Scalia Explains Originalism
Posted on April 28, 2008
Our favorite Supreme Court Justice explains originalism, the idiocy of a “living constitution”, an d much more to 60 Minutes.
» Filed Under 1st Amendment, Abortion, Activist Judges, Homosexual Agenda, Interview, News, Politics As Usual, Video
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19 Responses to “Scalia Explains Originalism”
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Mr. Originalism seems to have stopped reading before he got to the 9th Amendment.
Conservatives would have much more credibility if they “originalists” across the board, instead of just when it suits their agenda. Likewise with the claim of being “small government.”
Hey Jeff, no matter how much you wish it there is no privacy clause in the Constitution.
Nowhere in the Constitution does it allow JUDGES to make any laws out of thin air. Congress COULD pass a law specifically overriding states on the issue but they haven’t.
Of course if you had read the next amendment(10) you would see that the Federal government is *supposed* to be limited in scope.
The *only* entity which can deny you rights is government. If any other entity tries it I suggest you call the police. This is why government, particularly the Federal, should be limited.
Scalia obviously has a much stronger grasp of the issues, even at 72, than you do.
Wow, I almost missed the nugget at the end re: “cruel and unusual punishment”.
How ’bout “for not cooperating”? Isn’t the carrot and stick routine specifically to coerce cooperation? The carrot is the reward. The stick is the punishment.
I could have tolerated him saying that the clause didn’t apply overseas and yadda yadda, but give me a break. If his definition of punishment were actually correct, a person under arrest would actually be subject to worse conditions than one who was convicted. It’s idiotic.
“How ’bout “for not cooperating”? Isn’t the carrot and stick routine specifically to coerce cooperation? The carrot is the reward. The stick is the punishment.”
You are talking about assault, not ‘punishment’. You fail at comprehension.
The prohibition against cruel and unusual punishment deals with whatever punishment society has determined is warranted by a crime. If a policeman is using torture to get information out of a suspect, he isn’t ‘punishing’ anyone by the legal definition.
He cannot sentence anyone…he cannot pass judgement on anyone. Therefore, he cannot ‘punish’.
It’s a legal definition…it’s very specific. This is another reason this nonsense about a ‘living’ Constituion is so ludicrous.
A ‘living’ Constitution isn’t a constituion at all…it’s merely justification for whatever political slant the current Justices have at any point in time. It’s meaningless.
Not only have I read it, I quoted it in the comment you replied to. Read my 5:27 post again; maybe you’ll recognize it this time.
An intellectually honest originalist must recognize that Section 8 of Article 1, the 9th amendment, and the 10th amendment have all been decimated by each of the three branches over the past 150 years.
But Mr. Scalia shows no concern for that. He only trumpets originalism when it’s convenient for him. No doubt he can explain away his hypocrisy, just as Republicans can explain away their big-government tendencies and Democrats can explain away their support for war when it’s a war they like.
Talk is cheap. Our leaders do not care about the Constitution. If they did, our government would bear more resemblance to the one the Founders created.
Ok, Northerner, since I don’t have access to an authoritative legal dictionary, I’ll go along with your narrow definition.
Now are you actually suggesting that our government has the authority to “assault” us while we’re in custody in order to extract information?
Oh, I do so love Mr. Molby’s misunderstanding of the United States Constitution.
Oh, please enlighten me, Mr. Leamas. I’m always ready to learn.
Jeff, if you believe it is a living document we might as well throw it in the trash. If it only means *what the current court says it means*, then it means nothing at all. You have the equivalent of a theocracy(instead of a Bible you have a Constitution which can of course only be interpreted by a few exalted men in black robes….)
Roe v wade took away rights of the Congress and state legislatures, to pass laws on abortion. You have no problem with this presumably because you agree with the decisions.
I would love to hear your opinion of the court if it ruled all gun laws unconstitutional, or that all public schools be turned over to private entities. I bet your ‘living document’ fantasies would go out the window.
PS. People attacking our troops which are out of uniform are not covered by Geneva and can be summarily shot as spies(and they were in WW2).
Mr. Molby.
What Mr. Leamas and his Honor mean, is that it is two separate CRIMES. No one mentioned, or posited that an assault by an police officer (or a few jerks in the military) is somehow “ok”. The point is simply that the two are not related.
(But to many on the Left, they are.)
You have missed the point, AND you have straw-maned a counterpoint.
To reinterate:
Both are illegal.
Both are different crimes.
Both are punishable by law.
Both are PUNISHABLE by the standards and precident of law. THAT is why people were PUNISHED for ASSAULTING some prisoners at Abu Graib.
You’re clearly not reading what I’ve written, David. I’m saying Scalia isn’t originalist enough; he’s only selectively originalist, if you will.
