Antonin Scalia

[♪alt13]

I think if you want to make a person who is your captive uncomfortable in a way that takes special effort you are torturing them.

I don't think there is a gray area.

I think if you take a prisoner you do what is necessary to contain them. If you go beyond that in an effort to gain information you are torturing them.

I'm pretty simple on this one. I get that some might want wiggle room. I don't grant it. Our enemies are not "bad guys" they are humans. They are 99.9% the same as you or me. If we must we kill them. Not because they are evil, but because they stand in our way. We have a mission. I die for our mission or they die for our mission. I choose me. I kill them.

I die before I torture. I let my family die before I torture. I let your family die before I torture. I let America be conquered before I torture.

It's not gray. Not for me.

I die before I support torture.

I would torture to save my family(not yours though sorry) but I am a man not a state. I can't imagine I will ever have to.

 

[♪alt13]

Scalia would even agree with you. However, his view is that you can come to a closer certainty to original intent than you can interpret what our founding fathers would have meant today. The first is based on historical records, and there are enough to generally come up with a strong consensus. The other is based on conjecture.

Federalist Paper No. 78

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Notice that when Hamilton compares the Constitution to legislative law he frames the Constitution as "the intention of the people". He does not refer to it as representing the intention of the founders or even as they were original intended.

*It is important to recognize that when he says "the intention of the people" he is not referring to democratic people but to republican people(<not the parties D&R, the concepts). All people are represented by SCOTUS no matter how minor their voice. Democracy is exercised in the legislature.

 

[JAZZGASM]

Federalist Paper No. 78


Notice that when Hamilton compares the Constitution to legislative law he frames the Constitution as "the intention of the people". He does not refer to it as representing the intention of the founders or even as they were original intended.

*It is important to recognize that when he says "the intention of the people" he is not referring to democratic people but to republican people(<not the parties D&R, the concepts). All people are represented by SCOTUS no matter how minor their voice. Democracy is exercised in the legislature.

Funny you should mention the Federalist Papers. These passages were largely written as a debate between Hamilton and Brutus. Even Hamilton conceded that no federal judge had the legal authority to impose his will on the people in defiance of the Constitution:


There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. ...

Regardless, if you know the history of the federalist and anti-federalist papers, while helpful to get an idea of thoughts during the period, they were largely debate materials from a few parties. They have pertinence, but have limited relevance regarding interpretation into the Constitution.

I've been through this debate before and no one has ever given a convincing argument to demonstrate a system of interpretation that is better than originalism from the standpoint of limiting bias. There is no such thing as a perfect interpretation of the law. However, a modern interpretation has a much larger chance for personal bias because there is literally no baseline to perform a litmus test.

No more point debating this on a message board especially when posters either have no idea regarding the historical context of the references they are quoting or they do know and are skewing the truth.

 

[jimmy eat jazz]

Funny you should mention the Federalist Papers. These passages were largely written as a debate between Hamilton and Brutus. Even Hamilton conceded that no federal judge had the legal authority to impose his will on the people in defiance of the Constitution:


There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. ...

Regardless, if you know the history of the federalist and anti-federalist papers, while helpful to get an idea of thoughts during the period, they were largely debate materials from a few parties. They have pertinence, but have limited relevance regarding interpretation into the Constitution.

I've been through this debate before and no one has ever given a convincing argument to demonstrate a system of interpretation that is better than originalism from the standpoint of limiting bias. There is no such thing as a perfect interpretation of the law. However, a modern interpretation has a much larger chance for personal bias because there is literally no baseline to perform a litmus test.

No more point debating this on a message board especially when posters either have no idea regarding the historical context of the references they are quoting or they do know and are skewing the truth.

Given that, even assuming an originalist position, there is little in the Constitution that is self-evident in terms of meaning, given the wide variety of circumstances to which it may be applied, such that act of judging what original intent was is itself an act of projecting one's own understanding (informed by one's bias) on the meaning of the Constitution.

