Scalia on Peter Robinson's "Uncommon Knowledge"

[Cali Coug]

Originally Posted by Tex

Except the Federalists were trying to write (and sell) a constitution, not interpret an existing one.

Originalism is not perfect. But better to have wishy-washy parameters, than none at all.

I don't think you know what the Federalist Papers are. The Constitution was already written at the time the Federalist Papers were drafted. That was the point of the Federalist Papers- to convince the New York legislature to ratify the already drafted Constitution. The Papers themselves were an interpretation of many of the provisions of the Constitution with an explanation for such provisions' utility and necessity.

Originalism was contemplated as an anchor, restricting the bounds by which a judge could interpret the Constitution. It isn't that, and it really can't be, however. Instead, judges pick up the anchor and move it whenever they see fit (Scalia most certainly included).

[Tex]

Originally Posted by Cali Coug

I don't think you know what the Federalist Papers are. The Constitution was already written at the time the Federalist Papers were drafted. That was the point of the Federalist Papers- to convince the New York legislature to ratify the already drafted Constitution. The Papers themselves were an interpretation of many of the provisions of the Constitution with an explanation for such provisions' utility and necessity.

I know exactly what they are, and when they were written. Your citation of the Papers is totally irrelevant to this discussion.

Originally Posted by Cali Coug

Originalism was contemplated as an anchor, restricting the bounds by which a judge could interpret the Constitution. It isn't that, and it really can't be, however. Instead, judges pick up the anchor and move it whenever they see fit (Scalia most certainly included).

You are requiring that originalism be perfect in order to be better than Ginsburg's approach. That's a false dichotomy.

I repeat: having an anchor--even one that moves on occasion--is better than having no anchor at all. To quote Scalia in my very first post in this thread:

Look, I do not propose or suggest that originalism is perfect, and provides easy answers for everything. But that is not my burden. My burden is to show that it's better than everything else. The originalist has easy answers for many things, especially the most controversial things in modern times: whether the equal protection clause requires that the states permit same-sex marriage. I mean, you know, that's not a hard question for an originalist. Nobody ever thought that's the equal protection clause meant. It didn't mean that when it was adopted, it doesn't mean that today. It doesn't change to mean that just because the Supreme Court thinks it's a good idea.

Whether there's a right to abortion: for Pete's sake, it was criminal in every state for 200 years! Now, if you want a right to abortion, create it the way most rights are created in a democracy: persuade your fellow citizens it's a good idea, and enact a law. But don't tell me the Constiution confers such a right. So, I have easy answers to a lot of stuff, whereas for the living constitutionalist, there are no answers. Every day is a new day!

I have sat with four colleagues--one still on the court, three since deceased--who thought that the death penalty was unconstitutional. It's mentioned in the Constitution! But every day is a new day, and you know, it used to be constitutional and maybe tomorrow it won't be.

[Cali Coug]

Originally Posted by Tex

I know exactly what they are, and when they were written. Your citation of the Papers is totally irrelevant to this discussion.

Are you sure? Because when I brought up the Federalist Papers, this is what you said:

Except the Federalists were trying to write (and sell) a constitution, not interpret an existing one.

That isn't even remotely accurate. Even if you meant only the Federalists (and not the Federalist Papers, which would be odd given that the Federalist Papers were what defined the pre-party "Federalists" in their quest for ratification of the US Constitution), the actual Federalist party wasn't formed until 1792 (5 years after the Constitution was written and 3 years after it was ratified).

In no way were the Federalists ever trying to write a Constitution, and they most certainly were making every effort to interpret the Constitution (particularly pre-party formation in connection with the Federalist Papers and the drive toward ratification, then later in their bitter battles with the Republicans about what the Constitution permitted and prohibited).

Every single thing about your sentence is incorrect except for the parenthetical "(and sell)."

So no, I don't think you actually know what the Federalist Papers are, nor what the Federalist party was. I suggest you look it up, being an originalist and all.

As for Scalia's argument about proving it is better than any other form of interpretation, have at it. He knows, as you ought to, that he is already building qualitative valuations into his argument which you are blindly accepting as true. What does it mean that his form of interpretation is "better?" Better in what sense? How is it measurable?

