Scalia's statement, "The Constitution just sets
minimums," is untrue. I might say, so mind-bogglingly untrue
as to stun a first-year law student or a retired lawyer into
unconsciousness. The scheme of the Constitution
sets forth specified limitations upon Government. If it does
not say government can do it, GOVERNMENT IS FORBIDDEN UNDER THE
TENTH AMENDMENT TO DO IT! Scalia's stupid
statement that the Constitution "just sets minimums" leaves the
impression that freedoms and rights may be cut way back
without infringing upon the Constitution! Coming from a
Supreme Court Justice, that stops my
clock!
The articles which set forth the several and
specific rights of the people guaranteed by the Constitution are
stated as absolutes, not as minimums. Take
the First Amendment, for
example:
"Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the
government for a redress of
grievances."
Congress shall make no law
abridging the freedom of speech. That, in form, is
an absolute. The right of the people to freedom of
speech is stated in the form of an
absolute limitation on the law making power of
Congress.
To state it as a minimum, you would have to say
something quite silly: "The minimum freedom of speech ensured
to the people by the Constitution is nothing less than a
totally unabridged freedom of
speech."
Congress is prohibited from placing
any restriction whatsoever on the right of the people to
freedom of speech. That does not set a minimum, as Scalia
says, because it gives ALL possible free speech to the
people. As you know, well-tested judicial rulings have
placed a tiny, discreet reservation upon this Constitutional
provision which forbids any abridgment by law of
the right of freedom of speech. All the other specific
rights guaranteed to the people under the Constitution
are subject to the same
analysis.
The present ... in power are working very
hard to place such restriction upon the First Amendment as to
totally destroy - I mean TOTALLY DESTROY - its power to
protect freedom of speech. If you, like me, are becoming
increasingly annoyed by this kind of crap we now see
increasingly, you may have an impulse, as I have, to openly declare
Justice Scalia to be both INCOMPETENT and a LIAR. I
am thoroughly pissed off that this ... sits on the supreme
court. If an
untenured law professor said this stupid thing Scalia said, he
would lose his job. ....
Mel
Fowler