Scalia: Disagrees With "Idiots"

[Regnad Kcin]

"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," said Supreme Court Justice Antonin Scalia in a speech Monday sponsored by the conservative Federalist Society.

"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.

Article here. (http://aolsvc.news.aol.com/news/article.adp?id=20060214101909990004&ncid=NWS00010000000001)

[HarryKeogh]

I just loved the reply (and punctuation) to this very topic on RaptureReady:

To me!!!!
It is "just" like the BIBLE, and CANNOT BE CHANGED OR ALTERED!!!

http://www.rr-bb.com/showthread.php?t=243610

[Ziggurat]

I just loved the reply (and punctuation) to this very topic on RaptureReady:

To me!!!!
It is "just" like the BIBLE, and CANNOT BE CHANGED OR ALTERED!!!


I'm not sure how that relates to Scalia's argument. Seems like his argument is actually that the document CAN be changed, but that if, as written, it proves inadequate to the times, then actually changing the document itself (as in, adding amendments) rather than pretending it says something it doesn't is the preferred method. In that sense, I'm in complete agreement with Scalia.

My only problem is I can't square these statements with his ruling in the Raich case - but in that conflict it's his recent statements, not his previous ruling, that I lean towards.

[shecky]

My only problem is I can't square these statements with his ruling in the Raich case - but in that conflict it's his recent statements, not his previous ruling, that I lean towards.

I can't even square his own statements with history. Is there any question that interpreting the constitution does not change with society? Why should it not?

[Tony]

I'm not sure how that relates to Scalia's argument. Seems like his argument is actually that the document CAN be changed, but that if, as written, it proves inadequate to the times, then actually changing the document itself (as in, adding amendments) rather than pretending it says something it doesn't is the preferred method. In that sense, I'm in complete agreement with Scalia.


Scalia's so-called originalist interpretation is bogus. Under his interpretation, the second amendment only allows for muskets and weapons of kind and the first amendment doesn't allow for freespeech online (among other things).

The idea that something (privacy, gay marriage ect.) has to be explicitly written into the constitution to be a right is also bogus. According to this idiocy, none of us have the right to eat food because it isn't written into the constitution.

Scalia is the idiot and he is an embarrasment to this country.

[Luke T.]

I can't even square his own statements with history. Is there any question that interpreting the constitution does not change with society? Why should it not?

The last two Supreme Court nominees were peppered incessently with questions about stare decisis. The intent was obviously designed to get them to promise they would not overturn Roe v. Wade.

"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.

[BPSCG]

Scalia's so-called originalist interpretation is bogus. Under his interpretation, the second amendment only allows for muskets and weapons of kind Well, if you assume Scalia is that kind of originalist, then you're wrong, because I guarantee you the word "musket" does not appear in the Constitution.
The idea that something (privacy, gay marriage ect.) has to be explicitly written into the constitution to be a right is also bogus. Let me see if I have your position straight. The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one. An entire amendment to the Constitution (the second) discusses the right to bear arms. Does that woman who has the right to an abortion also have the right to carry a gun around?

According to this idiocy, none of us have the right to eat food because it isn't written into the constitution.This is a straw man; you are completely mischaracterizing what he said. Read the first paragraph in Ziggarut's post; I think it comes a lot closer to what he was talking about. Also read the linked article. Scalia says that proponents of a "living Constitution" want the Supreme Court to make the laws, based on society's changing standards, whereas that's really the province of the legislatures. If people don't like the laws, they should have their legislatures change the laws, not demand the Supreme Court re-interpret the Constitution to suit their desires.

[ImaginalDisc]

Well, if you assume Scalia is that kind of originalist, then you're wrong, because I guarantee you the word "musket" does not appear in the Constitution.
Let me see if I have your position straight. The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one. An entire amendment to the Constitution (the second) discusses the right to bear arms. Does that woman who has the right to an abortion also have the right to carry a gun around?

This is a straw man; you are completely mischaracterizing what he said. Read the first paragraph in Ziggarut's post; I think it comes a lot closer to what he was talking about. Also read the linked article. Scalia says that proponents of a "living Constitution" want the Supreme Court to make the laws, based on society's changing standards, whereas that's really the province of the legislatures. If people don't like the laws, they should have their legislatures change the laws, not demand the Supreme Court re-interpret the Constitution to suit their desires.

