Scalia Dismisses 'Living Constitution'

By JONATHAN EWING, Associated Press Writer1 hour, 54 minutes ago

People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."

"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.

Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."

"They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable," he said.

Scalia was invited to Puerto Rico by the Federalist Society for Law and Public Policy Studies. The organization was founded in 1982 as a debating society by students who believed professors at the top law schools were too liberal. Conservatives and libertarians mainly make up the 35,000 members.


http://news.yahoo.com/s/ap/20060214/ap_on_go_su_co/scalia_constitution

He talks about himself in the third person??



"Scalia's gettin' upset!!"

You wrote "idots" in your thread title.

Idiot.

This truly is a great thread.

I like how Scalia is called the "intellectual" on the Supreme Court

lol

On the upside, he's against changing the constitution willy nilly for things such as banning gay marriage or what have you. There needn't be any constitutional right to abortion - such an ammendment would be pretty sickening if you ask me. Certainly you have a right for the government not to inordinately interfere with your affairs - the implied right to privacy does the job just fine. The Constitution is pretty much on the money in regards to personal rights and those not inummerated are generally implied by what is there. I don't think that he's against reinterpreting the constitution in regards to new situations like the interweb and what have you. Is it that crazy to say that it doesn't appear that we need any new ammendments?

I don't think so.

Scalia, if he truly is a "strict constructionalist," doesn't believe in any implied right to privacy.


The constitution itself is actually horrible in terms of personal rights. It is the Bill of Rights that expresses our personal freedoms. The Bill of Rights is also a great argument against the so-called "strict constructionist" or "originalist" viewpoints, as it is, in itself, a series of modifications to the constitution, granting rights that were not written expressly in the original document. And it was written by the same people who supposedly wrote the constitution with the mindset that it should not evolve with the times, according to the "strict constructionist" viewpoint!

Yes, he is. That is precisely what he is calling people idiots for believing.

OOPS.....

You're welcome for the V Day laugh!

Yes, but Scalia from time to time does consider himself bound to precedent.



Not quite. "Amend the Constitution" via the democratic process if you want new rights/restrictions is the argument which gives originalism its intellectual thrust.



Indeed. The argument being, if the Constitution doesn't speak to the issue, let the court stay out of it and let democracy take its course via the legislatures. Theoretically elegant, practically a pipe dream.

What are you saying, that Scalia is somehow an inept, unqualified monkey or that you simply disagree with him?

What are your thoughts on originalism, Chris? Out of interest, and only if you have the time.

Short answer (only because I don't have too much time) -- I'm not a fan. The opinions of the framers circa 1789 certainly do not represent the America we know today. The framers owned slaves. I don't put too much emphasis on the thoughts of Virginia slaveowners who treated human beings as property.

Yet, I'm also not on the same page as those that think the document is so malleable as to simply twist interpretations such that they are able to pigeonhole every conceivable agenda of which they subscribe into it. There are rights articulated that obviously have no application today (e.g., quartering of soldiers, right to bear arms). There are also issues today that, however, in my opinion, have no place being considered within the ambit or context of the document's protections. For me, it's a balancing act.

With that said, Scalia may ruffle a lot of feathers, but I can respect him for the simple reason that we know where he stands on the issues. For some justices, figuring their positions can be a crapshoot.

See, that's something I hold against Scalia. He has an ideology, and for the most part he sticks to it. I don't think that's a proper way for any judge, let alone a SC justice, to decide cases.

First of all, I don't agree that the slavery mentality is gone from society today. I think that we cloak it in different words, but that we still desire to act collectively paternalistic to different groups of people.

So, what opinions in particular can you point to and say that we don't agree with today?



The Third Amendment was used in Engblom v. Carey, although I can't find any other use of it:

http://en.wikipedia.org/wiki/Engblom_v._Carey

Speaking speculatively, I would say that the Third Amendment still provides us a good lesson on government imposing possibly immoral costs on its citizens.

Why would the Second Amendment have no application today?



I don't think that makes sense. Everyone has an ideology of some sort - maybe it's just that we think ours is better.

Oh, I agree that everyone has some form of ideology. But Judges should decide cases the merits of each case, rather than how the issue fits with their overarching agenda. My opinion is pretty much a mirror image of Chris's: I respect people like Kennedy and even Roberts (so far, anyway), because they seem to decide cases individually, rather than in some effort to change the system.

Does Scalia have an ideology? Absolutely. But so does every justice on the court, and everyone of us. What I said about Scalia and knowing where he stands is not necessarily always a product of ideology but, rather, a product of consistency and framework that allows precedent to develop.

Here's a perfect example of why that's a good thing. When Alito wrote the dissent for the Pennsylvania abortion case, everyone rammed the decision down his throat and used it to label him as a right wing ideological nut. In realty, however, the only thing that he was doing was deciding the case according the wobbly, ever-changing parameters applied to abortion cases by O'Connor in lieu of any straightforward, structured principle. Essentially, because the Supreme Court refused to articulate a precedent that would have allowed lower courts to apply the differing sets of facts to the precedent, Alito was left to guess how the facts in the Pennsylvania case should be applied. The outcome was his best guess at constitutionality. The bases with which he had to work led him to his decision. It just so happens that the Supreme Court overturned the decision and used the opportunity to expand its ever-evolving precedent on abortion.

That's why I admire (not like) Scalia. He articulates something and sticks to it. I may not necessarily like what he has to say, but at least I know what he's going to say. I don't think it's anymore driven ideology than O'Connor's decisions on abortion were. But that's another argument for another day.

All this Supreme Court stuff is confusing.

Ah, it feels so good to read a thread thoroughly pwned by Quadrophenia. Just like old times.