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.

RE: Scalia Dismisses 'Living Constitution' - Yahoo! News