Let's read the second ammendement for a moment. It's one scentence, so that shouldn't be hard.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Hmm, it seems as though the pupose of the civilians keeping arms is so that there is a well regulated militia. Remember that the FF's had just finished pounding the best profressional army in the world with a militia. There was an ongoing debate at the time about whether the United States even required a standing professional army. So, since there's no military in the Constitution, should we demolish it? Of course not. Just because something is not in the Constitution, that does not mean it doesn't exist.

We have a militia, it's the National Gaurd. My keeping a browing .50 machine gun in my basement does not contribute to the militia in any way.

Edited

[Ed]

Scalia's so-called originalist interpretation is bogus. Under his interpretation, the second amendment only allows for muskets and weapons of kind and the first amendment doesn't allow for freespeech online (among other things).

The idea that something (privacy, gay marriage ect.) has to be explicitly written into the constitution to be a right is also bogus. According to this idiocy, none of us have the right to eat food because it isn't written into the constitution.

Scalia is the idiot and he is an embarrasment to this country.

That is not how the Constitution works. It does not grant rights, it defines the power of the federal government. If it is not mentioed the feds must keep their hands off.

[Tony]

Well, if you assume Scalia is that kind of originalist, then you're wrong, because I guarantee you the word "musket" does not appear in the Constitution.


You're right. It doesn't even guarentee that right. You only have the right to "arms". I guess the founders didn't think we would need legs.

Let me see if I have your position straight. The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one. An entire amendment to the Constitution (the second) discusses the right to bear arms. Does that woman who has the right to an abortion also have the right to carry a gun around?

I think so, yes.

This is a straw man; you are completely mischaracterizing what he said.


I'm attacking the "originalist" interpretation. Not anything that was explicitly said in this thread.

Also read the linked article. Scalia says that proponents of a "living Constitution" want the Supreme Court to make the laws, based on society's changing standards, whereas that's really the province of the legislatures. If people don't like the laws, they should have their legislatures change the laws, not demand the Supreme Court re-interpret the Constitution to suit their desires.

Translation: Scialia doesn't like that the legislature is subject to constitutional accountability for the laws they pass, or that there is a third branch of government.

By definition, the Supreme Court cannot make law, Scalia knows this, and he is propagating this meme to fool the ignorant. I think it's extremely folly to rely on a corrupt legislature such as ours to self regulate itself and only pass good laws and repeal bad ones, the founders appear to agree with me.

[Ziggurat]

Scalia's so-called originalist interpretation is bogus. Under his interpretation, the second amendment only allows for muskets and weapons of kind and the first amendment doesn't allow for freespeech online (among other things).

I don't see how that follows. "Arms" means weapons - no further specification is supplied, and there's no reason to believe, based on the text, that any such restriction to only weapons of the time exists. And online speech is pretty universally viewed as falling under the category of "speech", I've seen nothing to imply that Scalia or any other conservative constitutional scholars think otherwise.

The idea that something (privacy, gay marriage ect.) has to be explicitly written into the constitution to be a right is also bogus. According to this idiocy, none of us have the right to eat food because it isn't written into the constitution.

You're looking at the wrong end of the problem. The constitutional question isn't what rights we have, but what POWERS the government has: does the government have the power to not let you eat? Does the government have the power to refuse granting marriage licenses to certain groups? And does the government have the power to make stupid decisions? That's the constitutional question, and Scalia is precisely correct that we cannot pretend that the constitution grants OR restricts government power in a manner different than the actual text says. If we're not happy with the constitution as it is, then the remedy is to change the actual text with an amendment, as we have done in the past.

Take gay marriage, for example: I'm all for it, myself, but marriage isn't even in the constitution to begin with. We have no constitutional right to marriage, it's an entirely legislated issue - the government abolish marriage altogether and it wouldn't be unconstitutional. The only restriction, from a constitutional position, is the issue of equal protection. But that doesn't actually help out gay marriage advocates since gays can, in fact, still engage in marriage with members of the opposite sex. That may not be FAIR, and that may not be right, but there's nothing actually unconstitutional about that, because gays can still do exactly the same thing that straight people can do (namely marry people of the opposite sex). The constitution does NOT, contrary to your protestations, have anything to say about that. And that's fine, because it also means CHANGING that state of affairs is also easier, because all we need to do is get the legislature to pass a law based on simple majority, not the supermajority that would be needed to make any alterations to the constitution. The more restricted the constitution is on such social issues, the better, and that includes for progressives.

