Free Capitalist

Justice Scalia - collapse of American constitution

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Justice Antonin Scalia delivered a poignant speech earlier this month where he stated that the American Constitution had essentially been made irrelevant in today's culture. He identified himself as an "originalist", i.e. someone who adheres to the original meaning of the Constitution as intended by the Founders, and someberly noted that today he finds himself in dire minority.

In his speech, Justice Scalia traced the history of American constitutional theory, and observed that even 50 years ago it would be moot to even explain what an "originalist" was, since everyone, most importantly the judges and the politicians, were already so. Now being an "originalist" is controversial and unpopular, and other views toward the Constitution are found to be more acceptable; in the speech, examples were given of court cases that had almost undermined the legal order of America, if not for him and the only other remaining "originalist" on the Supreme Court, Clarence Thomas.

Justice Scalia ended the talk by briefly noting that the Bill of Rights is now effectively repealed.

Links:

rtsp://video.c-span.org/project/c04/c04031405_scalia.rm (cut and paste into the address bar)

or, go to http://www.c-span.org and search for "antonin scalia" in the video search.

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With the text here. Though I still recommend doing the hour video.

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Justice Antonin Scalia....identified himself as an "originalist", i.e. someone who adheres to the original meaning of the Constitution as intended by the Founders

He's concrete-bound, evading principles for only the specifics which motivated the Founders. Thus, since individual rights are (is?) a principle and the right to abortion is not explicit in the Constitution, there is, acc/to Scalia, no Constitutional protection of abortion. I believe Scalia was discussed in the Objectivist Forum. Scalia and this issue were reported in the NYT today or yesterday. Scalia is

extremely destructive. His conceptual disintegration will destroy objective law and replace it with a govt of men.

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Scalia is extremely destructive. His conceptual disintegration will destroy objective law and replace it with a govt of men.

Do you find him different from other justices (if so, which ones, and why)? The conceptual disintegration of the judiciary is pretty much complete, so I would like to see some justification for claiming that there is anything special about his judicial crimes.

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I think you might misunderstand Scalia's point of view, and if you watch his speech in its entirety you will understand it more clearly. He is not against a right to abortion, he is against claiming that the Constitution, at its inception, was designed by the Founders to grant the right to abortion, i.e. that its original intent was to provide this right. Scalia does not say that the right to abortion can never be granted, but to do so properly, Scalia says that the people have to get their Congressional representatives and make an Amendment to the Constitution. What he derides with so much sadness is that everyone now, be it the good guys or the bad guys, twist and shape the original meaning of the Constitution to be whatever they want it to be. And I find much to agree with, in his saddening analysis.

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[...] What he derides with so much sadness is that everyone now, be it the good guys or the bad guys, twist and shape the original meaning of the Constitution to be whatever they want it to be. And I find much to agree with, in his saddening analysis.

Who are the "good guys" doing the twisting and shaping? If they're twisting and shaping, why are they the good guys?

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Suppose a student of Objectivism argues that the original intention of the Constitution was to guarantee the right to abortion. That is a prima facie example of a "good guy" doing the "twisting and shaping" of the Constitution to suit his means, because it is very clear that the Founding Fathers had found the idea of abortion to be abhorrent and wholly contrary to their values. The proper course of action is not to view the original Constitution as continually malleable and its definitions as constantly changing with the times; indeed that is a terrible course of action and one which will destroy that very same Constitution. The proper thing, Scalia argues, is to amend the Constitution with a Congressional amendment, in other words to keep the original intent intact, fixed, definite, and to make amendments to it.

Scalia argues that there is no qualitative difference between the good guys and the bad guys on this issue, because unlike even 50 years ago, today everyone tries to interpret the meaning of the Founding Fathers to be in accord with whatever suits them.

I would like to not speak for Scalia too much, as really he is the best proponent for his own argument, and all initial questions and concerns will most likely be resolved by watching the video. None of it was boring, at least to me, so I'm pretty sure this experience will not be unpleasant for others either.

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I mistakenly said that _The Objectivist Forum_ discussed Scalia and original intent. It was Bork in Harry Binswanger's "Kant On The Supreme Court" (Oct87) but the problem, anti-principled, concrete-bound "original intent," is identical.

