So how does this "strict Constitutionalist" thing work?

[chelsea0011]

Scalito belongs to the group that says Congress should make laws and the court should only interpret them. But Congress enacts a law that says people can't own machine guns. Scalito gets a case before the court where he descents saying Congress can't tell people they can't own machine guns. Uh? Isn't he saying, I'll make the laws here? In other words, an activist?

[pfitz59]

1. Activist for rich white men.....

just like the guys who WROTE the Constitution!

[TallahasseeGrannie]

3. They might have been rich guys

but I think they did a pretty good job.

[Protagoras]

9. Unless you were a woman

or black...then they could have improved a few things.

A Strict Originalist would have a lot of explaining to do there.

And curiously enough...they tend to avoid a lot of discussion about the preamble as well...because then those pesky individual and privacy rights that were Orignally implied might get in the way.

Really it boils down to a position that simply says...Whatever we like must be in there somewhere (even if you can't see it) but anything we don't agree with is "activism".

It's a nice, tight, circular point of view.

[TallahasseeGrannie]

13. All good points

Amazing, though, that the thing has held us together all these many years.

That preamble IS a pesky thing. I have it on my classroom wall and think about it a lot. We have a lot of work to do to even get close to that vision.

[Protagoras]

16. I'm guessing we agree on this but I have to ask

If it was the inspired constitution that held us together over the last 150 years (can we count the civil war?...what do we attribute the survival of England or France or Belgium, etc in the last 150 years?

What I mean is...sometimes I think we spend so much time admiring ourselves for our fine cultural self image that we forget that a whole lot of other people around the world have also managed to survive...with country intact...many without a need to tear themselves apart every 20 years with Vietnam, and McCarthism, and Nixon etc...we've survived 200 years with a lot of bumps and bruises and I won't take away any of the truth of that (good or bad) but I think sometimes we tend to forget that a lot of people out there have survived an even longer time with even less scars to show for it.

Sorry for the tangent. And keep the Preamble on the wall please...it may be the most inspiring thing many of those kids will ever read...and we do need our inspirations (even when we become as lost to cynicism as I am today)

[TallahasseeGrannie]

18. Actually I believe

that more important... or equally important... is the checks and balances of the government, which is what is so scary right now.

That, and the Bill of Rights. That is a very unique document.

Yes, we do admire ourselves quite a bit and for a long time I personally think it was warranted. Other countries went through coup after coup and we passed power rather uneventfully. Lately.. the jury is out, I think. I'm sad that we have tarnished ourselves.

And the future is just as interesting for the three countries you mention now, as the EU faces enormous challenges.

But at least we've got a better track record than most South American countries! LOL

[Democrats_win]

2. All buildings must be square: no round buildings to please the Framers.

[MidwestTransplant]

4. Actavist on things you care about....throw people to the wolves

on things you don't.

[cynatnite]

5. The constitution as it originally was?

I've never fully understood it, either. The best I can come up with, and correct me if I'm wrong, but it seemed to be a literal read of the original constitution with no exceptions, changes, or additions.

To me it's like fundies who take only the literal interpretation of the bible and nothing else is acceptable.

[Protagoras]

10. and please don't confuse them by pointing out

inconsistencies between the gospels...they don't think about things that they don't think about.

[Cats Against Frist]

6. "Strict Constiutionalism" defined:

Judicial activism on the part of the GOP.

That's all there is to it.

[tritsofme]

7. They believe in the original intent of every word in the Constitution

They pretend they are in 1790 and look at 21st Century problems through that scope.

They deny that the Constitution is a living document.

[Cats Against Frist]

8. So, Thomas Jefferson had "The Patriot Act," in mind?

I beg to differ. "Strict Constitutionalism," is a GOP code word for authoritarian right-wing rule.

[tritsofme]

11. Then they are not truly strict constructionists

They would be RW judicial activists.

There is however such a thing as a true constructionist or "originalist"

[Tierra_y_Libertad]

12. Turn clock back to 1789. Invest in slaves, wigs, and carriages.

The rightwingers cling to the notion of the "Golden Age" when (rich) white men were the bosses and women, blacks, children, and anyone not of the ruling class knew their places...by law.

[Geoff R. Casavant]

14. Not quite

I have always construed "strict construction" to mean a judge can say, "this law is good and is upheld," or "this law is bad and is struck down," but may not say, "this law is bad, and here's how it should be written." Pretty much every judge keeps to this standard.

The big problem with the strict construction approach to Constitutional law is that a lot of the phrases in the Constitution (most specifically the 14th Amendment, which is the big one as far as abortion liberties, gay rights, etc. are concerned) were deliberately left vague so constitutional protections could evolve over time as social conditions changed.

