Scalia

[DangerDave921]

Happened to catch on C-Span last night Scalia answering questions by high school students. I love glimpes into the SCOTUS as I'm an attorney myself. I hadn't realized Scalia voted that burning the US flag was protected free speech.

And I do find fasicinating the issue of how do we decide what issues are for the courts and what issues are for the legislature. Seems a timeless issue that is always changing. For instance, he said when he was in law school, the SCOTUS believed that wire tapping was NOT a constitutional issue; it was a matter for the legislature. Because the Constitution did not say that conversations were protected from unreasonable search and seizure (this was a textualist court of course). States could -- and should -- make laws about wiretapping, but it wasn't a constitutional issue. Now congress has given the wiretapping question to the SCOTUS. Courts since then have taken a far broader approach as to what makes a constitutional issue.

Interesting stuff.

[sharesunited]

1. Scalia is all too happy to let the people decide

through their elected representatives what and whose rights should be infringed or abolished.

Sure, let's codify all the fear, ignorance and hatred we want.

He misses the point of the judiciary, which is to provide justice.

He misses the point of SCOTUS, which is to provide equal justice from sea to shining sea.

All in all I find him and his so-called "originalist" philosophy to be quite unfit for the highest court in the land.

Scalia can rotate.

[DangerDave921]

2. I see your point

Where I have trouble, though, is what happens when you remove the SCOTUS from any bedrock foundation. In other words, if judges are allowed to decide on their own what justice means in each case, then we are at the whim of whatever the judges decide at any given point in time. We'd be happy when judges we like are in place, not so happy when judges we don't like are in place.

So I guess where my issue is is this -- if we don't have to adhere to the text of the constitution, then why even have it? What purpose does it serve if we can arbitrarily change its meaning?

[sharesunited]

5. We ARE at the whim of the justices. The bedrock is an illusory constraint.

Hence, Brown v. Board of Ed. reverses Plessy v. Ferguson.

Which is why it matters who gets nominated and confirmed.

[pacalo]

6. Exactly! And thanks for honing in on Scalia's twisted point.

[pacalo]

3. Who's to say these elected representatives wouldn't be biased, which is a form of corruption?

Telecommunications weren't around when the Constitution was written, but I do think private conversations/correspondence would fall into the category of "unreasonable search". Otherwise, the quality of life in the U.S. wouldn't be called "democracy" (equality under the law; pursuit of happiness), & our government would, instead, be fascist.

[DangerDave921]

4. Conversations

Correspondence was always protected because the Constitution uses the term documents or effects. It does not say conversations. That was the issue. But I agree - we should be free in our conversations also.

[pacalo]

7. It says the people should be secure in their "effects". To me, that includes conversations

made on our own personal electronic equipment. And that same amendment requires a warrant to search (or listen to?) our privacy.