Posted by
toady on Friday, May 02, 2008 8:20:23 AM
Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about.
Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.
A. Scalia
The most important thing i do in my job is to tell the majority that it can't do what it wants to do, because the constitution forbids it. I stand between you and the majority, with the Constitution in my hand and essentially, I tell the people, you know. "people be damned, you cannot do this. The contitution forbids you.
A. Scalia
What if the constitution doesn't say, explicitly, that some action is forbidden. In spite of the explicit words of James Madison, Judge Bork has found that the ninth amendment cannot possibly mean anything. It has as much weight as an ink blot. Scalia says that there are times when he wishes to rule one way, but the constitution forbids it. He gives as an example a case about flag burning. But what about torture: cruel and unusual punishment is forbidden, but if the state is trying to extract information from a suspect. then he is not being punished. According to Scalia you can torture a person as long as he is enjoying the presumption of innocence, but the moment he is convicted the torture must stop. AND these guys are really smart!!
Where in the constitution does it say, explicitly, the majority cannot rule that the dump of a school that negroes are allowed to go to is equal to the school the whites enjoy. That is one of those things under the ink blot.
Where in the constitution does it say, explicitly, that the majority cannot outlaw the use of contraceptives between married couples. Bork called it a "nutty" law, but testified that he would vote to uphold it. Just a nutty law: under the ink blot (we never intended to enforce it against heterosexuals anyway).
Where does it say that the majority cannot outlaw homosexual actions? Another right under the ink blot. (Thank goodness, because THAT one we did mean to enforce)
Where in the constitution does it say, explicitly, that the majority cannot tap your phone, or read your e-mail, or search your car. Phones, e-mail and automobiles are never mentioned in the constitution. .
Must be a pretty big ink blot.
The founders didn't put any ink blots on the constitution, they were clear and explicit. Somebody... Anybody explain to me how laws against birth control, laws supporting separate but (NOT) equal education, laws based on the premise that you may have rights, but if you don't know what they are then the police don't have to honor them.... how can this possibly be consistent with these clear and unambiguous statements by the founding fathers.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Yes, Bork and Scalia are really smart guys, but they are not originalists. You can't be an originalist without deep regard for the ninth and tenth amendments. You can't be an originalist and say it might be ok to torture those who are presumed innocent.