Justice Scalia says abortion, gay rights are easy cases

 @Icarus  A question, Icarus....

 

>'the SCOTUS follows the will of the people in decisions that expand the rights and sovereignty of the people.'

 

I'm curious how you take the recent lower court decisions regarding expectations of privacy vs 'patriot act' legislation. 

 

The history of such cases would seem to agree with you, up to the implimentation of patriot act/homeland security laws and regulations.

 

Initially, (Olmstead v. United States 277 U.S. 438 ) in the 30's, it was found (by the SCOTUS) that there was no reasonable expectation of privacy in the use of a phone when juxtaposed against the persuit of a 'greater good' (prosecution of what would become RICO crimes). Later, (Nardone v. United States) that was refined (again, by the SCOTUS), but it still left pretty broad latitudes for federal law enforcement insofar as warrantless wire tapping. 

 

Specific to your observations, I don't know that I believe that in either of these time frames, that the ' social paradigm' was generally permissive towards such practices. 

 

Later (Berger v. New York and Katz v. United States), both in the late 60's both 30's standards established by the SCOTUS were overturned in regards to the expectation of privacy standards. 

 

fast forward 40 years, and introduce the 'patriot act', and there have been several lower court (admittedly, some of them come out of the 9th circus court) rulings that seem to almost go backwards with regards to issues of personal privacy. (Nichols v. United States (92-8556), and the recent rulings in N Dakota regarding police use of UAVs. If , as you state, the judicial rulings tend to follow  social paradigms, I would think that these precidents should be going the other way.  

 @Icarus True, but even SCOTUS cases can, and often are, open to legal/applicable interpretations. For example, Loving v. Virginia holds that while it is unconstitutional for states to forbid interracial marriage, it also says that the states are best to determine for themselves how to 'fairly' apply the benefits of the union. That is specifically what so many states are banking on with regards to 'same sex' marriage bans. 

 

Now, 40 years later, we are requiring the SCOTUS to again address and expand upon the initial rulings. I can see where your position of >'that the courts will follow social paradigm shifts and find support in the Constitution.' comes from in that respect. 

 

The law, after all, is simply a set of socetial rules that we collectively agree to abide by. Those rules, however, have to be filtered through the US Constitution before they can be enacted and applied. I guess in that respect, the SCOTUS is the finest grain sifter.... or, at least it's supposed to be. When justices like Mr Scalia make such flippiant statements, (as I eluded to above) it kind of concerns me in that respect. 

 

 

 @MarkKpic     

 

You said:  "I firmly believe that once the issue reaches the SCOTUS, DOMA and other such legislation will be overturned."

 

And, I happen to agree with you and it is an application of my proposal above; that the courts will follow social paradigm shifts and find support in the Constitution.  One large factor of control that the SCOTUS exploits is the choice of which cases to hear and the opportunity to actually vet said cases in advance to either limit the scope of the decision and to determine the moment in history they wish to hear a case and render a decision.

 

My point being that the courts are not subject or forced to make decisions but rather choose which question they believe are salient to the national interests and their choosing is based on time and place and scope of the question involved.  The courts have not heard another case to revisit Roe v. Wade since 1973 although there are multiple cases brought every year and regardless of the merit of those cases they won't be heard because there is a prevailing national interest in preserving that 1973 decision which many...inculding Scalia believe was faulty.  http://www.reuters.com/article/video/idUSBRE88H06X20120918?videoId=237806535

 

Again...the SCOTUS follows the will of the people in decisions that expand the rights and sovereignty of the people.

 @noneofyourbizzness  @ChrisJ82  @MarkKpic That is the crux of my position on the issue. 

 

I may very well have my religeous/theological objections to the idea, and I may feel that the term 'marriage' is of theolgoical origins... but...

 

That is (and should be) irrelevent to legal, constitutional, judicial application of the term. As soon as the government began issuing 'marriage licenses', it became a government institution. As such, discriminitory practices are forbidden. In addition, the segregation of theological from legal/constitutional issues makes it impossible to find judicial ground from which to take a 'stand' against it. 

 

If there were some way to return the title to 'churches', and only allow for 'civil unions' unless churches were involved, I'd be all for it. There isn't. I firmly believe that once the issue reaches the SCOTUS, DOMA and other such legislation will be overturned. 

@ChrisJ82 @MarkKpic As long as the government continues to issues marriage liscences,the churches should never dictate to secular society their rules and regulations.Getting the government out of marriages is a great idea in theory but I don't think it will ever happen.

 @ChrisJ82  @MarkKpic 

 

Ummm.... Okee dokee.

 

Now that we've got that cleared up. 

 

We're going to agree to disagree on this one. Bully for us!

 

Echoes of Mark Twain come to mind... 'Dont argue with....' 

 @MarkKpic Well which part do you think gave it away better: The hyperbolic nature of your statement in general, or that it was included in a list of things you might thing most people view as wrong and needing to be corrected? Though it's funny your finally come out and stated how you felt at the end of your comment regarding assault weapons not being covered under the Constitution. As for the amendment process that was not your initial argument for it to be a living document, that was only something you brought in after it was clear the 1st, 2nd, 4th, 5th, 6th, and 8th amendments cover everything in your 'not yet invented' list for excuses of it to be a living document. 

