Posted on 03/14/2002 5:50:19 AM PST by wwcc
Supreme Court Justice Antonin Scalia, during a luncheon in Buffalo on Wednesday, re-emphasized his view that women don't have a constitutional right to an abortion. His belief flies against the court's majority decision in the 1973 case Roe v. Wade, which found a constitutionally protected right of privacy that covers abortion.
"My votes in abortion cases have nothing to do with my pro-life views," Scalia said after his speech at the Hyatt Regency Buffalo. "They have to do with the text of the Constitution. And there is nothing, nothing in the Constitution that guarantees the right to an abortion."
At times flashing a prickly wit, Scalia also criticized the process for selecting new Supreme Court justices as being highly political today.
And he defended the court's 5-4 decision in the 2000 presidential election that stopped ballot counting in Florida and handed victory to George W. Bush.
The recurring theme throughout Scalia's 40-minute speech, and in answers to audience questions, was the importance of a strict, limited interpretation of the Constitution.
"It says what it says, and it ought not to be twisted," he said.
Scalia, who is the foremost conservative member of the Supreme Court, was appointed by President Ronald Reagan in 1986. .
Scalia devoted the bulk of his speech to the clauses in the First Amendment that ensure government may not restrict people's religious practices, nor impose religion on anyone.
Judicial rulings on those clauses - and the entire Constitution - must be based on their text, the authors' original intent or historical practice, he said.
In quoting George Bernard Shaw - using a phrase later appropriated by Robert F. Kennedy - Scalia said those who believe in judicial reshaping of the Constitution "dream things that never were."
The appropriate way to deal with an issue that demands updating judicial precedent or the Constitution is by legislative action or, where appropriate, a constitutional amendment.
"We have an enduring Constitution, not a living one," Scalia said.
After his prepared remarks, Scalia took questions and delved into several hot-button issues.
He dismissed the idea that abortion is a constitutionally protected right, but he also said the Constitution doesn't explicitly prohibit abortions, either. He indicated the issue ultimately should be decided by a constitutional amendment.
The fight over abortion rights already is heating up, as pro-choice groups dig in for a battle whenever Bush gets to make a Supreme Court appointment.
Picking up that theme, Scalia blamed the the bitter political fights over court nominations on the belief that judges are free to rethink the Constitution.
"Every time you're selecting a Supreme Court justice, you're conducting a mini-plebiscite on what the Constitution ought to mean," he said.
Scalia defended the court's decision in the 2000 balloting debacle, saying it properly returned authority in the matter to the Florida Legislature.
Organizers said 930 tickets were sold for the event, sponsored by the Chabad House of Western New York and the University at Buffalo Law School.
Too late, I had already looked up a few cases and found that I was somewhat off track. I'll post it just to give you an idea of what Scalia is saying about the judgment of Roe v. Wade and the basis for that "judgment." I do admit I skip around a bit and should have posted the concurring opinion in Griswold v. Connecticut.
Apparently, I gave Holmes and others more credit than they deserve. Their usurpation of the legislative function of government was not even hidden in manipulating words of the Constitution, but rather in patently rewriting it and inserting laws not there ex nihilo.
In Rowe v. Wade Blackmun openly admits: “The constitution does not explicitly mention any right to privacy. In a line of decisions, however, going back perhaps as far as [1891], the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts the Court or individual Justices have indeed found at least the roots of that right in the First Amendment [here citing cases]; in the penumbras [more cases, esp. Griswold v. Connecticut] . . . .”
Thus, Blackmun admits that his case is not based on the Constitution. Let us then visit some of the more significant of those cases beginning with Griswold v. Connecticut, pointing out critical errors in Douglas’ opinion and also showing what the dissent thinks of his chinanigans.
In Griswold v. Connecticut, Douglas opines: “The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice – whether public or private or parochial – is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”
Thus Douglas falsely begins his reasoning. The Constitution does have something to say about these rights, namely that the federal government has no jurisdiction over such matters. This is implicit in the Constitution itself which grants only certain powers to the Federal Government and is iterated in the tenth Amendment in case any missed it: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” --- the 14th Amendment notwithstanding, but more on the 14th later.
Douglas continues: “Previous cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance . . . . Various guarantees create zones of privacy.”