[chelsea0011]

22. But by saying "this law is bad", the judge is effectively putting

themselves ahead of Congress by saying you can't have this law. But they turn around and say only Congress can create law. What you imply is that all law can be overturned. And this is what bothers the left. These right wing judges want to overturn many laws already decided by Congress. And I am not even talking about court law such as Roe v. Wade.

[Geoff R. Casavant]

29. Again, close but not quite

Not all law may be overturned, only that law which is contrary to the Constitution or valid treaty. You are correct that I misspoke when I used the phrase "bad," in that I should have been more specific and used the word "unconstitutional" instead.

[chelsea0011]

30. So when Scalito says he says the government has no right to

ban any arms, he is sighting the second amendment, I quess. Machine guns are OK but is there a limit to what the second amendment states in his mind? Are personal nukes OK with him? If he believes Congress has no rights to impose law that goes against the second amendment, then I guess I can start building one now.

[Geoff R. Casavant]

31. Ah, there's the rub

True judicial restraint means that Scalito could not say nukes are OK unless and until there was an actual case before him where someone tried to build a nuke and was stopped.

[triguy46]

15. It means slavery will soon be legal again.

As will not allowing women to vote. Everything they want to do away with must pass through the lens of 1770's. That is the only "interpretation" that is valid. Now how that can apply to 2005 is frickin beyond me, but that's what it means.

[Disturbed]

20. Corporations shall rule the land,.

slavery is an option, blacks are on 1/3 people, Native Americans are not persons, women cannot vote, homosexuality is illegal, child labor is ok, no worker's rights or benefits and a few more that I cannot remember right now. One good thing though: No drug laws.

[chelsea0011]

24. this is how I see the "new court", also. Miranda, right to an attorney,

civil rights, and all are all back on the table.

[LSdemocrat]

17. Seriously, the true wingnuts think the whole New Deal is unconstitutional

They want to go back to a 1920's interpretation of the Constitution to invalidate all securites legislation, labor and wage laws, and just about every government program going back to and including Social Security.

[stevebreeze]

27. If I understand correct.y Alioto's view on machine guns & commerce clause

most of the new deal, minimum wage laws and child labor laws could all be over turned if Alioto has his way on the commerce clause.
Correct me if I am wrong.

[cascadiance]

19. They should be asked how "corporate personhood" is constitutional!

The wingnut nominees (and likely ANY nominee that Bush puts up) will all claim to be "constructionist", but if they are pressed on whether they would vote to overturn Santa Clara vs. Souther Pacific Railroad which FALSELY gave corporations the rights of "corporate personhood" due to some corrupt court reporter's false "headnote" summary of the case. The constitution, nor the real court notes of that case support this notion.

Of course these nominees won't want to be on record for destroying "corporate rule" by being a constructionist (that at times Rehnquist himself has opposed as well), with the corporations having so much power now over both the executive and legislative branches now who are selecting them.

The real problem is trying to get Dems with enough courage to try and ask them this sort of question (and word it so that it is not a "how would you rule" type of question), since many of them are also beholden to corporations and the DLC as well, instead of prioritizing the wishes and interests of the people over them.

[Czolgosz]

21. The hunt for original intent is a judicial Rorschach test.

First, the original intent is a myth because the idea that there was a single "intent" behind a document written by committee is false. Various framers held views inconsistent with one another and the Constitution was drafted in language that deliberately accommodated multiple conflicting viewpoints.

Second, the original intent is irrelevant because even if one grand unified original intent existed -- which it doesn't -- that intent would be the intent of a mind that embodied racial and gender equality views that are now universally (well, almost universally -- but let's leave Pat Robertson out of it) abhorred and considered immoral.

Third, the original intent -- even if it existed and wasn't immoral -- is never consistently followed. Judges like Alito who claim to seek out the original intent of the framers invariable fail to seek out the original intent in all cases where the original intent does not serve their goals (or did you really think that the framers intended the US Supreme Court to stop Florida's internal recount of Florida ballots in 2000?).

[BurgherHoldtheLies]

23. Schiavo....that's the only word you need to know

Despite existing Florida legislation, the zealots WANTED judicial activism.

Hypocrisy at its finest.

[Fenris]

25. A justice who thinks he can objectively read the Constitution.

Or simply a fool.

[JudyM]

26. Where the constitution is silent about something, a fundie reading is the

only correct reading. Unless the issue is a right being sought by a corporation.

On social issues, the issue often comes down to the conflict between freedom and the obligation of the government to guarantee or at least facilitate that freedom.

[LittleClarkie]

28. They say they want the Constitution upheld with no interpretation

but I do believe what they want is Right Wing activists claiming to be upholding the Constitution.

They say they're sick of activism. But they mean our activism, not theirs.