[Tony]

That is not how the Constitution works. It does not grant rights, it defines the power of the federal government.

I know that. That is the bases for my contention that something doesn't have to be explicit in the constitution for it to be a right.

Section 1 of the 14th Amendment:

http://www.archives.gov/national-archives-experience/charters/constitution_amendments_11-27.html

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I think most things that Scalia and the anti-freedom people in America dislike (gay rights, privacy, abortion,, ect.) are covered by the bolded section right there.

[Ziggurat]

By definition, the Supreme Court cannot make law, Scalia knows this, and he is propagating this meme to fool the ignorant. I think it's extremely folly to rely on a corrupt legislature such as ours to self regulate itself and only pass good laws and repeal bad ones, the founders appear to agree with me.

You really don't get the argument, do you? The Supreme Court DOES, in effect, make law. They may not CALL it that, and so sure, by "definition" they aren't doing that, but that's exactly the effect. You know those Miranda rights? They're such a universal requirement now that they have the full force of law. But is there any law that says you have to be read your Miranda rights? No, there is not. There is only a supreme court ruling which creates such a requirement, because without it courts can throw out evidence. So the court does, indeed, act as if it is creating laws on occasion. That you are not aware of this means that either you yourself aren't being honest or (I'm more inclined to believe) you don't really understand the debate.

As for relying on the legislature, sure, they're corrupt and incompetent. But they're also accountable, and that matters. The supreme court is not accountable. They are, in many ways, even less competent than the legislature on many topics. Their role in law SHOULD be quite limited. Yes, they're needed as a check on the legislature, but the purpose of that check is NOT to stop bad laws, but only to check unconstitutional laws. Some people want them to do the former as well as the later (and from the way you phrased things, it sounds like you might be in that group), and one of Scalia's main points is that there's neither a constitutional nor practical reason to accept that role.

[Tony]

I don't see how that follows. "Arms" means weapons - no further specification is supplied,


"Arms" at the time of the founders meant personal weapons, like muskets. If you want the interpretation expanded to include modern weapons, you'll have to ratify a new amendment. According to Scalia that is.

and there's no reason to believe, based on the text, that any such restriction to only weapons of the time exists.

I know. But I'm talking about an originalist interpretation. Not the text. Thinking people (like you and me) can see the folly in that.

And online speech is pretty universally viewed as falling under the category of "speech", I've seen nothing to imply that Scalia or any other conservative constitutional scholars think otherwise.

Irrelevant. I'm talking about an originalist interpretation. That Scalia has neglected to apply it consistently is telling. His "originalist" ********e is simply an excuse to justify his anti-freedom biases.

You're looking at the wrong end of the problem. The constitutional question isn't what rights we have, but what POWERS the government has

I know I'm looking at it wrong. I'm employing an originalist interpretation. That's the point.

That's the constitutional question, and Scalia is precisely correct that we cannot pretend that the constitution grants OR restricts government power in a manner different than the actual text says.

No he's not. He is saying that if something isn't exactly enumerated in the constitution (such as the right to privacy), it doesn't exist and the government has the power to infringe upon it.

Take gay marriage, for example: I'm all for it, myself, but marriage isn't even in the constitution to begin with. We have no constitutional right to marriage, it's an entirely legislated issue - the government abolish marriage altogether and it wouldn't be unconstitutional. The only restriction, from a constitutional position, is the issue of equal protection. But that doesn't actually help out gay marriage advocates since gays can, in fact, still engage in marriage with members of the opposite sex. That may not be FAIR, and that may not be right, but there's nothing actually unconstitutional about that, because gays can still do exactly the same thing that straight people can do (namely marry people of the opposite sex). The constitution does NOT, contrary to your protestations, have anything to say about that.

Except that it does. In the section 1 of the 14th amendment.

[brodski]

If I remember my US politics correctly, the US Constitution does not explicitly give the supreme court the authority to overturn decisions made by the other branches of government. That power was granted to the supreme court by the supreme court by virtue of an interpretation of the constitution. In which case logical speaking wouldn't Scalia have to vote in favor of decisions made by the other branches of government, even if those decisions violated his view of the Constitution, because to vote against them would mean him exercising powers which are not available to him, given his constitutional interpretation.

