did Scalia (uninentionally of course) help the left

[politicallefty]

Scalia definitely was not hated by his colleagues. I think quite the opposite really, especially when you consider his well-known friendship with RBG. It's worth noting that Rehnquist was the most conservative Justice on the Court for quite some time. Since the late 1930s, probably only Thomas was unequivocally to his right (although Alito comes pretty close). Scalia was more idiosyncratic when you consider outcomes. I wouldn't really say Scalia was to the right of the Rehnquist though.

I would agree that Scalia's ideology was probably off-putting to O'Connor and Kennedy. Those two definitely didn't agree with a rigid ideology, particularly O'Connor. However, I don't believe as some do that Kennedy was a moderate centre-right Justice. On abortion and the death penalty, perhaps. But he wrote Citizens United and Obergefell, both sweeping decisions in their own right. There was nothing moderate about either of those rulings.

If there's one aspect where Justice Scalia didn't help his cause, it was with some of his dissents. He would hit back very hard, almost insulting the majority. In gay rights cases, he definitely appeared to be homophobic. I think homophobia was something that really turned off Justices like O'Connor and Kennedy, not to mention those on the left. Scalia didn't always know when to dial things back a bit when in dissent.

Black was a textualist and cared very little for arguments about "original intent." He was solidly on the court's left at the beginning of his tenure, though I don't know that I'd class him as part of the "activist wing," especially toward the end of his time on the bench. Different times, different issues.

He'd be a hard one to place in the current paradigm. He is probably the closest things to a left-wing textualist, although he believed the Equal Protection Clause to cover only race and alienage. He almost certainly would've voted against the holdings in Roe v. Wade and Obergefell. On the other hand, he definitely would've voted to uphold the ACA in its entirety under the Commerce Clause. He also definitely would not find much in common with the current right-wing of the Court in terms of religion (among other things, he wrote both Everson v. Board of Education and Engel v. Vitale). The current Court seems to want to bring down the "wall of separation between church and state" that was held to exist under Justice Black's ruling.

[politicallefty]

Black was a textualist and cared very little for arguments about "original intent." He was solidly on the court's left at the beginning of his tenure, though I don't know that I'd class him as part of the "activist wing," especially toward the end of his time on the bench. Different times, different issues.

He'd be a hard one to place in the current paradigm. He is probably the closest things to a left-wing textualist, although he believed the Equal Protection Clause to cover only race and alienage. He almost certainly would've voted against the holdings in Roe v. Wade and Obergefell. On the other hand, he definitely would've voted to uphold the ACA in its entirety under the Commerce Clause. He also definitely would not find much in common with the current right-wing of the Court in terms of religion (among other things, he wrote both Everson v. Board of Education and Engel v. Vitale). The current Court seems to want to bring down the "wall of separation between church and state" that was held to exist under Justice Black's ruling.

Agreed. Black even opposed "procedural due process."

Huh? In what way? I know he wasn't a fan of substantive due process, but procedural due process? He was literally part of the Warren Court's revolutionary change in criminal procedure and the rights of criminal defendants. He wrote Gideon v. Wainwright and joined Warren's majority opinion in Miranda v. Arizona. On the other hand, one area where he would be more conservative would be on the Fourth Amendment. It's quite possible he would've been in dissent on Kyllo v. United States.

[politicallefty]

Now, I admit that Black was not perfectly consistent about being an originalist. The fact that he was willing to apply the Equal Protection Clause to instances of discrimination against "aliens" and that he inferred "one man, one vote" from the Equal Protection Clause are examples that he did go beyond the original intent of that Clause regarding those two issues. And, as I noted in parentheses above, Black's argument that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's" was the intended meaning of Article 1, Section 2 of the Constitution was not persuasive; it was based on his political opinion more than a genuine reading of historical intent. But are any of us perfectly consistent in our approach to interpreting law?

How do you consider his joining Bolling v. Sharpe in establishing reverse incorporation or his majority opinion in Gideon v. Wainwright?

I think it's fair to say we're all people and bring our own histories. I think that's true of Justice Black as well. He was a former member of the KKK, but became one of the foremost advocates for civil rights on account of race. Indeed, he was probably one of the most activist voices in making things happen as soon as possible. He was outright fed up with the South by the time Alexander v. Holmes County Board of Education reached the Court.

