Scalia: Constitution does NOT outlaw torture

I disagree with Scalia's views on law enforcment nearly all the time. However, I believe that he very strongly supports individual rights in his own way. He dissented in Kelo and he will play a large role in the upcoming D.C v Heller.
 
i disagree with scalia on a lot of privacy, civil liberties issues. however, the 8th is not at issue, as alleged by appellants in this case.

he is correct.
 
If one is being intellectually honest, they would have to concede that Scalia is absolutely brilliant. They might not agree with the result, or they might weigh certain interests differently, but those who find Scalia to be abhorrent generally do so out of intellectual laziness.

As one of the above posters mentioned, Scalia may very well be the most impartial justice we've had in some time. He has his philosophy (which is as defensible as any other), and he applies it. Where that road happens to lead to is where it ends up. I believe that is the definition of impartiality.
 
Nice post, dahobbs.

Another thing that just seems to get thrown by the wayside is the intent of the states that ratified the Constitution. When the bill of rights came along, and they were only supposed to be limits on the federal government, I would think that people liked its expansive language. But did they ever imagine that some of those amendments would be incorporated into the 14th? And was that the intent of the states when they ratified the 14th Amendment? Should that even be relevant when interpreting the 14th?
 
What I'm saying is that the document couldn't, pre 13th amendment, be reasonably interpreted to prohibit slavery. Its existence is acknowledged and it is not prohibited. The states could do it b/c they're not prohibited from doing so.

To the rest of your post, the short answer is that the Court's opinion and "reasoning" is an abomination; however, the result - a proscription of racial discrimination in the public sector seems more or less in keeping with the 14th amendment's guarantee of equal protection. Arguments can be made that it doesn't apply to education, or that it doesn't extend beyond the express guarantees of the CRA of 1866 for which the 14th amendment was created to constitutionalize, but I'm not sure what I think about those.
 
OK, so through the Tenth Amendment - (if it's not prohibited here, states can make laws). Do you see how that's a softer argument than saying that "the Constitution provided for slavery"?

That statement made earlier was pretty strong because it implied that you thought the Constitution had a provision allowing for slavery. Instead, you're just interpreting the Tenth Amendment to allow for slavery by default. I don't take much issue with that - just the way it was originally characterized

Anyways - I appreciate your response about Brown v Board. Although for all the hubub surrounding the 'liberal justices' 'legislating from the bench' I personally think that part gets overblown for reasons stated above.

Ever since Marbury v Madison, Courts have had the right to interpret the Constitution and that's not ever going to change. I think it's also important to remember that the Constitution isn't a huge all-encompassing document. I think if it's meant to govern effectively, it's principals have to be interpreted to mesh with modern times.

That's not to say that I support the Court interpreting intention to legislation that was never there in the first place, but I subscribe more to the 'living document' philosophy. All of that said - I've been surprised in how much I end up agreeing with certain Scalia opinions.

The only one of his opinions that involved fairly weak legal reasoning that I can think of off hand - is when he interpreted the recusal rules. It was something to the effect of 'the appearance of impropriety is not enough - only actual impropriety should cause a judge to recuse himself. Judges are impartial and are the only ones who can say if there is actual impropriety. I am not biased, therefore I am not recusing myself.'

The widely accepted and practicing standard is still the appearance of impropriety however
 
I probably did phrase it inartfully. Its existence is provided for, and it's not prohibited. That means states can do it, and the initial assertion - that courts should've read in a prohibition on slavery - is inconsistent with the document itself as it stood. The Article V amendment process was followed, and it was wisely amended to prohibit slavery, just like it was wisely amended to eliminate race from voting criteria (and unwisely amended to exclude payment of taxes from voting criteria). That's how the constitution is supposed to be amended; not by judges.
 
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