Dispatches from the Creation Wars

Another Scalia Contradiction?

So I’m having a conversation with my buddy Dan this morning about constitutional law and while talking about how a strict formalist would argue that the only part of a court ruling that is truly binding is the court’s holding alone, not the explanation for that holding (or “dicta”), I get this epiphany about the Gonzales v. Oregon assisted suicide case, particularly about Scalia’s dissent. The crux of the case was whether the court must give deference to the Attorney General’s interpretation of a statute or not. Following the passage of Oregon’s assisted suicide law, AG John Ashcroft made a formal ruling interpreting the Controlled Substances Act as prohibiting doctors from prescribing medication for any purpose other than to heal and asserted that this law had primacy over Oregon’s state law allowing doctors to do so.

There was little in the text or history of the CSA itself that indicated that Congress intended the law to apply in this situation. Indeed, the history of the law clearly indicated that its purpose was to stop the illicit trafficking in drugs. The majority of the court decided that the AG’s interpretation did not deserve deference from the court because it conflicted with their reading of the text and intent of the CSA. Scalia filed a dissent arguing that the court should have given full deference to the AG’s interpretation of the statute.

But here’s where the contradiction comes in: Scalia is on record as being strongly opposed to the court giving deference to legislative intent by looking at the legislative history of a law. He has forcefully argued that the only thing the court should look at is the text of the bill itself, not the debate leading up to it or statements of intent or meaning from those who wrote it, even if there is a dispute about the Congress’ intent in a particular passage. As one source notes:

Scalia’s “textualist” approach to interpreting the Constitution and statutes is reflected in his skepticism about the utility of legislative history materials, such as committee reports or the remarks of members of Congress on the House or Senate floor, to determine the meaning of a statute. Scalia thinks that the only legitimate interpretive guide is the text of the statute or related provisions of enacted law that shed light on the meaning of the disputed text. In a March 1992 opinion concurring in the Count’s more lenient reading of an ambiguous criminal statute, he sternly rejected the majority’s reliance on the statute’s legislative history. “The only thing that was authoritatively adopted for sure was the text of the enactment; the rest is necessarily speculative,” he wrote.

But this puts him in the rather bizarre position of arguing that when we are attempting to discern the correct interpretation of a statute, we cannot even consider the statements of the legislators who wrote the statute – but we must defer to the interpretation of the law made by an attorney general 30 years later even if it is in conflict with the clearly stated meaning of the text at the time it was passed. This is highly absurd.

The other contradiction on this matter, of course, is that while claiming that legislative history is irrelevant, Scalia still uses that history when it suits his purposes. In Edwards v Aguillard, for example, he dissented solely on the basis of the Louisiana legislature’s assertion that the purpose of the creation science bill was not religious. He wrote in his dissent:

The Louisiana legislators who passed the “Balanced Treatment for Creation-Science and Evolution-Science Act” (Balanced Treatment Act), each of whom had sworn to support the Constitution were well aware of the potential Establishment Clause problems and considered that aspect of the legislation with great care. After seven hearings and several months of study, resulting in substantial revision of the original proposal, they approved the Act overwhelmingly and specifically articulated the secular purpose they meant it to serve. Although the record contains abundant evidence of the sincerity of that purpose (the only issue pertinent to this case), the Court today holds, essentially on the basis of “its visceral knowledge regarding what must have motivated the legislators,” that the members of the Louisiana Legislature knowingly violated their oaths and then lied about it. I dissent.

I think this makes very clear that Scalia is neither an originalist nor a textualist except when it suits his purposes. When it does not lead to the outcome he wants, he steps into the phone booth, changes clothes, and emerges as a legal realist. Which does not, of course, prevent him from then giving speech after speech condemning legal realists and proclaiming the wisdom of textualism.

Comments

  1. #1 Brian D.
    January 27, 2006

    Of course Scalia uses originalism or textualism only when it suits him. It’s not like the other Justices are any different. Every one of them will claim to believe in stare decisis, but will find a way to work around that doctrine when they want to overturn something.
    It’s just the way the Court seems to work these days. Frankly, I’m not sure why they bother with oral arguments any more, each Justice has already made up their mind by that point. Oh wait, I do know why. They all want to hear themselves talk, just like the politicians in the confirmation hearings. Sad, isn’t it?

