tied to the flag case. "Unfortunately, as I understand the First Amendment, I couldn't do it."
While Scalia's strict interpretation protects those rights expressly written by the framers in 1791, he said he doesn't recognize rights that many people today take for granted as constitutional. For instance, Scalia, a devout Catholic and father of nine, has vigorously opposed abortion on the grounds that it's not a right guaranteed specifically, even though other justices interpret it otherwise.
But this kind of interpretation, Scalia said, goes far beyond their role as jurists and turns justices into policy makers, which in turn pollutes the selection process.
Scalia referenced the embattled Bush nominations to the U.S. Court of Appeals.
"People have finally figured out ... that judges aren't interpreting law anymore, they're making policy," Scalia said. "So I don't want a good lawyer, I want someone who agrees with me.
"We'll have to have a mini-constitutional convention every time they select a new justice of the Supreme Court."
Outside Fulton Chapel, about 15 students from the campus chapters of the National Organization for Women and the Gay, Lesbian, Bisexual and Transgender Association staged a quiet protest.
"There are several important cases in front of the court right now," said Amy Clukey, president of UM's NOW and a senior from Deltona, Fla. "Sodomy laws, affirmative action at the University of Michigan, and of course, abortion rights are always an issue."
Chris Kelly from Sherman carried a sign that read: "Sodomy Laws are against basic human freedoms."
"I wanted to take the opportunity to speak up for those who are unwilling or unable to speak up for themselves," Kelly said.
Inside the auditorium, Scalia drew fire from the other side of the political spectrum when he opened the floor to questions. Jim Giles of Richland, a private citizen and outspoken proponent of conservative causes, had driven to campus for the speech. He told Scalia that the university's ban of flags on sticks in Vaught-Hemingway Stadium was just a "pretext to ban the Confederate flag. How isn't that unconstitutional?"
Scalia paused, then answered slowly, with a wave of his hand. "I have no idea."
The crowd laughed and applauded. The Supreme Court has upheld the university's right on the ban.
After the speech, second-year law students Brett McColl of Toledo, Ohio, Joey Long of Henderson, N.C., and David Ford of Memphis said Scalia argued so convincingly for strict constitutional interpretation that they wished another legal scholar had been available to present a counter-point.
"I generally disagree with just about everything the man writes, but he's definitely intelligent and knows the law," McColl said.
According to Scalia, knowing the law and how to apply it is his only job.
"People who want to read one new law into the Constitution after another, from abortion rights to grandparents' rights, are not looking for a flexible government," he said. "They're looking for rigidity."
It was Scalia's third appearance in the McClure Lecture Series and the sixth time a U.S. Supreme Court justice has presented the lecture. Henry Blackmun delivered it in 1982, Sandra Day O'Connor in 1988 and Clarence Thomas in 1995.
The series was established by James McClure Jr. of Sardis and Tupper McClure Lampton of Columbia in honor of their father, a Sardis attorney and UM law school alumnus.
by Angela Moore
Of course congress violates our constitution. This is a given to rational people. Who here disputes that?
Hence, interpretation is guaranteed, whether you agree with the interpretation or not.
So..? -- You have a point? - Or are you just playing word games? The basic unalienable human rights protected by our constitution cannot be 'interpreted'/legislated, - or even amended away.
Everyone knows they are violated, constantly. Most of us are here to attempt to put a stop to it.
That you are leaving the only interpretation of law to self-indulgent politicians is the scary part. The Constitution is not set in stone.
'Who' is leaving "interpretation of law to self-indulgent politicians"?
-- Your use of the straw man style to preface your pronouncements about our constitutions supposed changeability is a just a meaningless ploy.
The reason those people now have a "voice" is because of the Constitution, not in spite of it.
"Secondly, as one English professor intuitively pointed out, language changes over time. People of Justice Scalia's generation have trouble understanding what people of my generation say, and vice versa. It's only logical to assume that chances for miscommunication would be greater when you have people interpreting something that is more than 200 years old."
The Constitution wasn't written in hip-hop slang. It was written in English, something most people in this country still understand quite well.
"Another point is technology changes as do other aspects of everyday life. Today's country would probably seem like a whole new world to the framers of the Constitution. So, of course, issues such as abortion, gay rights, wire tapping and more weren't addressed by the Constitution. They didn't exist."
Homosexuals and abortion didn't exist in 1779? Both have been practiced since recorded history.
"How can you adequately address these issues if you're trying to look at them through 200-year-old eyes? Things that are considered acceptable now would probably give James Madison and the like a heart attack."
Those "issues" were addressed quite well, thank you, by providing for a system where everyone was to be equal before the law.
"However, you don't revert to the past in order to handle these issues. You take the times and the morals (if there are any) of the people into consideration and then act."
