I can’t recall the exact text verbatim, but these Amendments’ concepts are essentially: A) Rights not expressly granted to the Congress are reserved to the states respectively, or to the people… and B) the enumeration of specific rights herein shall not be construed to deny or disparage other rights retained by the people.

These Amendments constitute nothing less than a flat-out rejection of Scalia’s apparent requirement that a given behavior or characteristic must be mentioned verbatim in order to merit constitutional protection. On the contrary, they suggest that either federal or state governments would have the onus of proving that the measures alleged infringing lie within their respective powers! “Reserved to the States or the People” is a restatement of the basic constitutional principle that Congress has only its limited, defined powers… and “shall not be construed to deny or disparage” arguably establishes a similar limiting principle for state governments. If a given measure that denies or limits rights doesn’t fit specifically into a power held by the states, it will arguably infringe this broad residuary clause.

Practically speaking, this argument is going to be a hard row to hoe because there’s almost no jurisprudence of ANY kind around the Ninth or Tenth Amendment (though some of the concurring Justices in cases like Griswold and Eisenstadt – the early contraceptive-rights cases – mentioned these Amendments as significant bases for their reasoning). But we may well have to break some novel ground in order to protect our rights when they’re threatened…

Second: This is the FIRST and ONLY place I’ve seen it reported that the court could go liberal. Unless someone has recently gotten sick, I keep hearing that an Obama presidency will ONLY protect the current 3 or 4 liberal (depending on how you pigeon hole them) seats while a McCain presidency would replace liberal with conservative. So as I’ve read this issue nothing much would change under Obama and the court would go right-ward under McCain.

Posters please set me straight if I’ve missed something.

Now a comment to those attacking Scalia. You are all correct in his positions but we need to point out a couple things: We have a strong Catholic wing on this court now with Bush’s appointees. Scalia is a liar. He says he is a strict constructionist but in actuality many of his positions are in support of the Pope’s positions. Similarly if you believed Roberts’ testimony you would not expcect him to have voted to uphold the abortion ban that he did with no clause for woman’s health (can’t remember if it was Arkansas or Alabama’s law that was challenged). The constitution affords a right to privacy and other things that Roe was based on. He said he respects the history of the court AND some of the rights enumerated in the constitution that would lead a reasonable person to uphold abortion rights. Well, he voted with the Pope. I was actually surprised.

Back to Scalia, if he is correct about sodomy, then why isn’t ALL sex illegal? The constitution does not give an explicit right to sex. It gives a right to privacy, and as one poster says here it gives rights that one person has to all people. You can’t allow straight sex and dissallow gay sex. He is a religious bigot with a mission based on ideology. I could live with an (educated) constructionist. We can’t take more ideologs..by the very definition of that, they don’t think..they follow ideology.

If we didn’t want our justices to think, wouldn’t we just right some code that cases went through? A Vlookup so to speak. Is abortion mentioned? nope..leave it up to the states then.

This is a huge issue and simply is not something that hasn’t been discussed in this election. Perhaps this reporter is suffering from the same fatigue I am, and only remembering the last sound bite. This has been a 2 year campaign and a lot has been discussed…please try to remember that.

The USA is now and always has been an Oligarchy for the benefit of landed white christian heterosexual males.

And the tooth fairy really does not exist.

Simplistic comments like this one from Scalia raise the question of where he got his reputation as a formidable intellectual. Such black-and-white thinking is founded in his fundamentalist views of the Constitution. Like biblical fundamentalists, he refuses to interpret the document outside of the context of its origins: a mostly rural, white, sparsely-populated, pre-scientific era.

A genuine intellectual would understand that the Constitution should be interpreted in the context of the present in order to remain a living document that supports the changing needs for freedom in our era.