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I don't know if your watching the Supremes on cspan, but the relations between Breyer and Scalia has clearly broken down...Hold on to your hats. I have never been more worried about our future in my life...
[update] A Conversation On The Constitution
Thanks.
[update] A Conversation On The Constitution
Thanks.
posted by madtom at 6:43 PM
28 Comments:
Are you talking about their debate in Arizona a while back?
I don't know, it was new to me?
This weekend, Supreme Court Justices Antonin Scalia & Stephen Breyer trade their views on the interpretation of the Constitution in a changing society, including topics such as the right to privacy, cruel & unusual punishment and segregation in schools. The Univ. of Arizona Law School hosted the event.
They don't have the video up yet.
The body language was terrible, it's like they hate each other and are tired of trying to hide the fact.
They have had several debates that I'm aware of. They can get a little passionate about the subject of original intent and Scalia always wins the argument, but Breyer being a good leftist doesn't understand his place and thinks he is supposed to legislate. Unless this is something knew and involves weapons, I wouldn't be too concerned.
http://tv.azpm.org/kuat/segments/2009/10/26/kuat-a-conversation-on-the-constitution/
You mean this--- I am watching it now. I read about it a day or so ago, but haven't seen it.
No he's not, what he's got is a thing for homosexual sodomy. Apparently he's got an itch no one has been able to scratch
You don't see it? Breyer was sitting with his back to Scalia for almost the whole thing, and Scalia was telling him to shut up, you can't say what I did??
So they have an adversarial relationship, So what? I'm glad there are strongly differing views and that there are at least a couple of really smart guys who can express their views so cogently. I bet they get along fine, they just argue a lot.
As for Scalia---you don't get it, unsurprisingly. His point is that the the Constitution is the basis for all laws in this country and the job of the SC is to determine if new laws are in agreement with that base and the duly executed amendments. You can't say that laws against homosexuality are unConstitutional when the act was against the law before, during, and after the founders wrote the document. That is patently obvious. You may want the law to change with the times, but as a Justice, you aren't the one to decide if and when that change takes place. That's up to the representative Legislative Branch to decide because they have to answer to the electorate's changing attitudes. If a state legislature decides to allow homosexual whatever, he doesn't say that is unconstitutional. But, a court judgment stating that the laws against homosexuality are unconstitutional because it's obvious that the Constitution was never intended to preserve that right since it was criminal at the time. The clause guaranteeing equal protection clearly didn't include sexual orientation. Scalia's views on the subject don't matter and I have no idea what his views are. Unless you think 9 unelected lifetime tenured people should have the power to change society on the whims of 5 of them, that is so obvious it shouldn't even be an issue. Yet, Breyer thinks it's his job to decide when society should change or has changed. I'm not comfortable with him having that power over me and mine--- whether I agree with his decision or not doesn't matter. I know you aren't comfortable with that either cuz it could easily swing the other way on some other subjects someday.
"homosexuality are unConstitutional when the act was against the law before,"
That's easy, misunderstood, homosexuality is just part of the natural human condition. You can no more make it illegal than you can make breathing illegal. Your side has just been wrong the whole time. When the founder wrote the constitution they intended to preserve things like breathing..
That's up to the representative Legislative Branch to decide
Only on the issues that are left outside the protections of the constitution. So you think congress could make one sexuality legal and another illegal. How about if next election all the members were gay, and they decided to make straight sex illegal "Heterosexual sodomy act". Would that then be constitutional. It's Scalias own argument turned on its head.
I'm not comfortable with him having that power over me and mine---
I agree with Scalia on this, it is scary and there are no obvious answers. Yet you just claimed they were.. That is patently obvious., I have to wonder, who's more scary?
I bet they get along fine, they just argue a lot.
I don't know, I have seen their other programs and to me it looks like their relationship has changed. I keep thinking that on their next decision they might take it out on us...to get back at "him".
I think it says something about the current state of relations among the different groups...All we need is a little flu panic and we could be at each others throats in no time.
The only problem with your reasoning: because you think it was only an oversight on their part doesn't carry a damn bit of weight. It was illegal at the time and NO ONE raised the issue of such laws violating their intent. Fight the fight and get laws changed as the times change. That is the way it was set up. Having the SC legislate wasn't in their deal. Taking more than one mate is innate in some people,too, I think. Should we give them the same benefits of marriage as you and your boyfriend? Hypothetically speaking, of course.
