Apply the battle over a "living constitution" to the legislative powers to legislate.

There shall be no legislation that did not exist at the time of the creation of the constitution.

Thus there is no legislation at all, at least none that is valid. Ha.

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The issue is instead the relative power between branches, which of course, is in a perpetual state of flux. I really hate the notion of the belief in "statue man" that is so stoic that they have no ego and must therefore not exist. So much for the reliance upon, indeed the essential feature of, human ego to assure one branch does not grab power from the other.

So Scalia says that only neutered (no gender offense intended) humans shall be represented in the judiciary. He needs to go visit a local rural tavern, get sauced up, and insult some guy and then see if there is any shortage of ego, so as to save him from the immediate backlash of a flat nose. I have not seen many "statue men" in taverns . . . have you? Have you seen a single "statue man?"

Why are you blaming the "Bush boys" for picking Scalia? He was a Reagan nominee--and even Ted Kennedy voted to confirm him.

Sure, he hunts with Dick Cheney and we're the idiots.

OK, Jack - you are a lawyer. Let's say you and I negotiate a contract which lays out all sorts of things that we both are required to perform.

And a few years into it, I say: "Jack, I know this isn't in the contract, but it is a living document, and therefore the contract's provisions mean something different now."

I'll bet you would call me an idiot.

Jack, if you're looking for examples of false analogies to teach to your students, the "let's say you and I negotiate a contract" idea is a classic.

The part of the story I liked the most was when Scalia refers to himself in third person.

["Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.]

Remember Seinfeld's "Jimmy" episode anyone?

I've never posted on a blog before, but this is an interesting topic.

I suggest that everyone read an excerpt of Scalia's speech on constitutional interpretation. It can easily be found using a google search, as he gives this speech frequently (including at Lewis & Clark a few years back).

The main thrust of Scalia's speech is well taken - the goal is to discern the intent of the framers, and apply that to the facts of the case. That may sometimes result in the need to overturn prior decisions, not because the intent of the framers has changed, but because society has changed (typically due to technology) and thus the fact patterns are different in a way that would not have been imagined in earlier times. Thus the application of the Constitution may change over time, but not the meaning of the Constitution.

If we detach ourselves from the notion that the Constitution means what the framers intended it to mean, then the Constitution becomes nothing more than a statute, with the Supremes acting as the legislative branch, subject to ever changing theories of interpretation. In some ways, that renders Article V moot.

What surprises me is that Scalia's theory is so controversial.

Scalia may not always practice what he preaches, and calling someone an idiot may not be a display of judicial temperament, but I've witnessed that type of behavior in the trial and appellate courts in this state, and don't believe it's unique to judges of any particular ideology. More importantly, it shouldn't detract from Scalia's point - it's the message, not the messenger.

Scott:
You think the analogy of the U.S. Constitution and a contract is a false one?

Seems to me that it is something of a "social contract," which delineates, among other things, ground rules for what the government can and cannot do to you.

This is a great discussion. I wish I knew this stuff when the Constitution was still in use.

"Scalia may not always practice what he preaches, and calling someone an idiot may not be a display of judicial temperament, but I've witnessed that type of behavior in the trial and appellate courts in this state, and don't believe it's unique to judges of any particular ideology."

Nice. Dave, we are here for you. Please feel free to discuss recent setbacks, and how they make you feel. Lashing out won't make the pain go away.

I'm with Scott--it's a false analogy. Contracts are increasingly specific, and as a rule of contract construction, courts assume that the intent of the parties is embodied in the words contained within them. By contrast, the "four corners" argument really doesn't apply to the Constitution--its terms are necessarily broad, for as Chief Justice Marshall famously wrote, "We must never forget that it is a Constitution we are expounding." It lacks the specificity of statute--and Living Constitution theorists would argue (and I agree) that they did that intentionally, with an eye toward providing some flexibility. Scalia isn't good at graciously disagreeing with competing, though reasonable, legal theories. I can't count the number of nasty gram footnotes he has directed at his fellow justices, which shows a poor judicial temperment especially unsuited to a member of the highest court in the land.

"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."
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Hmmmm, but what if I want the Constitution to say something that is not stated in the document? Then I would have to change it, which I can, by amendment. Nahh, then I would have to get the House and Senate to pass that amendment, get the President to sign off, then get 3/4s of the States to ratify it. Too much work.

