Scalia campaigns for chief justice. fitz feels bad. he also speaks his mind
I talked crap @ 9:34 p.m. on 03.14.05
“What was ‘cruel and unusual’ and unconstitutional in 1791 remains that today. Executing someone under 18 was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid, it may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea. But the people can … eliminate those stupidities if and when they want. … All you need is a legislature and the ballot box.”
Scalia said this as part of his dissenting opinion in favor of executing children under 18 years.
Scalia has recently allowed multiple speeches to be telivised. in these he has appeared "cummier" and more friendly than has previously been true. many suspect that he is campaigning for the position of Chief justice of the supreme court.
part of my displeasure of the thought of scalia becoming the next CJ stems from his belief that the constitution is not a living document, but is intended to apply to society in exactly the same way id did nearly 220 years after it was written. This is evidenced by his remarks allowing child executions. While i believe its a valid point he makes in saying that if the people dont want something, they will vote against it, i still believe that in many cases, people are overly influenced by their own interests, too legally ignorant to know what is best for the country, and otherwise unfit to make many decisions that come before them.
Case in point are numerous referendums dealing with state-constitutional ammendments prohibiting gay marriage. as many of my friends may know, i am a strong proponent of gay marriage for a number of reasons. firstly, i have never heard what i would consider a sufficiently good and legal argument against it; only arguments involving religious doctrine, the bible, and tradition.
secondly, i am a proponent of gay marriage on the grounds of brown v. board of education, stating that civil unions, considered to be "ok" for gays violate separate but equal...ness. as well, i feel that prohibiting gay marriage unfairly infringes upon the rights of gays.
A great percentage of the people voting in these referendums (both proponents and opponents of gay marriage) vote not on their interpretation of law or the constitution, or what is legally "right" but instead what they feel is morally right, often an extention of religious upbringing. just because the majority of the population doesnt like something, doesnt mean its bad, or should be prohibited, which is in danger of becoming the case in a number of states.
Instead of promoting scalia to CJ upon rhenquist's retirement/death, i would promote the promotion of a justice who is more in favor of a "liberal" interpretation of the constitution that has been mildly adapted to apply to the society and realities of the day. I realize that this might sound hippocritical: complaining that people vote based on their morals, and as a product of society; then turning around and saying that the constitution be adapted to reflect the society of the day. however, i would think that many people feel less than secure knowing that an uneducated and selfish group of people has the ability to deny one one's civil rights.
as a sidenote, i would like to strike down the use of "tradition" as an argument in favor of most anything at all. this has come in to question both in brejcha's class, and other places, debating, among other things, gay marriage. saying "we should do it this way because we have always dont it this way" is in my opinion, a just plain bad argument. this argument could apply to slavery, women sufferage, interratial marriage (first legally allowed in the 40's)and an innumerable amount of other topics. Tradition might be used to justify many good policies, however the use of the tradition argument should never be even remotely necessary to justify doing something. Brejcha uses things like the "tradition of education" to justify that using tradition as an argument is good. however, we have public education because it obviously benefits society in numerous ways, including economically. we do not sit down and say "why should we continue providing public education" then reply "oh! well we've been doing it for a while, we might as well keep doing it" can anyone think of using tradition as the principal justification for either placing laws on the books, or removing them (laws) from the books? just as tradition cannot justify prohibition of interracial marriage or women sufferage, or slavery, it cannot be used to prohibit gay marriage.
