On Oct 28, 2009, at 7:48 AM, Michael Pollak wrote:
>
> On Tue, 27 Oct 2009, Shane Mage wrote:
>
>>> As far as our desires are concerned, originalism is the worst
>>> doctrine ever invented, and Scalia invented it, so I hate him for
>>> it. But I wish someone on the left would invent an equal and
>>> opposite interpretive doctrine that was as politically snappy and
>>> legally effective as his...
>>
>> It may not be "snappy" or "legally effective," but the only
>> intellectually solid refutation of Scalia is *literalism*--the
>> Constitution means exactly what it says, from the preamble through
>> the whole Bill of Rights. It is "ordained" and "established" by
>> *the people*. "People" ("we" proves "people" to be the plural of
>> person) means all the persons. "Rights" pertain to people as
>> persons (the word citizen does not appear in the Bill of Rights)
>> and all people have Constitutionally protected rights, of a dignity
>> equal to those specifically enumerated, that cannot be "denied or
>> disparaged" merely because they were not enumerated in the Bill.
>> The Federal government has no power to enact laws not "pursuant
>> to" (consistent with) the Constitution, or not specifically
>> authorized by it. etc., etc.
>
> This is a very intelligent interpretative strategy. It's related to
> the one that created the privacy right in the first place. But
> there are several big problems with it.
>
> To start with, you've shown the constitution can't ban buttsex or
> abortion. But that's never been what's at issue. Rather it's the
> right of the states to ban them.
My point here is that "rights" and "freedoms" pertain to people, and as such are as protected against violation by state as by federal governments. The several states have governmental "powers" reserved to them but not constitutional "rights." So if states violate "rights" they are exercising their "powers" contrary to, not "pursuant to," the constitution and so the bans are legally null and void. Sexual *privacy* is constitutionally protected by the Ninth Amendment (to argue the contrary one must maintain that privacy of one's body is not a "right" even though privacy of one's "papers and effects" is a constitutionally protected right).
> If you make your stand on the idea that the federal law has no
> power to enact laws not specifically authorized by the constitution,
> practically speaking it will give the states more leeway to do
> dastardly things, not less. (This oddly is kind of originalist --
> the bill of rights originally didn't apply to states or municipal
> governments at all. They could abridge them all they wanted.)
As I point out above, this is wrong. Rights are explicitly defined in
the constitution as pertaining to persons, and as such are protected
as much against state as against federal violation--and they are
protected by the constitution not by federal statutory law.
Practically speaking, the enormous expansion of federal power
(especially on pretext of "regulating" interstate commerce) was
motivated above all by the need to prevent progressive, not
"dastardly," state legislation like the "Granger laws."
>
> Secondly, what we are talking about here is not the federal power to
> pass laws, but rather the power of judicial review, which isn't even
> in the constitution. It was created by Marbury vs. Madison -- a
> case many people think is a monster of bad reasoning. (And others
> think is a jewel of such reasoning -- so much for literalism and not
> needing interpretation because things are so obvious).
>
When judges swear to "uphold the constitution" they gain the power,
and the duty, of judicial review. When a statute is null and void
because it is not "pursuant to the constitution" it is the judges'
sworn duty to dismiss it as unconstitutional. Marbury vs. Madison
created nothing. It merely recognized what is constitutionally
required of the Court.
> Thirdly, buttsex and abortion are both based on the right to
> privacy. And as Potter said, you can search all day and night but
> you'll never find that right mentioned in the constitution. Even
> its discoverers admitted they found it in the "penumbra" of the bill
> of rights...
"Penumbra" is obiter dicta. The right to sexual privacy is firmly based on the Ninth Amendment--which the entire Federal judiciary has been determined to ignore throughout its history leaving no jurisprudential precedents usable for filling up the paper required for a "respectable" Supreme Court opinion.
> ... What froze the constitution was John Marshall's invention of
> judicial review and the idea of judicial supremacy -- the idea that
> the Supreme Court is the branch with power to settle disputes over
> whether something is constitutional.
>
It is not judicial review but "judicial supremacy" that is the
malevolent doctrine. Not because it places the judiciary above "other
branches" (which had already agreed on any federal law that came
before the courts) but because it places the established judiciary
above the *people* and, by the malevolent workings of "precedent,"
above all future generations of legislators, judges, and people.
> ...And the chief guy who was against all this, and went to his grave
> denouncing judicial review as violating the essence of democracy,
> politics and the what the founders intended in the
> constitution...is Jefferson.
But Jefferson (who of all "founders" had least to do with the constitution) himself acted with total disregard for the constitution when it suited him. The Louisiana Purchase was flatly unconstitutional as was the Treason prosecution against Aaron Burr (it was Marshall's adherence to the constitution in the Burr case, not his Marbury decision, that earned him Jefferson's undying hatred). Nevertheless, just as Marshall was right on the basic principle of Marbury so Jefferson and Madison were right when they declared the unconstitutional "Alien and Sedition Acts" null and void in the Virginia and Kentucky Resolutions.
Shane Mage
> This cosmos did none of gods or men make, but it
> always was and is and shall be: an everlasting fire,
> kindling in measures and going out in measures."
>
> Herakleitos of Ephesos