*applause*

Good job!

I appreciate your over all point, and while my Constitutional Law is a little rusty, Scalia's point that there's no Article II - which creates the Executive (and sets up the Electoral College) - right to sufferage is a perfectly defensible one, because it has the advantage of being true.

There's a guarantee that states have a Republican form of government (the "guarantee clause") but beyond that, there's not much in the original Constitution itself - and certainly not in Article II.

Constitutional voting rights (and why the Supremes have jurisdiction at all) come out of the Civil War amendments (14th and 15th) and then 17th (direct election of Senators), 19th (women's sufferage) and 26th (18 year old sufferage). And most of hte SUpreme Court opinions on the matter come out of that stuff.

Just because one says that there's no Article II right to sufferage, doesn't mean he's suggesting that he'd even do anything to limit voting rights when the Supreme Court precedent is pretty robust on this point.

Best,
-A

Andrew

First, let me reiterate that I am not a lawyer, altough I am planning on rectifying that situation.

I did not mean to imply that Scalia's position on Article II was indefensible (although, to be frank, I think his position is badly thought out) or meant that he would restrict voting rights (as I did state in my post). I only meant to highlight his already narrow reading of individual rights. That narrow reading makes his arguments about minimum rights and war time rights even ore disturbing than they would normally be.

SayUncle

Thanks. I think hell just froze over ;)

No, I took your point, I just think it's easy to overread Scalia's textual and original intent arguments, I think they are a consistent and important way to view legislative intent... but no, you didn't say Scalia was trying to squelch voting rights, and didn't mean to mischaracterize your arguments and I apologize if I did.

By the way, I'm not toooooo far out of law school (Chicago '97), so if you are working on applying to law school, don't be shy about hitting me up with an email for whatever my random thoughts might be worth.

Best,
-A

Shouldn't this go to the top of the list of questions asked of court nominees in the future: "Do you find Justice Scalia's theory of 'minimal and maximal' rights Constitutionally defensible?"

A lawyer but not a constitutional lawyer -- Scalia's statement as a guiding principle has to be wrong, but as applied in some circumstances could be accurate. Most constitutional challenges address state efforts that arguably curtail one or more rights. For instance, loitering prohibitions that impinge the right to assemble, or statutes that outlaw disrespectful actions taken agains a U.S. flag. When the SC gets these challenges it does not apply a "margin of error" test that gives individuals preference over the state in order to avoid any possibility that someone's rights *might* be infringed under some hypothetical interpretation of the law. No, indeed, it looks to see whether the law in question infringes a right either ab initio or as applied, and if so, whether the law has a compelling justification (most of these laws don't so it's no contest). Even with a compelling justification, the SC looks to see whether there is some other way to accomplish the state's purpose. Which means that laws that are meant to avoid public emergencies (in times of war) might survive constitutional challenge even though such a law enacted for some *other* purpose may not. So in many ways our "minimum" rights are just the same as our "maximum" rights most of the time, absent public emergency -- we have the rights we have, that's why they call them rights. (Which is why the concept of a permanent public emergency should be a concern to everybody.) There's no way to address this using a bright line test -- just say to yourself "Law like love," which is a W.H. Auden poem.

Barbara

Thanks for your explanation.

I understand how, in individual cases, government may override individual rights. What disturbs me about Scalia's position is that he seems to be saying that, in the general case, the courts have expanded rights beyond where the COnstitution requires, and that rolling back those rights becomes easier and appropriate in times of war. Scalia does not have a good record on criminal rights or civil rights, reading the Constitution in an extraordinarily narrow manner. Scalia's new doctrine seems to be saying that the threshold for "compelling state interest" is lower than most people would assume, and has room in war time to go lower still.

Andrew

Nothing to apologize for - I was concerned that I had not expressed myself clearly enough originally.

No, you are right -- that's how I interpreted what Scalia was saying and I think that he is wrong both on principle and historically. There's no way that one can say that the SC has expanded rights beyond what the Constitution requires, unless one believes (as Scalia might) that the Court has been in error in major cases but Scalia never says this outright, except for maybe the case of abortion. I am not the biggest fan of Scalia but he's not a caricature either. In general, he strikes me as someone who is extremely uncomfortable with the idea of disorder and individual nonconformity. So yes, my guess that his view of compelling state interest is wider than mine or yours. Yes, totally ironic given that most conservatives claim to want the government out of our lives. But really, it's been clear for at least a decade that there is an alliance of convenience between conservatives such as Scalia and more libertarian "economic" conservatives.

