"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Scalia completely misses the boat on this. He seems to think that this is an either/or proposition. It is not. The founding fathers did not consider wiretaps when they were writing it, and the Constitution says nothing about them, so there is no "originalist" opinion on the matter. Yet they have consistently been ruled on under the search and seizure clause.

I also suppose this means Scalia is pro-slavery since that's in there too. Sorry Tony, your intelectual position doesn't hold water.

The fact that the founding fathers did not consider wiretaps proves Scalia's point. The supreme law of the land has authority and legitimacy because was written by the people's representatives, and ratified by the people. If neither the people or their representatives considered wiretaps, then there is no such law. It can be argued that a wiretap is a kind of search, but the amendment is talking about someone from the government coming with force into your house and going through your stuff, which is a significantly different kind of intrusion than a wiretap. Perhaps the people do have a right to not be wiretapped, and the government is trampling that right. If so, then it falls to the people's representatives to remedy it by law or by amendment. Any judge who decides what is or isn't an inherent right, or what should or shouldn't be a right, rather that what the law does or does not say, does away not only with the Constitution but the entire concept of democracy and self-government.

I also suppose this means Scalia is pro-slavery since that's in there too. Sorry Tony, your intelectual position doesn't hold water.

You need to check your Constitution. It prohibits slavery.

And Justice Scalia doesn't have the privilege of being pro- or anti- anything, except good judging. He is not a representative of the people, and cannot make policy. For him to make policy would be to usurp that God-given right from the people, and become a tyrant, like most of his colleagues.

erikmartin wrote:

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Scalia completely misses the boat on this. He seems to think that this is an either/or proposition. It is not. The founding fathers did not consider wiretaps when they were writing it, and the Constitution says nothing about them, so there is no "originalist" opinion on the matter. Yet they have consistently been ruled on under the search and seizure clause.

I also suppose this means Scalia is pro-slavery since that's in there too. Sorry Tony, your intelectual position doesn't hold water.

The fact that the founding fathers did not consider wiretaps proves Scalia's point. The supreme law of the land has authority and legitimacy because was written by the people's representatives, and ratified by the people. If neither the people or their representatives considered wiretaps, then there is no such law. It can be argued that a wiretap is a kind of search, but the amendment is talking about someone from the government coming with force into your house and going through your stuff, which is a significantly different kind of intrusion than a wiretap. Perhaps the people do have a right to not be wiretapped, and the government is trampling that right. If so, then it falls to the people's representatives to remedy it by law or by amendment. Any judge who decides what is or isn't an inherent right, or what should or shouldn't be a right, rather that what the law does or does not say, does away not only with the Constitution but the entire concept of democracy and self-government.

If Scalia were a true constuuctionist, then the ability of the government to do wiretaps would be zero. It does not say they can, therefore it is not allowed. An honest "strict constructionist" position reads the 9th and 10th amendments, and if the constitution does not explicitly say something is allowed, then it is not allowed. That is not Scalia's position at all.

I also suppose this means Scalia is pro-slavery since that's in there too. Sorry Tony, your intelectual position doesn't hold water.

You need to check your Constitution. It prohibits slavery.

And Justice Scalia doesn't have the privilege of being pro- or anti- anything, except good judging. He is not a representative of the people, and cannot make policy. For him to make policy would be to usurp that God-given right from the people, and become a tyrant, like most of his colleagues.

You are right it does. But it did not do so until December of 1865. The Constitution is the very definition of a "living document" in that it has been directly changed 27 times now, doing everything from removing slavery (legal under the original terms banned by the 13th Amendment), banning, then removing said ban on, the sale of alcohol (banned by the 18th, repealed by the 21st) and clarifying the circumstances of Presidential succession.

And I am sorry to say, but Scalia has been doing his best to make policy for about 20 years now. The Rehnquist court was possibly the most activist in the history of the Union.

To begin with, the words "cruel and unusual" do not mean the same thing that they meant 200 years ago.

Right, so under the theory that government power is only legitimate which is derived from the will of the people people, the only legitimate meaning of "cruel and unusual" in that amendment, is the meaning according to which the people ratified it.

In order to accept the "strict constructionalist" view one must claim that the 9th amendment is a "garnish" that has no real legal force or meaning. I think thats clearly insane and hypocritical.

To the contrary, the 9th Amendment is what mandates strict construction! "If there is one constant theme in the history of the Ninth Amendment, from the state conventions through ratification, it is that the enumeration of certain rights was not to be construed to imply any expansion of federal power. Yet this is exactly the implication [Chief Justice] Marshall draws from the enumeration of rights in Article I, Section 9."

Liberals and Conservatives who wish to use government power in new ways to control what people can do ought to amend the consitution to do it.

Absolutely.

erikmartin wrote:

To begin with, the words "cruel and unusual" do not mean the same thing that they meant 200 years ago.

Right, so under the theory that government power is only legitimate which is derived from the will of the people people, the only legitimate meaning of "cruel and unusual" in that amendment, is the meaning according to which the people ratified it.

It seems to me more reasonable that the power of the government should be derived from the people actually living under it presently rather then a completely separate group of people who died hundreds of years ago. The reason the people actually living under the Constitution today accept it as their government is because it resonates with their present values. To the degree that the community's understanding of what things like "cruel and unusual" mean has changed, the legal interpretation ought to change with it. Otherwise you have a situation where the Constitution says one thing that plainly means something particular to most people who read it, but the courts interpret that meaning in a way which makes no sense to a modern reader, and you have a paradox in which if the people want to amend the constitution so that it means what they want it to mean, they have to change the wording but they simultaneously cannot, because the wording actually says what they want it to say already.

In order to accept the "strict constructionalist" view one must claim that the 9th amendment is a "garnish" that has no real legal force or meaning. I think thats clearly insane and hypocritical.

To the contrary, the 9th Amendment is what mandates strict construction!

I agree. But the "Strict Constructionalist" movement presently in the US doesn't accept that. They maintain that all manner of regulations related to sexual morality, such as laws banning the distribution of condoms or homosexual sex, are constitutional because the ninth amendment doesn't really mean anything and so it doesn't apply. This arguement is at the heart of the debate over Roe V. Wade. The "liberal" position is that the 9th amendment prevents this sort of regulation. The "conservative" position is that the 9th amendment doesn't prevent regulation and was placed in the Constitution as a reminder and not a rule.