A Conversation on the Constitution: Judicial Interpretation Justices Stephen G. Breyer and Antonin Scalia and a group of students discuss the different theories of how to interpret and apply the Constitution to cases.
So great to find this. As a third year law student who’s read hundreds of SCOTUS opinions, these two’s opinions have had the most impact to me. And for different reasons, they are both incredible writers and advocates for their positions. Breyer because he is a natural teacher, has a very matter-of-fact delivery, pauses at appropriate times, goes step by step for complexities. And, most importantly, he has a kind, good-hearted demeanor that comes of just as well in his writing. It makes you trust him, and believe he really may be correct for what’s best for the country on a given matter. Scalia because he is unyielding. If you disagree with him on a point, he’ll give you ten other reasons for why you should still come to the same conclusion. Fiery and passionate. And, just like Breyer, believable. He approaches things with a sort of personal-stake in it, like you are offending something he has dear to his heart. Both make you really take it in and you walk away feeling like you thoroughly understand the position.
I think Scalia’s missing something by not being a contextualist -but always clinging to the absolutist (mathematical) insistence on ONLY being a textualist.
@@avivavogelgabriel5482 i agree slightly. my main problem is who is to say what the context is when there are two different and opposing value systems held by a majority of the public? how do we get past that?
I like them both. They both feel as though they're defending something- Briar: the values of the constitution. Scalia: the constitution. It's interesting to see that conflict play out.
The values of the Constitution? Values according to him? Because at least half the population and even the Founding Fathers and framers of the Constitution did not agree with him.
LMAO, you cant beat someone up then say "i value you" Briar doesnt give a shit about the constitution, or he would stick to what it says, not what he thinks it should say.
@@ronitkrovidi7156 Breyer does believe in taking things away that no one who voted for the bill of rights actually wanted (see death penalty and personal firearm ownership). This is most undemocratic thing I know of in America. Breyer just wants what he thinks is moral, caring nothing for what the history is.
@@3jacen that doesn't matter. it frankly doesn't matter what the founding fathers thought when they wrote something. It's law, so we interpret it word for word like we would any other piece of English text. No hidden or double meanings. The intent is irrelevant. The words are what's important.
Two men with differing opinions having a civilized, cordial, and respectful discussion. Where have these values gone? Why has US politics descended into near barbarity?
Because we have allowed the ghetto survivalist mentality to creep into daily life in an effort to claim we are truly diverse and not racist. We may not be racist, but we must be classist. Values help keep us stable and help us pass on methods which hold society together. Poor people often, as with priveliged people at times, have been deprived of information, time, effort, and the benefit of instruction which comes from plenty. In other words, you don't let a lumberjack curate a museum of modern arts done in water color. They generally don't have the background to make those calls. Doesn't make a lumberjack a bad person, it just means they don't have the kind of expertise to make an informed judgment. You also should not let a starving man make the grocery order. You have 10 money's in a cages. Nine are climbing the walls. Give it a few minutes and you'll have ten climbing the walls.
I didn’t leave the Democratic part; the Democratic Party left me - Ronald Reagan. The Democratic Party has embraced a platform that is radical and completely antithetical to what the forefathers goal a limited government and a heightened view of the rights of the individual
Sir-------------asking how we " descended " , all you need do is look to Social Media --------computer games-------weak parenting -------loss of faith in religion------& of course, DJT, & his utter lack of care or concern for the rule of law , civility, decency , & serious social discourse. also, look to the rise of the Far-Right , & how teens are raised listening to disgusting rap & hip-hop , that insults women , curses & uses profanity all the time ; there are many reasons for how we have utterly descended into near madness/.--------------------------------Wolfsky9, 74 y/o
Justice Scalia knew history and had a high respect for individual liberty and its authority over the governments, that is how the framers intended our Constitution to function and is verifiable to anyone intellectually honest.
Scalia was really an excellent judge. He understood what the role should and should not entail. Breyer is just a politician legislating from the bench.
Don't think you (and Scalia) understood the value argument. Basically he was too stubborn to listen to others. Law is after all a values document - that codifies society's values in legal code. So it's pretty obtuse to just look at words and decide that's the law. As per the original constitution only wealthy white men with property had equal rights - everyone else was subordinate. Now, if you need to pass a legislation to expand these fundamental rights via majority vote, that defeats the basic purpose of constitution which is to guarantee fundamental minority rights against majority. That's why you need to be a bit smarter and try to understand the underlying values and not just words from 18th century.
