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(Yahoo)   Justice Scalia: It is easy to make the right decision on the Supreme Court if you invent your own reality   (news.yahoo.com) divider line 212
    More: Asinine, Scalia, supreme courts, federal benefits, 38th state, United States federal courts, left-wing politics, Chief Justice John Roberts, abortions  
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9510 clicks; posted to Main » on 05 Oct 2012 at 11:44 AM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-10-05 01:53:24 PM

tomcatadam: So what part of the US Constitution grants citizens' rights to corporations and similar nebulous entities?


The first amendment protects freedom of association, and freedom of groups of citizens to engage in political speech.
 
2012-10-05 01:54:53 PM

WorldCitizen: Suitcase nukes?

Pretty sure you can carry around an spray can of biological or chemical arms.


Firstly, I am not advocating this. I am merely repeating what others have said:

CHRIS WALLACE: What about...a weapon that can fire a hundred shots in a minute?
SCALIA: We'll see. Obviously the amendment does not apply to arms that cannot be hand-carried-it's to keep and "bear", so it doesn't apply to cannons-but I suppose there are hand-held rocket launchers that can bring down airplanes, that will have to be decided.

WALLACE: How do you decide that if you're a textualist?

SCALIA: Very carefully.



Secondly I may have been wrong for the "suitcase nuke" aka "King of the Wild Frontier" is big enough to be shoulder launched. My personal belief is that this should be further miniaturized into a nuclear device the exact size and shape of a football and put into play in a major game... preferably the Jets vs Dallas.

upload.wikimedia.org
 
2012-10-05 01:55:42 PM

Theaetetus: clyph: WorldCitizen: Well, it says "arms" not guns. So maybe some cannons as well.

By the common definition at the time the 2A was written, "arms" are guns a single person can carry. Grenades (bombs you can carry) and cannon (guns you can't carry) were called "ordinance".

[citation needed, specifically because other citations disagree with you]

The 1773 edition of Samuel Johnson's dictionary defined "arms" as "weapons of offence, or armour of defence." 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).


In the British army of the time (and most contemporary armies) grenadiers were typically part of the Ordinance/Artillery corps, not the Infantry corps (although Grenadier regiments were typically deployed alongside Infantry regiment in battle).

There were exceptions; the 26th Regiment of Washington's Continental Army were grenadiers but were listed as an Infantry regiment. Regardless, the logistical and training requirements of grenadiers were more closely aligned with artillery than with infantry, so the professional (standing) armies of the day were usually organized along those lines.

The US Army Ordnance Corps maintains a flaming (colonial-era) grenade as part of it's crest to this day (above two crossed cannon). 

So I'll give you that the vernacular usage was expansive. The professional / educated usage was more precise. It's a toss-up as to which usage Madison intended; he was highly educated and precise in his use of language, which would lean in favor of the professional usage.

As a counterpoint, it was not unheard of in that day for (wealthy) individuals to fit out what were for all intents and purposes privately-owned warships -- an East Indiaman could fight off anything short of a ship of the line. Considering that privateers were a central part of the US naval forces, it's hard to imagine that the 2A would have been intended to prohibit arming a ship with cannon.
 
2012-10-05 01:57:16 PM

Animatronik: Trollmitter,

Thats not what he said. He said that he reads the Constituion to mean what it meant to the people who wrote it.

Its actually very simple. There is a group of people in country who want to ditch the constitution because it gets in the of the way of "social justice " (aka communal redistribution) so they ridicule it; declare it obsolete, and try to undermine its language any way they cab.

Then there are people who read it according to its actual meaning like Scalia.


There are people who believe that whatever a document says is for use by the people who need to use it. The very fact that we still appoint people to interpret the words on those pages lends credence to that idea.

The Founders, not a particularly religious group - and even if they were, they certainly were not a group that wanted to be ruled as or governed by a religious body - probably would not have liked their words and concepts being treated like Biblical passages, with ONE meaning, and all who deny/defy it are heathens in need of killing.