[Tex]

Originally Posted by Cali Coug

Are you sure? Because when I brought up the Federalist Papers, this is what you said:

That isn't even remotely accurate. Even if you meant only the Federalists (and not the Federalist Papers, which would be odd given that the Federalist Papers were what defined the "Federalists" in their quest for ratification of the US Constitution), the actual Federalist party wasn't formed until 1792 (5 years after the Constitution was written and 3 years after it was ratified).

In no way were the Federalists ever trying to write a Constitution, and they most certainly were making every effort to interpret the Constitution (particularly pre-party formation in connection with the Federalist Papers and the drive toward ratification, then later in their bitter battles with the Republicans about what the Constitution permitted and prohibited).

Every single thing about your sentence is incorrect except for the parenthetical "(and sell)."

So no, I don't think you actually know what the Federalist Papers are, nor what the Federalist party was. I suggest you look it up, being an originalist and all.

I was referring to Madison and Hamilton, the principle authors of the Papers, who were both intimately involved with the drafting of the Constitution. The Papers were written during the ratification period to urge adoption (i.e., "sell") of that document.

You are distracting. Yet again.

Originally Posted by Cali Coug

As for Scalia's argument about proving it is better than any other form of interpretation, have at it. He knows, as you ought to, that he is already building qualitative valuations into his argument which you are blindly accepting as true. What does it mean that his form of interpretation is "better?" Better in what sense? How is it measurable?

Better in the sense that it curtails judicial activism.

[Cali Coug]

Originally Posted by Tex

I was referring to Madison and Hamilton, the principle authors of the Papers, who were both intimately involved with the drafting of the Constitution. The Papers were written during the ratification period to urge adoption (i.e., "sell") of that document.

You are distracting. Yet again.



Better in the sense that it curtails judicial activism.

You referred to Madison as a Federalist? You do know that shortly after writing the Federalist Papers, he split sharply with Hamilton and became one of the founding members of the Republican Party, don't you? That he would be associated with Federalists only in the loosest of all possible constructions? You need to stop. This is getting embarrassing.

This isn't a distraction, Tex. It goes to the fundamental point that you raise (and apparently don't understand because you don't know much about the early fouding period of our nation).

You cited Ginsberg's lack of trust of the people in making the right decision all of the time legislatively. In rebuttal, I pointed out that that very concern is at the heart of many of the Federalist Papers. At that point, you became confused and responded that "the Federalists were trying to write (and sell) a Constitution and not interpret a living one" (none of which is actually true, other than the parenthetical). Even if you were only intending to mean Madison and Hamilton (in what world does the word "Federalist" refer to those two?), both of them exerted a tremendous amount of energy interpreting the Constitution (again- that is in large part what the Federalist Papers were- an interpretation with background and insight).

You were trying to dismiss the notion that the founding fathers themselves were skeptical of overreaching by legislatures, and you failed miserably.

Before you get on board the originalist train, you may want to spend some time figuring out what that means.

As for "curtailing judicial activism," you didn't give an answer. All you did was make a statement about something that also isn't really capable of definition (judicial activism), nor did you explain why curtailing your ill-defined term is "better," nor did you explain how originalism is superior in curtailing your ill-defined term.

[Tex]

Originally Posted by Cali Coug

You referred to Madison as a Federalist? You do know that shortly after writing the Federalist Papers, he split sharply with Hamilton and became one of the founding members of the Republican Party, don't you? That he would be associated with Federalists only in the loosest of all possible constructions? You need to stop. This is getting embarrassing.

This isn't a distraction, Tex. It goes to the fundamental point that you raise (and apparently don't understand because you don't know much about the early fouding period of our nation).

You cited Ginsberg's lack of trust of the people in making the right decision all of the time legislatively. In rebuttal, I pointed out that that very concern is at the heart of many of the Federalist Papers. At that point, you became confused and responded that "the Federalists were trying to write (and sell) a Constitution and not interpret a living one" (none of which is actually true, other than the parenthetical). Even if you were only intending to mean Madison and Hamilton (in what world does the word "Federalist" refer to those two?), both of them exerted a tremendous amount of energy interpreting the Constitution (again- that is in large part what the Federalist Papers were- an interpretation with background and insight).