You are completely wrong. Scalia was an evil man wrapped up in speech that was clever enough to make people like you think that he was an "intellectual? You ought to try reading more.
@@commiefarleftideologue1169 there are two types of law One is procedural and the other subjective. And rigidifying an ethos is what subjective law does, just because time has gone does not change the law and it's implication. This is the reason why glossaries are added to bills to prevent wayward judges changing law from its derived meaning by imparting new interpretation to the text.
Listening to Judge Breyer provides great clarity as to the problems both on the Court and in our society. Feelings and undefinable methods are what have led us onto the precipe to which we find ourselves standing at this very moment. Judge Barrett can't get here fast enough to provide stability and steer the Court back onto the road in which it was intended to travel.
The definitions and lists approach makes articulation easier. And management. Court's job is the keeper, not changer, of definitions. Legislatures job is the list and changes to definitions. Precedent shows changes in definitions over time. Court should not effect list changes or definition changes ("legislating from the bench"). Constitution gives this to the Legislature. The interstate commerce clause example as explained by Judge Breyer seemed to require going back to the beginning of time, ignoring the chariot system (still in OD effect today) and not simply adding horseless carriage to the list, but reinventing the law. Judge Scalia seemed to think that the horseless carriage could be added to a list of covered items with no basic problems in the notions of regulation of interstate commerce. In activist-revisionist courts, court precedents have altered both definitions and list items. For openers. As to "cruel and unusual", capital punishment was not on list. Needed a vote to change list. As Justice Scalia pointed out, state legislatures voted on the subject later. Justice Breyer seems not to understand the concept of "if it is not expressly forbidden then it is permitted."
Lear King of Albion: Will be mulling your provocative and smart observations over in my mind for a while; I have never even cracked a paragraph in a 6th-grade civics or social studies text that may have obliquely and simplistically referred for a moment to courts, laws, fundamentalist/literal vs. interpretive/metaphorical ways of applying texts like the Torah, the New Testament, the U.S. Constitution, the Bill of Rights, languages, etc. #living #preserved #ossified #evolving #poetic #mathematical #spiritual / #philosophical #liturgical / pedagogical #Eastern (religions and philosophies) #Western (religions and philosophies)
Where Breyer gets it wrong is when he speaks of an evolving standard in cases where the practices he wishes to prohibit were present at the time of the text which demonstrate the very value he claims has changed. Those who wrote the text while simultaneously allowing a practice were telling you what the standard is.
The problem with not holding the standard of execution as death in Title 18 sect 241 then by making it a prison sentence then it makes those who assault your rights slide by because you can get out of prison and go back and do it again and it never become an absolute deterrent to go against Constitutional rights and respect for it.
I myself am a "textualist" in constitutional interpretation. That means we interpret the words LITERALLY which can lead to both "liberal" and "conservative" results. That said, I find myself in agreement with both Justices Scalia and Breyer in this dialogue.
Then you come to absurd conclusions which is why textualists, who are people like Scalia, use a reasonable interpretation of the law and constitution. Interpreting the first amendment literally would allow the government to punish letters, tweets, text messages and so on.
The Originalist view makes the most sense, but it’s capital “A” Academic, and that’s not always applicable to real life, though laws make it so that they have to be applicable
Breyer is just wrong. He is not there to decide what the law should be, but only if the law is legal under the Constitution or not. People forget we are collection of states. Though the federal level is important, it now overwhelmingly so ... in size, scope, power and more. Let the people decide.
He is not trying to legislate from bench. He is being smarter judge - by trying to understand underlying core principles/values behind words from 18th century. People decide by majority - but courts decide whether majority is overriding minority rights. If we go by words from original constitution, only wealthy white men with property have equal citizenship rights. But by underlying principle of equality, we could extend it to every minority group in the country - when we understood minorities had been subjugated.
@@commiefarleftideologue1169 i guess you missed u.s history and civics class. You do know that we have more than 10 amendments and those 17 new ones extends the franchise to all American citizens. That was not a result of breyer's living constitutionalist jurisprudence.
and the judiciary has a duty to uphold the law of the land if a state is acting in a way that seems to infringe upon citizens' constitutional rights. One power the Supreme Court is to interpret what the Constitutional language is saying. This isn't an arbitrary decision based on the individual whims and fancies of any one particular justice. it's based on centuries of court precedence. Breyer isn't moulding the law to his liking, but applying it in a way that is both consistent with the common law and relevant in a contemporary setting
So the constitution does say that not only do you have the right to privacy, but you have the right to abort living humans because of arbitrary dates set by a panel of 9 unelected judges? Point me to the text.