So Scalia gets to play spirit medium in his head and pretend he knows exactly what (for example) Jefferson meant when he wrote (for example) the Fourth Amendment. Never mind that the Constitution proscribes what the GOVERNMENT can and cannot do to its citizens (and not the other way around), we have a population to control.

If the Founders didn't mention the internet, why is the government allowed to use it to flex its investigative/legislative/judicial muscles?
If the Founders didn't mention abortion or gays, why is the default position "not allowed" (9th Amendment)?
If the Founders didn't mention sex, why is the government allowed to legislate it? Are the Feds allowed to outlaw ALL sex?

If the Founders didn't say the government can't abridge freedom of "expression", why has SCOTUS lumped that in under the First? Because otherwise, the text is meaningless. What Originalist turdbirds like Scalia don't realize is that sometimes, human beings can look at a collection of statements and lump them together to extract the underlying meaning.

Example: the government says people have the right to be secure in their persons, and that we are free from unreasonable searches, and those performed without probable cause to believe a crime was committed. So that right there is a "right to privacy", flowing directly from the words (not case law or a "modern understanding") of the 4th and 5th.
 
2012-10-05 02:01:32 PM
wisewerds: If, like Scalia, you believe the constitution is a social contract, then you interpret it like a contract. You look to the intent of the people who framed and ratified that contract. And if you want to change the original understanding of the contract, then you go through the process spelled out in the contract for doing that.

Whether you think it is right or wrong, Scalia's position has the benefit of being principled.

theaetetus:... only if you disregard the existence of the ninth amendment. If your "contract" states "subsequent mutual understandings of the parties may be taken into consideration when defining terms or practices under this contract," then one would be unprincipled to focus only on the four corners of the document. Scalia's position is inherently inconsistent, as he does not give the ninth amendment any meaning, while insisting that all words in the Constitution ought to be given meaning.


The problem with your argument is that the Ninth amendment does not, by even the most tortured construction of its language, say what you are claiming it says.

And even if it did, your "mutual understandings" are not my "mutual understandings."

Try again.
 
2012-10-05 02:03:43 PM

Theaetetus: hartzdog: I think people need to give his arguments a little more credit. The Constitution was largely written over 200 years ago. Just because people's minds have changed about what individuals should have a right to do or not do doesn't mean that the meaning of the Constitution changes also.

Assuming for the sake of argument that your point is true, how do you reconcile this with the ninth amendment, which notes that there are many more rights not explicitly enumerated, and which would therefore be later listed and understood through judicial interpretation, such as the fundamental rights of marriage, privacy, bodily autonomy, etc.?


I don't think that the 9th Amendment is even legally operative, much less a basis for court-based restrictions on the power of Congress. It certainly doesn't mean that the Supreme Court just gets to make up new "rights" whenever it thinks it's a good idea. Let's not forget that when the Constitution was written, the states made the vast majority of laws that mattered. And all the states had constitutions that guaranteed lots of rights--PA had an affirmative right to hunt. I think the 9th Amendment was a way to signal to Americans that they should feel free to continue to use the political process -- and not litigation -- to further define those spheres of private activity that they wanted the government to stay out of. Remember, these are rights "retained by the people," and the people have elected officials who are supposed to do what the people want.
 
2012-10-05 02:03:45 PM

clyph: Considering that privateers were a central part of the US naval forces, it's hard to imagine that the 2A would have been intended to prohibit arming a ship with cannon.


Oh, and as a counter-counter point, the Constitution explicitly give Congress the power to issue letters of marque and reprisal, so it could be argued that the intent of the Constitution was to require Congressional approval to fit out a privateer. I don't agree with that argument, but someone is bound to make it. A letter of marque was about what you could do with an armed merchant vessel without getting hung as a pirate; it wasn't about fitting out that vessel in the first place.
 
