The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.... There should be, therefore, great resistance to ... redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.
Byron WhiteRelated topics
authority category comes constitution constitutional country court design express fundamental govern great having illegitimacy judiciary language law resistance should rootsRelated quotes
The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.... Respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.
Byron White
What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional? [...] The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.
Antonin Scalia
The recognition of authority to impose previous restraint upon publication in order to protect the community against the circulation of charges of misconduct, and especially of official misconduct, necessarily would carry with it the admission of the authority of the censor against which the constitutional barrier was erected. The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this Court has said, on proof of truth.
Charles Evans Hughes
[N]ot once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that "[n]o person shall be held to answer for a capital... crime, unless on a presentment or indictment of a Grand Jury," and that no person shall be "deprived of life... without due process of law."
Antonin Scalia
The class (or class alliance) in power cannot lay down the law in the ISAs as easily as it can in the )repressive) State apparatus, not only because the former ruling classes are able to retain strong positions there for a long time, but also because the resistance of the exploited classes is able to finds find means and occasions to express itself there, either by the utilization of their contradictions, or by conquering combat positions in struggle.
Louis Althusser
