Scalia: The Constitution Is There To Keep Us From Doing Butt Stuff
Let's play a quick game of compare and contrast! Ready? Look at the following two statements. You may already know the first one.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Here's the second one. It's a little more recent. It comes from Supreme Court Justice Antonin Scalia, who made an appearance with fellow Justice Stephen Breyer in Arizona yesterday.
The whole purpose of a constitution is to constrain the desires of the current society.
Those desires, you will not be surprised to learn, include defetusing and men sticking manparts into parts of other men. Anyway!
He's right! That's why Articles II – V deal with sexuality, abortion and drug use.
A nice try, but Joe Lieberman is still winning the Douche of the Day contest.
Between the two of them the douchewater supply is pretty well contained today.
"Scalia said those who do not share his 'originalist' philosophy are now deciding what the 14th Amendment of the Constitution means, the one that guarantees 'equal protection of the laws' to all citizens."
Would that be same the 14th Amendment that wasn't in the original issue from the throbbing loins of our Founding Fathers?
You probably meant "be the same," you Sodomite. But, since you didn't write it in there originally, that can't be what you meant, after all.
You're granted the occasional typo through terms of service.
Do "originalists" admit to condoning slavery and hating universal suffrage? Or do they claim the cling only to the "original" definitions of the words outside of the context of their authorship? These are maddening questions of legal scholarship!!!
Take it from me Scalia you do not want to live in the same world as any fruit of my loins.
kinda funny, since we are all forced to live in the same world with NINE Scalia children.
At some point in the past five years Scalia decided to openly campaign for Most Despised Justice, as every other thing out of his mouth when he's not wearing the robes is deliberately crack-ass nuts. He hates gays, racial integration, sunny days and people who like Mad Men! All he's missing is the bwoo-ha-ha.
Just a small reasonable dissent: he's not crazy our outside the mainstream to suggest that a Constitution is built to constrain the desires of current society. We have had the same system of government (with a few tweaks) for 217 years. It's not like we invented the Senate or the judiciary in the Fifties. And we couldn't alter the way that Presidents are selected (that annoying Electoral College) without an amendment to the Constitution. It's not perfect but it is designed to set things in stone and make them hard for future generations to change them unless they are really important (like the amendment that ended Prohibition!).
What sigerson said. Especially that whole part about ending Prohibition (which was a modification of a modification, not a change in what issued from the throbbing loins, etc.).
I totally support ending Prohibition.
I totally support throbbing loins.
Then it pretty much comes down to how you (or Scalia) defines "desires of current society."
Yes, but the Constitution is also fairly open-ended. I mean, it's not that long, deliberately vague in many ways and subject to interpretation by the courts it created. Originalists are full of shit because they claim to be able to channel original intent. And that's extremely presumptuous.
"Originalists" are the latest breed of what used to be "original constructionists," but it's all essentially code for "literalism," and it is literally impossible to take that tact with this document without reading like an utter fool after the second or third paragraph.
Literal in interpretation isn't the same as narrow-minded in application. Some people, without being illiberal, might argue that unless a legal text is read as literally as it can be read, then there's nothing to stop the enforcing authorities from applying it as they damn well please. This is a subject with a million things to argue about, but caring about original intent is not necessarily politically conservative. It's just a way to keep the bastards from changing the spots on the cards in the middle of the game. Also: what sigerson said.
Those same people might puzzle over Chaucer. Or they might recognize that language, like everything else, changes over time.
That would be good in a contract dispute. I can't wait for my landlord to say, "Hey, loser, language, like everything else, changes over time. A 'dollar' is not what it used to be. What are you, some kind of literalist?"
Also, sigerson, we used to own blacks.
And chicks couldn't vote.
Also, indentured servants?
Let's not forget, too, that our system of government was intended to create the illusion of majority rule while permitting the "enlightened" minority the final say through the Electoral College.
Constrain indeed.
Well, yeah, and we fixed that by amending the Constitution rather than by reinterpreting it, which demonstrates why the literal meaning matters. If you don't feel bound by some document, you don't have to amend it; you can just say, "Oh, whatever! You silly document!" and go on with your life. The only ones you ever have to amend are the ones there's a multilateral obligation to abide by. You have to be fairly literal about them, amending or rescinding them as needed, because each of several parties is entitled to rely upon them in pursuing contradictory interests.
Actually, we amended it purportedly to allow reinterpretation. The "original" instrument is silent on matters of race. So, as a literalist, do you believe that the amendments change the entire meaning of the document or that they are merely, themselves, a new, self-contained annex? Because is you believe the first then you are not a literalist and if you believe the second then the amendment does not really accomplish its stated intent. Literalism/original intent is not a real doctrine. If it were then the abolishment of formal city and state militias would have meant the abolishment of the right/need to possess firearms, for example.
The former — that it changes the whole document (unless it's a repeal amendment, for instance, or something similar, with explicitly limited scope). — I'm not awfully upset that I don't get to be a literalist, but may I still go on being extremely picky?
absolutely. But I think the quote really reveals what a farce "originalism" is, since Scalia basically admits here that his concerns are contemporary, not some abstract fixed idea rooted in the original document.