DavidOdden asks if Scalia's conceptual disintegration is different from the other Supreme Ct. justices. No, not essentially. Liberals merely focus, without serious principles, on current concretes and call that the "living constitution." (Doesn't a principle explain life?!) Thus both liberals and conservatives reject any serious principles of law and the political context of law for unintegrated concretes.

Free Capitalist mistakenly praises Scalia for original intent but Scalia does not mean the original _principled_ intent of the Founders, ie, individual rights, but merely the concrete situations which occasioned the Founders to write a Constitution.

It is as if the laws against robbery specified Tuesday but robbery on other days was legal. It is as if Peikoff's principled view of the Founders (in "Nation of the Enlightenment") was necessarily invalid, because principled, generalized, abstract.

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In your post you're implying that Scalia is concrete-bound, and here's where I think you're wrong:

The Constitution is a written document, constituted (no pun intended) entirely out of words. All words have a meaning. The Founding Fathers, when drafting the Constitution, had drafted it with words which matched the meanings they wanted, and the values they personally held themselves. In fact this is why we admire the Founding Fathers -- we appreciate their values that created this country.

However, words are not static and change in meanings over time. The question then becomes, should we read the Constitution and its words in the way that we understand it now, or in the way that the Founding Fathers had understood it -- 'living constitution' people argue for the former, while Scalia and the few remaining 'originalists' argue for the latter.

Trying to identify the principles undelying the Founding Fathers' writing of the Constitution is a proper approach here, insofar as it helps us understand what they originally meant. It is not improper if we try to draw out implications that the Founders themselves never did. And not only did they not draw these implications, but on certain issues like that of abortion they would have been abhorred (compliments of the Christian Church) to find out that some judge found their Constitution to endorse it.

There is a very delicate but fundamental difference between interpreting the Constitution to endorse abortion, and between leaving the document's meaning fixed and unchangeable but instead creating an amendment that makes abortion legal. It is this latter approach that Scalia argues for -- not to treat Constitution's words with whatever definitions happen to coincide with one's ideology, but to treat it as a fixed and non-malleable document, to which your own equally fixed and definite amendments ought to be applied.

As I said before, I find Scalia's analysis to be very interesting, valuable, and most importantly true.

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...should we read the Constitution and its words in the way that we understand it now, or in the way that the Founding Fathers had understood it -- 'living constitution' people argue for the former, while Scalia and the few remaining 'originalists' argue for the latter.

Binswanger says that both approaches are subjective because they are unprincipled. The concern with principles vs. concrete-boundedness is more basic than the 'living constitution'/'originalists' split. I threw away yesterday's NYT but I believe that Scalia was described as Binswanger described Bork, ie, concrete-bound.

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It is not improper if we try to draw out implications that the Founders themselves never did. And not only did they not draw these implications, but on certain issues like that of abortion they would have been abhorred (compliments of the Christian Church) to find out that some judge found their Constitution to endorse it.

I meant the wider principle of individual rights implicit in most of the Constitution and implicit and explicit in the Age of Enlightenment generally. Scalia rejects individual rights,not because he likes tradition, but because he rejects principles. It may be true that the Founders would have rejected abortion but then they would be contradicting the individual rights principle of the Constitution as a whole. Note that Scalia would accept abortion if voters did, ie, as an out-of-context concrete. He would reject abortion as an application of a principle.

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I mistakenly said that _The Objectivist Forum_ discussed Scalia and original intent. It was Bork in Harry Binswanger's "Kant On The Supreme Court" (Oct87) but the problem, anti-principled, concrete-bound "original intent," is identical.
I can't tell what you're saying by this, so let me just make one important clarification, because a number of people get confused on this point. Scalia champions the use of original meaning and not original intent: he condemns reference to intent. Cf. p. 112 of the Tanner lectures version of Common-Law Courts in a Civil-Law System: "What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended."

The basic distinction between Scalia and those like, say, Breyer, is that Scalia says "You should be a slave to the will of the people", and the others say "You should be a slave to the will of the people, as I see it". For my money, Scalia is a somewhat better evil (given the existing choices) because he is a more predictable evil, simply following the law as written.

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Scalia champions the use of original meaning and not original intent: he condemns reference to intent.