Or am I missing something?

[Luke T.]

I win.

[ImaginalDisc]

If I remember my US politics correctly, the US Constitution does not explicitly give the supreme court the authority to overturn decisions made by the other branches of government. That power was granted to the supreme court by the supreme court by virtue of an interpretation of the constitution. In which case logical speaking wouldn't Scalia have to vote in favor of decisions made by the other branches of government, even if those decisions violated his view of the Constitution, because to vote against them would mean him exercising powers which are not available to him, given his constitutional interpretation.


Or am I missing something?

You're refering to Marbury v. Madison. Yeah, that established judicial review as a power of the Supreme Court. Technically, that goes back into the early 1610's in English common law, but IIRC, it was little more than a footnote.

http://en.wikipedia.org/wiki/Marbury_v._Madison

[Marc L]

Let me see if I have your position straight. The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one.

At the risk of being flamed, could you tell me on what basis you believe the Constitution guarantees a woman's right to an abortion?

I'm serious, really. I've heard this said before, but I have no idea on what it's based.

Marc

[Tony]

You really don't get the argument, do you? The Supreme Court DOES, in effect, make law. They may not CALL it that, and so sure, by "definition" they aren't doing that, but that's exactly the effect.

No it doesn't. Skriking down law=! making law.

You know those Miranda rights? They're such a universal requirement now that they have the full force of law. But is there any law that says you have to be read your Miranda rights? No, there is not.

I'm not familiar with the case, and as such, I cannot make a judgement on this.

As for relying on the legislature, sure, they're corrupt and incompetent. But they're also accountable, and that matters. The supreme court is not accountable.

Yes, it is accountable. Justices can be impeached and rulings can be overturned via constitutional amendment.

They are, in many ways, even less competent than the legislature on many topics. Their role in law SHOULD be quite limited.

Which it is, very limited.

Yes, they're needed as a check on the legislature, but the purpose of that check is NOT to stop bad laws, but only to check unconstitutional laws.

They are one the same.

[BPSCG]

At the risk of being flamed, could you tell me on what basis you believe the Constitution guarantees a woman's right to an abortion?I don't believe it does, but I'm no constitutional scholar. If you google "abortion" and "penumbra", you'll probably get 10,000 hits that explain it better than I could.

[brodski]

You're refering to Marbury v. Madison. Yeah, that established judicial review as a power of the Supreme Court. Technically, that goes back into the early 1610's in English common law, but IIRC, it was little more than a footnote.

http://en.wikipedia.org/wiki/Marbury_v._Madison

Thanks for that, I knew I remembered something from my US politics classes. ;)

Judaical review has been pretty much a footnote to English (and welsh) law, I'm not sure about Scottish. However Judaical review (with any teeth at least) is coming back into fashion, with our commitment to the European Charter on human rights, and the fact that domestic courts are now allowed to base their rulings on ECHR.
What is the "originalist" interpretation of this? or does even bringing this up as a serious argument put you along side the income tax deniers?

[Cylinder]

So, since there's no military in the Constitution, should we demolish it?

I suggest a closer read.

Article I; Section 8 allows Congress to create armed forces:

The Congress shall have Power To... To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy;

Article II; Section 2 appoints the President as Commander-in-Chief:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

[Tony]

I suggest a closer read.

Article I; Section 8 allows Congress to create armed forces:


I suggest you read closer. He was talking about a standing army/military. Something on which the constitution is silent.

[Ziggurat]

No it doesn't. Skriking down law=! making law.

But the supreme court does more than that, which is precisely my point in bringing up Miranda.

I'm not familiar with the case, and as such, I cannot make a judgement on this.

Then I suggest you spend a little time familiarizing yourself with it, because it's a pretty good example of the court stepping beyond simply striking down laws. Haven't you ever hear that whole "You have the right to remain silent" deal that cops always give people they arrest on crime shows? That's because of the Miranda ruling, not because of any law passed by congress.

Yes, it is accountable. Justices can be impeached and rulings can be overturned via constitutional amendment.

It's pretty damned hard to impeach a judge, and you cannot do so on the basis of them simply having ruled poorly. And the public cannot do so directly either. You CAN, however, vote someone out of office for as trivial OR important a reason as you want.