2012-10-05 02:04:00 PM

clyph: So I'll give you that the vernacular usage was expansive. The professional / educated usage was more precise. It's a toss-up as to which usage Madison intended; he was highly educated and precise in his use of language, which would lean in favor of the professional usage.


Fair enough... Though, one counterpoint is that, since naval cannon were arguably included under the second amendment, so should land cannon. And if land cannon are included, then arguably, so should mortars, including explosive shells, where are not far from grenades. :)
 
2012-10-05 02:05:35 PM

WorldCitizen:
Pretty sure you can carry around an spray can of biological or chemical arms.


Why not? We have spray cans of biological deterrent:

www.prescriptiongiant.com
 
2012-10-05 02:07:20 PM

wisewerds: wisewerds: If, like Scalia, you believe the constitution is a social contract, then you interpret it like a contract. You look to the intent of the people who framed and ratified that contract. And if you want to change the original understanding of the contract, then you go through the process spelled out in the contract for doing that.

Whether you think it is right or wrong, Scalia's position has the benefit of being principled.

theaetetus:... only if you disregard the existence of the ninth amendment. If your "contract" states "subsequent mutual understandings of the parties may be taken into consideration when defining terms or practices under this contract," then one would be unprincipled to focus only on the four corners of the document. Scalia's position is inherently inconsistent, as he does not give the ninth amendment any meaning, while insisting that all words in the Constitution ought to be given meaning.

The problem with your argument is that the Ninth amendment does not, by even the most tortured construction of its language, say what you are claiming it says.


Certainly, it does. It notes that other rights exist that aren't enumerated, but are nonetheless protected. Since the constitution is open to judicial interpretation, then judges may determine the specificity and scope of such rights, consistent with the "collective conscience" of society, under 5th amendment jurisprudence.

And even if it did, your "mutual understandings" are not my "mutual understandings."

You're also not the only person in society. Contrary to your apparent belief, the Constitution is not an exclusive contract between the government and you.

Try again.

I think I just did. Perhaps you'd like to respond substantively, rather than with an impotent attempt at snark?
 
2012-10-05 02:08:28 PM

clyph: hartzdog: What he is saying is that the Constitution doesn't require that these things be legal

And that is where he is wrong.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because it isn't an ENUMERATED right doesn't mean it isn't a PROTECTED right, Jackass.


Protected by who? You really think that the 9th Amendment -- a throw-away amendment that was added without much thought or consideration -- was designed to allow the Supreme Court to decide each and every right that exists and determine, for 300+ million people, what activities the government can and cannot regulate?

I think that such an idea would case the founding fathers to shoot themselves at the thought that we have a nation of people who would choose to rely exclusively on 9 unelected individuals to tell them what rights they do and do not have rather than participate in the political process and take it upon themselves to help safeguard their own rights.
 
2012-10-05 02:10:43 PM

DoctorCal: serial_crusher: The whole point of the 2nd amendment is that citizens can take up arms against the government if it becomes oppressive like the British or Republicans did, right?

No, not right. The opposite of right, in fact. One of the bigger motivations for the 2nd amendment was so that the people would be armed and readily available to put down an attempted overthrow of the government.

/I thought this was commonly understood.


You are incorrect.
"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- (Thomas Jefferson)
 
2012-10-05 02:10:52 PM

Theaetetus: Since the constitution is open to judicial interpretation, then judges may determine the specificity and scope of such rights, consistent with the "collective conscience" of society, under 5th amendment jurisprudence.


is this really how the world's greatest democracy now functions? 9 old lawyers are supposed to divine the "collective conscience" of society and render supreme judgments governing the entire country? When did "Supreme Court" become synonymous with "Politburo"?
 
2012-10-05 02:11:12 PM
y'know, if Scalia was actually consistent with his own ideology he would HAVE to rule in favor of gay marriage. less government regulation is the mantra of the right wing, is it not? getting government out of the marriage business would be consistent with that ideology. imposing government restrictions on marriage is antithetical to a 'small government' conservative ideology.
 
