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