I strongly disagree with the way Roe was decided. I believe that it is proper for individual states to decide what, if any, criminal penalties should exist for performing and/or soliciting an abortion.
Again, you clearly have no idea who you’re talking to. Assuming the rulings were arrived upon appropriately, I would cheer them both.
Now go back form a coherent argument against positions I’ve actually taken or move along.
If you scroll back up, you’ll see that at 9:04, I was asking Northerner a question, not fabricating a strawman. Mr. Leamas, to date, has added nothing to the conversation.
He drew a distinction between the dictionary definition of “punishment” and its legal definition. He then applied the word “assault” instead, so I wanted to know how he felt about that.
If you and I are just arguing about which crimes to charge the individual with, no problem. I doubt, however, that Mr. Scalia would go along with an assault charge either.
It seems to me Scalia would very much go along with an assault charge, he said there is a perfectly good law against torture on the books. He just doesn’t think the cruel and unusual punishment clause applies, because it is not a punishment, it is an assault. “Everything hateful and odious is not covered by some provision of the Constitution.” Which seems correct to me.
But what an awful interview. I don’t know if Scalia is just tired of explaining himself over and over, or Stahl is just an inept interviewer, or a lousy editing job. But there’s not very much explanation of his views, just a lot of “I’m right because I said so!” His views are much more coherent than that.
“An intellectually honest originalist must recognize that Section 8 of Article 1, the 9th amendment, and the 10th amendment have all been decimated by each of the three branches over the past 150 years.”
We agree on that.
“But Mr. Scalia shows no concern for that.”
Jeff, you keep making this argument but you have not backed it up with anything. Did you watch the tape? Scalia states that he is personally against abortion and flag burning. Yet he sees the former as a matter for the states and the latter as protected by the First Amendment.
Where’s all this hypocrisy that you keep talking about?
Are you trying to dance around Bush vs. Gore without mentioning it? The Supreme Court voted 7 to 2 against Gore (something the MSM rarely admits), with 2 justices merely disagreeing with the 5 other on the remedy. And, as Scalia noted, the outcome would have been the same without the Supreme Court taking the case, because Gore lost every cherry-picked recount he concocted.
I’m trying to understand why you keep accusing Scalia of hypocrisy when his record shows nothing of the sort.
JohnW
To answer your questions, plus a bit more:
1) Stahl is an inept interviewer.
2) The MSM is not interested in allowing Justice Scalia to explain himself.
3) The morons who protest against Scalia don’t have the intellectual capacity to understand the concepts that guide him.
60 Minutes made some lame attempts at fairness, such as noting that Scalia is very close friends with Justice Ginsburg. However, it was really nothing more than a hatchet job by an incompetent journalist (am I repeating myself?) with a smily face painted on it.
I would bet my next paycheck that if we saw everything that was recorded during the interview, it would show Justice Scalia running intellectual circles around Stahl, who would be spending most of her time with that ever-so-concerned look on her face that we saw so much on the show.
Stahl should stick to interviewing second-rate celebrities and stay away from the cerebral stuff.
It’s hard to cite, because it’s mostly evident in the battles he doesn’t take on. In his own words:
Stare Decisis may be a long-held legal tradition, but it darn sure isn’t an intellectual principle. You don’t hold onto geocentrism simply because previous astronomers had always gotten it wrong.
So yeah, he’s better than Ginsburg, but he’s far from a principled originalist.
This country cannot right itself until Conservatives realize that “holding the line” won’t suffice. There will always be
Breathingists and from time to time, they will hold power and move the line. If we don’t have the cajones to move it back, it’s only a matter of time before we descend into some form of authoritarianism.
I was just reminded of a classic Paine quote that is apropos.
“Stare Decisis may be a long-held legal tradition, but it darn sure isn’t an intellectual principle. You don’t hold onto geocentrism simply because previous astronomers had always gotten it wrong.”
Hmm. It may not be an intellectual principle, but Scalia isn’t making an intellectual argument. He’s a judge, an officer of our legal system. I would think that in that particular context the legal principle would hold more weight than it would in an intellectual debate.
Sigh. Regardless, Scalia uses the English language like a lawyer, and Stahl uses it like a journalist. To Scalia, words are chosen based on their definition and what they mean. To Stahl, words are chosen based on how they make the audience feel.
There is no doubt that Stare Decisis is valuable to our society. One should exercise extreme caution before opening old wounds, but one should be willing to do it when enough is at stake. Sometimes you have to re-break a bone to get it to heal properly.
The modern interpretations of the welfare clause, the elastic clause, and the commerce clause are grotesque distortions of their original intents. Any true originalist should be working to restore them.