They are one the same.

Where in the world did you get THAT idea? It SHOULD be obvious that bad laws and unconstitutional laws are NOT the same thing. Is it unconstitutional to make it legal to drive 65 mph next to an elementary school? Nope, not at all. But it's a bad idea. Is it unconstitutional to make the speed limit on highways 30 mph? Nope, not at all. But it's a bad idea. The federal government cannot pass laws establishing particular standards for uniform voting procedures across the country, even if the standards are good, because that's the role of the states and so any such law would be unconstitutional. So it's quite easy to get bad laws that are constitutional, and there's nothing that says that a good law is necessarily constitutional either. I'm still at a complete loss as to why you ever though bad laws and unconstitutional laws were exactly the same thing, but if you cannot understand that distinction with the help of examples, then you really need to go back and rethink everything before you come here for debate.

[Cylinder]

I suggest you read closer. He was talking about a standing army/military. Something on which the constitution is silent.

How many years does it take to become a standing army? The claim that the power to create an army and navy is not found in the US Constitution is simply and demonstrably false.

[Tony]

How many years does it take to become a standing army?

It doesn't take any years. It takes lack of declared war.

The claim that the power to create an army and navy is not found in the US Constitution is simply and demonstrably false.

It's also a claim no one on this thread made.

[Cylinder]

It doesn't take any years. It takes lack of declared war.

So you agree that the creation of a standing army and navy is explicit, since no such requirement exists in Article I, right?

It's also a claim no one on this thread made.

To paraphrase the bit I quoted (yes, I realize there is now a multi-quote feature), the claim was that the military was not mentioned in the US Constitution and that reason could be used to abolish it. That's simply false. When ratified, the US Constitution granted explicit statutory authorization for a standing army and navy.

[Tony]

So you agree that the creation of a standing army and navy is explicit, since no such requirement exists in Article I, right?


Huh? The constitution is silent on the issue of a standing military.

To paraphrase the bit I quoted (yes, I realize there is now a multi-quote feature), the claim was that the military was not mentioned in the US Constitution and that reason could be used to abolish it. That's simply false.

I'll let the person who made the claim answer that.

When ratified, the US Constitution granted explicit statutory authorization for a standing army and navy.

No it didn't.

[Jocko]

I love these Tony vs. the world threads. I watch with the same sick kind of fascination I get from a kid throwing a tantrum in the supermarket when mommy refuses to put a box of Twinkees® in the cart.

Please do not personalize the argument.

[Scot C. Trypal]

Ziggurat:
The only restriction, from a constitutional position, is the issue of equal protection. But that doesn't actually help out gay marriage advocates since gays can, in fact, still engage in marriage with members of the opposite sex. That may not be FAIR, and that may not be right, but there's nothing actually unconstitutional about that, because gays can still do exactly the same thing that straight people can do (namely marry people of the opposite sex). The constitution does NOT, contrary to your protestations, have anything to say about that.

I’ll regret getting into a thread containing gun/abortion/gay issues, but it’s a pet peeve…

The right to marry a man is not the same right as the right to marry a woman. If it were the same, there’d be no fight.

Calling men and women opposite, doesn’t change that either. If the only thing keeping a homemaker from, say, their spouse’s government job’s health insurance is their anatomy, that is just as much a problem of equal protection as it was when the race of the couple determined such things. Sure, the law doesn’t give out rights unequally by sexual orientation here; it does so by sex, though the harm of that is only directly felt by gays.

And it’s not just equal rights for gays, it’s their children too. Most of these kids have two legal parents, but one parent can simply neglect their promises with far less consequence, sans divorce law. Some states would even force these obligations in common law marriage on unmarried heterosexual couples to give kids such protections, but the kids in same-sex headed households have no possibility of access to them. The best some can get is child support (and some lawmakers are even trying to take that away), but this still leaves their primary caregiver often unable to give care upon a split. Though less direct, these kids have a basis to ask for equal protections, regardless of the sex of their parents.

Even ignoring the treatment of gays and their kids, some citizens are born with no definable sex, if the only choices are M or F (some are even a mosaic of male and female cells), and so they have no “opposite” sex. They too have a constitutional basis to ask for equal protection in marriage law (though, from what I gather, most are simply allowed to slip under laws such as DOMA, and pick their legal gender for reasons of marriage by their sexual orientation).

