<<asking the hypothetical question of what they might have thought about a situation that was technologically or socially impossible in the 18th century, as a Justice like Scalia purportedly would, is delusional.>>

I disagree, although this might at least be close for Thomas (as seen in the Morse case). If an asserted right is "reasonable" from the text of the Constitution OR has a historical tradition, then he would consider it a right (such as confrontation clause in Maryland v. Craig). If it does not, such as essentially a "right to loiter" in Chicago v. Morales or essentially a"right to be left alone" in Hill v. Colorado, he would not consider it a "fundamental" right.

I am going to go out on a limb here and assume TexasPete is not a lawyer. Sorry Pete, but your comment saying "Interpreting the Constitution does not require a background in law." is pure ignorance. While you claim the Constitution is a short document with clear meanings for all of its clauses, you couldn't be further from the truth. Try attending a Constitutional law class in law school and you'll see why you are so wrong. Care to discuss with me the applicability of the Privileges and Immunities Clause(s) of Art. IV and the 14th Amendment?? How about the Due Process Clause of the 5th and 14th Amendment's (both Procedural and Substantive)?? How about the Commerce Clause in Art. I, section 8 and where we draw the line with how Congress can utilize its power to regulate commerce among the states, with foreign nations, and tribes?? Try going to law school or at least dig a little deeper into the subject before you make such wild claims. There are various theories for Constitutional interpretation and it is truly anything BUT straightforward.

the true conservative:

VNK, my friend, it's like you simply refuse to understand what kind of country we live in. We CAN CHANGE THE LAWS QUITE EASILY. We have a legislature precisely for that reason. When a new circumstance comes up that is completely unlike anything we've ever faced before, we discuss it, debate it, and in the end our elected representatives pass a law to deal with the new situation. We are NOT bound only by what the Constitution says. That is what they are for.

That is NOT what the courts are for. Their job is to apply existing laws to specific cases that come before them. It is NOT their jobs to decide what the Constitution would say if it was written today. We are a free people, or at least we keep telling ourselves we are.

Truthfully, I suspect that the reason you libs are so fond of the courts is you know that large majority of the voting public would never go along with most of what you support. Essentially, you are closet tyrants, willing to force your views on an unwilling public.

If I'm wrong, then tell me how.

We are bound by the Constitution and the contemporary working interpretation of it (regardless of what mode of interpretation you prefer, conservative or liberal: to interpret the Constitution narrowly is still to interpret it).

The fact is, the legislature can pass an unconstitutional law. The executive can behave in an unconstitutional manner. I'm not the one who doesn't understand what kind of country we live in: we live in a country organized under a Constitution. You have a cramped and constipated view of the courts that hasn't prevailed in this country since Marbury v. Madison. Feel free to build a time machine, move to a desert island, or to attempt to recruit the necessary supermajority to create a new form of government.

As for your inane ad hominem feint towards my supposed despotism or fondness for the courts: the reality, "my friend," is that I have the mix of love and contempt that intimate familiarity breeds. Yes, I'm not only a liberal, I'm also one of those horrible, awful lawyers who has ruined the system merely by existing.

What I've seen of the SCOTUS opinions issued Monday suggests there wasn't much for a old-school liberal like myself to like, much less love: but them's the rules and that's how the game will have to be played. Let me stoop to the ad hominem myself (you've inspired me!): unlike you conservatives, I actually respect the rule of law and believe that society requires a certain level of enlightened, reasoned organization to justify the title "civilization." Sometimes that means you have to deal with disagreeable decisions by your legislature, your president, or your courts. (Sometimes, as the wandering stranger said, you eat the bear, and sometimes the bear eats you.)

Let me close by noting that the large majority of the voting public isn't always right: they were wrong, for instance, about slavery and segregation. Nor are Supreme Court Justices always wise: they were wrong about slavery and the New Deal, for example. A beautiful thing about our system of governance is that it tries to minimize the harm that the voting public and legal scholars can do.

(Hmm, your posts have achieved something: you've restored a certain amount of my patriotism during a week in which I was in something of a foul mood. You're still completely wrong, of course, but thanks anyway.)

[So the legislatures are infallible--why? Because they are the "will of the people" or some such? And if the legislature creates a law expressly infringing on speech, and it is challenged, then the SCOTUS is supposed go along with it because it's law? Um, then exactly what purpose would they serve?]