2012-10-05 02:12:08 PM

hartzdog: I don't think that the 9th Amendment is even legally operative


slacktory.com

much less a basis for court-based restrictions on the power of Congress. It certainly doesn't mean that the Supreme Court just gets to make up new "rights" whenever it thinks it's a good idea. Let's not forget that when the Constitution was written, the states made the vast majority of laws that mattered. And all the states had constitutions that guaranteed lots of rights--PA had an affirmative right to hunt.

Precisely. Now, if the majority of the states had affirmative rights to hunt in their constitutions, then wouldn't it be reasonable to suggest that the Supreme Court should recognize the existence of such rights federally under the 9th?

Consider the alternative:
I think the 9th Amendment was a way to signal to Americans that they should feel free to continue to use the political process -- and not litigation -- to further define those spheres of private activity that they wanted the government to stay out of.
If
the Supreme Court was not able to recognize a right commonly understood by the states and the citizenry, then the only way those rights could be protected would be through federal constitutional amendments... but at that point, the 9th amendment is not just legally inoperative, but explicitly contradicted, as only enumerated rights would be protected.
 
2012-10-05 02:12:09 PM

hartzdog: Theaetetus: Since the constitution is open to judicial interpretation, then judges may determine the specificity and scope of such rights, consistent with the "collective conscience" of society, under 5th amendment jurisprudence.

is this really how the world's greatest democracy now functions? 9 old lawyers are supposed to divine the "collective conscience" of society and render supreme judgments governing the entire country? When did "Supreme Court" become synonymous with "Politburo"?


when Congress decided to stop doing their jobs, the other two branches of government had to step up and take up the slack.
 
2012-10-05 02:17:24 PM
Another way of hearing what Justice Scalia is saying is that being a textualist (relying on the original text and nothing but the text) is a lot easier than being an originalist (using the original text and contemporaneous writings, debates, opinions and other historic documents to get to the intent of writers). In other words, he's telling us that intellectually he is lazy and that his rulings are not sufficiently informed.
 
2012-10-05 02:19:22 PM

hartzdog: Theaetetus: Since the constitution is open to judicial interpretation, then judges may determine the specificity and scope of such rights, consistent with the "collective conscience" of society, under 5th amendment jurisprudence.

is this really how the world's greatest democracy now functions? 9 old lawyers are supposed to divine the "collective conscience" of society and render supreme judgments governing the entire country? When did "Supreme Court" become synonymous with "Politburo"?


It goes back well into the 1800s. I think the first real jurisprudence there was in Bloomer v. McQuewan in 1852, understanding that once you purchase something, you have a right to use it.
 
2012-10-05 02:20:27 PM

Theaetetus: Fair enough... Though, one counterpoint is that, since naval cannon were arguably included under the second amendment, so should land cannon. And if land cannon are included, then arguably, so should mortars, including explosive shells, where are not far from grenades. :)


Again circles back to the professional versus vernacular usage. From what I've studied of military history (a bit, but no means an expert) someone educated in the art of war of the day would likely have considered anything that blew up to be "ordnance"; even if (for sake of argument) the cannon themselves were "arms", explosive shells (or rockets) would be "ordnance".

But we're splitting hairs. Personally I take an expansive view of the 2A and in a modern context should be read to explicitly allow a private citizen to own any small arms currently issued by the military (where small arms = man portable, not crew served, not explosive). I think the pre-1986 restriction should be lifted on full-auto weapons, but otherwise I think the NFA/Class III regs work pretty well. Lifting the sunset provision would piss off a lot of Class III collectors; the only reason pre-ban full auto weapons are so insanely expensive is that the supply is fixed.
 
2012-10-05 02:21:35 PM
Thankfully he isn't the only justice on the court.
 
2012-10-05 02:23:36 PM

Theaetetus: Precisely. Now, if the majority of the states had affirmative rights to hunt in their constitutions, then wouldn't it be reasonable to suggest that the Supreme Court should recognize the existence of such rights federally under the 9th?