[politicallefty]

I've never read the Gideon opinion, but I certainly know what the case was all about, and I have never had any reason to reject the Court's interpretation of the Constitution or its conclusion. Scholars who I respect a lot have never expressed any opposition to the Court's decision.

It's certainly not an originalist decision. I think there are those that would argue that the right to assistance of counsel is merely a right to have it, not something the government is required to provide. Gideon was simply the logical end of a reasoning that started with 1932's Powell v. Alabama. I agree that criticism of that decision appears to be quite rare as it's probably generally thought to be under the so-called "super precedent" definition. It's clear from Garza v. Idaho that Justices Thomas and Gorsuch are not fans of Gideon (although I would say it's quite notable that Alito did not join that part of the dissent). Personally, I think the text of the Sixth Amendment, unlike most other constitutional amendments that are negative rights, creates positive rights that commands the government to do certain things.

Maybe a better example in my previous question would be about your thoughts on Miranda v. Arizona, which was joined by Justice Black in full. All in all, the Warren Court (of which Justice Black was around for the entire duration) greatly transformed criminal procedure and the rights of the accused. I think very few have an originalist basis, although Justice Black was writing or in the majority in the vast majority of them.

Lastly, although I do not interpret the Due Process Clause of the Fifth Amendment as a rule requiring racial equality, I do see something else in the Constitution that forbids the federal government from engaging in racial discrimination. The correct clause to turn to is in Section 5 of the Fourteenth Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." If the federal government has been delegated the power to enforce the Equal Protection Clause, it surely has a responsibility to obey the rule that it will enforce. In Bolling, the Court said, "In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." My intuition about the goals and the philosophy of the men who adopted the Fourteenth Amendment is that they would have agree that it is "unthinkable" for the federal government to have any "lesser duty" to treat everyone equally. (I first read about that interpretation of Section 5 of the 14th in the pages of National Review.)

I did appreciate that quote from Justice Black. I think it's a fair point as to why overly strict and rigid judicial ideologies are not good. It's one thing to have a philosophy grounded in certain concepts, but following overly rigid concepts to the letter requires little thought of the issues at hand and does a disservice to the parties involved. That is partly why I find strict originalism to be so objectionable. As I've said before, I consider myself a rather strong textualist and view it as paramount. However, I don't believe textualism to be exclusive of other principles. I think one should look at different concepts when considering how to rule.

I definitely agree that judges must make rulings with which they personally disagree. I think there is no greater recent example than that of Terry v. United States, a unanimous decision decided just a few days ago. I completely sympathize with the petitioner in that case, but the law is what the text says. Congress did not help the lower level drug offenders in the laws cited. I don't know why, but that is not relevant. The text is clear. However, as Justice Sotomayor noted in her concurrence, Congress is fully within its power to correct the injustice.

I'm not surprised to see new interpretations for Bolling. There are many that would disagree with reverse incorporation or finding the rights of the 14th Amendment within the 5th Amendment, but also would want to try find a way to uphold prohibitions on segregation at the federal level. I would say your interpretation is a rather novel one, though I can't say I disagree (although you already know I disagree with you with respect to what the Equal Protection Clause protects). I've been of the mindset that the Supreme Court has overreached and excessively curtailed the Congressional enforcement powers granted under various amendments.

[politicallefty]

I'm very comfortable with Miranda v. Arizona, even though some of the constitutional scholars that I most respect have stated that they think the Court went too far in that case.

I'm not as strict and rigid of an originalist as you seem to think I am. It is true that I have a very narrow, strict, and rigid interpretation of the Equal Protection Clause, but that does not mean that I carry that degree of narrowness through with how I interpret all provisions of the Constitution. And I am not sure why you are so certain that decisions such as Gideon and Miranda are not plausibly based on originalist analysis and reasoning. Originalism-based reasoning is not always about identifying specific actions that our Founding Fathers were practicing in order to determine the intended meaning of a provision of the Constitution. Originalists often do rely on nothing more than the text of the Constitution to determine what was intended. That can be and is done with many clauses of the Constitution, depending on how specific they are. So I don't need to see any particular evidence of what the Self-Incrimination Clause of the Fifth Amendment and the Assistance of Counsel Clause of the Sixth Amendment were intended to mean in order to be satisfied that the Court did its job correctly in Miranda.