  2. #2 Ed Brayton
    January 27, 2006

    Of course it’s true that the other justices do the same, but only Scalia and Thomas claim to be strict formalists. Thomas comes much closer to this than Scalia does. But Scalia is, at least publicly, the most outspoken proponent of formalism, so it’s important to point out that he doesn’t really believe it.

  3. #3 David C. Brayton
    January 27, 2006

    I’ve come to the same conclusion. I saw Justice Sclia speak when I was a first year law student and was duly impressed. (I also had a class taught by Mike Ramsey, a former clerk for Justice Scalia.) But when I started reading his stuff in my second year Con Law class, I started scratching my head. The case that really convinced me that Scalia was just an intelligent blowhard was Washington v. ?? regarding whether the government can ban the use of peyote in Native American religious ceremonies (yes, they can).

    Oral arguments are valuable, however. My discussions with judges show that they find them valuable because they get a chance to discuss the issue with attorneys that are usually very smart and exceptionally well prepared. Judges say they change their initial impression in about 10% of cases. They also feel much more confident in their decision after having these ‘high-level’ discussions.

  4. #4 Dan
    January 27, 2006

    I believe the case Mr. Brayton (David) (any relation?) is speaking of is Smith, a free exercise case that entrenched rational basis as the standard of review for neutral, generally applicable laws that may have the effect of impairing one’s free exercise.

    As to the substance of Ed’s post, his point is well taken. That said, the Con Law teacher in me can’t help but ask this question: How would Justice Scalia reconcile his support of AG Ashcroft’s Interpretive Rule with his (Scalia’s) self-professed originalism?

    Extra class participation points for the first to get the right answer (excluding any students in my actual classes, since we’ve already discussed this!). Geez this is fun…Con Law class on a blog!

  5. #5 spyder
    January 27, 2006

    Would i be predictive then, that if, for some “ungodly” reason, Buttar’s “ID” bill in Utah were to be challenged in the SCOTUS, Scalia would demand that no “deference” be given whatosever to the discussions and statements held by the legislators during the course of the review and passing of that bill?

    btw ED, speaking of this sort of deeper critical thinking examing hypocrisy at the “higher” levels, have you read Berube today on Academic Freedom????

    http://www.michaelberube.com/

  6. #6 Ed Brayton
    January 27, 2006

    Dan wrote:

    How would Justice Scalia reconcile his support of AG Ashcroft’s Interpretive Rule with his (Scalia’s) self-professed originalism?

    This is an interesting question. In his dissent, he makes little attempt to do so. The only mention is his argument at the end of his dissent, where he notes that while the power to prohibit assisted suicide was not among the originally enumerated powers of the Federal government and was instead a part of the traditional police powers that were reserved to the states, the Federal government had used its other enumerated powers, such as the commerce clause, to protect public morality. Thus he concludes that “using the federal commerce power to prevent assisted suicide is unquestionably permissible.”

    There is more than a fair bit of irony in this given his opinion in Raich, where he reached essentially the same conclusion in a case where the commerce clause clearly did not apply because the action being regulated was neither interstate nor commerce. So it once again appears that if he does not have an originalist basis with which to justify his decision, he has little difficulty inventing one.

  7. #7 Ed Darrell
    January 27, 2006

    Not Washington vs. ??, I suspect, but EMPLOYMENT DIV., ORE. DEPT. OF HUMAN RES. v. SMITH, 494 U.S. 872 (1990). No?

  8. #8 Ed Darrell
    January 27, 2006

    While I’m thinking about it, I sometimes think one can detect the heavy hand of a clerk in some of these decisions, and I wonder if that doesn’t affect Scalia’s rulings, too. The worst I recall is a dissent by Rehnquist that seemed to adopt wholesale the David Barton claims that there is no separation of church and state, even using Barton’s examples. It didn’t sound well grounded in history. Rehnquist never repudiated it, but he never went so far again, either.

  9. #9 Grumpy
    January 27, 2006

    It occurs to me just now (and maybe I’m slow) that textualism is a two-way street between the judiciary and the legislature. A judge who insists that the text of the statute is all that counts would have no hope of applying a law framed by legislators who were not 100% ironclad in writing it.

    The two-way street is a two-way street, too, if I may say so. If Congress drafts a law that means what it says, period, a judge who didn’t share that philosophy would be reading it wrong. The mistake is assuming that the legislative and judicial branches will harmonize on this.