How could a law that's legal at the time of the drafting of the document now be ruled illegal and still be constitutional? That would sort of require an amendment, like the slavery issue required. Slavery was constitutional at the time of the drafting. It took an amendment to change that when majority opinions changed. You want it changed, get it changed. It's a state issue. No one is claiming that a state has no constitutional right to change their laws with regard to sexual orientation. You don't get to assume change in the basis of the law because it fits your mood.
If you listen to Scalias reasons on the inferred case, they are nonsense. I do agree on the outcome, but heat emanates from your pot house, the cops did not send a signal in and then scan the reflections. How about if I put loudspeakers on the outside that broadcast "this is a pot house". Scalias reasons would fail, yet the physics are the same.
How about if I send you an email. Again I send out the signal, should I expect privacy?
Taking more than one mate is innate in some people,too
We call it divorce. Go ahead make it illegal...And there is a whole set of "benefits" that apply.
like the slavery issue required.
No, what happened to history, slavery was legal and part of the original compromise, property and all that, they had to weave it in and wind it around, because they knew exactly what they were doing, and exactly what the rest of the words they were signing meant...and it took more than an amendment
inalienable rights, if sexuality doesn't count as one of those, what really dose.
What could be more unalienable from a person?
I almost forgot, in our system those can hard to give up.
By 'more than one mate' I meant polygamy. Your argument for homosexual marriage applies just as well to polygamy of any numbers and combination. I don't care, personally. I would end all tax and entitlement benefits based on marital status and numbers of dependents. You want to enter into a contract with a dozen guys--- go cohabit your ass off and reap all the benefits and repercussions attached to such behavior. But that doesn't mean that laws forbidding legal marital status to you are unconstitutional. Again, it was criminal at the time the law was written, so how could the founders think that such a law was unconstitutional? Did they have to specifically address ever single law of the time directly for you to understand that? What the Constitution does allow is a right to work to change the law as attitudes change over time. So don't be so lazy and get the laws changed and stop expecting a handful of unelected activists to force change on society because you think it's 'fair'.
But the constitution was not written that way. The Founder understood that they could not list every right, so they wrote in broad term, yet when it cam to government power they did want to be exact and they enumerated those powers in the text. The constitution was the beginning of a more perfect union, not the end product. When discussing individual rights the founders used vague terms, cruel and unusual, due process, and the like, Yet when it came to congress they drew bright lines, congress shall not, congress shall, and the like. Its clear that they intended that rights could and should be defined according to the understanding available to future people, but not the powers those are set in stone.
Today we have ample evidence that sexuality falls within the scope of the broad definitions. This was information that was just not available at the time. As a matter of fact this debate would have been illegal at the time and punishable by death, so would a report describing the prevalence of homosexuality in nature. But they gave us one of these bright lines to protect us, They said congress shall not, to today we can know more about such a taboo subject than any other time in history. So given the facts we can make new and better designations of things as important to the founding ideas as equal protections.
It is now on you to describe some compelling reason for government to squash those right for the better good or protection of society
OK, so you just said you think that it's up to unelected lifetime tenured judges to decide when previously held approaches to law are 'unfair' and that the original founders were too ignorant to 'understand'. We disagree. As for the argument, I think homosexuality has been taboo to varying degrees in virtually all human society throughout history for a reason---- transmission of diseases. Men who engage in anal sex clearly spread several deadly diseases more readily than hetero sex, despite all the hysterical propaganda to the contrary, especially in the age before prophylactics and antibacterial agents. Now, not so much so the taboo is lessening. Like most acts judged to be 'immoral' in the past, it was not conducive to the continuation of the species, something that is less important these days, for good or bad remains to be seen. Monogamous relationships between men and women seem to be the most beneficial to the species and cultures, and that's why it has been judged the 'moral' choice. Survival of the fittest. Why do you think homo sex has been judged 'taboo' and even illegal up until very recently and still is in much of the world?
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to decide when previously held approaches to law are 'unfair' and that the original founders were too ignorant to 'understand'.
I don't think so, as a matter of fact I am sure I did not portray the founder as ignorant, I portrayed them as
gifted if anything!
has been taboo to varying degrees in virtually all human society throughout history for a reason---- transmission of diseases. Men who engage in anal sex clearly spread several deadly diseases more readily than hetero sex
Well that's just wrong, read a little more. But at least you do agree that you need some compelling reasons to squash rights that people clearly have...
Why do you think homo sex has been judged 'taboo' and even illegal up until very recently
There is an answer, but I don't think it what you think.