No, you don't. The fact that morality changes for good or ill has no bearing upon founding principles. If morality dictates what is just - or what rights individuals have - there is little reason for constitutional government in the first place.
"What also bothered me is the assumption that one can actually know what was going through the minds of people during the infant stages our country. Essentially, you aren't determining what the framers said, you are only saying what you think they would have said. How would you know? "
You can understand quite well what they were thinking by reading what they wrote. The texts are readily available.
Sounds suspeciously like the "greatest good to the greatest number", rather than something written for a nation of rugged individualists.
Be that as it may, how can you protect the rights of groups , without protecting the rights of individuals? Unless you are prepared to start doling out rights as mere priveleges to be withdrawn at the pleasure of legislatures or bureaucrats, "for the greater good" of course.
(author of the infamous column from post #6)And just what does that have to do with its enforcement? It was amendmed to remedy that situtation you know.
The Constitution should be open to new, more progressive interpretations, rather than sticking with one neanderthal view, IMHO.
No, not "interpretation", but amendment. Fundamentally the Constitution is a contract between the people (through the states granted) and the federal government, laying out its orgainization, powers, and prohibiting certain powers to it and others to the states (sometimes both are prohibited from certain actions, in which case the powers belong to the people). What good is a contract whose terms are fluid and subject to change by only one side of the contracting parties? The Constitution contains within it the mechanism for adapting it to changing times, the amendment process. If the Constitution gets "out of date" and need to become more "progressive" (a term often a euphamism for left wing, as in the Congressional "Progresive Caucus") then amend it, do not violate it. As the Justice points out, there is no guarantee that such "interpretations" will result in more freedom and its more than merely argueable that they haven't.
The function of the Courts is not to interpret the Constititution, but rather to enforce it as written. They've fallen down rather badly and let those "self-indulgent politicians" do pretty much whatever they wanted, regardless of explict Constitutional prohibitions or lack of explicit powers, as long as they said "interstate commerce" three times while clicking their heels together. That may be changing, slowly, but changing nonetheless.
The Constitution "is" a living document, and open to "interpretation"--just not by the courts, or the Congress, or the executive. If you want a "more progressive interpretation", all you have to do is convince each house of Congress, and two-thirds of the state legislatures. It's called THE AMENDMENT PROCESS, and it is the ONLY legitimate way to change the "interpretation"--by changing the document itself.
The Constitution is not set in stone.
I'm afraid it is, other than changes to the stonework via the legitimate ammendment process. Otherwise any oath, such as the one I first took over 3 decades ago, to support and defend that Constitution, would be pretty meaningless wouldn't it? BTW, that oath is another Constituional requirement. Art VI, paragraph 3.
Why would your screenname set a FReeper off when it's a quote from a Saturday Night Live skit and not a quote from W.?
Actually the Judiciary is supposed to enforce and apply the Constitution, not interpret it. Besides the other two Branches are also bound by it, and should not be knowling or uncaringly violating it, and thereby the oaths required by the Constitution itself.
The author of the column ignores the built-in rule of the Constitution instituted to make it "living" or "current" -- the Amendment process -- which eliminates the inherent dangers of a whimsical democracy, the most notable of which is to give too much power to the government in times of turmoil, danger, or when over-populated with busy-bodies in high offices. But in all fairness, he makes common mistakes known from the beginning of our nation. For example, read these paragraphs and excerpts from a 1792 National Gazette editorial by Philip Freneau, titled, "Rules for Changing a Limited Republican Government into an Unlimited Hereditary One":
4. In drawing all bills, resolutions, and reports, keep constantly in view that the limitations in the Constitution are ultimately to be explained away. Precedents and phrases may thus be shuffled in, without being adverted to by candid or weak people, of which good use may afterward be made.
5. [excerpt] . . . it will be particular useful to confound a mobbish democracy with a representative republic, that by exhibiting all the turbulent examples and enormities of the former, an odium may be thrown on the character of the latter.
11. As soon as sufficient progress in the intended change shall have been made, and the public mind duly prepared according to the rules already laid down, it will be proper to venture on another and a bolder step toward a removal of the constitutional landmarks. Here the aid of the former encroachments and all the other precedents and way-paving maneuvers will be called in of course. But, in order to render the success more certain, it will be of special moment to give the most plausible and popular name that can be found to the power that is to be usurped. It may be called, for example, a power for the common safety or the public good, or, "the general welfare." If the people should not be too much enlightened, the name will have a most imposing effect. It will escape attention that it means, in fact, the same thing with a power to do anything the government pleases "in all cases whatsoever." To oppose the power may consequently seem to the ignorant, and be called by artful, opposing the "general welfare", and may be cried down under that deception."
He would be wise to heed this warning from the Father of our Nation: "If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. -- George Washington, Farewell Address, September 19, 1796
Interesting...
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