    Maybe we should grill candidates for Congress, as well as judicial nominees, about their views on textualism.

  10. #10 shargash
    January 27, 2006

    I think you’d be hard-pressed to find a justice that was more biased or more likely to rule based on personal opinions than Scalia. He is “outcome based.” He simply chooses the approach that best leads to the outcome he wants. He doesn’t even seem to find buddying up to participants in a case before ruling in that participant’s favor (witness fishing trips with Dick Cheyney). He is truly a dreadful justice by any rational standard.

  11. #11 Jimmy G.
    January 27, 2006

    Scalia runs circles around Stevens, Ginsburg and Breyer with every word he writes. Maybe with Alito on the bench something can be done about the judicial activism of the left. But once Stevens retires, hopefully sometime in the next three years, the United States can regain her independence.

  12. #12 Jimmy G.
    January 27, 2006

    How would Justice Scalia reconcile his support of AG Ashcroft’s Interpretive Rule with his (Scalia’s) self-professed originalism?

    He wouldn’t he would cite prior court cases and claim stare decisis.

  13. #13 Ed Brayton
    January 27, 2006

    shargash wrote:

    I think you’d be hard-pressed to find a justice that was more biased or more likely to rule based on personal opinions than Scalia. He is “outcome based.” He simply chooses the approach that best leads to the outcome he wants. He doesn’t even seem to find buddying up to participants in a case before ruling in that participant’s favor (witness fishing trips with Dick Cheyney). He is truly a dreadful justice by any rational standard.

    I think that’s going entirely too far. The point of my post was that all justices make outcome-based rulings. That doesn’t make Scalia any different except that he claims not to. But to call him a dreadful justice is just so much undeserved hyperbole. The hunting trips with Cheney are really not a big deal. They served together in the Ford administration and were longtime friends. That’s hardly a surprise in a town like Washington DC. That they would go duck hunting together (not fishing) isn’t exactly 60 minutes material. Scalia is a very good writer with an encyclopedic knowledge of the law and he is undoubtedly one of the two finest minds on the court.

  14. #14 Ed Brayton
    January 27, 2006

    Jimmy G wrote:

    Scalia runs circles around Stevens, Ginsburg and Breyer with every word he writes. Maybe with Alito on the bench something can be done about the judicial activism of the left. But once Stevens retires, hopefully sometime in the next three years, the United States can regain her independence.

    This is even more silly and unjustified rhetoric like that offered by shargash above. The phrase “judicial activism” is a meaningless catchphrase bandied about primarily by those who don’t know much about constitutional law. It means nothing more than “decisions I disagree with”. Conservatives are just as “activist” by any objective definition as liberals.

  15. #15 David C. Brayton
    January 27, 2006

    Dan–yes, I am thinking of Smith and yes, we are related (cousins).

  16. #16 Ed Brayton
    January 27, 2006

    Ah yes, I forgot to answer that part of Dan’s comment. Yes, David and I are cousins. After far too long apart, he found my blog recently and got in touch with me. Back in high school we were in debate together, albeit at different schools. We were roommates at debate institute along with another of my closest friends, Jeff. Together we were voted to have the messiest room in the history of the Michigan High School Debate Institute. I’m very proud of that.

  17. #17 Bill Ware
    January 28, 2006

    Having had only two semesters of law in college, one civil, one criminal, I’m not well versed in the nuances of constitutional law. However, at times I do get the impression that Scalia’s opinions, however justified, seem to fall in line with Catholic Church doctrine. In the Oregon case, for example, the church is unquestionably opposed to suicide. Could this have effected Scalia’s decision? Sometimes I wonder.

  18. #18 dan7000
    January 28, 2006

    I didn’t read the opinion, but based on the news reports, I thought Scalia did base at least part of his argument on the text. He said “if the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.” Here, he’s defining a term from the text of the statute. He’s also agreeing with the AG’s interpretation, but perhaps that is secondary to the fact that his textual interpretation of the statute is in contrast with the majority’s reading based on history and intent.

    Never thought I’d be defending Scalia – I wish someone would create a web page with all of his contradictions listed – I just want to make sure we list only real contradictions, not just things we disagree with.

