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To: bourbon
Scalia's opposition to the majority opinion is based, I think, on the court's taking a stance that totally ignores the tenth amendment and the state's right of self determination.
The court has made many such decisions in recent years.
Roe vs Wade should not have been heard by the court. Let each state determine for itself whether or not abortion is allowed. The same holds true for sodomy laws.
Unless an issue is specifically addressed in the constitution, it is up to the "States respectively, or to the people."
6 posted on 07/19/2003 7:18:17 AM PDT by m&maz
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To: m&maz
Scalia's opposition to the majority opinion is based, I think, on the court's taking a stance that totally ignores the tenth amendment and the state's right of self determination.

States have rights reserved to them in the tenth, but the people also have rights that the states cannot violate. If a state is violating a person's rights, it's not acceptable to simply say "It's a state matter".

When the 9th amendment and 10th amendment conflict in this way, it's up to the Supreme Court to resolve the matter.

The court resolved the conflict over the Texas sodomy law in favor of individuals and ruled against the state. I don't believe it overstepping it's bounds to do so.

8 posted on 07/19/2003 8:30:44 AM PDT by tdadams
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To: m&maz
Scalia's dissent did not rely heavily on the 10th Amendment. In fact, I don't remember seeing it mentioned at all. The crux of his dissent was that 1) there simply is no fundamental right to sodomy in the Constitution and 2) laws against homosexual sodomy are constitutional under rational basis review.

Scalia's opinion is posted here (scroll down) for anybody who'd like to read it.
10 posted on 07/19/2003 10:32:59 AM PDT by bourbon
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To: m&maz
Gaziano pointed out that Scalia has taken issue with parts of Dred Scott

This article implies that Scalia agrees with Dred Scott, at least in some respects. That is a foul lie. I know of no decision where he has expressed anything other than contempt for that ruling.

I mean, if Scalia is such a "fan" of the ruling, then why would he begin his dissent in Stenberg v. Carhart, the partial birth abortion decision from 2000, thusly?

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child–one cannot even accurately say an entirely unborn human child–proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception”–which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)–is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.
11 posted on 07/19/2003 10:52:12 AM PDT by bourbon
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