But conservatives favor our "freedom":

[underlankers.livejournal.com]

The Constitution says what it says and it doesn’t say anything more,” said Scalia to an audience of 250 people, most of them legal professionals and academics.

The 74-year-old jurist, appointed to the high court by President Ronald Reagan in 1986, warned that government by judges is inevitable when the original meaning of legal language in laws and constitutions is not respected. This attitude, he said, allows “five out of nine hotshot lawyers to run the country.”

“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”

Scalia pointed out that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.

“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word - liberty - nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.”

As per here: http://www.lifesitenews.com/news/justice-scalia-slams-high-court-for-inventing-living-constitution-right-to/

And the other excerpt, also under a cut:

 

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

The 74-year-old justice, leader of the court's conservative wing, is also its most outspoken advocate of "originalism," the doctrine that the Constitution should be interpreted according to the original meaning of those who drafted it.

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention.

 

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/09/17/MNJE1FFTSO.DTL#ixzz16J4VlhL5

_____________________________________

There is so much wrong and evil here that I literally don't know where to start. First, there's that in the society he's referring to, Scalia would have been one of those papist dagoes here to convert the USA to the evils of Popery and to turn the United States into a dictatorship dominated by the Bishop of Rome. Second, when he refers to its original protection it was designed to ensure citizenship for slaves liberated by the 13th Amendment, whose citizenship had never been granted for what I hope should be a blatantly obvious reason by the statesmen of the Old South. This was why the Amendment then and during the high tide of people like Theodore "Permanent solution to the Negro Problem" Bilbo was as controversial as it was.

Third, people like Thaddeus Stevens wanted an amendment that was positive in language, not a negative one, and were forced to accept the negative one after extreme backlash from ex-Confederates and the large racist bloc in the North. Fourth, the idea of a large standing army is very much counter to the original design of the Founders, they hated and feared the very idea as a lead-in to tyranny, vividly illustrated at the time by Catherine II's repression of the only truly popular revolution in Russian history. I predict Scalia here would be as keen to ditch the original intention of *that* aspect of the Constitution as he is to try to twist the 14th Amendment into something with no reference to the rights of women or LGBTQI.

My other comment is that it's a fine irony when a US Supreme Court Justice sounds like a Mullah in Iran arguing that *his* religious legal texts do not permit rights for women under the highest laws of the land.

Even more obvious refutation is obvious: http://www.policyalmanac.org/culture/archive/crs_abortion_overview.shtml at the time the 14th Amendment was adopted abortion was legal in the United States and the concept of outlawing it did not really take off until the 1880s. Even then the first state to adopt an anti-abortion law was Connecticut, the last was.....Kentucky. So the irony is that while the USA at that time was perfectly fine with say, racism against blacks the idea of prohibiting abortion was not one that occurred to too many people in that time or for 20 years afterward.

Not that facts ever trouble reactionaries as it is, but eh......oh, and Scalia also considered the Citizens' United decision constitutional despite the fact that not even Alexander Hamilton, the most pro-Industrialization big-government Founder of them all considered a corporation a "person". A liar and a hypocrite.

Comments

[hardblue.livejournal.com]

“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”

And no doubt he isn't shy to wield that power for his own ideological vision.

[underlankers.livejournal.com]

Indeed. He's another Roger B. Taney, and would be equally disastrous if he had any real power or influence beyond what he already has, which given that the Chief Justice and Bush's other appointment see this activist asshole as a *hero*.....*shudders.*

[underlankers.livejournal.com]

The way most people would see it? None whatsoever.

[telemann.livejournal.com]

Yep. Funny how the literalists start playing footsies with that (e.g. the Post Office). It's like watching a Christian fundamentalist wrestle with conflicting passages in the Bible.

[underlankers.livejournal.com]

Or as noted when they try to rationalize having standing armies but not having say, UHC.

[mrsilence.livejournal.com]

Observing the highest duty of the nation to preserve the life of its citizens is a-ok, and taxing citizens accordingly is just swell, provided it's done at gunpoint.

But any other means, well that's just unreasonable and inhumane. And taxing to that end? Theft by definition!

[a-new-machine.livejournal.com]

Scalia's not a literalist WRT the constitution (anymore), but rather WRT statutes.

[badlydrawnjeff.livejournal.com]

They want to amend the Constitution. You understand the difference, right?

[underlankers.livejournal.com]

Yeah, they want to amend it like they did to outlaw booze and it's the same type of Puritanical assholes advocating both.