  19. #19 Ed Brayton
    January 28, 2006

    dan7000-

    Yes, Scalia does make arguments based upon the text of the statute, but the decision was based on giving deference to the AG’s interpretation. Scalia was saying, essentially, “even if we don’t give deference to the AG, which we should do, I think he’s right in his interpretation.” But the point of this post is that by arguing that the court should defer to the AG’s interpretation he is setting up a rather absurd standard – that the court cannot look at what the men who framed the statute said it meant, but must accept what an executive branch officer says it meant even 30 years later. And of course to point out that when he says the court can’t look at legislative history for purposes of interpretation, he only really means “unless that gets the result I want.”

  20. #20 Hyperion
    January 28, 2006

    I’ve generally felt that Scalia, as bright as he may have been in his youth, has really lost it ever since his horrific dissenting opinion in Lawrence.

    Prior to that opinion, there were usually one or two decisions each year where I would find myself not only agreeing with Scalia, but feeling that he was really hitting it perfectly on the head. These were usually 4th amendment cases where he would agree to limit the government searching power. Then came Lawrence, and then came his atrocious remarks on the eve of the Ira war that a government ought to be able to limit free speech on wartime, and I really have to wonder whether old age is starting to catch up with him.

    Of course, it is entirely possible that many of Scalia’s recent opinions have been part of an effort to gain the Chief Justice’s chair by appealing to Bush, but with the appointment of Roberts, one would think that he would stop, but no. What galls me the most about the Oregon opinion is that he seems to be, in one fell swoop, disregarding several decades of his own opinions on the relationship between federal and state power as well as government power relative to individuals. Regardless of one’s opinion of stare decicis, and most justices violate that principle at various times, one should at least expect a certain level of precedence within a particular justice’s own opinions.

    That being said, Scalia is certainly not the worst justice in the history of the court. That honor probably should go to Roger Taney, but I digress.

  21. #21 Jimmy G.
    January 31, 2006

    Ed Brayton wrote:
    This is even more silly and unjustified rhetoric like that offered by shargash above. The phrase “judicial activism” is a meaningless catchphrase bandied about primarily by those who don’t know much about constitutional law. It means nothing more than “decisions I disagree with”. Conservatives are just as “activist” by any objective definition as liberals.

    Nonsense. The term ‘judicial activism” means: the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent. While conservatives certainly can ignore the constitution to obtain a result they want, originalism is a legitimate method of interpreting the constitution. In fact, it is the only method that makes our democratic republic work in the manner it was intended.

  22. #22 Jimmy G.
    January 31, 2006

    Hyperion wrote: That being said, Scalia is certainly not the worst justice in the history of the court. That honor probably should go to Roger Taney, but I digress.

    The worst justice? There are so many that would be candidates. Warren, Black, Douglas, Blackmun, Brennan and Thurgood Marshall all did a lot of damage.

  23. #23 Ed Brayton
    January 31, 2006

    Jimmy G wrote:

    The term “judicial activism” means: the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.

    That may be the worst definition I’ve ever heard. Traditionally, the phrase “judicial activism” has been used to mean a court that is active in overturning legislative acts. It was first coined in reference to federal courts in the New Deal era who consistently struck down FDR’s liberal programs (how’s that for irony?). It is used by conservatives today to mean the above, but that definition is quite absurd. What if a court refuses to protect individual rights in opposition to legislative and constitutional intent? Would that not be judicial activism?

    What your definition really means is courts protecting unenumerated rights, but this is because conservatives tend to misunderstand the concept of unenumerated rights (or reject the concept all together, a la Bork and Scalia). But this is absolutely a non-originalist theory that reads the 9th amendment out of the constitution. If the 9th amendment means anything, it must mean that there are unenumerated rights that deserve protection against the whim of the majority. The founders made very clear that they could not possibly list all of the rights an individual has, and indeed they were afraid that by adding the Bill of Rights to the constitution it would lead some to argue that if a right is not explicitly stated in the text then the government has the authority to prohibit it or regulate it. Alas, that is exactly what many conservatives argue today and they are absolutely wrong. Their views void the 9th amendment and run completely against the structure and history of the Bill of Rights.

    If you want to read more about my views on this, see this post and follow the links to all of the posts on unenumerated rights and the 9th amendment.

  24. #24 Dave S.
    January 31, 2006

    Off topic, but Alito has been confirmed (narrowly).

  25. #25 Jimmy G.
    January 31, 2006

    Brayton wrote: It is used by conservatives today to mean the above, but that definition is quite absurd. What if a court refuses to protect individual rights in opposition to legislative and constitutional intent? Would that not be judicial activism?