Somehow, I dont think Scalia uses Rand's theory of objective, conceptual meaning. Again, whether

he favors meaning or intent is not basic. He has no integrated, comprehensive philosophy as

guide so he considers meaning as concrete, ie, the Ccnstitution is not a logical set of rational principles but an arbitrary and conventional list of concretes. Eg, Property rights is not a principle for Scalia but a reference to concretes, eg, the British quartering of troops in American homes, etc. Thus Scalia would deny that Bill Gates has a Constitutional right to his software because its not in the Constitution. But he'd be hot and bothered if the military wanted to sleep in your spare room.

Scalia is a profound opponent of rights.

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Thus Scalia would deny that Bill Gates has a Constitutional right to his software because its not in the Constitution.
Stephen, with all due respect, you are fighting versus a very large straw man here. If you would only listen to the speech, you would hear him address that actual issue, and provide a principled opinion quite opposite from the one you ascribe to him.

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Again, whether he favors meaning or intent is not basic.
No, of course not, I'm just suggesting that when you attack him, you want to be state what he says accurately, and not attribute to him the opposite of what he actually said. Or, more to the point, not even bring up any issues of meaning or intent when it comes to law. Meaning or intent, in statutes and constitutions, should not be philosophical primaries.

That said, I presume you believe in law and recognise that man is not omniscient. Do you have a philosophy of how disputes should be resolved, especially when parties are acting rationally but neither side is omniscient and important questions of fact are unresolved. And worse, what do you do in a society where not everybody is fully rational and not everybody has a totally integrated philosophy? Such as exists here and now. Think maybe in terms of contract disputes, but also new situations created by technology, such as wireless internet connections where disputes over rights have to be determined in terms of normal behavior, an initially undefined value.

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Thus Scalia would deny that Bill Gates has a Constitutional right to his software because its not in the Constitution.
Stephen, with all due respect, you are fighting versus a very large straw man here. If you would only listen to the speech, you would hear him address that actual issue, and provide a principled opinion quite opposite from the one you ascribe to him.

What is his principled opinion?

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No, of course not, I'm just suggesting that when you attack him, you want to be state what he says accurately, and not attribute to him the opposite of what he actually said. Or, more to the point, not even bring up any issues of meaning or intent when it comes to law. Meaning or intent, in statutes and constitutions, should not be philosophical primaries.

That said, I presume you believe in law and recognise that man is not omniscient. Do you have a philosophy of how disputes should be resolved, especially when parties are acting rationally but neither side is omniscient and important questions of fact are unresolved. And worse, what do you do in a society where not everybody is fully rational and not everybody has a totally integrated philosophy? Such as exists here and now. Think maybe in terms of contract disputes, but also new situations created by technology, such as wireless internet connections where disputes over rights have to be determined in terms of normal behavior, an initially undefined value.

1. I was merely replying to FreeCapitalist's concern w/meaning or intent. I would not have discussed them otherwise.

2. How does this address the issue of principles vs. concrete-boundedness?

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2. How does this address the issue of principles vs. concrete-boundedness?
Scalia approaches legal interpretation from a principled position. It happens to be the wrong set of principles, but they are principles nonetheless. One of his core principles is that you cannot just make stuff up that isn't contained in "the law" (meaning, the Constitution or a particular set of statutes) and pretend that it is actually "latently" there. Scalia is "concrete-bound" in the sense that the principles for adjudicating cases that he allows himself are The Constitution, various statues, and the body of legally controlling precedent. So I'm asking, if you reject concrete written law as a basis for resolving disputes (and you haven't made your position on that clear here) because it is too concrete-bound, how would you decide cases? I don't see how to make any just and objective decision without reference to and binding myself to something concrete.

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Scalia approaches legal interpretation from a principled position. It happens to be the wrong set of principles, but they are principles nonetheless. One of his core principles is that you cannot just make stuff up that isn't contained in "the law" (meaning, the Constitution or a particular set of statutes) and pretend that it is actually "latently" there. Scalia is "concrete-bound" in the sense that the principles for adjudicating cases that he allows himself are The Constitution, various statues, and the body of legally controlling precedent. So I'm asking, if you reject concrete written law as a basis for resolving disputes (and you haven't made your position on that clear here) because it is too concrete-bound, how would you decide cases? I don't see how to make any just and objective decision without reference to and binding myself to something concrete.