At this point no one should any longer take Douglas seriously. For although the Constitution has words with clear meaning, his decision truly has no meaning. Please, Douglas, do define for me the terms, emanation, penumbra, and zone. And how do such vagueries give life to rights not explicitly stated in the Constitution. In sum where in the Constitution does it state that rights not stated in the Constitution are not only reserved to the federal government to determine but also to enforce in spite of laws of the state and the mores of a people and in spite of the explicit statement to the contrary in the 10th Amendment. This is judicial activism unabashed and having committed a long unimpeded train of abuses to vilify the Constitution and send our country on a track to who-knows-where.
I had intended to further show Douglas’ lunacy, but nothing following mitigates his madness. He merely asserts that “we deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. . . .” Even if he is right, the Constitution does not make the federal government the guarantor of that right, but if anything leaves it to the determination of the states.
Moreover, the dissent too found Douglas’ ravings tyrannical and openly said so.
Black expressing offense at Connecticut anti-contraceptive law, nevertheless writes in dissent:
“I get nowhere in this case by talk about a constitutional “right of privacy” as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government [whether state or federal] has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court’s judgment and the reasons it gives for holding this Connecticut law unconstitutional. . . I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause with an “arbitrary and capricious” or “shocking the conscience” formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See eg. Lochner v. New York, 198I.S. 45. 25 S. Ct. 539. That formula, based on subjective considerations of “natural justice,” is no less dangerous when used to enforce this Court’s views about personal right than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all in cases like . . .”
Stewart also dissents, also regarding the anticontraceptive law as silly, nevertheless constitutional:
“In the course of its opinion the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law. . . The Court also quotes the Ninth Amendment, and my Brother Goldberg’s concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held “states but a truism that all is retained which has not been surrendered,” U.S. v. Darby, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison little wonder. What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees.’ With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”
It is as I have stated WILL not JUDGMENT that the Court employs, vilifying and nullifying our Constitution, and amounting to nothing less than a usurpation by an elite and backward few.
P.S. I can go through Lochner v.State of NY as well as the 14th but already this is getting very long.
Where does that leave us? Where are we headed? Who knows? Sodom and Gommorah? Babel? Perhaps. But we only know those places through the eyes of the Israelites. I might have thought them to be delightfully civilized and the Israelites primitive, destructive savages."
And would you argue that sexual license is a good thing. That children hopping around from bed to bed prepares them for a life of hard decisions, set backs, and sacrifice. Like many I know they will grow up to become adolescants for the rest of their life. What progress we as a society have made.
A yes, but they have the right to be kids for the rest of their life or pigs.
The point you need to further consider is this: I will grant you that the zygote (I spelled it right this time) may not be a human being. To make such an argument requires a philosophical argument I am not prepared to make. However, the zygote is human. That is an undeniable scientific fact. It is a human different from either parent and therefore not a mere mass of the mothher's tissue.
I have stated this in a previous post, but I will reiterate because of its importance. The zygote has done nothing wrong. It has violated neither political nor natural law. And yet we treat it as criminal for expediency's sake. We choose to rectify a bad choice with another chioce though without giving the condemned a choice, and never have I heard that any child under the age of five choose rather to die than live. We prosecute one who cannot speak, because it is easier than condemning the choice that brought about that consequence.
Now the argument that the zygote is not sufficiently developed to be termed a human being is fallacious for the following reason. All human development proceeds by stages. Therefore an infant who cannot speak is not fully human, not having developed the full capacity of human reason. Likewise, I would argue that many adults are in a way not fully human because they lack any ability to reason. The difference between the infant and the underdeveloped adult is that the infant has never made a choice in its development whereas the adult has. The child is innocent for not being fully adult whereas the adult is.
We have chosen to rectify the situation of the unwanted child not by punishing the licentious behaviour of the mother, but the innocent child who has not even yet developed behaviour. We have rejected the notions of virtue and vice and therefore we fallatiously put the mother who has behaved wantonly and the child who has not on equal footing.
IMHO, I do not think there is much life in a society where all things are permissable. Yet by the day we resemble more and more such a society.
There are consequences. I am comfortable with a lack of absolute standards. You are not.
I am struck by that. A man asked me whether I would care if my mother were killed since I didn't believe life was sacred. I had to think on that awhile to make any sense of it. The idea behind it is that if one has no absolute standards then one has no standards at all. Anything goes. The same line of thought appears in the argument about the proper way to interpret the Constitution.