Better to just claim it is a "living document" and that it's new meaning is now decided (by 5 members of the US SC) to be 'xyz' instead of 'abc'. What is so idiotic about that?

Or you could just claim sweeping "executive privilege" any time you want to get rid of a few inconvenient amendments, prevent Congress from performing the oversight functions specifically vested in it, ignore US treaty obligations or the laws of war, or whatever. Now that's what I call a living document!

Scalia and company's real stance seems to be: the Constitution means exactly what it says...except when we decide it doesn't. Amendments Nine and Ten, anyone, vis a vis death with dignity?

I tend to think of judicial temperament as the ability to interpret the law independently without focusing too much on politics or other outside pressures, rather than as personality. All personalities are flawed, and a judge is a human being. Over-collegiality and the public-and the Oregonian's seeming need to worship the judiciary-are major problems in this state, imho.

Al Franken's guest (Feb. 14) had some interesting thoughts, paraphrasing:

'The First Amendment is an unfunded mandate. Freedom of speech and press and religion are unfunded mandates. Freedom of assembly is an unfunded mandate. Due process is an unfunded mandate.'

Jack, tsk, tsk. The other day you were quite tense about people mis-quoting you. Now you say, by way of a title, that "Scalia says you're "an idiot""

Scalia did not say that. He said:

"Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"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."

Jack, unless you believe in the constitutional living organism interpretation, such as, you want justices to legislate from the bench, Scalia was not criticizing your inteligence. I do not feel insulted. I won't guess about your reason for feeling insulted.

Finally, before we get too bunched up over the joys of legislating from the bench, note we've had 30 years of "liberal" legislating. Suppose the D's blow it in the next couple of elections, not out of the question, and the R's get a solid "conservative" court. And then what if the judicial legislating takes a direction Jack might not favor. Do you want to face 30 years of that? Isn't that what Scalia is talking about. Do we want elected officials, however poor, setting legislation, or unelected, there-for-life judges.

calling someone an idiot may not be a display of judicial temperament

Not just "someone." Dozens and dozens of respected constitutional scholars over many decades, even centuries.

Why are you blaming the "Bush boys" for picking Scalia?

Er, because they all love him, worked to confirm him, and wish they could find more confirmable nominees like him?

Please, if you are going hunting with CHimmler, 'you' be the judge, S cali

I apologize for ignoring the title of the thread and assuming that we could have a discussion on constitutional interpretation, which strikes me as a far more interesting topic than another round of politician bashing.

Um, can we talk about the FISA law? After all, the Bush boys -- who love this 'strict constructionist' business - are arguing that FISA is outdated in the modern era of terrorism, and that's why they can ignore it at will.

So much for looking at the text of the law.

He should have chosen his words more carefully. But the point that the quest for flexibility can be a ruse to cover for rigidity is a point well-taken imo. I have seen "flexible due process" in the administrative law arena used to excuse abuses of power. And I have heard social justice advocates form the 60s era say they got say that,in their experience, conservative justices tended to be consistent in upholding the rights of the accused regardless of their ideology. One that comes to mind is Eldrige Cleaver's ex-wife,Kathleen.

Oops, that should read:

And I have heard social justice advocates from the 60s era say that,in their experience, conservative justices tended to be consistent in upholding the rights of the accused regardless of their (the accuseds) ideology.

And then what if the judicial legislating takes a direction Jack might not favor. Do you want to face 30 years of that? Isn't that what Scalia is talking about. Do we want elected officials, however poor, setting legislation, or unelected, there-for-life judges.
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By this measure it is Scalia and Thomas who are the most activist judges on the court. I don;t remember the exact rankings but basically it is Scalia and Thomas who have most often voted to overturn the legislature and the so called "activist liberals" Bader-Ginsburg and so on who have overturned the least.

Another idiot:

William Rehnquist. 1976. "The Notion of a Living Constitution." Texas Law Review 54.

Scalia is very clear to distinguish between originalism and strict constructionism. He doesn't feel bound by precedent if it is inconsistent with his view of the original intent of the founders. His philosophy would be a strong argument in favor of such things as the Equal Rights Amendment (for women), but I doubt that he voted in favor.

So . . . does the Second Amendment give you the right to bear a flintlock muzzle loader, or an H-Bomb?

Either. And everything in between. Provided you are a member of a "well-regulated militia".

((( Please God... don't let John Paul Stevens die before 2008... Amen ))))