Scalia approaches legal interpretation from a principled position. It happens to be the wrong set of principles, but they are principles nonetheless. One of his core principles is that you cannot just make stuff up that isn't contained in "the law" (meaning, the Constitution or a particular set of statutes) and pretend that it is actually "latently" there. Scalia is "concrete-bound" in the sense that the principles for adjudicating cases that he allows himself are The Constitution, various statues, and the body of legally controlling precedent. So I'm asking, if you reject concrete written law as a basis for resolving disputes (and you haven't made your position on that clear here) because it is too concrete-bound, how would you decide cases? I don't see how to make any just and objective decision without reference to and binding myself to something concrete.

Scalia's "contained in the law" is not "contained, in principle, in the law" but "contained, arbitrarily and concretely, in the law." Scalia is associating, not integrating, concretes. A principle is a logical set of things, referring to all members, known or not, of the set. Thus, a political constitution, ie, fundamental law, refers to all instances, past, present, and future, of its listed laws. Eg, a principled view of freedom of the press includes all possible instances, including email which didnt exist in the 18th century. A concrete-bound view of law includes only those concrete instances explicitly identified. Eg, a concrete-bound approach to freedom of the press includes only those concrete instances of freedom of the press and its violation which were explicitly identified or experienced by the Founders in various important documents, events, etc. Restating, a principled view of law regards laws as referring to principles, ie, logical sets of concretes. The concrete-bound view of law regards laws as referring to arbitrarily selected concretes. Thus, rights logically includes abortion even tho the Founders did not explicitly identify abortion as a right. One amendment says that the Constitution also includes rights not explicitly identified. This proves the principled nature of the Constitution and of the Founder's principled thinking. Scalia obviously, in his concrete-boundedness, interprets this amendment concretely (altho I dont understand how).

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The question of how the US Constitution should be interpreted with regard to such rights as the right to seek an abortion has been implicitly raised here.

I think the following accurately describes Scalia's position:

...He is not against a right to abortion, he is against claiming that the Constitution, at its inception, was designed by the Founders to grant the right to abortion, i.e. that its original intent was to provide this right. Scalia does not say that the right to abortion can never be granted, but to do so properly, Scalia says that the people have to get their Congressional representatives and make an Amendment to the Constitution. What he derides with so much sadness is that everyone now, be it the good guys or the bad guys, twist and shape the original meaning of the Constitution to be whatever they want it to be...

This is consistent, for example, with the dissent of the conservative justices in the recent Lawrence vs. Texas case, in which the Supreme Court (properly, in my view) invalidated a Texas law against homosexual practices. The conservative dissenters said that this was wrong, since the constitution does not say anything about homosexuality; the law, in their view should stand.

The constitution does not, however, grant rights to people. Rather, its purpose is to limit the powers of government. This fact is made explicit in the ninth amendment:

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

This is one of the most important statements in the document.

It would be contradictory to the ninth amendment to assert that a constitutional amendment is needed to protect (or even worse, "grant") the right to abortion.

It is proper for the Supreme Court to invalidate, on ninth amendment grounds, any law that would deny a woman the right to seek an abortion. Surely, one of the rights "retained by the people" is her right to do as she wishes with her body. The same goes for any law that would regulate private sexual practices between consenting adults. Such an action by the court does not represent any twisting of the Constitution's meaning, nor does it represent the "judicial activism" that the conservatives claim to find.

An important question is: how do we know what are these un-enumerated rights that the ninth amendment mentions? The Constitution does not itself provide an answer. The only way to answer the question is to have a proper theory of Man's Rights. One has to know what kind of creature man is and what his rights are, to know how to apply this amendment. The Constitution does not supply the answer, but it implicitly depends on there being an answer.

This is how we would be able to tell, for instance, that one has the right to seek an abortion, but not, for example, the right to receive free medical care.

To properly apply the constitution and its ninth amendment, the question that needs to be answered is: "What are the rights of man?", not "What were the opinions of the founders of the country on such subjects as abortion?"

(In this context, the only valid use of the concept "original intent" is that the original intent of the constitution is to secure and protect man's rights.)