And seriously, if your looking for morals, history is the wrong place. I don't think there has ever been a more moral society than modern society..
'This was information that was just not available at the time.'
If that is calling them 'ignorant', then what is it?
Morality changes over time and I hardly think those who come after are in a position to judge what was moral or immoral at a particular place of time. It's gotten human beings pretty far as a species so far.
If you think there is an answer for why Homosexuality has been judged immoral throughout virtually all of history that doesn't involve continuation of the species, man up and say it.
My statement that male-male anal intercourse is far more conducive to transmission of deadly diseases may not be politically correct, but it is irrefutably proven fact. I had this debate with you some time back in the case of AIDS, remember? Common sense should be all one needs to understand that, it's used to be ingrained in human DNA, but here is a little tidbit from a study that shows what and why homosexuality has always been taboo in human history until recently:
''However, AIDS is by far most common among the homosexual population in the United States, primarily because the type and frequency of sexual contact, combined with STDs, is the perfect method of spreading a body-fluid borne virus.
Public health records demonstrate that homosexuals, representing 2 percent of America's population, suffer vastly disproportionate percentages of several of America's most serious STDs, with incidences among homosexuals of diseases like gonorrhea, syphilis, hepatitis A and B, cytomegalovirus, shigellosis, giardiasis, amoebic bowel disease and herpes far exceeding their presence in the general population. These are due to common homosexual practices that include fellatio, anilingus, digital stimulation of the rectum and ingestion of urine and feces.
An exhaustive study in The New England Journal of Medicine, medical literature's only study reporting on homosexuals who kept sexual "diaries," indicated the average homosexual ingests the fecal material of 23 different men each year. The same study indicated the number of annual sexual partners averaged nearly 100. Homosexuals averaged, per year, fellating 106 different men and swallowing 50 of their seminal ejaculations, and 72 penile penetrations of the anus. (Corey, L, and Holmes, K.K., "Sexual Transmission of Hepatitis A in Homosexual Men," New England Journal of Medicine, 1980, vol 302: 435-438; as quoted in "Homosexuality and Civil Rights," Tony Marco, 1992). ''
If that is calling them 'ignorant', then what is it?
But their actions show that they were aware that, they did not have all the facts at hand, and that new facts were sure to materialize.
Not sure how you would classified that as ignorance.
Homosexuality has been judged immoral...man up and say
For the same reasons that we see with headscarves. Why headscarves, is the exact same answer to why homos. Its one of the tools of tyrants.
And the rest that you wrote, you make my point for me.
Those are the consequences.
Societies have know this for a while, and have built institutions and regulations to mediate those consequences. But if you deny those same institutions to some subset of society don't be surprised if they suffer the effects.
I'm not sure I have an idea what that last comment was supposed to mean. Do you think that the reckless and often lethal behavior of homosexuals in the relaxed atmosphere towards them is due to the reluctance to treat their relationships legally on par with traditional marriages between men and women? Surely not....that'd just be funny.
Prior to our recent 'enlightenment', the method to ameliorate the detrimental effects of homosexual practices on society and those who would take part has been to ostracize practitioners and make the acts themselves illegal. I'm sure that came through human experience. We still do the same with other individual decisions, such as drug use. And we waste billions upon billions of dollars to deal with those consequences at the expense of the rest of the population with little concrete benefit to society as a whole. Homosexual acts and the promiscuity that's inherent in the practice along with the relaxed attitudes toward the same in recent decades have killed millions upon millions and cost 100's of billions with no benefit to humanity. That's a fact. It isn't the first time that relaxed 'moral' judgments have contributed to the collapse of societies. The religious see that as judgment from God, I see it more as poor recognition of natural forces which weed out those who think themselves above such things. Which may be the same thing, really. I don't care what people do, as long as I don't have to suffer the consequences, and going forth and multiplying is a little archaic. Let them weed themselves out if they aren't useful and quit wasting resources dealing with the consequences of their wrong headed acts, whatever they may be. Smokers, dopers, buttfuckers--- live or die and see who's left standing. Monagamous gays likely would do just fine and be an asset, but their numbers would be small. I don't presume to tell you what to do, just don't ask me to deal with your poor choices, and I won't ask you to deal with mine. Like you, I see some rough times ahead for humanity and there will be some sorting out to take place. WE are on the edge of some potentially explosive times all around the world and here at home as much as anywhere. And common sense in the form of natural selection will dictate the winners just as it always has and always will. That, and ammunition. Kidding about the last part, sort of. But, better safe than sorry.
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