------

As to the point of this thread… I’ve often wondered how originalists address some of the more subjective language of the Constitution, such as “cruel” and “unusual”? Are such words interpreted by Scalia as they were when they were written or as they are understood today? “Unusual” in the world today is certainly not what it was back then.

It seems to me a minimum of "life" in the Constitution may be unavoidable.

[ImaginalDisc]

So you agree that the creation of a standing army and navy is explicit, since no such requirement exists in Article I, right?



To paraphrase the bit I quoted (yes, I realize there is now a multi-quote feature), the claim was that the military was not mentioned in the US Constitution and that reason could be used to abolish it. That's simply false. When ratified, the US Constitution granted explicit statutory authorization for a standing army and navy.

Ammdenment II makes specific reference to a militia, but a standing army of professional soldiers is never mentioned. No mention is made of a professional force kept well trained and ready for action between wars is ever made. Indeed, in the post revolutionary period, the federal government could barely afford it.

[Suddenly]

The problem with Scalia can be explained by examining the prohibititon against "cruel and unusual punishment."

As recent votes show, Scalia would have "cruel and unusual" punishment limited to that which would be found cruel and unusual at the time of ratification. Okay to whack teenagers, etc.

Not completely crazy as a theory of interpretation, but I do wonder how exactly the constitution could be amended to change that to what we would find cruel and unusual today? Add dates?

That sort of specificity seems inconsistant with the drafting of the constiution. There is a reason it is shorter than the manual that comes with a stereo...

The principles of the constitution remain fixed, but our understanding of those principles changes with changes in knowlege, wealth, etc.

That is the "living constitution" stuff he's declaring to be idiocy. Whatever.


XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

There is no right to an abortion per se. The individual has a inherent right to make his/her own medical decisions. This is one of those things I guess the framers forgot to explicitly mention, like the right to breathe air. The state has legitimate interests, among those the interest in protecting health and life.

This right and those interests collide when it comes to abortion. Roe just tries to figure out exactly where the lines are drawn, which is sort of what courts do when laws/rights/etc are in conflict with one another.

[Tmy]

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."


The above does not mention the Airforce or Coast Guard. Therefore the president is not the commander of those branches..........according to a strict reading of the constitution.

The Constitition is poorly written and leaves alot open to interpretation.

[Tony]

The above does not mention the Airforce or Coast Guard. Therefore the president is not the commander of those branches..........according to a strict reading of the constitution.

The Constitition is poorly written and leaves alot open to interpretation.

Indeed. According to idiot Scalia's interpretation, the Coast Guard and the Airforce shouldn't even be here.

[Ziggurat]

The above does not mention the Airforce or Coast Guard. Therefore the president is not the commander of those branches..........according to a strict reading of the constitution.

Even if you want to go really literalist, that's still not actually the case. First off, if it falls under the executive branch, and clearly that's the only branch it could fall under, the president is still the natural commander under the constitution. The only argument to make following your logic is that they aren't authorized to be created as independent military branches. But all that means is you would need to shuffle the labels a bit, and call the airforce a part of the army and the coastguard a part of the navy. That's a distinction without a difference, and trying to attack a theory of constitutional law on that basis is kind of weak.

[ImaginalDisc]

Even if you want to go really literalist, that's still not actually the case. First off, if it falls under the executive branch, and clearly that's the only branch it could fall under, the president is still the natural commander under the constitution. The only argument to make following your logic is that they aren't authorized to be created as independent military branches. But all that means is you would need to shuffle the labels a bit, and call the airforce a part of the army and the coastguard a part of the navy. That's a distinction without a difference, and trying to attack a theory of constitutional law on that basis is kind of weak.

Emphais added. That only follows if you extrapolate what Commander-in-Chief means. Mind you, I'm not defending litteralism, I'm merely showing that the constitution isn't exactly water tight.

[Tmy]

the writers of the constitition never imagined an air force. Thats why you need a flexible document. the drafters werent all knowing sages.

[Ziggurat]

Emphais added. That only follows if you extrapolate what Commander-in-Chief means. Mind you, I'm not defending litteralism, I'm merely showing that the constitution isn't exactly water tight.