That's not to say that the judges are going to get it right. Often they don't and for ridiculously selfish reasons too. Case in point the 2nd amendment, the dissenters could only point to Cruikshank, a racist reconstruction era ruling, which at the time also refused to recognize the 1st amendment. That doesn't even qualify as shaky ground, as they don't have a leg to stand on. And Scalia is wrong here regarding gay marriage, the establishment and free exercise clauses spell out the government's role in this quite clearly, and that role is to butt the hell out of the issue altogether and leave it to the people and the churches.

 @ChrisJ82  @MarkKpic 

 

>'Yes drone spying...' 

 

http://www.usnews.com/news/articles/2012/08/02/court-upholds-domestic-drone-use-in-arrest-of-american-citizen?vwo=ecfb2

 

http://rt.com/usa/news/domestic-drone-court-ruling-743/

 

>'unless your initial comment...'

 

Again, no hyperbole, no verbal assaults, tell me SPECIFICALLY where my statement presumed that I am not a supporter of the 2nd ammendment. Your interpretations of my statements is not what I'm seeking. 

 

>'Regarding women and blacks...' My point exactly. The original document was ammended, as in it grew (IE-evolved) to keep pace with a changing country, and environment. To me, that is the very definition of it being a 'living document'.

 

>'...clearly covered under the BoR.'

 

You make my point for me. The statement CLEARLY covered by the Bill of Rights. Things like UAVs being used for domestic surveilance, assault weapons (which I don't think are particularly 'scary' looking) and gay marriage are not clearly covered. Just as the original authors believed that blacks being property and women not being allowed to vote were not. Therefore, the document had to (and continues to) be ammended to include rules (read:laws) governing the application of these new legal quandries. 

 

That is where my definition of the US Constitution being a 'living document' comes from. 

 

 @MarkKpic Yes drone spying, strikes (thankfully not yet domestically), and warrantless wiretaps are all happening, but not with judicial approval, other than looking the other way on it, but that still doesn't make it a living document. And staunch supporter of the right to keep and bear arms? lol, unless your initial comment was tongue-in-cheek, what you mean to say is your are a staunch supporter of the right to keep and bear 'non-scary' looking arms.Regarding women and blacks that was corrected due to the amendment process. That process is where you can point to it being a living document. Not these asinine rants about things unimagined in the founders' times but clearly covered under the BoR.

 @ChrisJ82 >'Drones (for areal searches), drone strikes, and warrantless searches of all types are all obviously unconstitutional.'

 

...and yet, they're happening. With judicial knowledge and approval. 

 

>'Your inclusion of anti-2nd amendment rant in the same breath is what clinches you as being anti-BoR'

 

SPECIFICALLY what 'anti-2nd ammendment rant' are you referring to?

 

I'm a pretty staunch supporter of the right of private citizens to keep and bear arms. 

 

>'All the same, none of that works as an argument for it being a living document.'

 

To extrapolate from that statement, (as is apparently the practice in this discussion by your statements), Women should not be allowed to vote and blacks should still be property?

 

If you believe that the ammendments after the original 10 are valid ammendments, then I would think you have to understand that adaptation and evolution are an inherent component of the US Constitution. 

 @MarkKpic Oh I read your post, but it's mostly nonsense, I simply tried to make it coherent. Drones (for areal searches), drone strikes, and warrantless searches of all types are all obviously unconstitutional. Your inclusion of anti-2nd amendment rant in the same breath is what clinches you as being anti-BoR. All the same, none of that works as an argument for it being a living document.

 @Icarus  @noneofyourbizzness I think it was Jefferson who warned that the judiciary had the potential to be the downfall of a representative democracy in that there is no oversight. Eventually, it ends up in the hands of a group of justices (SCOTUS) who  then make an absolute judication as to the validity/constitutionality of any given case. That is it. No further. Until/unless another case addressing the same issue with a different set of plaintiffs ends up being heard by them... and they even get to decide that. 

 

I've often felt that politicians are like diapers in that they both need to be changed regularly... for the exact same reason. Perhaps lifetime appointments to the SCOTUS need a revisitation?

 

 

 @Icarus LOL well since I'm a Libertarian I tend to agree with everyone 50% of the time, while disagreeing with them the other 50%.

 @JTesla 

 

 

So you're supporting my argument?....and agreeing with me????

 

Where's my damn calendar.....

 

Yeah!!!!  

 @MarkKpic  @noneofyourbizzness 

 

Thanks....

 

The thing that disturbs me about Scalia is that he panders to the least common denominator as do the creators of Jersey Shore...maybe its an Italian thing and they just seek the same audience.  MARK SHERMAN the writer from whom this brief was lifted elaborates that Scalia says: "The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute." 