[telemann.livejournal.com]

Can you imagine the shit-storm if a slot opened up in one of the conservative seats on SCOTUS during Obama's two term presidency?

[underlankers.livejournal.com]

Oh I'd love to see it.

[badlydrawnjeff.livejournal.com]

First, there's that in the society he's referring to, Scalia would have been one of those papist dagoes here to convert the USA to the evils of Popery and to turn the United States into a dictatorship dominated by the Bishop of Rome

Okay.

Second, when he refers to its original protection it was designed to ensure citizenship for slaves liberated by the 13th Amendment, whose citizenship had never been granted for what I hope should be a blatantly obvious reason by the statesmen of the Old South.

Okay.

Third, people like Thaddeus Stevens wanted an amendment that was positive in language, not a negative one, and were forced to accept the negative one after extreme backlash from ex-Confederates and the large racist bloc in the North.

Er...

. Fourth, the idea of a large standing army is very much counter to the original design of the Founders, they hated and feared the very idea as a lead-in to tyranny, vividly illustrated at the time by Catherine II's repression of the only truly popular revolution in Russian history.

But what does the Constitution say?

I'm not really sure you're thinking this one through.

Not that facts ever trouble reactionaries as it is, but eh......oh, and Scalia also considered the Citizens' United decision constitutional despite the fact that not even Alexander Hamilton, the most pro-Industrialization big-government Founder of them all considered a corporation a "person". A liar and a hypocrite.

Corporations as people wasn't really part of Citizen's United. You know that, right? In fact, the words "people" or "person" only appear three total times in the text (http://www.law.cornell.edu/supct/html/08-205.ZS.html), never in the context of corporate personhood.

[underlankers.livejournal.com]

1) Yes, he would have been. Italians triggered the second major wave of nativism in the 19th Century in the 1880s as people were scared to death that the Italians would turn the USA into "Catholic despotism".

2) Indeed, slaves had never been citizens because property rights could not be preserved if the Peculiar Institution applied to US citizens.

3) This is what the intention was originally, so if we're going to apply originalism consistently then the 14th Amendment becomes problematic.

4) The Constitution is narrower than people think, to be certain, the problem is that even those protections were ignored with the full sanction of government and law for an entire century in the first place.

[reality-hammer.livejournal.com]

You not understanding the nature of separation of powers doesn't make Scalia stupid or evil.

As Professor Kingsfield so memorably admonished Mr. Hart: "It's not the job of the court to fix bad laws; that's a job for the legislature."

[underlankers.livejournal.com]

So where in the Constitution do we find support for our standing army? For that matter where do any of the Founders indicate that they would support one? Where do the Founders give any indication any of them thought of black men and women as human beings?

[reality-hammer.livejournal.com]

Evil standing army: Congress funds it every (up to) two years. (Try reading the Federalist Papers.)

Dem blackies: Again, you could try reading things written by them before you claim you know something about them. Small sample (http://www.usconstitution.net/consttop_slav.html):

John Jay, great supporter of the Constitution after its creation and an author of The Federalist wrote in 1786, "It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused."

Oliver Ellsworth, one of the signers of the Constitution wrote, a few months after the Convention adjourned, "All good men wish the entire abolition of slavery, as soon as it can take place with safety to the public, and for the lasting good of the present wretched race of slaves."

Patrick Henry, the great Virginian patriot, refused to attend the Convention because he "smelt a rat," was outspoken on the issue, despite his citizenship in a slave state. In 1773, he wrote, "I believe a time will come when an opportunity will be offered to abolish this lamentable evil. Everything we do is to improve it, if it happens in our day; if not, let us transmit to our descendants, together with our slaves, a pity for their unhappy lot and an abhorrence of slavery."

Thomas Jefferson, author of the Declaration of Independence, which, famously, declares that "all men are created equal," wrote, "There must doubtless be an unhappy influence on the manners of our people produced by the existence of slavery among us. The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. This quality is the germ of all education in him." Alas, like many Southerners, Jefferson held slaves, as many as 223 at some points in his life. His family sold his slaves after his death, in an effort to relieve the debt he left his estate in.

In a letter to the Marquis de Lafayette, George Washington wrote, "[Y]our late purchase of an estate in the colony of Cayenne, with a view to emancipating the slaves on it, is a generous and noble proof of your humanity. Would to God a like spirit would diffuse itself generally into the minds of the people of this country; but I despair of seeing it." Washington and his wife held over 300 slaves. He wrote in his will that he'd wished to free his slaves, but that because of intermarriage between his and Martha's slaves, he feared the break-up of families should only his slaves be freed. He directed that his slaves be freed upon her death. His will provided for the continued care of all slaves, paid for from his estate.