Don't get me wrong: I think Scalia is deceptive and specious in his judicial philosophy, given that Original Intent is only one of several principles for interpreting the Constitution (along with Structuralism, Stare Decisis and the Living Constitution). For example, I can't applaud the expansive readings of the First, Fourth and Fifth Amendments and then interpret the Second narrowly (even thought the Founders Original Intent with respect to the Second Amendment leans pretty heavily toward an interpretation that limits it to militias and organized military forces).
The problem is that Scalia has lots and lots of similarly minded judges, justices, law professors and politicians. So he's not outside the mainstream, unfortunately IMHO.
scalia is especially sensitive on the topic of homosexuality because he is the love child of a mongolian butt fucking.
sorry, i read that wrong…he is the afterbirth of a mongolian butt fucking.
I have to admit that, it is easy to insult someone with Scalia's intelligence when outside of his earshot. I don't agree with his views, but, I can get easily intimidated when conversing with someone who has more stored facts to back up an argument. I tend to shrink like…well, many things rather than sound like an idiot.
He does have nice bear paws.
Nasty, brutish and short.
One of the "desires" of our "current society" is to rob gays and lesbians of their civil rights. He's right – and thank goodness – that the Constitution slows the process of institutionalizing passions (I do believe he's talking about "desires" in the public sphere) and enshrining rule of Law over rule of Majority. On basically everything else, he's pure douchery.
Well said! Why is it that everybody seems to think that being hermeneutically lax benefits the good guys?
It's definitely a strange assumption. There has been a 5-4 split for conservatives in the supreme court for I don't know how many years now. Liberals may not like the results, but I'd wager they'd like them a whole lot less if Scalia et al felt fit to determine cases on their particular ideas about 'the changing nature of society' rather than the law as written.
"The whole purpose of a constitution is to constrain the desires of the current society."
I get that the Constitution deliberately makes it difficult to effect massive societal overhauls and tyranny of the majority, but it's a funny way to put it really. Why isn't The Purpose to effect the desires of the current society? Isn't that the purpose of a democracy: self-determination, etc.? Scalia looks at the world as a place of desires that would run rampant were it not for the leash of his constitution. But it seems to me The Purpose should be for the values of society to find expression through its institutions, government, etc., without trampling the rights of minorities. Glass half-full/empty dep't, maybe.
In other judicial outrage news, here's a judge in Israel who believes that "the ancient land of Israel is "given to us by the Bible, not by some United Nations".
Agassi, one of the most important officials in the military courts wielding authority over large parts of the West Bank, says settling Jews on lands that made up ancient Israel stands above all other biblical commandments and only when it is done can they have "a promised land and a promised life"."
http://www.guardian.co.uk/world/2009/oct/26/west-bank-jews-army-judge
(too bad about that URL)
No-one seriously believes in the living constitution stuff. It is just much easier to get people on the bench that will interpret away things you don't like than get the massive majority needed to pass constitutional amendments
If you did seriously believed in it I don't see why you'd feel need the for the court at all. Just abolish it and let the legislature determine everything
Neither do I see why those same people who promote an 'evolving' interpretation of the constitution centered on the changing desires of the public would be most exercised with Scalia over the the very things that he believes the constitution leaves to legislative discretion(abortion for one). Surely the legislature is an institution more apt to reflect the current state of the public will than a group of 9 people who are not voted in by the public and cannot be voted out by anybody.
OK. Repeal the Civil Rights Act. Limit the commerce clause. Allow Mississippi and Alabama to return to segregation.
Because if you don't believe in the "living constitution" idea then you disagree with everything that followed Plessy. Because those were new ideas, interpreting the constitution to encompass "the changing desires" of the population.
It sounds as though you have willingly sipped from the fount in which Palin was baptized — you have bought the closeted argument that "state's rights" and "original intent" are legitimate doctrines rather than stalking horses for reactionary racism. Dangerous grounds my friend.
At Sigerson! I think Scalia is frequently not wrong about the purpose and meaning of the constitution when he speaks abstractly. The problem is that not all of his practical applications follow even from his constructionist (I hadn't heard of any of the updated fancy lingo!) position. In fact, most of the time the structure of his arguments is to say something about the constitution, then to assert something in the case that has only a vague rhetorical relationship to his constitutional premise.
Also the "blessings" we seek from life are ones we are supposed to be secure in pursuing, and they necessarily change and are not centrally (or even, from his probably individualist point of view, socially) determined. So while the purpose may be to constrain desire, it is also to protect desire; really, a constitution is about disciplining desire, no? But the proper discipline of desire is a matter for contention, right? Which means he's begging the question? That is to say, the argument that the purpose of the constitution is to constrain the desires that arise from a liberated people is not to offer any help in determining how or why particular desires ought to be constrained. In other words, in any instance in which two adults are acting in a way that doesn't harm either of them or anyone around them, the argument still has to be made why the state is constitutionally required to prohibit them from doing so.
Also, has anyone figured out whether the line might originally have been meant to read "Secure the blessings of Liberty to ourselves and our posterior"? That could help out the gays!