Barbara

I agree with a lot of your charecterization of Scalia, although I would add that his fundamentalist religious beliefs also appear to be a large factor in his decision making.

Frankly, while I think very poorly of OI, I think textual analysis is one of the best methods of Constitutional interpretation - and if he used it more consistantly, I think the Court would be better served.

While disturbing, this is not shocking. I was at a dinner over 10 years ago when CJOTUS Rehnquist said the "War on Drugs" meant wartime reductions in civil liberties to address that threat

I cannot argue the law here but when I hear Scalia say there is no right to vote I am inclined to hear him in light of his stand on the Bush-Gore case. Given his approach there what would prevent him from upholding a claim by the Bush Administration that blocks an election in 2004? Bush now has the Congress, the Presidency, the biggest army in the world; he's paying off the worlds major corporations, and the American people have bought his lies about the war with Iraq. Why wouldn't Bush utilize Scalia's argument? With theSC in his pocket who would be able to argue with him?

To put out a crude metaphor, Rehnquist, Scalia and the three other republican "Extreme Court" justices have sucked air out of Bush's butt since before he was chosen by them.

These five are the poorest excuse for "Extreme Court" justices I have ever seen. They are worse than the judges in the forties and fifties.

I think the Democrats ought to filibuster any nomination to any judgeship that Bush tries. So far, so good. I remember Clinton's frustrations with the same delay tactics by republicans. Let's let them have some of their own medicine.

If I were alive today, Scalia would be killed.

Scalia did at least vote correctly on two cases:
flag burning (protected speech) and search and
seizure (infrared scanning for marijuana grow
lamps without a warrant is unconstitutional). But
he probably did it for the wrong reasons -- he
did it because the prohibitions on government
doing those things were specifically enumerated.

The constitution doesn't "give" you rights -- it
spells out the functions of government and limits
their power. Rights are negative, not positive.
Scalia has it all backwards. The government doesn
"give" you rights -- it takes some of them away.
The Constitution limits what government can do --
it does not say what you can do, or forbid you
from doing anything not enumerated in it.

Scalia will likely be the next chief justice when
Rehnquist retires.

Scalia is the reason we anti-federalists fought
against the Constitution -- because we knew it
would be used to "minimize" freedom.

Impeach Scalia:

http://www.lewrockwell.com/stromberg/stromberg52.html

Give me liberty or give me death!

That was a very interesting article to read. I think our Supreme Court Justices should be all about defending the most possible rights, rather than the bare minimum. But that's just my view on the court. I understand that the purpose of the court is simply to interpret Constitutional law, and not meant to find all the loopholes in order to drop charges.

I think it is very dangerous that he even talks about limiting voting laws. Because voting is what democracy is based upon. I think it's even MORE important in times of war, because the people should be able to decide the course of action the country will be taking. Often times in elections, we vote based upon predictable situations, such as healthcare, employment, and tax situations. But one cannot accurately predict whether we will go to war or not, so it is difficult to pick the candidate you think will properly represent your view about how to handle such battles. So I think that if the general public disagrees with how the government is handling anything associated with a war, they should be allowed to oust them in order to pursue a more desirable course of action with better representatives of the people.

I do believe the government has additional obligations in times of war, but I don't think that should limit the rights of the people. The Constitution wasn't written to be enforced whenever it was convenient. It was meant to provide always. And the Framers did say that the Constitution and all its amendments were simply a skeleton of the government, and not necessarily the whole truth. It's dangerous to take such a strict interpretation of the document when it's so vague to begin with, not to mention the fact that times and situations change. One must be able to adapt to a new culture if things shift in some direction. What worked over 200 years ago may not be what society needs to day, so that needs to be taken into consideration. Scalia needs to not base his judgements totally on the views of what seemed appropriate in the 18th century.

In reply to Jeffrey Kramer...I'm not sure if I totally understood him correctly, and I will need to reread in case.

The point I disagree with is that the Justices do not consider hypothetical situations. I think generally, that is correct, because the hypothetical situation is not the one up for judgement. But I do think that the Justices consider their decision and how it will affect future situations somewhat, because they understand that they are setting a precident. The decision they make may be used in future cases with similarities, but that aren't necessarily identical cases. Someone might argue 'Well, the SC ruled this way in this case that is so similar to mine, so I believe the ruling in my case should be the same.' So it is important to consider how it might affect other circumstances share some characteristics.