RIP Anthony Scalia:

With the unexpected death of associate justice Scalia my thoughts on the supreme court become some what prescient, this Sunday morning the number 1 topic.

How liberal, how conservative do we need the court to be?. Is the court even more of an issue for this election cycle?.

The republicans would like it to be. That kind of stuff gives me a pain: when the party puts its interests before the people. There is no reason to put off naming a new court nominee. Trump spoke the truth at the debate about the republican strategy--"delay, delay, delay." Right now, SCOTUS is out of balance with 8 justices and that needs to be filled in quickly. I don't give a damn about their fucking presidential election--fill in that vacancy and fill it now! The republicans are acting like they can't walk and chew gum at the same time. THAT'S WHAT THE FUCK THEY GOT ELECTED FOR!!!!

Why is Trump suddenly acting like such a pussy? Whoops! Did I say that?

Scalia was a Regan nomine, he (Scalia) comes from the same judicial philosophical line as the contentious nomine Bork.

Not having any volumes of Scalia on my books shelves to attribute, I'll quote from one that I do have.

From the "Tempting of America" by Robert H. Bork.

pg. 300

"The judge's authority derives entirely from the fact that he is
applying the law and not his personal values. That is why the
American public accepts the decisions of its courts, accepts even
decisions that nullify the laws a majority of the electorate or
their representatives voted for. The judge, to deserve that trust
and authority, must be every bit as governed by law as is
the Congress, the President, the state Governors and legislatures,
and the American people. No one, including a judge, can be
above the law. Only in that way will justice be done and the
freedom of Americans assured.

How should a judge go about finding the law? The only
legitimate way, in my opinion, is by attempting to discern what
those who made the law intended....

If a judge abandons intention as his guide, there is no law
available to him and he begins to legislate a social agenda for
the American people. That goes well against his legitimate power.

He or She then diminishes liberty instead of enhancing it.
....[W]hen a judge goes beyond [his proper function] and
reads entirely new values into the Constitution, values the framers
and the ratifiers did not put there, he deprives the people of
their liberty. That liberty, which the Constitution clearly envi-
sions, is the liberty of the people to set their own social agenda
through the processes of democracy....

My philosophy of judging, Mr. Chairman, as you pointed out,
is neither liberal nor conservative. It is simply a philosophy
of judging which gives the Constitution a full and fair interpreta-
tion but, where the Constitution is silent, leaves the policy struggles
to the Congress, the President, the legislatures and executives
of the 50 states, and to the American people"

Bork's judicial nomination process was the first I consciously paid
attention to, It was a learning experience that was a joy to watch.

I have held pretty close to that philosophy of original intent as explained
by the above Bork quote but I do have concerns against a to conservative court.
But altra-liberal is worrisome as well.

Taylor wrote:I have held pretty close to that philosophy of original intent as explained by the above Bork quote...

I am very suspicious of original intent. Remember the Founders wrote slavery into the Constitution. Their understanding of "All men are created equal" (from the Declaration of Independence) excludes women and blacks. The only people allowed to vote at that time were white male property owners. These attitudes were so strong that they didn't need to be clarified, it "went without saying." Why should we necessarily hearken back to those jurassic opinions?

[W]hen a judge goes beyond [his proper function] and reads entirely new values into the Constitution, values the framers and the ratifiers did not put there, he deprives the people of their liberty.

To defend our liberty we must abide by the values of slave owners?

LanDroid wrote:I am very suspicious of original intent.

I'm not, I can however be suspicious of people, in particular judges who may go over board with substantive due process. (legislating from the bench).

LanDroid wrote: Remember the Founders wrote slavery into the Constitution.

There is no right to slave owner ship, The Taney court created that so called right out of the Missouri Compromise, Dred Scott, and manipulating the due process clause.

The twisted logic that allowed for so many centuries of slavery was corrected by many necessary means, original intent was one of them.

LanDroid wrote:To defend our liberty we must abide by the values of slave owners?

The constitution and declaration of independence are separate from the social values of slave owners, Values that clearly are hypocritical. I think that "holding close" is an acceptable position, it allows for some tweaking, but that tweaking may allow for loopholes, Rather complicated, but why I favor center right with a dose of liberalism.

