Supreme Court Justice Scalia: "Im an originalist"

[heatherrae]

That was part of his point though. He said the constitution was silent on the specific burning of flags, so all he had was the first amendment to fall back upon. So in his example, he said if there was a specific law forbidding flag burning, then the supreme court could then look at upholding it or striking it down.

So there's really two lines of defense. First use the legislative process and pass laws (i.e. how 99%+) of things are supposed to work. Then, if a law blatantly violates the constitution but people still want it, use the constitutional amendment process.

He was just expressing frustration that the SC gets used to sometimes to "create" laws when he'd rather the legislature do their work first and let the SC be a check to make sure their laws don't violate the original document. I soooooo prefer that approach.

I actually am pretty moderate with respect to issues such as these. I wouldn't really argue against scalia in this regard. However, it seems that original intent proponents on the SC always tend to be straight line conservative in their opinions and the living document always tend to be pretty straight line liberal. SO, I hate that they try to couch it with those labels.

As a judge once told me, Ms. E@%#$, if I want to rule a certain way, I can always find some legal coatrack upon which to hang my hat...lol.

 

[heatherrae]

He also talked about abortion. He thought hinging everything on the right to privacy was ridiculous. But then he hand-slapped the people who try to use the "rights of the unborn baby" as well. Using originalist thinking, he pointed-out that the constitution was clearly written for people "walking around" and didn't specifically confer any rights to the unborn. So his response was: "If you want the unborn to have rights, then pass a law and let us look at it."

The "right to privacy" was a pretty tenuous basis upon which to rule in the first place. That opinion probably could have been written a bit better.

Which case was scalia referring to? I think Row v. Wade will never be overturned now. The SC had an opportunity to do so and didn't because it is now in the minds of the American public a "right."

 

[Stefka]

The "right to privacy" was a pretty tenuous basis upon which to rule in the first place. That opinion probably could have been written a bit better.

Which case was scalia referring to? I think Row v. Wade will never be overturned now. The SC had an opportunity to do so and didn't because it is now in the minds of the American public a "right."

I agree with Ginsburg that Roe v. Wade would have been stronger if the Court had gone with an equal protection argument.

Planned Parenthood v. Casey was a mess. The Court was like, "um, sorry, we didn't do a very good job with Roe v. Wade, but we like Stare Decisis so we're gonna do some legal acrobatics for a bit, don't mind us."

 

[heatherrae]

I agree with Ginsburg that Roe v. Wade would have been stronger if the Court had gone with an equal protection argument.

Planned Parenthood v. Casey was a mess. The Court was like, "um, sorry, we didn't do a very good job with Roe v. Wade, but we like Stare Decisis so we're gonna do some legal acrobatics for a bit, don't mind us."

Yep. That opinion was a TRAIN WRECK.

 

[Lestat]

Regardless of whether I agree with him or not, I believe Scalia is a brilliant man who does defend the rights granted by the constitution well.

 

[mrplunkey]

The "right to privacy" was a pretty tenuous basis upon which to rule in the first place. That opinion probably could have been written a bit better.

Which case was scalia referring to? I think Row v. Wade will never be overturned now. The SC had an opportunity to do so and didn't because it is now in the minds of the American public a "right."

I don't think he was talking about a specific case. He was just saying that Roe vs. Wade was a stretch but trying to fight in the other direction by conferring some new, implied set of rights to the unborn would be equally bad. I just liked how his opinion seemed to cut in both directions -- which is a rare quality these days.

 

[mrplunkey]

Regardless of whether I agree with him or not, I believe Scalia is a brilliant man who does defend the rights granted by the constitution well.

I obviously agree with that as well.

I think using a living document mentality is/has/will get us into trouble. If the constitution is supposed to change with the times, how could the founding fathers have anticipated the electronic media and the ability to send information instantly all over the world? Back then, you were limited to how loudly you could shout or how many pages your hand-operated printing press could crank-out. They've already said the right to free speech doesn't mean you can yell "Fire!" in a crowded theater -- so when do they stop us from yelling "Fire!" over the Internet?

I may seem like its far-fetched for now, but I'd rather the legislature be in charge of issues like that instead of counting-on the fact that we don't get 5 politically-correct, living-document guys on the SC at the same time.

 

[Lestat]

I obviously agree with that as well.

I think using a living document mentality is/has/will get us into trouble. If the constitution is supposed to change with the times, how could the founding fathers have anticipated the electronic media and the ability to send information instantly all over the world? Back then, you were limited to how loudly you could shout or how many pages your hand-operated printing press could crank-out. They've already said the right to free speech doesn't mean you can yell "Fire!" in a crowded theater -- so when do they stop us from yelling "Fire!" over the Internet?

I may seem like its far-fetched for now, but I'd rather the legislature be in charge of issues like that instead of counting-on the fact that we don't get 5 politically-correct, living-document guys on the SC at the same time.

I don't have a strong opinion on this one, I waffle back and forth (I know, shocking!)

Its sort of how on one hand its REALLY scarey they there are many issues on which the supreme court is divided, but at the same time isn't that one of the coolest thing about this nation? That all voices, even if contradictory and flat out wrong to some, get heard, even at the highest levels?

 

[mrplunkey]

I don't have a strong opinion on this one, I waffle back and forth (I know, shocking!)

Its sort of how on one hand its REALLY scarey they there are many issues on which the supreme court is divided, but at the same time isn't that one of the coolest thing about this nation? That all voices, even if contradictory and flat out wrong to some, get heard, even at the highest levels?

I like the fact everyone gets heard as well -- I just think the legislative process is setup to filter all those opinions and turn them into laws. The SC writing laws seems like a massive end-around run that we should shut down before disaster strikes.

 

[Grumpy Old Man]

You can't go making a bunch of ridiculous amendments. Remember prohibition.

Just barely I was drunk most of the time.