The position of such conservatives as Scalia and Bork on this issue is one reason I think these conservatives are a grave threat to our liberties today. I fear that a conservative Supreme Court would stand by while state and federal legislatures passed laws that violated people's rights.

(State governments are not allowed to violate people's rights any more than the federal government would be. This was made explicit by the 14th amendment.)

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It is proper for the Supreme Court to invalidate, on ninth amendment grounds, any law that would deny a woman the right to seek an abortion.  Surely, one of the rights "retained by the people" is her right to do as she wishes with her body.
I don't know why that's sure. It is desirable that it be so, but it is far from sure. I would certainly prefer to understand the Ninth to say something more like "any action not expressly prohibited by the Constitution (so amended) is therefore a right which may be exercised by all people". But the Constitution has no prohibition against murder or theft, and yet such actions are not seen as rights (presently; unless ordered by the government). The Constitution grants the power of legislation -- a rather unlimited power, at that, wherein lies the problem. And so it happens that the power has been exercised by various state legislatures, to outlaw abortion (or sodomy, or excess profits).
An important question is: how do we know what are these un-enumerated rights that the ninth amendment mentions?  The Constitution does not itself provide an answer.  The only way to answer the question is to have a proper theory of Man's Rights.
Exactly. It is intellectually bankrupt to claim that the answer is contained one way or the other in the Constitution. It is quite obvious that court decisions are being made to achieve a particular outcome, with virtually no concern for the law itself. I entirely approve of that approach, as long as the outcome that you are working towards is correct. The problem is that most justices -- including Scalia, though to a lesser extent than most -- pretend that they are "applying the law". Actually, they are rationalizing particular political decisions via the use of certain tools of law. It happens that one of those tools is the "literal reading" tool.
The position of such conservatives as Scalia and Bork on this issue is one reason I think these conservatives are a grave threat to our liberties today.  I fear that a conservative Supreme Court would stand by while state and federal legislatures passed laws that violated people's rights.
They are dangerous in some areas, but less dangerous in other areas. For social issues (sex, religion, drugs), expect Scalia to be horrid; expect him to better for economic / business issues. The problem with liberal judges is that they will outlaw certain forms of commerce, have virtualy repealed the Second Amendment, and have an expansive entitlement-based view of rights.

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They are dangerous in some areas, but less dangerous in other areas. For social issues (sex, religion, drugs), expect Scalia to be horrid; expect him to better for economic / business issues. The problem with liberal judges is that they will outlaw certain forms of commerce, have virtualy repealed the Second Amendment, and have an expansive entitlement-based view of rights.

I slightly disagree here, on the following grounds. The conservatives are worse because they reject the concept of rights as such. They are not in fact better on most economic issues - they are pragmatists, not principled defenders of free enterprise or private property. The recent Kelo case is just one such example.

The non-conservative justices at least believe in rights, even if they apply them inconsistently and into inappropriate areas. I think the recent Lawrence v. Texas case is an excellent example of this distinction.

Justice Kennedy, delivering the court's decision, essentially concluded that the law forbidding homosexuality was unconstitutional because it violated the individual's right to liberty.

Scalia (joined by Thomas) in his dissent wrote a very revealing passage, which indicates his pragmatist and statist views, and which in my opinion highlights the far greater danger of conservative judges:

Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 6 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 13 (" ' These matters ... are central to the liberty protected by the Fourteenth Amendment' "); ante, at 17 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:

    "No state shall ... deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added).

Those interested in a fuller exposition can read the decision here.

Notice in particular Scalia's reference to " working more than 60 hours per week in a bakery." For those not familiar, this is a reference to the 1905 decision in Lochner v. New York, where the Supreme Court struck down a law forbidding baker's from working more than 60 hours per week, on the grounds that it violated their right to liberty and freedom to make contracts. This is a brazen rejection the concept of rights as such.

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This is consistent, for example, with the dissent of the conservative justices in the recent Lawrence vs. Texas case, in which the Supreme Court (properly, in my view) invalidated a Texas law against homosexual practices.  The conservative dissenters said that this was wrong, since the constitution does not say anything about homosexuality; the law, in their view should stand.

The constitution does not, however, grant rights to people.  Rather, its purpose is to limit the powers of government.  This fact is made explicit in the ninth amendment:

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

This is one of the most important statements in the document.