    It isn’t absurd. It is accurate. And no it is not judicial activism for the Court if it refused to protect individual rights that are actually contained in the Constitution and its amendments. But such an action certainly would be a violation of the justices’ oath to uphold the Constitution. As for legislative intent, their actions certainly might violate the constitution even when it comes to protecting “individual rights.”

  26. #26 Ed Brayton
    January 31, 2006

    Jimmy G wrote:

    And no it is not judicial activism for the Court if it refused to protect individual rights that are actually contained in the Constitution and its amendments. But such an action certainly would be a violation of the justices’ oath to uphold the Constitution. As for legislative intent, their actions certainly might violate the constitution even when it comes to protecting “individual rights.”

    It seems to me that the concern should be over bad decisions, whether they are “activist” or not. Are you saying that if a court refuses to protect individual rights, say in the Kelo case, it is wrong but not “activist”, but if they do protect individual rights, say in Lawrence, they are both wrong and “activist”? If so, what does “activist” add to the conversation? If a wrongly activist court worse than a wrongly inactivist court? I can’t see how.

    The real question, of course, is where the line is drawn between the rights of the individual and the authority of government. Conservatives tend to ask the wrong question – “where does the constitution say you have a right to do that?” – and ignore the right question – “where does the constitution give the government the authority to prevent them from doing that?”. When Scalia said that the Lawrence decision had “discovered” a “right to homosexual sodomy” in the Constitution, he has it backwards. The relevant question is whether the government’s actions served a legitimate state interest.

    The one answer that the structure and history of the Bill of Rights absolutely forbids is the answer that if a right is not explicitly stated it is fair game for government regulation. That is precisely what the 9th amendment was added to avoid and that is precisely the position that most conservatives take today, while absurdly claiming to be “originalists”. You cannot claim to be an originalist while simultaneously voiding an entire amendment to the constitution and rendering it meaningless.

  27. #27 Jimmy G.
    January 31, 2006

    Brayton wrote: If the 9th amendment means anything, it must mean that there are unenumerated rights that deserve protection against the whim of the majority.

    No, it certainly does not mean that. Even Justice Douglas recognized this when he said, “The Ninth Amendment obviously does not create federally enforceable rights.”

    To believe that the ninth amendment gives the federal government the power to enforce unenumerated rights one would have to believe that the drafters designed and the people ratified a Constitution giving unfettered power to the judiciary. This cannot be true as the Constitution was sold with the idea that the judiciary would play an insignificant role. Hamilton even labeled the judiciary as “the least dangerous branch” of government.

    Instead, the most logical interpretation of the ninth amendment is that the federal government cannot infringe on the rights of the people that already set out in each state’s own constitution. Only with this interpretation can meaning be given to the 10th Amendment guaranteeing federalism.

    This view was shared by James Madison when he wrote:

    “It has been objected also against a bill of rights, that by enumerated particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow by implication, that those rights that were not placed in the enumeration, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”

    Your idea of the ninth amendment is not supported by history. The fact that the framers and those that ratified the Constitution believed that the judiciary branch was the weakest and most insignificant of the three branches of government, certainly does not support the absurd conclusion that the ninth amendment protects unenumerated rights If it did the ninth amendment would provide the judiciary with unfettered and unchecked power to enforce what ever “rights” it pleases. However, as we all know, the Constitution was written with the purpose of limiting federal power. The ninth amendment protected those rights the states were already exercising and recognized in practice and in their own constitutions.

  28. #28 Jimmy G.
    January 31, 2006

    Brayton wrote: Are you saying that if a court refuses to protect individual rights, say in the Kelo case, it is wrong but not “activist”, but if they do protect individual rights, say in Lawrence, they are both wrong and “activist”? If so, what does “activist” add to the conversation? If a wrongly activist court worse than a wrongly inactivist court? I can’t see how.

    Kelo was wrong, at least in reason if not result. It certainly was not an activist decision as I have defined it. As for Lawrence, yes it was both wrong and activist. How could it be otherwise? Judical activism is wrong. It takes issues out of the hands of the people without their consent.

  29. #29 Jimmy G.
    January 31, 2006

    Brayton wrote: The real question, of course, is where the line is drawn between the rights of the individual and the authority of government. Conservatives tend to ask the wrong question – “where does the constitution say you have a right to do that?” – and ignore the right question – “where does the constitution give the government the authority to prevent them from doing that?”.

