Mr. Justice Scalia

Dang! I wish I could have seen U.S. Supreme Court Justice Antonin Scalia, who was in the Bay area Wednesday. I am a little bit of a Scalia groupie, in a limited way -- certainly he is one of the best writers on the court, and has a rare joy-of-battle about him. Now, this does not mean I think he is RIGHT about most things; in fact I think he has trampled over actual constitutional intent on occasion. A few of his opinions I have read seem downright crazy, but there have been other times I thought he was the only justice paying attention to what mattered. If I got to pick and choose which justice to have a beer with, he would be the one. I'd invite my friend and colleague Robyn Blumner, too.

Speaking at the Stetson Univeristy College of Law, Scalia made some observations about the original intent of the framers of the U.S. Constitution, and expounded on the philosophy that the Constitution is not a "living" document, whose meaning changes with the fashions of the day, but which should be interpreted as closely as possible by the meaning that the Framers had in mind when they wrote it.

I dunno.

I am certain that the Framers intended for American citizens to have the right to bear arms, for example. But then we invented the machine gun, nerve gas and suitcase nuclear devices. If we are bound by original intent, then I suspect these are "arms" that must be protected, and that we either must allow them or rewrite the Second Amendment. The alternative is to apply a balancing test to the Second Amendment, just as we do the First or any of the others ("Fire in a crowded theater'') -- that is, applying time, manner and place restrictions that limit those rights, and allowing for the ol' Compelling State Interest in restricting the core rights... all of this analysis depends, it seems to me, on contemporary conditions, and not what happened to be the case in 1787.

"Cruel and unusual" is utterly undefined in the Eighth Amendment -- are we absolutely obligated to abide by the 1787 societal standard? Why not, then, public whippings or stocks? (I am an ancient historian, not an early American one, so if they had already gotten rid of stocks by then forgive me and correct me).

I confess to you that at times I do take a Scalia-esque perverse delight in fantasizing that, say, the Commerce Clause is used to declare a big chunk of the existing federal government bureaucracy unconstitutional...

Comments

[Jim Johnson]

Ha! I'm reading the Federalist Papers, and God only knows what Madison and Hamilton intended. I mean, they were trying to sell New York on the idea of the Constitution, but they were real weasles about how strong they wanted the Federal Government to be. Strong enough, but not too strong seems to be how Madison peddled it.

Much later he said that only the people who ratified the Constitution really knew what it meant. He was merely the scribbler. A simple boy clerk.

If you look at how the Framers divided up the work of government, the federal government handled war, foreign relations, currency, and conflicts between states. The states were otherwise free to soil their respective nests however it pleased them....but they couldnt start wars or make treaties or impose their will on sister states.

Jefferson Davis said it best when he observed that if the Framers intended a monolithic state we would call ourselves the United STATE of America.

[Alex]

There's a fine point here. There's a difference between interpreting the constitution to make way for changes that have occurred in our society since 1787 versus interpreting it to advance one's political agenda, especially when one happens to be an appointed justice of the SCOTUS.

[Howard Troxler]

I agree, Alex, but how do we tell the difference? If you can outline an objective test, I will be impressed. Instead the test is almost always result-based -- if we like the result of the ruling, it was "good," and if we don't, it was "activist," "judge-made law,'' etc.

I absolutely can see a constitutional basis for Brown v Board of Education, for example -- if separate is indeed inherently unequal, then the court was on solid grounds in ruling segregation unconstitutional. On the other hand, I still have to struggle to find the privacy right in the "penumbra" of the First Amendment that Justice Douglas saw, giving us Griswold v. Connecticut and its progeny, Roe v. Wade.

yeppers, lets stay with the original intent...hell, lets go back to outhouses, travel by horse and 10 out of 12 children dying in the first year.

yeppers, that was the way the framers lived, why shouldnt we live any differently?

why shouldnt our laws be just the same as the framers...who had no idea about electricity, travelling faster than the fastest horse and actually allowing basic human rights to none but white males of property?

what crap from a crap-meister!!