The trouble with originalism is this. Sometimes - "cruel and unusual punishment" - the constitution uses language that is apt to be understood differently over time. By putting it in the constitution, it's become a question of law. Judges have to determine the meaning. An originalist would say, ok, X amounts to, what 21st century American judges consider "cruel and unusual punishment". But because 18th century people understood it differently, the reasonable meaning of the words to contemporary Americans should be ignored.
Yep, originalism isn't perfect, but it will always be better than seeing the constitution as something to personally interpret and install values into that the founders never intended for. The constitution should rule, not some assholes wearing a robe. (I know they're nice people its just for the sake of argument) Also, like Scalia said, all we need to do is go back and look at what it meant at the time. When no cruel and unusual punishments was adopted, there was still the death penalty, so the framers clearly didnt intend to ban the death penalty with the 8th amendment. Want to get rid of it still? Fine, convince your fellow citizens and hold a vote, its not something that requires a change to the constitution.
@@discojohn8753 I think you'll find that, whenever you have a legal text, there will be argument about what it means. And when there is, "some assholes wearing a robe" are unevitably going to have to rule on it. Still, if you think that your constitution should not be read as reasonably understood by intelligent 21st century Americans, but instead think judges should play historians, well, that's a view to which you are entitiled.
@@DHTCF A part of being a judge is reading the relating material, dummy. Those thing you called "historians", they're called legal material. All judges or lawyers have to study them to actually do their jobs. If the law stayed unchanged for 200 years, and the last cases about it is 200 years ago, you are obligated to read about the case 200 years ago to know the meaning of it. An engineer reading a blueprint of some structure built 200 years ago also have to study the measurement system of it and the regulating principle 200 years ago, it's his job, if you can't do that and make calamitous mistakes just because you "don't want to play historians", you're a joke of an engineer.
The originalist interpretation is whack. No one knows the minds of those who voted in 1791. If the framers specifically meant to say the death penalty is ok, they would have said it. Instead, they choose to make an ambiguous, interpretable statement about values: cruel and unusual. The level of cruelty society was willing to tolerate was simply different then than today.
All of that is interresting but non of it changes the factual barings that prohibition of abortion is an un-equal treatment to rather great degree. What I think they Just need to clearly write out in their judgement. Then let's see how long it does stand. Any party can make consitutional amendments after all. I would say Most americans don't seem to agree with unequal citicens. And people know instinctivly that abortion is right too. Have always done it too. Not that that's an argument in itself. What is interresting is right to live or interrest of state in live of unborn, what's both rooted in the same argumentation really, how does that holde up to time that was written in? Because I agree that for us abortion up until late in the pregnancy wasn't a problem, so that's maybe an argument, because if it was widespread at that time it would be ro understand that it can not have been coverd under a textual approach, what is ofc already being argued. It's also Impossible to argue against it then, bc you have to be non-textualist too & that same treatment of text would have to hold on to the equal treatment clause. What's really I mean surley could be done one just needs to base law on own desires.
Idk I thoght or think that consitution itself forms in some parts the necessery underlying structures for a democracy to function. For example freedom of speach, equality before the law etc. Those are key Things without that democracy dosn't really function. It's more of an aristocrcy who determines things by democratic means withhin own cast. Not that the CTs don't all challenge that to be exactly so.
Ohio , Toledo , Lucas ,County , Holland , Ohio Swanton , Ohio In Toledo , many of unwanted , people we're able too use us in situations' , that we were taught as iilegal , until their affairs' , in wars' in Political wars' , shown us just how , many handles' , voting rights' and other amendments' , that used only for some of whom it seem has , family in ggovernments' offices' that given infornmations' of just what can and could help during crisises , much of evilness / hatred , has all ways been around , now their's , and bigger up rising , in it with all these white people / cultures' , relation that voiced , their oaths' , unto legalized , People / person , of tgeir social media contacted links or family members' . At work place , Political Leaders' , soul band members / singers' , and of foreighners' , mobile ,cell phones / lap top apps'
Show me a legal contract... ANY legal contract, that "evolves through interpretation" over time. Legal contracts by nature are very specific... they have to be. Anything NOT in the original contract has to be added through the amendment process. No "evolutionary" interpretation is legal. That is why we have three branches of government. The congress writes and passes the laws, the president endorses or vetoes them, and once passed, the court compares the legality written into the Constitution against the new law to determine if there is any part or all of the new law that does not pass constitutional scrutiny. Scalia was correct... there is only ONE way to change the Constitution, and that is to AMEND it. Breyer, like his left wing counterparts on the court, is FULL OF LEFT WING BULLSHIT.