It's just not so. There is a real world out there. There is such a thing as human nature. We just have incomplete knowledge of it. Given that, there are many possible assumptions to work with. The scientific approach is a good model for that type of thinking. It doesn't lead to chaos. It doesn't lead to "immorality". Each approach has consequences. Each action has consequences. All approaches do not have equal value or equal appeal. And one has the power to choose. The political correctniks are not, in fact, correct.
I find the above an accurate description of reality. Your approach leads to competing religions, each claiming access to absolute truth, each advocating a different version of that truth, with no possibility of anything but never-ending conflict.
What would moral relavists think about moral relativism if we tortured them slowly to death and fed them their own children for their own sustenance, etc.? Most moral relativist have simply abstracted themselves from the real world and just need a good dose of it to wake up. Few of them make convincing arguments, because after they deconstructed morality, they proceeded to deconstruct reason. And we know what becomes of argument without reason.
And your blanket statement that it has eluded philosophers for millenia is simply ridicilous.
It is easy not to address the arguments by calling us truth-mongers.
"Each action has consequences. All approaches do not have equal value or equal appeal. And one has the power to choose."
All approaches are not equally good for the individual or society. But you are correct in stating that actions and choices have consequences. You have stolen my argument. The sexual act has consequences. The choice we have is to regulate the sexual act or regulate the outcome of that choice. The cowardly way is to regulate the outcome in my opinion. I am called sexually repressive, but it is far better than repressing the unborn. You see we have a choice as to how we engage in sex or whether to engage in sex. The unborn have no choice.
That argument cuts both ways.
Do not competing religions fight endlessly about who knows "the truth"? Are there not endless disputes about who knows what the Bible "really" says (referring only to disputes WITHIN the monotheistic religions)?
They seem good to me. I suggest you assemble as many such as possible and present them, first, to FR for critique and amendment, then to the general public (minus the over-heated rhetoric - "mad", "tyrannical", etc.).
If the Middle East doesn't blow up - and that's a very, very big if - I'd guess you'd have a chance to wield some influence.
The idea behind it is that if one has no absolute standards then one has no standards at all. Anything goes. The same line of thought appears in the argument about the proper way to interpret the Constitution.
The reason that if there are no absolute standards then there are no standards at all is that there is no rational, coherent explanation for the existence of binding moral obligation in an impersonal, purely material universe governed solely by physcial forces. That premise taken to its logical conclusion leads to nilhism. I think the only reason that you have intuition of binding moral standards is that you live in a universe that was created by God, and that is owned and governed by God whether you acknowledge it or not. Every time you speak of some moral obligation or other you are speaking as if you live in a theistic universe, which in inconsistent with your presupposition. Since it is basically impossible to actually live out nilhism consistently, you 'borrow' from the theistic world-view. That inconsistency with your basic premise is my major point to you.
It's just not so. There is a real world out there. There is such a thing as human nature. We just have incomplete knowledge of it. Given that, there are many possible assumptions to work with. The scientific approach is a good model for that type of thinking. It doesn't lead to chaos. It doesn't lead to "immorality". Each approach has consequences. Each action has consequences. All approaches do not have equal value or equal appeal. And one has the power to choose.
What is human nature? If a human being is purely and nothing but a physical system, part of a much larger purely physical system called the universe, then it operates totally by the forces of physics and chemistry, which are by their nature totally coercive in their operation. Thus, any 'power to choose' would always be illusory because it would be the nothing but a result or an effect of a prior necessary and sufficient physical cause. There is no independent 'you' inside to cause anything because 'you' are always and only and nothing but effects of the prior physical causes of the brain in 'your' skull.
If 'you' cause nothing, but are only an effect of the biochemical reactions in 'your' brain, then such notions as 'choice' and 'free will', and by extension, rationality itself, are completely and utterly meaninless. Rationality means choosing between ideas, but there is no choice in a physical system that only operates by coercive force. Coercion and choice are antithetical. Besides, there is no personal agent to effect the choice. There are only coercive physical forces at work.
