mike49

The split that occurs in our country over Judges comes down to the beliefs of these individuals: Breyer and Scalia. Breyer the "Living Constitution"...Scalia the "Literalist".

I come down on the Scalia side.

The constitution must be interpreted as was meant when it was ratified. If this is not true then we have no constitution. Instead we are ruled by the whims of the Justices on the court. They can decide, based on their "goodness", what the constitution says. We can take all of our social issues to them and they can "devine" what is best for us.

We can be sheep and without a democratic responsibility to decide major issues of the day within the democratic process.

The Living Constitution is no constitution.

Kandahar

I generally agree that a literal interpretation of the Constitution is better, but I don't think Antonin Scalia really embodies that quality. All to often, he interprets the Constitution to match his own political views just like Stephen Breyer does.

For example, Scalia believes that the federal government doesn't have the right to make nationwide laws protecting abortion...yet he does believe the federal government has the right to make nationwide laws prohibiting drugs. The reality, of course, is the federal government has no constitutional right to do either of these things. I'm hard-pressed to find any constitutional distinction between these two scenarios; what it comes down to is that Scalia simply doesn't like drugs and abortion.

Scalia is only a literalist when it suits his purposes.

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mike49

I would disagree with you on the drugs and abortion question.

Roe v. Wade should be overturned because it lacks any credibility within the constitution. It is clearly a State issue and should be dealt with there.

The drugs issue is a Federal one. The Congress has the power to regulate interstate commerce. Drugs are interstate commerce.

M14 Shooter

Interstate commerce clause.
If the federal government, under the powers granted to it by this clause, as upheld more than 70 years ago, can force an Ohio wheat farmer to sell his crop, then it can regulate and/or prohibit the sale of drugs.

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M14 Shooter

Correct on both counts, except that the sale of drugs may also be intrastate commerce that affetcts interstate commerce - something the FedGvmnt also has the power to regulate.

galenrox

Well, hypothetically, by that logic the commerce clause could also prohibit abortion laws, because abortions cost money, and since restrictions can force people go out of state to get the abortion, that would qualify as interstate commerce, and thus the federal government would also have the right to cover that too.

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M14 Shooter

Well, if you want to argue that, thats fine.
But it doesnt do anything to weaken the argument that the ICC does give the FedGov the power to ban the sale of drugs.

Kandahar

How is the sale of drugs more affected by the Interstate Commerce Clause than the sale of abortions?

The people who wrote the Constitution never had any intention of the Interstate Commerce Clause being used to justify whatever the hell the federal government felt like doing. This clause has been absolutely raped by our government during the last 70 years. Congress should be restricted to the powers enumerated in the Constitution.

M14 Shooter

Well, I have to agree with you there.

Connecticutter

This whole precident that because the Federal government can regulate interstate commerce, it can also regulate anything that "affects" interstate commerce should be overturned, in my opinion. EVERYTHING affects interstate commerce, and therefore the precident destroyed the limits set forth by our constition and is unconstitutional.

I believe that the constitution should be taken literally. Otherwise, it has no meaning. What if you were talking to your boss about your employment contract, and the boss says, "well - this is actually a living and breathing document." That's not good news.

There are certain phrases that are meant to be reinterpreted. "Cruel and Unusual punishment" for example changes and attitudes change and as we learn more about the various kinds of punishments and their effects on human beings.

However, I believe that phrases such as this are few, whereas most of the constitution is pretty darn clear.