 

All that is just bluster pandering to the current status quo...no thought or analysis just simple reinforcement by demagoguery...tell them what they already believe.  By that reasoning; he would find Lincoln's Emancipation  unconstitutional because slavery had existed in the Americas for nearly 200 years and as a social institution for millennia regardless of the ideological conflict with either the Constitution or Declaration.  His whole quoted statement is internally contradictory; Neither sodomy or abortion are mentioned by the Constitution but he finds off-handed constitutional protection for one but not the other because sodomy has been outlawed by every state for 200 years?  In one fell swoop he's vacated the notion that he's a strict constructionist, by using social convention as a decision point, and proved that he's just pandering to the audience.  But, he knows it doesn't really matter what he says in public because he's not speaking as a jurist but rather as a shill for his book.  Unfortunately, when he does speak as a jurist he speaks as an conservative ideologue and exploits his decisions as a club to bludgeon the American people with language into believing that the Constitution actually limits their rights rather than preserving them.

@Icarus "If this theory then holds true"

 

 

It’s worked that way in the past. It was ruled that subjecting the mentally handicapped to the death penalty was not cruel and unusual punishment. After that numerous states passed legislation to bar the practice, the next time the court addressed the subject they altered their ruling based on how the people had in effect redefined cruel and unusual.

 @Icarus  @noneofyourbizzness *standing ovation*

 

VERY well reasoned, and stated, Icarus. 

 

>'Don't look to government...or corporations... to fix your social problems because they won't and the Framers well knew that was true and THAT is exactly why they reserved great powers to the people and extinguished it from government control.  It will only get better when the people demand that it gets better.'

 

IMO, this is where the SCOTUS and courts come into conflict with Constitutional ideologies from time to time. 'We the People' are supposed to be the ultimate voice. In this day and age of 'partisan' appointments and ideological absolutes being the norm, I tend to believe that there are sometimes blatantly misdirected precidents set. IE- the UAV affirmations by lower courts. 

 @MarkKpic  @noneofyourbizzness 

 

Here's a thought: perhaps the SCOTUS simply consecrates, by finding support in the Constitution, what the people have already socially adopted.  For instance: the majority of the Country had already overcome the notion that blacks should have equal rights long before Brown V. Board of education and the SCOTUS simply "made a decision"...finding constitutional support... that reinforced that "revolutionary" social paradigm.  Women's suffrage, 18 year old vote, Roe v. Wade, profanity laws...etc. are all examples wherein the people lead by demanding rights/equality and the courts followed simply because they recognized a shift in the social paradigm.

 

If this theory then holds true; then there will certainly be recognition of same sex marriage, GBLT rights, and the abolishment of the death penalty.  The last is actually somewhat more/less controversial because it is strictly forbidden in the Declaration of Independence....life as an inalienable right....resulting in an intellectual/philosophical conflict.  Intellectually imposition of the death penalty should never have been tolerated based on the clear language within the primary documents of the United States; however, it is accepted and tolerated as a social institution much the way that slavery was accepted prior to 1863.

 

Long story short; the more that people....the sovereign....agitate for expanding human rights within the United States the greater the rights will be afforded to the people.  Remember; the Bill of Rights reserves a large body of rights to the people...the sovereign...specifically because the Framers wished to limit the powers of the government and retain great power in the hands of the true sovereign.  Don't look to government...or corporations... to fix your social problems because they won't and the Framers well knew that was true and THAT is exactly why they reserved great powers to the people and extinguished it from government control.  It will only get better when the people demand that it gets better.

 @noneofyourbizzness Either that or I misunderstood, it's been known to happen.

 @noneofyourbizzness I think you may have misunderstood. I disagree with the idea that the nation is falling apart and I disagree that it is falling apart due to religion. I brought up prayer in school to showcase a victory that was made. I'm used to many hearing that the removal of oranized prayer in school was the beginning of the end, so for me it was odd to read from the other side that we are falling apart even though the other side to that person has been losing.

@JTesla I'm going to have to disagree with the prayer in the schools issue.When prayer was allowed in the schools,blatenl discrimination against blacks was condoned.Children were being abused by priests and their parents and it was simply taboo to even dicuss it.Gays were being arrested and beaten for simply gathering together in a bar..Furthermore,as a atheist,IMO praying is akin to talking to yourself.I like the old saying."prayer is like a rocking chair.It gives you something to do but it doesn't get you anywhere"

 @PDXBEAR  @JTesla >'I feel that someones set of ideals shouldn't be forced on all of us. '

 

I somehow doubt you'll see the irony in that statement. 

@PDXBEAR You realize that this “falling apart” has happened since we were able to remove organized prayer in schools right? It’s happened since abortion was legalized? It’s happened since archaic sodomy laws have been rolled back, civil rights, woman’s rights, gay rights. Well, we still have a ways to go, and in some cases a long ways to go, but you’re crying about the nation falling apart when you’ve been getting what you want (and in most cases what I want too, just to make that clear). The religious right has been on the ropes for decades, they haven’t had much luck with their form of oppression. I’m not saying that you and I shouldn’t remain vigilant to fight bad lawmaking, but I think you’ve gone a bit far with your hyperbole.