I suppose I'm trying to pick your mind with respect to the Warren Court. Those are generally decisions that many originalists today find issue with, among others. One of the arguments I've heard against Gideon is that the Second Amendment doesn't require the government to provide you a gun, so why is the government obligated to provide the indigent with counsel? Obviously, I don't agree with that logic for reasons of textual construction and the meanings of each amendment. I feel like the Warren Court largely put meat on the bones, so to speak, in terms of the rights of the accused. I don't feel like that's originalism, although it could be because the definition of originalism has largely been warped by the Federal Society and its progeny.

I suppose another example is the Exclusionary Rule. Like many aspects of the Warren Court's criminal justice jurisprudence, the Founders never conceived of or intended that to be part of our current jurisprudence. Technically, this rule came from Weeks v. United States in 1914, but like Gideon, was incorporated against the states during the Warren Court. It's something routinely attacked by originalists nowadays. I've always felt the Fourth Amendment loses all meaning without the Exclusionary Rule. Justice Black was part of the majority in Mapp v. Ohio and also wrote a concurrence that invoked the Fifth Amendment's protections as well. That's noteworthy as he was joining a decision that overturned a decision 12 years earlier that held the Exclusionary Rule did not apply the states (a decision he had then concurred with).

[politicallefty]

We're not going to see eye-to-eye on the Fourteenth Amendment's Equal Protection Clause, so I don't really feel like rehashing that over and over again. However, I'd say the voting rights decision were some of the most profound and important. Even Justice Black joined the majorities in Reynolds v. Sims and Baker v. Carr, both Equal Protection Clause cases. There's also Wesberry v. Sanders, written by Black himself, although it was based on Article I, Section 2.

Robinson v. California? That's an easy Eighth Amendment case if I've ever seen one.

We're definitely not on the same page in terms of the Establishment Clause. The foundation of the Warren Court's jurisprudence predates its inception, really starting with Justice Black's majority opinion in Everson v. Board of Education:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

I could not agree more with those words. Even the dissent in that case agreed with Justice Black's interpretation of the Establishment Clause.

Outside of the Warren Court, how do you view Employment Division v. Smith? While I think Justice Scalia was right in that the Free Exercise Clause is not a way to become above the law, I think the actual facts of that case would've led me to join Justice Blackmun's dissent.

As for Loving, I think people often forget that the laws being struck down went further than simple nonrecognition. There were criminal penalties. I think those violated not just the Equal Protection Clause, but also the First Amendment. With that said, I still think a fundamental right to marriage is supported by the Constitution, even beyond the Due Process Clause of the Fourteenth Amendment. Do you think the First Amendment includes a right to the freedom of association?

As for your last point about Palko v. Connecticut, I would just note Justice Marshall's words:

Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.

I think the bold text is relevant. In any event, four other Justices joined his opinion in full and neither the concurrence nor the dissent raised any issues.

[politicallefty]

I would say that it follows that if a punishment can be too severe for a crime, any punishment can be considered too severe for a particular crime. The individual in question was found guilty of a misdemeanor and sentenced to 90 days in prison. I think one of the bigger issues is that this individual was found guilty for holding a certain status, not committing any particular act. You can make the case that there were acts committed that led to said status, but those acts were not the issue at hand.

Something tells me we don't really agree on how to interpret the Eighth Amendment. What are your thoughts on Trop v. Dulles? It's a shame (and almost surprising) we didn't get any good death penalty cases during the Warren Court. I would've loved to have read Justice Black's thoughts on Furman v. Georgia. I find it highly unlikely he would've been on the same page as Justices Brennan or Marshall, but I think the racial aspect would've caught his attention.

As for the Establishment Clause, I'm not going to pick apart each aspect you mention, but I will summarize my thoughts. Like I already said, I agree with the Court's opinion in Everson. I would've been in dissent in Marsh v. Chambers, likely joining Justices Brennan and Marshall. I would say that prisons and the military have specific considerations. One is an involuntary commitment and the other is nearly involuntary once committed. I do not believe the government should be setting up chapels or paying for chaplains. However, I would argue that the First Amendment requires access to religious clergy so that one may freely exercise their rights. The Supreme Court just this year denied a state's request to execute an inmate without his pastor present. As for the military, my first thoughts are that some reasonable accommodation would be necessary. That doesn't mean the government sets up a chapel or pays chaplains. In that instance, it might be okay under certain circumstances to use something such as a recreation room for temporary religious congregation.