    You are way off base. The purpose of the Constitution was not to gurantee individual rights per se. Instead, the Constituion was originaly designed to protect individual and state rights against federal government intrusion. The 14th Amendment changed this to some degree but that amedment was limited by its own terms to address a specific problem.

  30. #30 Jimmy G.
    January 31, 2006

    Brayton wrote: The one answer that the structure and history of the Bill of Rights absolutely forbids is the answer that if a right is not explicitly stated it is fair game for government regulation. That is precisely what the 9th amendment was added to avoid and that is precisely the position that most conservatives take today, while absurdly claiming to be “originalists”. You cannot claim to be an originalist while simultaneously voiding an entire amendment to the constitution and rendering it meaningless.

    As I stated, and as Justice Douglas would have concurred, the ninth amendment did not create federally enforecable rights. You apparently have no grasp of federalism whatsoever.

  31. #31 Ed Brayton
    January 31, 2006

    Jimmy G wrote:

    To believe that the ninth amendment gives the federal government the power to enforce unenumerated rights one would have to believe that the drafters designed and the people ratified a Constitution giving unfettered power to the judiciary. This cannot be true as the Constitution was sold with the idea that the judiciary would play an insignificant role. Hamilton even labeled the judiciary as “the least dangerous branch” of government.

    Think about this for a minute. If unenumerated rights are not judicially enforcable, then that means that unenumerated rights must be in the hands of the majority, that the legislature can do away with them if they see fit. The only check we have on majority power is the judiciary and the Constitution. But this renders the 9th amendment meaningless and leads to exactly the reading that Madison said was unacceptable. If unenumerated rights may be taken away by an act of the legislature, then they do not exist as rights at all.

    nstead, the most logical interpretation of the ninth amendment is that the federal government cannot infringe on the rights of the people that already set out in each state’s own constitution. Only with this interpretation can meaning be given to the 10th Amendment guaranteeing federalism.

    This view was shared by James Madison when he wrote:

    “It has been objected also against a bill of rights, that by enumerated particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow by implication, that those rights that were not placed in the enumeration, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”

    You are quoting Madison out of context. You left off the end of Madison’s statement, which continues:

    “This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”

    The last clause of the fourth resolution was what became the 9th amendment. Madison is clearly stating that the position that merely because a right was not specifically enumerated, that does not mean the power to regulate it is given to the legislature. If it was, then there would be no such thing as unenumerated rights. He is also not speaking here of rights set out in state constitutions but of the rights set out in the Federal constitution and the fact that they could not possibly all be enumerated. Remember Madison’s statement that the constitution was a “charter of power granted by liberty” rather than a “charter of liberty granted by power”. The sphere of natural rights was unlimited while the authority of the government to invade them was limited by the Constitution. That is exactly why it is wrong to ask “where in the constitution do you find that right” rather than “where in the constitution do you find that authority”.

    The most logical interpretation of the 9th amendment was exactly the interpretation that Madison gave it while proposing it – it was intended to mean that just because a right was not specifically enumerated did not mean that the government could violate it at will. As for applying it to state actions, that was done through the incorporation of the 14th amendment, which is a different subject entirely.

    You’re also misinterpreting Hamilton completely. His argument that the judiciary was the “least dangerous branch of government” was based upon the fact that the judiciary could not enforce its own decisions because it controlled neither the purse nor the military. It does not mean that Hamilton thinks it should be as weak as you think it should be. He wrote in Federalist 78:

    Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

    On the other hand, Hamilton argued in that same paper that without an independent judiciary with the power to void acts of the legislature when they overstep their legitimate authority, all of the rights preserved in the Constitution would be for naught:

    The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

    If the 9th amendment was intended only to protect those rights protected in state constitutions, then please explain why it was necessary. The 10th amendment does that by itself, doesn’t it? Again, this reading renders the 9th amendment meaningless and superfluous. But Madison stated clearly what the 9th amendment was intended to do – it was intended to prevent people from taking the position that you’re taking now.

    Kelo was wrong, at least in reason if not result. It certainly was not an activist decision as I have defined it. As for Lawrence, yes it was both wrong and activist. How could it be otherwise? Judical activism is wrong. It takes issues out of the hands of the people without their consent.