No, you don't necessarily have to extrapolate that phrase to conclude that. You can also get it from Article II, section 1, first sentence: "The executive power shall be vested in a President of the United States of America." If the air force exists as a federal government entity, and is considered part of the executive branch (I don't see what other branch you could possibly include it under), then the president is the default commander.

[ImaginalDisc]

No, you don't necessarily have to extrapolate that phrase to conclude that. You can also get it from Article II, section 1, first sentence: "The executive power shall be vested in a President of the United States of America." If the air force exists as a federal government entity, and is considered part of the executive branch (I don't see what other branch you could possibly include it under), then the president is the default commander.

Mmmm, alrighty. That works. You will concede that we have a more explicetly stated Postal Service than military though, won't you?

[fishbob]

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."


The above does not mention the Airforce or Coast Guard. Therefore the president is not the commander of those branches..........according to a strict reading of the constitution.

The Constitition is poorly written and leaves alot open to interpretation.The Constitution is well written and leaves a lot open to interpretation with the understanding that the interpreters are honorable and knowledgable. That part is the responsibility of the voters.

[ImaginalDisc]

The Constitution is well written and leaves a lot open to interpretation with the understanding that the interpreters are honorable and knowledgable. That part is the responsibility of the voters.

You mean, the responability of the Judicial branch, who are the watchdogs. Initially, all voters elected in the federal government was members of the house of Representatives. We didn't vote for President, or Senators. In fact, from a modern perspective, it was hardly democratic.

[Cylinder]

The USAF was created by Congress in the National Security Act of 1947 under its Article I; Section 8 powers:

The Congress shall have Power To...provide for the common Defence and general Welfare of the United States;

[ImaginalDisc]

The USAF was created by Congress in the National Security Act of 1947 under its Article I; Section 8 powers:

That's a very indirect basis. Income tax warrented its own ammendement.

[Regnad Kcin]

Frankly (and I should've mentioned this in the first post), I find it rude and petty for a Supreme Court justice to characterize those he might disagree with as "idiots." It is thoroughly unbecoming one of such high office.

[Bob Klase]

That's a very indirect basis. Income tax warrented its own ammendement.

Not really, although that seems to be what most people believe. Article 1, Section 8 gave congress the power to collect taxes. There was no inherent ban on taxing income, but Article 1, Section 2 required that those taxes be apportioned back to the states based on the population of the states. Section 9 also requires that the taxes may not be "laid, unless in Proportion to the Census or Enumeration herein before directed to be taken".

The 16th amendment allowed the taxes to be collected and used "without apportionment among the several States, and without regard to any census or enumeration."

[Marc L]

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

There is no right to an abortion per se. The individual has a inherent right to make his/her own medical decisions. This is one of those things I guess the framers forgot to explicitly mention, like the right to breathe air. The state has legitimate interests, among those the interest in protecting health and life.

This right and those interests collide when it comes to abortion. Roe just tries to figure out exactly where the lines are drawn, which is sort of what courts do when laws/rights/etc are in conflict with one another.

In other words, when someone says the Constitution protects their right to an abortion, they're mistaken, right?

Don't get me wrong, I agree with the "inherent right to make his/her own medical decisions," including abortion. I was just confused about the whole, "The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one. " from BPSG earlier.

Marc

[chulbert]

In other words, when someone says the Constitution protects their right to an abortion, they're mistaken, right? I wouldn't say they're mistaken; I'd say they're exactly correct for two reasons:

1) They're right because the courts say they're right. I bet you're not going to like that answer but it's true. We have a system for determining what the Constitution does or does not say and according to that system, abortion is protected.

2) They're right - or, perhaps more fairly, they're not necessarily wrong - because of the 9th amendment, which states that people have rights that aren't listed in the Constitution. The 9th amendment exists to combat precisely this sort of argument: "The Constition doesn't say X is protected, therefore it is not protected." I have to imagine that the 9th amendment gives the likes of Scalia the heebie jeebies because it basically means their rigid interpretation of the Consitution is the wrong method.

I'm sure someone with legal knowledge will point out exactly how I'm wrong. :)

Don't get me wrong, I agree with the "inherent right to make his/her own medical decisions," including abortion. I was just confused about the whole, "The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one. " from BPSG earlier. How do you reconcile these two points? How can the right to medical decisions be protected, yet the right to abortion not? If abortion is a medical decision, then logically, if the first is true the second must be true. Do I misunderstand your position?