DB Roy wrote: Right now, SCOTUS is out of balance with 8 justices and that needs to be filled in quickly.

I don't disagree, I also agree that we live with the process of nomination and the presidents obligation to nominate whom he sees fit to be the next associate justice.

Wow you seem to have this backwards. The original Constitution clearly permitted slavery. Some of the primary framers of the Constitution such as Thomas Jefferson, George Washington, and James Mason were slave owners. Therefore when considering original intent, one is in part consulting the values of slave owners. The Dred Scott decision affirmed ongoing slavery practices by ruling that african-americans could not be and were never intended to be citizens plus the Federal Government could not regulate slavery in new territories. Original intent had nothing to do with eliminating slavery - that took a horrendous war in which 600K Americans died plus an amendment to the Constitution. Etc.......

LanDroid wrote:Wow you seem to have this backwards.

I'm missing how?

LanDroid wrote:The original Constitution clearly permitted slavery.

What article guaranties the right to own slaves? however, its my impression that the ninth amendment was designed to allow for unlisted rights or those not enumerated, allowing for further amending.

The 13th, 14th 15th amendments, are where we see the development of privacy rights enumerated and the elimination of slavery. These 3 amendments were logical necessities from as I mentioned, Dred Scott etc...

Bork asks the question "How, then, can there be a constitutional right to own slaves where a statute forbids it?
Taney created such a right by changing the plain meaning of the due process clause of the fifth amendment.
He wrote: (Taney) [T]he rights of property are united with the rights of person and placed on the same
ground by the fifth amendment to the constitution, which provides that no person shall be deprived of
life, liberty, and property, without due process of law, And an act of Congress which deprives a citizen
of the United States of his liberty or property, merely because he came himself or brought his property
into a particular territory of the United States and who had committed no offence against the laws, could hardly
be dignified with the name of due process of law."

Bork states that (paraphrase) there is no constitutional right to own slaves, nor was there ever.

LanDroid wrote:Thomas Jefferson, George Washington, and James Mason were slave owners. Therefore when considering original intent, one is in part consulting the values of slave owners

I think there is a subjectivity here, yes in part we do consider their attitudes toward non land owners and non whites, that's what made them hypocrites is it not? They set up a document the was open to amending, as I said, there were bad ideas toward what they considered a constituted property, Is that a value judgment? when dealing with people it is rightly so to consider there mind set, they permitted slave ownership, One is not going to be diminished in thinking that there was fault in the reasoning. Its that questionable idea of theirs regarding property. We certainly know better now, and I suggest that early framers new better as well, Its their practice that should be judged on a value's scale.

In going through my copy of Kauper's ( a mid 60's textbook on constitutional law) I'm not finding the relevant article that permits slavery. and at 1350 pages it may take a while, but I promise, it its there, I'll site it.

One could say that the civil war didn't change attitudes about slavery, but that changing attitudes assisted in bringing about the war.

What article guaranties the right to own slaves?

The constitution doesn't have to explicitly state a right in order for there to be one. The constitution permitted and regulated slavery by arranging the 3/5 population count, prohibiting any discussion of slavery for 20 years after ratification, and even requiring the return of runaway slaves to their owners so they would not be deprived of property. How could those clauses exist if slavery was illegal or if there was no right to own them? If you're attempting to contrast explicitly declared rights versus what was clearly allowed under the constitution, that made no difference whatsoever to the millions of slaves in America and I'm not too interested in nit-picking about that.

Bork asks the question "How, then, can there be a constitutional right to own slaves where a statute forbids it?
Taney created such a right by changing the plain meaning of the due process clause of the fifth amendment.
He wrote: (Taney) [T]he rights of property are united with the rights of person and placed on the same ground by the fifth amendment to the constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law, And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."
Bork states that (paraphrase) there is no constitutional right to own slaves, nor was there ever.

Wow I remember his confirmation hearings being extremely brutal - I can see why reading this. The framers did not consider african-americans as citizens so the clauses above did not apply to them. It's questionable whether they even thought of african-americans as human - if the slaves were freed, they certainly could not live in America! They'd have to be deported back to Africa, but we couldn't afford that. (Jefferson's calculations.) Also I'm talking in part about the original constitution - the one that was ratified before the bill of rights was enacted - the fifth amendment did not exist.