As for Sentence 6, I think it is primarily concerned with state or federal actions that involve themselves in religious activity. I don't see how it involves government officials acting in a private capacity. As for vice versa, I think the concern might have been the old fear of the Pope and Catholic Church taking over or becoming an influence in and of itself. I would agree that that's hard to grasp now, but that decision was written in 1947 (prior to the election of JFK and so on). I also see that as a way to keep state and religion apart. Religious officials have no business participating in the affairs of government in their capacity as religious officials. Lobbying is covered under other parts of the First Amendment. I do have to admit that is the weak link in that paragraph (in terms of the vice versa part).

My issue with Employment Division v. Smith is that it works to marginalize minority religions. I think the facts of that case warranted a different result. I think I would've devised a different test. I feel like a better result would be something like that any religious practice that doesn't substantially affect other people is generally exempt from generally applicable laws. That would've mostly stuck with Justice Scalia's majority ruling, but would've allowed for the individuals in the case to use peyote.

I do not agree with you on Loving. Your reasoning seems to be that the freedom of assembly and the freedom of association are one and the same. Once again, I have to ask whether or not you believe there is a separate freedom of association contained within the freedoms and rights of the First Amendment? Moving on, I would certainly argue that anti-cohabitation laws violate the Constitution. As for polygamy, I do not believe there is anything in the Constitution that grants such relations legal status for protections such as taxes, but they are mostly protected in terms of their association to live together (provided all individuals are freely exercising their rights and not compelled by others).

[politicallefty]

Just answering your questions:

Since the issue in Trop v. Dulles was whether the punishment was too severe, it was not like Robinson v. California. I don't know whether I agree with the Court's conclusion about whether that punishment was too severe; I would have to spend some more time studying it to decide how I would vote on that issue, but the premise that the Court was inferring from the Cruel and Unusual Punishment Clause was a valid premise.

I believe that freedom of association is inferred from the Freedom of Assembly Clause in the First Amendment, but that freedom is a political freedom - so that people can advance their political goals - and it does not extend so far as to cover marriages and sex acts. That kind of extension was what Justice Douglas was going for in his first draft for Griswold v. Connecticut: freedom of assembly means freedom of association, freedom of association covered the political activities of the NAACP in the case of NAACP v. Alabama, and if the freedom of association covered the political activity of NAACP, it can also be stretched to cover the sexual activity of a married couple. That stretch in logic was too much for Hugo Black to agree with, and it's too much of a stretch in logic for me.

I admit I got a little carried away and gave you a lot to chew on, but it was only in response to your long response.

I bring up Trop v. Dulles because it was really the beginning of the Eighth Amendment jurisprudence that we have today (maybe not so much under the current Court, but certainly up to Justice Kennedy's opinions). I mentioned that case because the Court considered both cruelty and unusualness in its decision. The main issue in Robinson was that that state was enacting a punishment for a status or condition, as opposed to actions or conduct. Justice Stewart mentioned a hypothetical of short prison sentence for having a common cold. Maybe it does require looking beyond just the Eighth Amendment in a case like Robinson, because the allowing of status crimes would give the government virtually unlimited power over the individual.

I don't believe the Constitution differentiates between political rights and all others. In terms of the freedom of association, it is one recognized from the far left and the far right on the Court and most in between, depending on the case. Our judicial system has long recognized various rights of marriage, including common law marriages. I believe you once agreed with me that the Constitution grants rights that are beyond the simple text. I would argue that includes rights inherent and necessary in the construction of the text (such as the Exclusionary Rule from the Fourth Amendment), but also some under the Ninth Amendment (you are obviously free to disagree on any and all points). You are one that mostly argues on originalist terms. At what point in the history of this country would marriage not have been considered a fundamental right?

[politicallefty]

I would say that numerous common law rights are retained by the people, even if they aren't explicitly written in the text of the Constitution. Those rights apply where the Constitution is otherwise silent or textually in opposition. This is one of the rare times when I would invoke the Ninth Amendment. Marriage was indeed a common law right, but I believe it became a constitutional right under the Ninth Amendment. That does not mean there are per se positive rights or benefits, but the right is retained by the people and it cannot be denied or disparaged. The Fourteenth Amendment is what changed that right from being one of one man and one woman of the same race to two individuals regardless of race or gender.