What is stunning to me is that there are people that listen to Breyer and nod their heads in agreement ... and that he actually believes, in his heart of hearts, that he is right.
I stand firmly with the originalists. But I see the evolutionists as being an absolute necessity to the function of the court to keep it centred. Justice Scalia once said of his colleague and friend RBG, that while her positions were usually contrary to his own, her arguments made him a better judge.
I don't like both of them! To me interpretation of the constitution is not much different from how other laws are interpreted - A combination of inductive and deductive reasoning with application of facts to the text. Keep it simple!
THE CONSTITUTION IS NOT A GROWING ONE IT IS THE LAW AND STOP TRYING TO TWIST WORDS TO MEAN YOUR AGENDA -- THE LAWS ARE NOT ABOUT CARS OR ROCKETS- THIS IS SPEAKING AS A FOOL----THE LAW MUST STAND AS IT WAS AND IF ONE DOES NOT UNDERSTAND THEN GO BACK TO SCHOOL ....THAT CASE WAS ABOUT OWNING A MAJORITY
We make Scalia king. Cause he understood lawyers shouldn't anoint themselves king. Like the only desirable, albeit impossible, philosopher-king, he wants no part of it. People decide policy. Sleep tight Nino. You planted the seed, we'll water it.
Scalia is right when he says it is tyranny to substitute your judgment for the expressed words in the constitution. At the same time, Scalia will say actual innocence is no defense to a criminal conviction. You need both approaches. Justice is an elusive concept. One must know which legal instrument to use when dealing with a challenging case. The problem is we are enticed by the siren’s call to get to the verdict or decision we want. I like Scalia’s logical mind. I like Bryer’s emotional mind. To get to wise mind, we need both.
There is reasonable mind, and there is emotional mind. The combination of the two is wise mind. You need to be flexible to apply the correct mind to the problem. There are also different tests for different situations. There is the rational basis test and the necessary, compelling test. A good Judge uses the correct test for the correct situation.
In our system of laws, there are two types of guilt. First, there is factual guilt. Factual guilt is a situation where the person actually committed the crime. The second is legal guilt. This is a situation where a court declares a person guilty of a crime. I am raising the issue where a person is found guilty by a court and the person did not commit the crime. I am saying actual innocence should be a defense to a crime. Scalia says actual innocence is no defense to a criminal conviction in a court of law. For me, this kind of thinking is putting the cart before the horse. The Judicial system and its decisions are not more important than Justice. Scalia thinks the judicial are more important than justice. In this situation, my emotional mind and my wise mind tells me Scalia is wrong.
Argument by authority is a poor argument. I too am a trial lawyer with more experience than you. I am really good at my profession. Does that fact make my position correct? You need to do better that a one liner come back that you are right and I am wrong because your a lawyer.
As was Ruth Bader Ginsburg good friends with Antonin Scalia - and most of us know that their methods and ideals of jurisprudence were vastly divergent ... as were the outcomes on the very real lives of the many millions who never elected either of them ...
@@GianlucaBerger It is though. It happens all the time. But tell me this, would you be disappointed if a gay person unfriended someone who believed that gay people are an abomination?
@@ronitkrovidi7156 that’s a bit different though I do get your point. But most Conservatives including myself are not homophobic. It’s liberals who assume that and cause division
@@GianlucaBerger I think those who assume who just a loud minority. From what I have observed among liberals is that they unfriend or disassociate from people who have opinions which go against their very morals and values.
