Kandahar said:I generally agree that a literal interpretation of the Constitution is better, but I don't think Antonin Scalia really embodies that quality. All to often, he interprets the Constitution to match his own political views just like Stephen Breyer does.
For example, Scalia believes that the federal government doesn't have the right to make nationwide laws protecting abortion...yet he does believe the federal government has the right to make nationwide laws prohibiting drugs. The reality, of course, is the federal government has no constitutional right to do either of these things. I'm hard-pressed to find any constitutional distinction between these two scenarios; what it comes down to is that Scalia simply doesn't like drugs and abortion.
Scalia is only a literalist when it suits his purposes.
Kandahar said:Scalia believes that the federal government doesn't have the right to make nationwide laws protecting abortion...yet he does believe the federal government has the right to make nationwide laws prohibiting drugs. The reality, of course, is the federal government has no constitutional right to do either of these things.
mike49 said:Roe v. Wade should be overturned because it lacks any credibility within the constitution. It is clearly a State issue and should be dealt with there.
The drugs issue is a Federal one. The Congress has the power to regulate interstate commerce. Drugs are interstate commerce.
galenrox said:Well, hypothetically, by that logic the commerce clause could also prohibit abortion laws, because abortions cost money, and since restrictions can force people go out of state to get the abortion, that would qualify as interstate commerce, and thus the federal government would also have the right to cover that too.
mike49 said:I would disagree with you on the drugs and abortion question.
Roe v. Wade should be overturned because it lacks any credibility within the constitution. It is clearly a State issue and should be dealt with there.
The drugs issue is a Federal one. The Congress has the power to regulate interstate commerce. Drugs are interstate commerce.
Kandahar said:This clause has been absolutely raped by our government during the last 70 years. Congress should be restricted to the powers enumerated in the Constitution.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Kandahar said:How is the sale of drugs more affected by the Interstate Commerce Clause than the sale of abortions?
The people who wrote the Constitution never had any intention of the Interstate Commerce Clause being used to justify whatever the hell the federal government felt like doing. This clause has been absolutely raped by our government during the last 70 years. Congress should be restricted to the powers enumerated in the Constitution.
mike49 said:The cruel and unusual phrase, you are correct in that attitudes change, I'm not convinced that the court should decide on a change, based on attitude, without very convincing evidence. Otherwise this should be left to the States. When this phrase was invisioned in the Bill of Rights, the States were not bound by it. The court knowing this should allow the States a lot of room here. They do not, as we seen in the prohibition by the court against executing minors.
Connecticutter said:Well, doesn't that clause plus the 14th ammendment allow the courts to strike down state laws which perscribe cruel and usual punishment?
I guess its actually pretty clear to find out if a punishment is unusual. If there's no precedent for a certain form of punishment, and then out of the blue a state starts to do it, can't that be overruled?
Of course, if the punishment has been used for years and years, then it can't be overruled because its not unusual. If we think its bad, we should have to go to the states.
The grey area is when a punishment goes out of use, and then many years later they want to bring it back. It then goes from "usual" to "unusual" at some point - which will somehow have to be determined.
Am I making sense here? Are there any lawyers out there who can tell me how this actually works?
:roll: OKay if someone sued on the basis of their first ammendment rights being violated because they were arrested for yelling 'fire' in a movie theatre, I would not be so rediculous as to say that this was logical.This spirit of the Constitution does not protect someone from yelling fire in a theatre that is not on fire.
laska said:This spirit of the Constitution does not protect someone from yelling fire in a theatre that is not on fire. It does not allow the protection of slavery under the banner of state rights. It does not try and pack the Supreme Court. It institutes laws against drugs because they enslave the individual and lessen the freedom and happiness of the addict's innocent children and family.
mike49 said:In determining "cruel and unusual" they sometimes use an 'evolving standard'. And they have discontinued execution of the mentally ill, and minors. So, it's not simply ok if the punishment has been around for years and years.
Atkins v Virginia
Roper v Simmons
These cases speak to "cruel and unusual".
FinnMacCool said::roll: OKay if someone sued on the basis of their first ammendment rights being violated because they were arrested for yelling 'fire' in a movie theatre, I would not be so rediculous as to say that this was logical.
Kandahar said:You have to do some legalistic gymnastics to arrive at that conclusion for your last point. Drugs "enslave the individual"? That's your own opinion, and is most definitely NOT what the Constitution says. Enslavement, under the Constitution, requires an enslaver. Same thing about the addict's "innocent children and family": Your personal opinion of their relative degree of "freedom and happiness" is NOT mentioned anywhere in the Constitution.
If we're going to interpret (i.e. ignore) the constitution in a way to maximize the "freedom and happiness" of everyone involved in any situation, why stop at drugs? Why not legislate against gambling, making bad investments, swearing around children, allowing children to play rough sports, etc.? The irony, of course, is that if you outlaw everything to promote "freedom and happiness," you're left with a society that is most definitely unfree and unhappy.
laska said:The Bill of Rights does not protect freedom of speech or freedom of religion, etc., if an individual or group's "freedom" undermines another's freedom. The Constitution in no way bans environmental regulation, labor laws, decency laws, drug laws, food inspection, etc. Say if the majority feel the negative aspects of gambling outweigh the positive and would interfere in their freedom, then in my view they can ban or limit this if they so decide. Gambling tends to increase crime and many children and spouses suffer greatly from compulsive gambling. If a religion wants to worship pluto and hit pinyattas all day, that is protected under freedom of religion, but if they decide their god wants them to run down a public street naked, this is not protected under the spirit of the Constitution.
True freedom is obedience to true principles. Freedom from law leads to anarchy and misery.
TurtleDude said:In all fairness, if you could conjure up the spirits of Madison et al you would find that they intended POLITICAL speech to be protected-not yelling fire in order to cause panic or purveying ads for weight loss potions or for "hot Russian brides" etc
9TH said:Well, in all fairness, you would also find that the founders' intentions were the last thing Madison thought one should base a judicial philosophy on.
"Whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution." He also said that it was impossible to discover what the "intent" was because the members all had different intentions and not all members took part in all discussions.
5 Annals og Cong. 775-776, as quoted in The Bill of Rights and The Politics of Interpretation, by Robert Peck.
mike49 said:I'm not sure that we have to figure out the intention of every founder.
The meanings of phrases, words, etc., is more of what this debate is about.
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