[politicallefty]

Hugo Black was a textualist but not originalist, who also adheres to judicial restraint, which is contrary to activism. This means he will defer to legislative process and seldom strike down Acts. I agree with you about him regarding ACA, Roe, ect.

If he were on the court with Scalia, I would rate him to the right of Kennedy and a little left of Roberts. This means he will probably be hated by liberals nowadays.

He certainly had some originalist tendencies, but they were generally secondary to his brand of textualism. His view of the Equal Protection Clause is a prime example.

I'm not sure I agree with your characterization of how he would've been compared to other Justices. I've always rejected the conception of Justice Kennedy as a moderate. While he was moderate on some things like abortion and the death penalty, his convictions were strong on many. It's just that he wasn't always on one side. He was firmly on the left on gay rights, but only a solid right-winger would vote to strike down the ACA in its entirety. Justice Black was part of the unanimous decisions in both Wickard v. Filburn and Heart of Atlanta Motel, Inc. v. United States upholding a very expansive view of the Commerce Clause and Necessary and Proper Clause. He also wasn't in support of judicial restraint when it came to the post-Brown v. Board of Education decisions. Justice Black was a hardliner on that issue, supported by Justice Douglas. I also think he would've supported a judicial remedy for gerrymandering. All of that and his views on the First Amendment would place him to the left of Justice Kennedy.

I think that the only kind of common law rights that should be treated as rights protected by the U.S. Constitution are those rights that come under the umbrella heading of procedural due process. The quintessential example of an unenumerated right that is protected by the Due Process Clause is the right of an accused person to be presumed innocent until proven guilty and there must be proof beyond a reasonable doubt. So I disagree with Justice Black's conclusion in In Re Winship. But substantive rights that had been recognized in the common law must not become elevated to the status of constitutionally-protected rights. Substantive issues that the common law addressed have always been treated as if they will be inferior to statutory law once a legislature has passed a statute that clearly indicates the legislature wishes to supplant common law. Even on the various occasions in which the SCOTUS has claimed that the "fundamental right" to get married is constitutionally-protected (Meyer v. Nebraska, Loving v. Virginia, Zablocki v. Redhail, Obergefell v. Hodges), it has never cited common law as any part of the reason why it said that.

I don't believe the Ninth Amendment should be so narrowly construed, although it certainly does have many limits. The Ninth Amendment does not specify between procedural and substantive rights, although I do think it grants both under its protection. You mention In re Winship, but that decision was based on the Fourteenth, not the Ninth. And while I agree with the outcome in Obergefell, I felt the justification could've been stronger with more emphasis on the Equal Protection Clause. However, Justice Kennedy's opinion does mention the history of marriage as a fundamental human right. His opinion does also quote Griswold a number of times. The Loving decision basically mentioned the Due Process Clause in passing, basically not putting any meat on the bones, so to speak.

I eventually realized that Black had said one thing wrong in that quote: he made it sound as if the Ninth Amendment and the Tenth Amendment mean identical things. The Ninth does not say anything about the powers of the states, it's the Tenth which refers to those powers. Because the things which Stewart and Black said seemed to me, at the time, to ring much closer to the truth, I decided to read more books that discussed what the Ninth Amendment means. Two of the most important books I read were Bernard Schwartz's "The New Right and the Constitution," and John Hart Ely's "Democracy and Distrust." Neither of those authors convinced me that their interpretation of the Ninth was correct, but they both taught me about what the Ninth was intended to mean by the people who, in 1789-1791, adopted the Ninth Amendment.
Schwartz made it perfectly clear that the Ninth was indeed intended to have the meaning that Stewart and Black described in Griswold. But that didn't matter to Schwartz, because he didn't give a rat's a55 what anything in the Constitution was intended to mean, as he made clear in the first chapter of the book. All Schwartz cared about is what meaning the Court gives to the provisions of the Constitution -- and even then he agreed with the meaning that the Court gives as long as the Court is producing a left-wing outcome, not with any right-wing outcomes. Thus, Griswold and Roe are legitimate decisions of the Court, but the Lochner Era decisions are not.
Ely (who respects the philosophy of Originalism much more than Schwartz) acknowledged that Stewart's and Black's interpretation of the Ninth is the traditional interpretation (he called it the "received" interpretation), but he thought that since Black's interpretation of the Ninth made that amendment and the Tenth Amendment perform redundant functions, then there must be something wrong with the traditional interpretation. He struggled to explain that the Ninth was actually intended to mean two things: one intended meaning is what the "received" interpretation has long said, but the other meaning is that the Ninth protects "rights" that are not the reciprocal of enumerated powers, but are "rights" independent of that reciprocal relationship. He said that "rights can cut across or 'trump' powers," such as First Amendment rights being capable of defeating claims that the federal government can always absolutely regulate any interstate commerce. However, once you understand the whole of his book, you'll recognize that the only meaning he gives to the Ninth is that it is the federal government's Equal Protection Clause, thus providing an alternative basis for validating Bolling v. Sharpe.