Scalia takes a position that's simpler and that many would agree with, while Breyer is dealing with the more difficult aspects of interpretation. Scalia goes too far by taking that basic notion of originalism, which all agree with and which could probably resolve 90% of cases, and extending it to the difficult 10% of cases where you'd be lying to yourself to say you're not imposing some personal interpretive method. If it was all as simple as Scalia makes it out to be, you could have clerks or robots applying the facts to the law, but laws are often ambiguous and demand judgment (hence we need wise judges) to do some additional interpretation and analysis. Not to mention the fact that every day there are new facts and situations which legislatures writing laws never even thought of, not to mention the founding fathers conceived 200 years ago. Breyer is talking about what it takes, in his views, to make a good informed decision, while Scalia just reiterates the same point
min 19:01 I'm pretty sure, the democratic anxium would state, "No agency shall hold higher authority than Individual Soveriegnty " any thing less would be Tyranny
I side with Breyer more - much more - and YES! this was a GREAT discussion - although I am frustrated by their hugely different definitions for the word “values.” The number two may technically be a “value,” just as “cruel” and “unusual” are “values.” Yet, the “meaning” or “value” of “2” is far more constant and understood consensually across vast centuries, cultures, and lands - while the “meaning” or “value” of “cruel” or “unusual” flux and morph quickly from one decade to another, from one nation’s theocracy and culture to those of another decade and another nation (or state, or tribe, or planet).
Well I’ll be damned!!! I find myself swayed to the originalist perspective on the role of SCOTUS. I’m not sure the more conservative justices necessarily follow their own mandate consistently. 22:05 Bryer does bring up an important issue here. I think this is where much of the dirty fighting takes place! Why can’t our elected officials behave like these two.
Elected officials don't behave like that because voters increasingly have punished those who do. I am a fan of the saying that "Democracy is where everyone gets the government the majority deserves". It follows, therefore, that if people genuinely want bipartisanship they need to vote on how bipartisan their representatives are. Politicians will do what gets them elected. Blaming them while taking no responsibility is one of the worst cop-outs by voters and yet is everywhere (note I'm not accusing you of anything, simply making a general observation). Cheers
The two points are interesting to think about. I'm not going to say who I side with, but, seeing this for my classes shows me that even Supreme Court Justices have to consider many things when interpreting the Constitution for an overall ruling. If you respond please keep it civil, I don't want people arguing in my reply section over who vs. who.
I have my own bias regarding which philosophy should hold the most weight; but this does reinforce why you have 9 justices and not just one. No one judicial philosophy can hold sway in every single case that comes before it, so a consensus has to be formed among justices with competing philosophies. Anything less would be autocratic. OTOH, it also shouldn't be a license to pack the court until you are assured a majority of justices who see things the way you do politically. Then it just becomes an extension of "majority rules, PERIOD." I would've preferred the Constitution had set the # of justices seated on the Supreme Court, but that decision was given to Congress; so ultimately it's up to the people through their representatives to protect the current makeup of the Court in order to avoid the tyranny of the majority.
I think Scalia respects precedent too much. If there was a bad case that flies in the face of a hundred years of consistent precedent before it, I would be far more willing to overrule that one awful case than Scalia seemed willing to do.
The only problem with Scalia’s way is, you leave it to the people and the legislature to change things, but the legislature is controlled now by wealth and special interest and the majority of people aren’t either of those......so the question is do the people really have the power anymore to make changes to the constitution..
@@robertjakoby1052 God forbid the power goes to the people. The alternative is to have a government that’s big which ultimately infringes on the states power. The two go hand in hand
Quite interesting to listen to your conversation and discussions ! Compliments 😌 🎉 Never does your discussions makes a mention of the special occasions of judgments whereat the events may call for the constitution of Courts special and specific with a suitable authority on the topics of disputes and controversies 😢. Are Special Courts out of date ? and even so with the faculties in the Sciences of Laws and Jurisprudence ? As for the topics on abortion , death etc I would like to be served by your answer as to who is the creator/maker of the feutus ... ... the Unseen , Gods , the Allah or the Courts of the so called Empires of Democracies ? Courts led by the uncivilized are nothing but the Courts of the butchers . 😢
I really enjoyed that discussion. It's refreshing to see two people with opposing views sitting down and having a rational conversation on their views and differences. I find myself taking the originalist approach. That's not to say that times don't change and certain intents no longer apply or are irrelevant, but far too often the Evolutionist interpretations are based on fallacy for the purpose of pushing their own agendas and beliefs. As a result, the true intentions and purpose of the Bill of Rights are undermined.