Jay,

In the interests of justice, I just wanted to commend you on an outstanding post here! I wanted to write exactly what you have written here last night, but ran out of time. You summed it up eloquently though, especially in regards the 9th amendment and the danger of the conservative judges. I salute you!

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Thus, a political constitution, ie, fundamental law, refers to all instances, past, present, and future, of its listed laws. Eg, a principled view of freedom of the press includes all possible instances, including email which didnt exist in the 18th century. A concrete-bound view of law includes only those concrete instances explicitly identified. Eg, a concrete-bound approach to freedom of the press includes only those concrete instances of freedom of the press and its violation which were explicitly identified or experienced by the Founders in various important documents, events, etc.
Stephen, I still fail to understand where you are coming from on this issue. I have repeatedly asked you to watch the video and guaranteed that you will find a response to this issue there. You've apparently not only not watched the video, but continue to attribute to Scalia a viewpoint he does not advocate. For example, here are some quotes that you could yourself find from that same video:
I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably.

[...]

[After talking about how his originalist interpretation of the Constitution was the status quo in the entire history of America until 50 years ago] Oh, one other example about how not just the judges and scholars believed in originalism, but even the American people. Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.

I couldn't find right away where he explicitly addressed new media such as emails and the Internet, and how they were still covered by the Constitution even though it doesn't talk about them. It most likely was in the Q/A part of the speech, which is not recorded in the text version, so I'll have to watch the video to get that part. But what I've quoted above is already adequate for vindicating Scalia.
Thus, rights logically includes abortion even tho the Founders did not explicitly identify abortion as a right.
I don't think you understand. The Founders not only didn't explicitly identify abortion as a right, but as far as I can tell they were actively advocating its prohibition, and would be abhorred that it is a legal practice today, and moreover a practice justified by their words, i.e. that this is what they wanted their words to mean. It is one thing to say, okay let's make an Amendment to the Constitution that says, the Founding Fathers were wrong on issue X, and thus what they didn't want to be legal, we hereby make so. It is quite another to say, no no, what the Founding Fathers really meant... and then to procede to derive some cockamany theory of what they wanted to say, did not say, implied in saying, almost said but not really, etc. And I say 'cockamany' not because your theory is so, but because everyone today has their own private theory of what the Founding Fathers were about, and thus what the Constitution really means. No one cares to actually study the Founders ideas and values and figure out the true original intent of the Constitution.

And here I disagree with David Odden too. We have to take into account what the intent of the Founding Fathers was, because as I outlined in the first post, all words have context. And the only proper context for the words of Constitution is the context of the Founding Fathers, their views and values. That is the one and only true meaning of the Constitution, forever unchanging and inviolate.

Stephen, you require the judges to be philosophers, and make laws. My view is completely opposite:I want them to be lawyers, and to interpret laws created by someone else. Here's another quote from that same video explaining what I mean -- the second paragraph is the 'meat' of the quote, the first one mainly providing the backdrop and the context. Oh and also, I again very strongly urge you to watch the video and make sure you are not unfairly arguing against straw men before writing the next reply. I have started this thread so that everyone would be familiar with Scalia's actual views, and so far you haven't done your side any credit by misunderstanding Scalia's point of view and refusing to find out what that point of view is. It's sort of like that famous knight, Don Quixote... anyway, here's the quote:

Well, I’ve talked about some of the false virtues of the Living Constitution [theory], let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution.  Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work.

If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society — if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.

If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn’t be up to the judges, it should be up to the legislature. We should have a system like the English — whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don’t. So in principle, it’s incompatible with the legal regime that America has established.

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And here I disagree with David Odden too. We have to take into account what the intent of the Founding Fathers was, because as I outlined in the first post, all words have context. And the only proper context for the words of Constitution is the context of the Founding Fathers, their views and values. That is the one and only true meaning of the Constitution, forever unchanging and inviolate.
Given the quote from Scalia that I gave, do you grant that, as much as you may disagree with that statement (and btw I disagree with it too), it is Scalia's position, and therefore for the sake of accurately stating his position, you should talk about original meaning and not original intention? (For convenience, here is his Tanner lecture). If you want to gen into the incoherence of his epistemology, I'm down with that.

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