You were trying to dismiss the notion that the founding fathers themselves were skeptical of overreaching by legislatures, and you failed miserably.

Before you get on board the originalist train, you may want to spend some time figuring out what that means.

I was using the term "Federalists" loosely to refer to the authors of the Papers. If that confused you, I'm sorry, but you're looking far, far beyond the point.

Which is: I don't think the founding fathers' distrust of the people, and Ginsburg's distrust, are analogous.

Originally Posted by Cali Coug

As for "curtailing judicial activism," you didn't give an answer. All you did was make a statement about something that also isn't really capable of definition (judicial activism), nor did you explain why curtailing your ill-defined term is "better," nor did you explain how originalism is superior in curtailing your ill-defined term.

There are no perfect metrics for these issues, so your demands to be provided one are juvenile and irrelevant.

It is obvious how originalism is superior in curtailing judicial activism. It's right there in the Scalia quotes; I suggest you read them more closely.

[Cali Coug]

Originally Posted by Tex

I was using the term "Federalists" loosely to refer to the authors of the Papers. If that confused you, I'm sorry, but you're looking far, far beyond the point.

Which is: I don't think the founding fathers' distrust of the people, and Ginsburg's distrust, are analogous.

Why would that confuse me? The use of a term that wasn't really utilized until after the Constitution was written, and then applying that term to the authors of the Constitution (one of whom is associated with the group who vehemently opposed the Federalists) who interpreted and explained the Constitution whereas you said they didn't? Odd that would be confusing. Look- you didn't know what the Federalist Papers were, and you didn't know anything about the authors other than their names. Embarrassing, yes. But stop making it worse.

As for your contention that they aren't analogous, your contention would be stronger if it weren't purely conclusory. Reasoning?

There are no perfect metrics for these issues, so your demands to be provided one are juvenile and irrelevant.

It is obvious how originalism is superior in curtailing judicial activism. It's right there in the Scalia quotes; I suggest you read them more closely.

So there are no perfect metrics, and demanding such metrics is juvenile, but in the meantime, we can safely say that originalism surpasses all other forms of interpretation based on the metrics you can't give? Ah. What an extraordinary argument you have latched onto.

I did read his quotes. They are what prompted these questions. If you don't know the answer, your experience with the Federalists should indicate you should stop trying to respond.

[Tex]

For any worthwhile discussion, there has to be a reasonable expectation that each party is going to be honest about trying to understand the other. Your penchant for definitional games (socialism, originalism, Federalists, judicial activism, better, just to name a few) hopelessly mire down any normal conversation in distractions and insulting condescension. It's disincentive to continue.

Cheers.

[Cali Coug]

Originally Posted by Tex

For any worthwhile discussion, there has to be a reasonable expectation that each party is going to be honest about trying to understand the other. Your penchant for definitional games (socialism, originalism, Federalists, judicial activism, better, just to name a few) hopelessly mire down any normal conversation in distractions and insulting condescension. It's disincentive to continue.

Cheers.

Ah- so when you say that "Federalists" means Madison, or that Federalists did not interpret the Constitution but instead wrote it, I am the one playing games. When you say that originalism is de facto "better" than another form of interpretation, it is unreasonable to ask what that means. When you say it curtails "judicial activism," we should all know just what that means and why that is desirable.

Instead of leaving the conversation because you feel "bogged down," you ought to recognize that the point where you are getting bogged down is where your theory meets reality, and the fact that you have no responses to any of the above is precisely why your position is bankrupt.

[Tex]

Originally Posted by Cali Coug

Ah- so when you say that "Federalists" means Madison, or that Federalists did not interpret the Constitution but instead wrote it, I am the one playing games. When you say that originalism is de facto "better" than another form of interpretation, it is unreasonable to ask what that means. When you say it curtails "judicial activism," we should all know just what that means and why that is desirable.

Instead of leaving the conversation because you feel "bogged down," you ought to recognize that the point where you are getting bogged down is where your theory meets reality, and the fact that you have no responses to any of the above is precisely why your position is bankrupt.

Case in point.