They must use interpretation skills where logical conundrums are there, not on ethical grounds . A judge in court is not immediate reflection of ethics people of realm adhere to, it is legislators. When there is no logical error, different interpretation than original can not be given on ethical grounds.
Breyer's hypothetical about a statute of limitation potentially being an "ex post facto" law (at 16:20), is easy to resolve and shows the impropriety of Breyer's "living Constitution" view. An ex post facto law criminalizes behavior after one commits it. Criminal laws are "substantive." Statutes of limitation are "procedural." Simply lengthening the statute of limitation for a behavior that was criminal when the accused DID it, does not fit the definition of ex-post facto law, Rather, resurrecting the statute of limitation after it had passed, resulted in an unfair "procedure." Thus, the constitutionality of the extended statute of limitation becomes a question of DUE PROCESS. The distinction, though it may be semantical in this particular case, is important because it may not be merely semantical in a later case.
I think what you're saying is, you can't go back and charge the crime from 23 years ago. And I agree. But you could charge a crime 20 years in the future that was committed today.
I was not saying what the court or the government could or could not do. A legislature can always lengthen the statute of limitations on a criminal statute. If that longer limitation period makes a person prosecutable after the first (shorter) limitation period passed, then the new statute of limitation does not constitute an "ex post facto" law because the crime was a crime on the books when the defendant allegedly committed it. Instead, the constitutional issue would be whether the new limitation period violated the defendant's right to due process by being a fundamentally unfair procedure. Breyer was using the reasoning that living constitutionalists frequently use--that the court should change the meaning of a constitutional phrase or privision to fit a fair result. That is improper.
Would the founding fathers even envision that homosexuality would be a right or be decriminalised or legalised, or that abortions, pornography be legalised? I seriously doubt it.
@@jshepard152 isn't the Constitution supreme legislation? That gay pornographic and abortion rights had already been pushed through the courts and certain legislative jurisdictions by dishonest and politically motivated activist judiciary is already outside the legality of the Constitution by the strict interpretation and intent of the foundating fathers.
The older guy does not realize the tyranny that has recently taken place in this country. We cannot have a evolutionary aspect of the constitution or our rights will be taken away, and they have, and we are living it. The question is how bad will it become if we continue to adopt the methods of the evolutionary aspect to the constitution? The younger guy however is scared for the direction this country is headed in with its mind seat geared to 9 men making court decisions.
"There is not right or wrong for me?"......I feel it is really dangerous for a judge to say that......I apreciate both of them but I am not a lawyer,so.....I know this Universe created by God or not, function in a natural way which must be reflected in the laws....isnt t?.....and the first ever laws we accepted like human beeings were religious and moral. The secular ideas came afterwards and have less then 250 years of history....let s see how long will exist!
It is good that there are limitations on democracy. Democracy is mob rule. As the old saying goes, democracy is two wolves and a lamb voting on what is for dinner. We've a republic which means the majority does get its way so long as that way doesn't infringe individual rights. It's why we've a system of government where government is supposed to only exercise those powers explicitly granted to it and some are explicitly denied to it like the 2nd Amendment which speaks of a right that shall not be infringed.
Whenever they talk about the constitution evolving with time, it’s never periods of time that our a week or two weeks… It’s always used in the concert the hundreds of years… The forefathers could never have envisioned this or that. Things can evolve week by week. New technologies are here one day that weren’t here yesterday. The forefathers certainly knew that the passage of time made dramatic changes. In any case, none of these Supreme Court justices would accept the argument that something had “developed “over a short period of time and therefore should be amended in the constitution. Their sticklers on having it so far away, that it’s only interpretive.
Breyer argument, just like Breyer legal writings, make no sense. You don't change the meaning the "meaning" of the Constitution, but you take upon yourself to decide how much the underlying values would be different to the changing society, that is changing the Constitution.
Good grief. Right off the bat that woman gets it wrong. The job of the Supreme Court justices isn't to interpret the Constitution. We all know what the Constitution means. The only people who claim otherwise are those who are muddying the water to try to grow government power. The job of the Supreme Justices isn't to interpret the Constitution but rather to decide whether a law is something the government is allowed to do under the Constitution.
So Breyer say that society has changed but values haven't. Society changes BECAUSE values change. One might even be able to argue that changes in society and changes in value are one and the same. Breyer is once again proving himself a dimwit.