I wonder how many of the truly progressive rulings that have extended application of civil rights/liberties would have happened under an originalist interpretation of the Constitution. In my view, some things, such as civil rights/liberties, are too important to be left to state legislatures, which are often dominated by parochial local factions/power structures.

As a practical matter, originalism doesn't work for me. The Founders could in no way anticipate the complex nature of society in modern times, and thus I see it as essential that we can take the general framework laid down by the Constitution and figure out how to apply it to modern situations. I see nothing wrong with this at all, or with 'judicial activism,' which, when invoked, is typically invoked to criticize rulings one disagrees with, as opposed to stating a general and consistent judicial philosophy.

Of course, the risk with judicial activism is that it may swing against your interests at times, but then so might originalism. There's no guarantee either way. For example, I see Citizen's United as a case of 'judicial activism,' which will have the effect of, essentially, disenfranchising votes relative to the power of corporations or large political donors, but it's one I can live with, because, while some might think Obergefell is also a case of judicial activism, it is one I agree with and I that believe is an important extension of civil rights. It's a trade-off, but so are most things.

But then I'm hardly a legal scholar so take all of this for what it's worth.

 

[JAZZGASM]

Given that, even assuming an originalist position, there is little in the Constitution that is self-evident in terms of meaning, given the wide variety of circumstances to which it may be applied, such that act of judging what original intent was is itself an act of projecting one's own understanding (informed by one's bias) on the meaning of the Constitution.

I wonder how many of the truly progressive rulings that have extended application of civil rights/liberties would have happened under an originalist interpretation of the Constitution. In my view, some things, such as civil rights/liberties, are too important to be left to state legislatures, which are often dominated by parochial local factions/power structures.

As a practical matter, originalism doesn't work for me. The Founders could in no way anticipate the complex nature of society in modern times, and thus I see it as essential that we can take the general framework laid down by the Constitution and figure out how to apply it to modern situations. I see nothing wrong with this at all, or with 'judicial activism,' which, when invoked, is typically invoked to criticize rulings one disagrees with, as opposed to stating a general and consistent judicial philosophy.

Of course, the risk with judicial activism is that it may swing against your interests at times, but then so might originalism. There's no guarantee either way. For example, I see Citizen's United as a case of 'judicial activism,' which will have the effect of, essentially, disenfranchising votes relative to the power of corporations or large political donors, but it's one I can live with, because, while some might think Obergefell is also a case of judicial activism, it is one I agree with and I that believe is an important extension of civil rights. It's a trade-off, but so are most things.

But then I'm hardly a legal scholar so take all of this for what it's worth.

Changing the subject slightly--here is an interesting tidbit. Do you know why women are included as a protected class under the Civil Rights Act? Opponents of the bill added women in as an attempt to sabotage the bill thinking it would never pass.

 

[Joe Bagadonuts]

Changing the subject slightly--here is an interesting tidbit. Do you know why women are included as a protected class under the Civil Rights Act? Opponents of the bill added women in as an attempt to sabotage the bill thinking it would never pass.

Wow! Can you provide a link? I'm very interested in learning the details.

 

[Joe Bagadonuts]

Changing the subject slightly--here is an interesting tidbit. Do you know why women are included as a protected class under the Civil Rights Act? Opponents of the bill added women in as an attempt to sabotage the bill thinking it would never pass.

I think your comment might not be quite correct:
https://womenshistory.about.com/od/laws/a/sex_and_civil_rights_act.htm

 

[JAZZGASM]

I think your comment might not be quite correct:
https://womenshistory.about.com/od/laws/a/sex_and_civil_rights_act.htm

Believe what you will, but when Howard Smith, a staunch opponent against civil rights, that argued over and over to kill the bill adds "sex" at the last minute, it was a win-win. If it fails, he could say he stopped it. If it passed, he would become a proponent for women. I attended a law lecture on this and the speaker was very detailed on the process of the bill at the time and the political viewpoints of Rep. Smith. What you read is largely based on Smith's statements after the bill passed. What else is he going to say?