Why can't each state get to decide whether those rights exist or not? When we talk about abortion, sodomy, contraceptives, etc., we are always talking about the Supreme Court modifying STATE laws -- almost never federal laws. Why can't the Supreme Court respect those rights -- you want legal abortion in California, go for it -- rather than forcing all states to fall in line behind the majority. For example, before Roe v. Wade, abortion was already legal in most states.

Indeed, if the Supreme Court is just going to create new national rights whenever a majority of states agree on something, why do we have provisions in the Constitution allowing the Constitution to be modified, either by the people or by conventions of the states? And if that's the case, shouldn't we tell people that--so that they understand that by passing state laws they are amending the Constitution?

Theaetetus: If the Supreme Court was not able to recognize a right commonly understood by the states and the citizenry, then the only way those rights could be protected would be through federal constitutional amendments... but at that point, the 9th amendment is not just legally inoperative, but explicitly contradicted, as only enumerated rights would be protected.


Are you crazy? Hello -- if people don't like a state law they can (a) get that law repealed either through their state legislature or through a referendum, (b) amend their state constitution to void the law, (c) convince their state or local executive officials not to enforce the law, or (d) move to a state with better laws. This is exactly what I'm talking about -- people forget that they can protect their rights and interests through the state and local political process and think they can ONLY have their rights protected by 9 old lawyers sitting in Washington. This thought is degrading to us as citizens or a republic and detrimental to the functioning of state and local democracy.

You seem to think we are subjects of a 9 person monarchy whose rights exist only at their whim.
 
2012-10-05 02:24:56 PM

bingo the psych-o: Thankfully he isn't the only justice on the court.


No, but his is the hand that operates the sock puppet known as Justice Thomas.
 
2012-10-05 02:28:58 PM
It's really unfortunate we can't send all of these people forward 100 years so they can actually live in the world they created.
 
2012-10-05 02:30:01 PM

clyph: Theaetetus: Fair enough... Though, one counterpoint is that, since naval cannon were arguably included under the second amendment, so should land cannon. And if land cannon are included, then arguably, so should mortars, including explosive shells, where are not far from grenades. :)

Again circles back to the professional versus vernacular usage. From what I've studied of military history (a bit, but no means an expert) someone educated in the art of war of the day would likely have considered anything that blew up to be "ordnance"; even if (for sake of argument) the cannon themselves were "arms", explosive shells (or rockets) would be "ordnance".

But we're splitting hairs. Personally I take an expansive view of the 2A and in a modern context should be read to explicitly allow a private citizen to own any small arms currently issued by the military (where small arms = man portable, not crew served, not explosive). I think the pre-1986 restriction should be lifted on full-auto weapons, but otherwise I think the NFA/Class III regs work pretty well. Lifting the sunset provision would piss off a lot of Class III collectors; the only reason pre-ban full auto weapons are so insanely expensive is that the supply is fixed.


Personally, I take the view that the 2nd Amendment allows the citizenry to be a deterrent against the government, and as such, wouldn't bar possession of any weapon you could afford, including fighter jets and tactical nukes...
... but since use of any weapon would be unconstitutional treason, the 2nd only protects your right to possess them.
Accordingly, states and the federal government could freely place restrictions on use, including making it illegal to fire a round in any context, from hunting to self defense to target shooting.
 
2012-10-05 02:30:32 PM

Weaver95: when Congress decided to stop doing their jobs, the other two branches of government had to step up and take up the slack.


So now 9 unelected, life-tenured, old lawyers in funny robes get to decide when the 500+ members of congress and the thousands of state legislators elected by millions of people during thousands of elections have stopped doing their jobs? And when they do, they get to step in and govern the whole country? Is this a sequel from 44 BC?
 
2012-10-05 02:31:51 PM

Weaver95: "The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

there are days when I think this man would bring back slavery.


Just days?
 