Thus, because of what I read in "The New Right and the Constitution" and "Democracy and Distrust," I realized that Black and Stewart were almost entirely correct. Black was wrong only insofar as he tried to treat the Ninth as if it means the same thing as the Tenth. The Ninth and the Tenth do not perform identical functions, but they perform parallel functions. That is so if you care about the original meaning of the Ninth. As Stewart said, that meaning is the only meaning that any member of the Court had ever given the Ninth until the Griswold case came along. And if you do respect that was the original meaning of the Ninth, then the only logical way to incorporate the Ninth into the Fourteenth, and thus have federal courts supervise the validity of state and local laws, is if the federal courts took it upon themselves to interpret state constitutions and local charters, and to determine whether challenged state and local laws exceed powers delegated by each respective state constitution or local charter. But to me, even doing that would seem to go beyond what the ratifiers of the Fourteenth wanted federal courts to do. And I say that as someone who believes in judicial restraint, too.

This may surprise you, but I'm not a huge fan of Robert Bork. While I greatly respect Justice Black, Griswold is definitely a decision where he and I part ways.

One of the problems I have with certain interpretations of the Constitution, most originalism in this case, is the way some consider the Ninth Amendment to be subordinate to the Tenth Amendment. I don't think I need to remind you of the inkblot comment. Even a parallel function serves to subordinate the Ninth Amendment to state police powers.

I think the Ninth Amendment covers what is not under the enumerated powers granted to the federal government. However, they are also rights that cannot be curtailed under the powers granted to the states under Tenth Amendment. (For example, the First Amendment cannot be used as a defense against being tried under the Treason Clause.) I believe the Ninth Amendment is where fundamental rights should be ultimately derived in terms of protection under the Constitution. Lochner was wrong because it created a new right that ultimately belonged to the federal government. The Commerce Clause presupposes that there is no right to economic liberty or the so-called freedom of contract (the latter would have the potential to reduce government to almost nothing).

I have to admit that sometimes I look at the words of the Constitution and think about it. I was reading the Tenth Amendment and the words "or to the people" struck me. The Tenth Amendment is concerned with powers, not rights, so the words of each must mean something different. Most of us know that Tenth Amendment grants to the states what we know as the reserved powers. However, what does "or to the people" mean? I was thinking about the Guarantee Clause recently and wondered about the initiative and referendum process and the right to a republican form of government. Maybe the Tenth Amendment grants that right. Those words must mean something. I am not one to start deleting words from the Constitution to fit my beliefs, as so many like to do.

[politicallefty]

I would say Kennedy is libertarian, but not conservative. What do you think about O'Connor, White, Powell, Stewart? Do you agree that in the currently liberal vs conservative divide, he is closer to these four than Roberts, Burger and the more conservative ones?

I've always hesitated to give Kennedy the libertarian label on account of decisions like Kelo v. City of New London and Gonzales v. Raich. I would definitely agree that Kennedy is closer to the four you mentioned, as all four were moderate or moderate-conservative. Justice Kennedy was probably more conservative than all except Justice Stewart. Justice Powell publicly regretted his vote in Bowers v. Hardwick, but Justice White wrote the majority opinion. That's an interesting group you chose. While certainly not the most conservative, people really don't appreciate that Justice O'Connor was a rather conservative Justice overall.