By logical extension, then, there can be no distinction between a 'good' idea and a 'bad idea', because there is nothing but impersonal physical force in operation, which is unable independently of prior physical causes, to make such a distinction. One physcial force may overpower another, but there cannot be said to be any 'good' or 'bad' ideas because all ideas alike have natural, material causes. There can be no moral distinctions, either, such as a difference between cruelty and kindness, because there is no moral obligation in a purely physical, impersonal universe. A purely physical universe just is - nothing in it 'ought' to be another way.
These are some of the reasons I believe the presupposition of naturalism is wrong. It is impossible even to speak or think in a way that people are normally accustomed to speaking and thinking about themselves and the world, and at the same time remain coherent and logically consistent with a purely naturalistic presupposition. Those who live most consistently with it are generally called psychopaths, but even then, if the presuppostion were true, there wouldn't be any way to make any real moral distinction between the saint and the psychopath.
So, my dear liberallarry, let me give you an example of what I mean. You say:
Your approach leads to competing religions, each claiming access to absolute truth, each advocating a different version of that truth, with no possibility of anything but never-ending conflict.
You seem to be implying here that we have some binding moral duty to avoid 'never-ending conflict', or that there is something 'wrong' with claiming access to absolute truth and advocating different versions of that truth, etc. You are not being neutral here - you are advocating a particlar view of morality, and thus your claim is self-refuting on its face. But aside from that, everytime you make such a moral claim you are speaking as if you live in a theistic universe, which is inconsistent with your premise. You are right that there is a philosophical gulf between us, and what I am trying to do here is stop you from intellectually 'cheating', or borrowing from our world-view without paying it back in acknowledgement of the Creator. But if you want to come over to our side of the gulf we would be glad to welcome you:^)
Cordially,
Who knows what kind of universe it is? I have no problem saying I have a preference for one set of moral standards, one kind of society, over another. And no problem setting out my reasons to my fellow citizens, or asserting my claim by force, if necessary. I also have no problem listening to competing claims and changing my views if I find them compelling. Nowhere are God or absolutes involved.
I doubt we can ever escape from conflict. But it would be nice to not fight continually over the same old nonsense.
You have already claimed in effect to know what kind of universe it is! Your assumption is that it is a non-theistic universe where there is no God or absolutes involved.
I have no problem saying I have a preference for one set of moral standards, one kind of society, over another. And no problem setting out my reasons to my fellow citizens, or asserting my claim by force, if necessary. I also have no problem listening to competing claims and changing my views if I find them compelling.
Of course I know that you have preferences for certain sets of moral standards, one kind of society over another, etc. So do I. But I have a basis and a rational explanation for the existence of personal, moral obligation. You don't. The problem is that from a presupposition of a non-theistic, purely material, impersonal universe, one cannot give an accounting of volition, morality, or indeed of rationality itself. Nor can one provide any coherent, rational explantion flowing strictly from a non-theistic premise as to why one set of moral preferences is 'better' than any other. So every time you make some morally normative statement you are inconsistently borrowing from the theistic world view. That's my point.
Cordially,
Cordially,
I don't think that's quite accurate. I have said I'm not religious. That's not the same thing as saying there is no God. I have said that I claim no knowledge of absolutes. That's not the same as saying there are no absolutes.
Also it is important to note the context. We're talking about morality here on earth - not the nature of the universe.
Point well taken. Let me to revise my assertion to say that in effect you have made a functional assumption for your life that there is no God. That is, whether there is or isn't a God, or whether there are or are not absolutes you don't know, but for all practical purposes you have decided to live as though there were not. Is that a fair assessment?
Cordially,
Cordially,
Neither can I. But one of the things I have been aiming at is for you to think about something with which you are intimately familiar; namely, the fact of your own thinking, but to do so in light of your presuppositions taken to their logical conclusions.
Cordially,
This needs to be on the front page of FreeRepublic
They would be pretty p!sssed off, just like anyone else. If you think that this "argument" is a refutation of moral relativism, you obviously do not understand it.
Most moral relativist have simply abstracted themselves from the real world and just need a good dose of it to wake up. Few of them make convincing arguments, because after they deconstructed morality, they proceeded to deconstruct reason. And we know what becomes of argument without reason. And your blanket statement that it has eluded philosophers for millenia is simply ridicilous.
Blah, blah blah. I'm waiting for a refutation of moral relativism. So far, I haven't seen one, either in this forum or in any of the writings I read getting my bachelors and masters degrees in philosophy from well-regarded schools. If you have one, I'd be very interested to see it.
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