[ImaginalDisc]

Not really, although that seems to be what most people believe. Article 1, Section 8 gave congress the power to collect taxes. There was no inherent ban on taxing income, but Article 1, Section 2 required that those taxes be apportioned back to the states based on the population of the states. Section 9 also requires that the taxes may not be "laid, unless in Proportion to the Census or Enumeration herein before directed to be taken".

The 16th amendment allowed the taxes to be collected and used "without apportionment among the several States, and without regard to any census or enumeration."

Thanks, it is much more sophisticated than I'd said. Mea culpa.

I was wong.

[Marc L]

I wouldn't say they're mistaken; I'd say they're exactly correct for two reasons:

1) They're right because the courts say they're right. I bet you're not going to like that answer but it's true. We have a system for determining what the Constitution does or does not say and according to that system, abortion is protected.


You're right. I don't like the answer. :P I'd much rather it went up for a Constitutional amendment. Court decisions can be overturned, amendments are much harder, Prohibition notwithstanding.


2) They're right - or, perhaps more fairly, they're not necessarily wrong - because of the 9th amendment, which states that people have rights that aren't listed in the Constitution. The 9th amendment exists to combat precisely this sort of argument: "The Constition doesn't say X is protected, therefore it is not protected." I have to imagine that the 9th amendment gives the likes of Scalia the heebie jeebies because it basically means their rigid interpretation of the Consitution is the wrong method.


Ok, I can see the 9th amendment. On the other hand, again, I'd rather it be spelled out. Otherwise I can assert my right to just about anything using the 9th amendment. To take it to the ridiculous extreme, for example, let's say I feel I have the right to avenge the murder of my puppy, who was run over by a reckless driver by tying the driver to a tree and ramming his own car into him.

Most of you might disagree with me having that right.

From Marc L: Don't get me wrong, I agree with the "inherent right to make his/her own medical decisions," including abortion. I was just confused about the whole, "The word "abortion" does not appear in the Constitution, but the Constitution guarantees a woman's right to have one. " from BPSG earlier.


How do you reconcile these two points? How can the right to medical decisions be protected, yet the right to abortion not? If abortion is a medical decision, then logically, if the first is true the second must be true. Do I misunderstand your position?

You do misunderstand my position. There is nothing that I've read in the Constitution (and admittedly, I've not made a thourough reading of it) that says that the right of the people to make their own medical decisions is protected-in any case, be it abortion, suicide, or even a hangnail. Personally, I feel there should be an amendment that does protect a person's right to make their own medical decisions (including abortion), but from what (again, admittedly little) I've seen, there isn't a real protection there (including, IMO, Roe vs. Wade).

My original question, though, had nothing to do with whether or not abortion should be protected, it had to do with the statement that BPSG made that it was protected by the Constitution (actually, he said "guaranteed"). I was just asking him to explain the statement. I think that's where you got confused.

Marc

[Suddenly]

Ok, I can see the 9th amendment. On the other hand, again, I'd rather it be spelled out. Otherwise I can assert my right to just about anything using the 9th amendment. To take it to the ridiculous extreme, for example, let's say I feel I have the right to avenge the murder of my puppy, who was run over by a reckless driver by tying the driver to a tree and ramming his own car into him.

Most of you might disagree with me having that right.

We don't need to. You have that right. Problem is, the other person has the right to due process.

So.... you do have the right to avenge the puppy, but only via the legal system which acts as a balance between your right to vengance and the right of the other guy to due process. You can sue him. The people as a whole (the state) can avenge the puppy via criminal charges.

You have the right to do anything. Only limitation is when that right runs afoul of the right of others, including when the people as a whole (the state) have a legitimate interest in curtailing such behaviour.

The Constitution is a guide for weighing these rights.




You do misunderstand my position. There is nothing that I've read in the Constitution (and admittedly, I've not made a thourough reading of it) that says that the right of the people to make their own medical decisions is protected-in any case, be it abortion, suicide, or even a hangnail.
Breathing isn't in there either.

Neither is the power of the state to regulate a persons medical decisions.

It just isn't mentioned either way. Nothing stops me from claiming the converse, that an amendment is neccessary to allow the state to regulate abortion or personal medical decisions.

Both claims draw inferences from other rights/interests. If we disallow that for one side...