bloggo ergo sum

I’m watching the C-Span video of Justice Scalia debating with ACLU president Nadine Strossen.

I’m no lawyer, but I’m highly interested in politics, and I try to stay widely informed, so this debate is still exciting for me to listen to. I can’t hit everything, but a few things stuck out as I listened.

Strossen tried to argue that the “due process clause” of the 14th amendment has , in modern times, always been interpreted to “provide protection for implied fundamental rights”. She argued that places all sorts of things in a place free of government regulation. Scalia replied that the 14th amendment merely states that clause protects one’s right to not have certain rights taken away without due process, not that it protects those rights absolutely.

Strossen is so full of herself, and the things she’s saying could be contradicted by anyone who has exercised his ability to read. Good grief.

Later, she tried to assert that “…thankfully, the supreme court did have an evolving interpretation of the equal protection clause…”. I don’t understand how someone could blind themselves to the point of believing that making words meaningless is good for the law. I’ve always understood the desired outcome, which is many times right and noble, but I’ve never understood how someone could justify to themselves that it would make the law better to make it meaningless. She then argued that unaccountable judges are best positioned to be the defenders of minority rights. What hogwash. And she was a law professor? How can someone so educated be unable to read the constitution itself and ascertain its plain meaning? She went on to explain (to those of us who haven’t evovled into this higher state of enlightenment, obviously — you know, those of us who read words and confine them to their meaning, rather than making life a giant game of balderdash) that the framers used very specific language in some places in the constitution and not in others. My response to that is that its highly dependent on your point of view. 250 years ago, the phrase “due process” probably was not nearly as general and broad and meaningless as it is made out to be in modern legal culture. Think from the other direction. Imagine if I wrote a sentence containing the phrase “the automobile is responsible for the dramatic increases in mobility in the American family”, and someone read it a century from now, and interpreted the word “automobile” to be highly metaphysical or allegorical, allowing him to say it means whatever he wants it to mean, when in fact, I was referring to the literal creation of the internal gas-combustion engine and its mass manufacture in the United States. To those of us in this era, the phrase would be quite plain, unintellectual, unphilosophical, and easily understood. That’s what the constitution is. Where there may be phrases in the contitution that seem vague or broad to us, it may be that the framers never thought that modern man would misunderstand them.

Last item (this is already long). At 21 minutes into the debate, Strossen asserted

“…unless the framers gave a power to the government, the presumption is that we as individuals have that freedom that government may not intrude upon. Where in the constitution does the government have the power to tell free individuals — adults — what we may or may not do in the privacy of our own homes, with our own bodies, and with those we choose to live with?”

Firstly, she gets it wrong in her first sentence. Individuals do not retain powers that aren’t given to the federal government, states do. I can only assume that she was referring to the federal government because there is no separation of powers clause that applies to states vs individuals. Those states may choose to delegate those powers away such that they are executed at the most local level or not executed at all, but one should not infer that the states (i.e., state governments) do not have the power to exercise them. The state of Texas, I believe, was within its right to legislate against the sexual practice of sodomy. We legislate against incest too, and nobody (a little Strossesque hyperbole, if you will) thinks there’s anything wrong with that. If Texans don’t like it, then they need to have a meeting with their representatives in the state legislature and persuade them of their position. I guess that also responds to the question she asks in the second half of the quote (Just in case you were wondering, I’m a strong supporter of states’ rights and federalism).