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I think there is a mix of both views. Some amendments and rights are absolute the way they have been phrased, some look to the future to apply societal standards. Like the death penalty discussion that was cited, with the phrasing being "unusual", leaving the notion it shall be interpreted with what is seen unusual at the time a case comes into question and asks for interpretation. On the other hand there are amendments like the second which leave no such interpretation open, because it defines a right that "shall not be infringed", therefore being absolute no matter the year
11:50 Well, who made the Founding Fathers king? Why should we be bound to what they thought was cruel? They wouldnt even want that, if they did, they wouldve just wrote out every punishment they thought was cruel. Most of them explictly favored a "living constiution" and believed many of the immoral practices of their day, slaver for example, should be eliminated.
Pass a law if you don’t want the death penalty. The constitution doesn’t prevent you. The founders gave you a choice. That is the opposite of acting like a king
@@evanb4189 well if a right recognized in the constitution is violated the court will act. The death penalty doesn’t violate the constitution in fact it is recognized as a punishment in the 14 th amendment
The death penalty isn’t a cruel and unusual punishment according to the founders since every state in the new nation had a death penalty and the constitution refers to capital crimes. Later the 14 th amendment said death penalty could be used after due process of law. The constitution doesn’t say SCOTUS can override a state death penalty whenever a majority of it feels like it
It's kinda funny when you think about it - particularly in the case of the 8th amendment. What would he have us do...scratch it out, and then put it back word for word so he can now read it to mean what is currently considered cruel and unusual?
Oh come on Scalia, you seriously think you were appointed only because you're a good lawyer? You do see and recognize how the advice and consent part of appointing a judge works? It often has nothing to do with how good a lawyer you are. I think all of the justices of the supreme Court share that basic quality that they're at least good lawyers. But that's not what ultimately decides who gets on the court and who doesn't. Another example of naive idealism from Scalia.
I realize that this debate is a decade old but how refreshing is it to see smart teenagers sans smartphones relatively engaged and attentive to deep and complex subject matter.
Unlike the present day where in law schools across the country the inmates are running the asylum by violating the very Constitution they're sworn to uphold. It's one thing to have competing or occasionally compatible judicial philosophies deployed in deciding a case; it's another entirely to have ideological activists make their way to the highest court in the land to decide Constitutional issues based on "values" those activists reject. I think it's appalling for law _students_ to form as a pseudo-mob to shout down a speaker before the speaker has even said a word, and effectively sabotage the speaker's right to free speech. 1st Amendment is absolute, in that it applies to everyone -- not just a self-appointed arbiter of what is proper speech and what isn't. If that's all the more respect these _students_ have for _this_ Constitution - to bend, fold, spindle, and mutilate it in order to satisfy an ideological objective - then they have failed law school and should be kicked out before they're handed a license to practice.
Sadly, they all get it wrong. Constitutional does not mean moral. Our founders created a confederation of sovereign states where the states have almost unlimited lawmaking power. The Federal Government has almost no power. The judges are applying the Federal Constitution prohibitions and clarifications to the states because 80 years ago the court thought it would be a morally good idea Slavery was unconstitutionally banned because it is immoral. The reality is that the only constitutional way for society to advance is by individual states passing moral laws urged on them by the people. Indeed our founders intended everyone to judge constitutionality including states. They never intended the Supreme Court to have the last word because you would have 9 unelected kings ruling instead of the Constitution.
The Conservative position is more democratic. Change it. Pass legislation. Pass amendments. The Liberal Position isn't. It has changed by magic or revelation, at the whim of 5 out of 9 Lawyers.
@@jshepard152 The fact that he is Catholic is no secret: www.ncronline.org/blogs/ncr-today/justice-antonin-scalia-very-traditional-catholic www.washingtonian.com/2017/05/02/antonin-scalias-catholic-priest-son-doesnt-like-being-called-a-conservative/ He even considered becoming a priest. He defends the Catholic views of abortion, homosexuality, marriage, etc. despite the twisted logic needed to make them "consistent" with the constitution.
@@byronwatkins2565 Those views of his were the only ones for 200 years after the Constitution was drafted. The extraordinary thing about the Constitution is that it allows for the traditional policies that dominated throughout the 19th century and much of the 20th, but also the mainstream 21th century ones. That’s all Scalia is claiming. You don’t need the Constitution to make progress, you just need to convince your fellow citizens and get things done via Congress or State legislatures.