The great American scientist and publisher Benjamin Franklin held several slaves during his lifetime. He willed one of them be freed upon his death, but Franklin outlived him. In 1789, he said, "Slavery is such an atrocious debasement of human nature, that its very extirpation, if not performed with solicitous care, may sometimes open a source of serious evils."

[underlankers.livejournal.com]

I did read the Federalist papers. The Founders considered a standing army as an evil thing of despots like the Kings of France and Prussia or the Russian Tsars.

Patrick Henry was a slaveholder, as was Jefferson. Jefferson in fact met the two most famous educated blacks of his day, Wheatley and Banneker, and dismissed them as even worthy of note.

Washington and Franklin were also slaveholders but Washington did emancipate his slaves and Franklin went on to become an outright abolitionist, the only Founder to ever do so. But perhaps you've missed my point: did any of them ever indicate that they saw whites and blacks as equal human beings? Slavery was the cause, but do find me a statement from any of them said whites and blacks were in fact equals. I won't hold my breath.

[dexeron.livejournal.com]

The want of a specific document with the specific words "whites and blacks are in fact equals" from the founding fathers does not mean that this attitude and belief did not exist among them. Why did many of them fight and argue for abolition, if they felt that black people were inferior?

Jefferson is an oft-used source for the supposed prejudice of the founding fathers (and the framers, despite his non-involvement), though even his own "pro-slavery" attitude is far more complex than "He owned slaves, therefore he was racist and believed in slavery". In his youth, he was very much pro-abolition, but in his naive belief that slow reform might avoid the nation shattering conflict that an abrupt and forced end would cause, he supported this idea that it could be gradually phased out. Even Lincolm occasionally supported that sort of thing, when he originally argued merely against allowing slavery in the new territories (and believing that the isolated South would eventually evolve economically to a point where slavery was no longer needed).

Jefferson, unfortunately, backed away from abolition in his later years, and I've heard many theories about that, regarding his debts or other reasons. Still, this didn't stop him from replying to Benjamin Benneker, a free African scientist, in 1791 while Secretary of State. Benneker had written asking that Jefferson use his influence to help ease the suffering of his brethren still under the yoke of slavery. Jefferson replied:

Sir,

I thank you, sincerely, for your letter of the 19th instant, and for the Almanac it contained. No body wishes more than I do, to see such proofs as you exhibit, that nature has given to our black brethren talents equal to those of the other colors of men ; and that the appearance of the want of them, is owing merely to the degraded condition of their existence, both in Africa and America. I can add with truth, that no body wishes more ardently to see a good system commenced, for raising the condition, both of their body and mind, to what it ought to be, as far as the imbecility of their present existence, and other circumstances, which cannot be neglected, will admit.

I have taken the liberty of sending your Almanac to Monsieur de Condozett, Secretary of the Academy of Sciences at Paris, and Member of the Philanthropic Society, because I considered it as a document, to which your whole color had a right for their justification, against the doubts which have been entertained of them.

I am with great esteem, Sir, Your most obedient Humble Servant,

THOMAS JEFFERSON.

Now, this letter is nothing but a cop-out on Jefferson's part. He basically said: "Wow, man, I feel for you... but I'm not going to do anything." It's a shitty response.

But even a supposed racist as Jefferson could say something as apparently ground breaking as "blacks and whites are equal, and the only reason they look to be inferior is because we're not giving them equal access to the same education whites get". Conventional widsom would tell us that this is landmark, unheard of in its time, but even if we believe that Jefferson was just saying it to be nice in the midst of a letter that basically said: "Go screw yourself Banneker", other writings from the other founding fathers make it pretty clear that a great many of them did believe in equality of all men, regardless of skin color. Not all of them believed this, but many did, and even if we can't find those specific words you're asking for it's clear from the balance of their writings that they believed it very strongly, hence the fervor with which they fought slavery - even those framers who made the sad "lesser of two evils" Constitutional compromise to try and preserve the union.

So to answer your question from several comments back, the framers gave many indications that they believed black men and women were human beings. Some failed to live up to this expressed ideal. Others lived up to it but failed to enact the changes resisted by others within their own lifetime. But the belief was there, and is well documented.