 

[Joe Bagadonuts]

Believe what you will, but when Howard Smith, a staunch opponent against civil rights, that argued over and over to kill the bill adds "sex" at the last minute, it was a win-win. If it fails, he could say he stopped it. If it passed, he would become a proponent for women. I attended a law lecture on this and the speaker was very detailed on the process of the bill at the time and the political viewpoints of Rep. Smith. What you read is largely based on Smith's statements after the bill passed. What else is he going to say?

Can you provide a link to that version of the argument. I'm very interested.

 

[JAZZGASM]

Can you provide a link to that version of the argument. I'm very interested.

As I said, it was part of a lecture, but there are a lot of publications and web pages that discuss this if you search around. I may have time to find something tonight after work.

 

[♪alt13]

Funny you should mention the Federalist Papers. These passages were largely written as a debate between Hamilton and Brutus. Even Hamilton conceded that no federal judge had the legal authority to impose his will on the people in defiance of the Constitution:


There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. ...

Regardless, if you know the history of the federalist and anti-federalist papers, while helpful to get an idea of thoughts during the period, they were largely debate materials from a few parties. They have pertinence, but have limited relevance regarding interpretation into the Constitution.

I've been through this debate before and no one has ever given a convincing argument to demonstrate a system of interpretation that is better than originalism from the standpoint of limiting bias. There is no such thing as a perfect interpretation of the law. However, a modern interpretation has a much larger chance for personal bias because there is literally no baseline to perform a litmus test.

No more point debating this on a message board especially when posters either have no idea regarding the historical context of the references they are quoting or they do know and are skewing the truth.

So... when there are two or more differing interpretations of what the Constitution says about a given issue Justices should reach back to the founding and pick among the differing opinions of the time? How is that more constraining?

The quote you pulled is talking about the supremacy of the Constitution to legislation and the men that he is referring to are legislators. It isn't about constitutional interpretation and he isn't referring to justices when he says "that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid...". You've missed the point entirely.

I posted the Federalist Papers because you claimed there exists a basic originalist consensus to be found in historical documents and the Federalist Papers are the closest documents to actually fitting that description, but as you have pointed out(without realizing how much it hurts your argument) even the Federalist Papers were hotly debated. It is in my view ridiculous for someone to argue on behalf of an original interpretation without demonstrating that there ever was one. Sure there are times when there is a clear original intent that speaks to a modern issue but more often than not there just simply isn't.

PS your ad hominem attack of my understanding of history was cute and good reason for me not to take you seriously.

 

[JAZZGASM]

So... when there are two or more differing interpretations of what the Constitution says about a given issue Justices should reach back to the founding and pick among the differing opinions of the time? How is that more constraining?

The quote you pulled is talking about the supremacy of the Constitution to legislation and the men that he is referring to are legislators. It isn't about constitutional interpretation and he isn't referring to justices when he says "that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid...". You've missed the point entirely.

I posted the Federalist Papers because you claimed there exists a basic originalist consensus to be found in historical documents and the Federalist Papers are the closest documents to actually fitting that description, but as you have pointed out(without realizing how much it hurts your argument) even the Federalist Papers were hotly debated. It is in my view ridiculous for someone to argue on behalf of an original interpretation without demonstrating that there ever was one. Sure there are times when there is a clear original intent that speaks to a modern issue but more often than not there just simply isn't.

PS your ad hominem attack of my understanding of history was cute and good reason for me not to take you seriously.

If you say so. A cursory search of the quote says you are wrong:

The primary point of contention between Hamilton and Brutus was in the well-founded concern that judges would substitute their will for the plain text of the Constitution, as exemplified by the Supreme Court's de facto revision of the Eleventh Amendment.[11] Hamilton conceded that no federal judge had the legal authority to impose his or her will on the people in defiance of the Constitution:
https://en.wikipedia.org/wiki/Federalist_No._78

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. ...

Sorry, but it is clear you don't know your history or ignore it.

Done.