    So again, if a decision is wrong and activist, it’s worse than a decision that’s wrong and non-activist? What does the word “activist” add to the discussion? Wrong decisions are wrong decisions, and I would argue that the failure to protect individual rights – the entire purpose of having a bill of rights – is worse than protecting too much.

  32. #32 Ed Brayton
    January 31, 2006

    Jimmy G wrote:

    The purpose of the Constitution was not to gurantee individual rights per se. Instead, the Constituion was originaly designed to protect individual and state rights against federal government intrusion. The 14th Amendment changed this to some degree but that amedment was limited by its own terms to address a specific problem.

    The 14th amendment changed it completely, and the notion that it was limited to addressing a specific problem is absurd. The 14th amendment applied the bill of rights to state actions and declared that no state may violate the privileges and immunities of a citizen of the United States. In other words, if the federal government had no authority to violate a given right, then after the 14th amendment, the states had no such authority either. That was a HUGE change.

    The fact that it was motivated primarily by concerns about states taking away the rights of black former slaves does not mean that the text of the amendment only applies to actions taken against blacks. The language is general for a reason. This is like arguing that because Madison was prompted to write the first amendment in reaction to the jailing of Baptist ministers in Virginia (and he was), therefore the first amendment only applies to Baptists.

  33. #33 Jeff Hebert
    January 31, 2006

    Jimmy G, could you please use the blockquote tags to separate out the bits you’re quoting for someone else? It’s difficult to separate out where the quotes end and your new thoughts begin.

    You can accomplish this by enclosing the section you want to appear as a quote with {blockquote}This is the quoted text.{/blockquote}, only you replace the { and } with < and >. Here’s how that looks:

    This is the quoted text.

    Thanks! Nice to see lively debate but good formatting makes it much easier to follow.

  34. #34 ctw
    January 31, 2006

    hyperion:

    in the unlikely event you’re still reading this thread, I’d like to know why you say J Scalia’s Lawrence dissent was “horrific”. I disagree with his result and have my own quarrels with it, but I’m not sure I’d be quite that strong. not disputing, just curious.

  35. #35 Mr. Upright
    January 31, 2006

    Ed channels Hamilton:

    Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

    Thanks for the reminder, Ed. Every so often I hear someone angry with a SC decision declare that the Supreme Court just “made up” the power to declare a law unconstitutional. A la Fed. 78, the authors of the Constitution “made up” that power.

    I need to go back and re-read those oldies-but-goodies. As a constitutional scholar, I’m a pretty mediocre computational physicist.

  36. #36 Jimmy G.
    February 1, 2006

    The 14th amendment changed it completely, and the notion that it was limited to addressing a specific problem is absurd. The 14th amendment applied the bill of rights to state actions and declared that no state may violate the privileges and immunities of a citizen of the United States. In other words, if the federal government had no authority to violate a given right, then after the 14th amendment, the states had no such authority either. That was a HUGE change.

    NONSENSE. THE 14TH AMENDMENT WAS INTENDED TO SOLVE RACE PROBLEMS NOTHING MORE.

  37. #37 Jimmy G.
    February 1, 2006

    Every so often I hear someone angry with a SC decision declare that the Supreme Court just “made up” the power to declare a law unconstitutional.

    YOU HEAR IT BECAUSE IT IS TRUE. THAT IS ALL LAWRENCE WAS ABOUT.

  38. #38 Ed Brayton
    February 1, 2006

    Jimmy G wrote:

    NONSENSE. THE 14TH AMENDMENT WAS INTENDED TO SOLVE RACE PROBLEMS NOTHING MORE.

    Once again, substantive arguments seem to be bouncing off your tinfoil hat and not getting through. You are confusing the immediate problem that motivated a legal change with the substance of that legal change. Your argument is like saying that because the 13th amendment ban on slavery was intended to stop the slavery of blacks, therefore it doesn’t apply to holding Mexicans or Indians as slaves. Yes, the immediate situation that the 14th amendment addressed was the existence of state laws denying the rights of black ex-slaves, but the text of the amendment doesn’t say “No State shall make or enforce any law which shall abridge the privileges or immunities of black ex-slaves”. It says, “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.” By your reasoning – and I’m using that term very broadly – the free exercise clause would only apply to Baptists because the immediate situation that caused Madison to propose it was the persecution of Baptists in Virginia.

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