Of course they aren't infallible. If the legislatures pass a law (campaign finance reform comes to mind) that violates the plain reading of the constitution, then of course it should be shot down.

That is NOT the same as suddenly deciding a law that has been in existence since the founding of the country is suddenly unconstitutional. That CERTAINLY is not the same thing as vnk's assertion that justices should interpret the constitution to mean whatever they think is best for modern society.

Justices need to uphold the law. And yes, the constitution is the highest law of the land, and lesser laws that are contrary to it are invalid. But judges need to respect the law as written, not make it up as they see fit.

[You have a cramped and constipated view of the courts that hasn't prevailed in this country since Marbury v. Madison. Feel free to build a time machine, move to a desert island, or to attempt to recruit the necessary supermajority to create a new form of government.]

So sorry you're irritated. But your irritation is maybe causing you to hyperventilate a bit. None of that will be necessary. All that it requires is enough people who agree with me insisting that their elected representatives exercise their constitutional authority over the courts. The democratic process will solve the problem just fine if enough people will insist on it.

And if they don't care enough to fight for their freedoms, then I guess we get what we deserve.

the true conservative:

So sorry you're irritated. But your irritation is maybe causing you to hyperventilate a bit. None of that will be necessary. All that it requires is enough people who agree with me insisting that their elected representatives exercise their constitutional authority over the courts. The democratic process will solve the problem just fine if enough people will insist on it.

And if they don't care enough to fight for their freedoms, then I guess we get what we deserve.

It's revealing that when people agree with you it's "the democratic process solving the problem" and when they don't it's "people not fighting for their freedoms."

It's also revealing that you think elected representatives have "constitutional authority over the courts." In the Federal system, the Constitution has authority over the courts and the legislature. The Constitution gives the legislature the power to establish inferior courts (Art. III sec. 1) and to advise the president on judicial appointments (Art. II sec. 2), and that's about the extent of it. Anything more would violate that whole "separation of powers" thingamijig people used to believe in, not that this bothers you in this context: you only care about principle when it favors your side.

As for the state level, I can't speak for 49 other states, but where I live Article IV, Section 1 of the state constitution says, "The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government...." You may want to keep your crusade for an impotent judiciary out of North Carolina. But hey, wherever you are, feel free to keep trying or whatever.

[It's also revealing that you think elected representatives have "constitutional authority over the courts." In the Federal system, the Constitution has authority over the courts and the legislature. The Constitution gives the legislature the power to establish inferior courts (Art. III sec. 1) and to advise the president on judicial appointments (Art. II sec. 2), and that's about the extent of it. Anything more would violate that whole "separation of powers" thingamijig people used to believe in, not that this bothers you in this context: you only care about principle when it favors your side.]

The legislature DOES have power over the courts. Congress created all the inferior courts, and can clearly re-arrange them as they see fit. Congress has, as you said, advise and consent responsibility of SC appointments, which give them enormous discretion on who the will or will not allow on the bench. Justices also serve for "good behavior," which either gives the legislature the power to remove them, or means nothing.

Since I live in Texas, I think I understand where Texas Pete's line of reasoning comes from. Down here we have a lot of people who think that lawyers are what are keeping the majority of Americans(Republicans) from exercising their rights, doing the bidding of Rush Limbaugh and Pat Robertson, banning flag-burning, keeping the swarthy folks from acting up, stopping our governer from smoothing out the road for TXU to build unlimited coal power plants anywhere they want and the EPA be dammed. Texas Pete has probably listened to some AM Radio Professor like Rush Limbaugh every night for the last two years, over a 12 pack of beer, or a bottle of bourbon, so he knows ALL about the legal profession and how it is destroying America, as well as how to interpret the Constitution. THAT'S where they are coming from. Its kind of a variation on the theme that the "Liberal Media" has hoodwinked the public into being too liberal, etc. etc. but with Lawyers instead. I've lived in Texas all my life and I've heard this garbage enough that I recognize it on the spot! I have never heard it called "Legal Realism" before tho... I would call it the stuff that comes out of the south end of a north-bound bull, but I doubt you'd a taken him seriously if he had led off that that title...