2012-10-05 02:34:15 PM

Weaver95: y'know, if Scalia was actually consistent with his own ideology he would HAVE to rule in favor of gay marriage. less government regulation is the mantra of the right wing, is it not? getting government out of the marriage business would be consistent with that ideology. imposing government restrictions on marriage is antithetical to a 'small government' conservative ideology.


Since when have conservatives ever been ideologically consistent?

They claim to worship a God who went around healing and feeding the poor, and fight tooth and nail against feeding and healing the poor.

They claim to want less government intrusion in their lives, but are perfectly happy to have government intrude in other people's lives.

Conservatism is the ideology of selfishness. MY rights, MY taxes, MY religion, ME ME ME ME ME. Never a moment's concern about anyone else besides themselves and their circle of friends who look and think exactly like they do.
 
2012-10-05 02:35:18 PM
hmmm, this got ated due to a duplicate link ( cant you damn modmins keep even basic stuff straight anymore ? )

I, for one, will be happy when that oxygen thief no longer draws breath. I am not really wishing him ill , but, I will not mourn his death. Remember what patriotsism is, judge ? Because you have done anything but follow those principles since you were a basic judge. Asshole.
 
2012-10-05 02:35:39 PM

hartzdog: Why can't each state get to decide whether those rights exist or not? When we talk about abortion, sodomy, contraceptives, etc., we are always talking about the Supreme Court modifying STATE laws -- almost never federal laws. Why can't the Supreme Court respect those rights -- you want legal abortion in California, go for it -- rather than forcing all states to fall in line behind the majority. For example, before Roe v. Wade, abortion was already legal in most states.


You seem to think there's this odd dichotomy in which only a state or the federal government could decide whether a right exists, and that their two constitutions are in a side-by-side arrangement, rather than a vertical arrangement. I'm not sure where you get this understanding.

Indeed, if the Supreme Court is just going to create new national rights whenever a majority of states agree on something, why do we have provisions in the Constitution allowing the Constitution to be modified, either by the people or by conventions of the states?

I'm going to go out on a limb here and suggest you've never actually read the Constitution, and apparently believe it's just a list of rights and has no other sections. It's the only way you could reasonably make such a statement.

Theaetetus: If the Supreme Court was not able to recognize a right commonly understood by the states and the citizenry, then the only way those rights could be protected would be through federal constitutional amendments... but at that point, the 9th amendment is not just legally inoperative, but explicitly contradicted, as only enumerated rights would be protected.

Are you crazy? Hello -- if people don't like a state law...


Huh. I thought that anyone would have understood that I was referring to a federal law, since I was also talking about a federal constitutional amendment if the federal courts were unavailable. Did you really not understand that, or were you just in such a hurry to rant about state laws that you forgot to actually read my post?
Frankly, the rest of your post is irrelevant, since we're not talking about state laws.
 
2012-10-05 02:36:27 PM

hartzdog: Weaver95: when Congress decided to stop doing their jobs, the other two branches of government had to step up and take up the slack.

So now 9 unelected, life-tenured, old lawyers in funny robes get to decide when the 500+ members of congress and the thousands of state legislators elected by millions of people during thousands of elections have stopped doing their jobs? And when they do, they get to step in and govern the whole country? Is this a sequel from 44 BC?


hey don't yell at me. it's not my fault that 'partisan politics' has gridlocked Congress to the point of near complete immobility. Basically the country is being run by the executive branch, the judiciary and the machinery underneath it all that just keeps grinding along without any congressional oversight.
 
2012-10-05 02:39:01 PM

clyph: Never a moment's concern about anyone else besides themselves and their circle of friends who look and think exactly like they do.


Oh, and unborn fetuses. They care about them right up until the point the mother squirts it out. Then the little parasite is on it's own and better not expect to get any food or medicine on THEIR dime.
 
2012-10-05 02:52:36 PM

Farkage: DoctorCal: serial_crusher: The whole point of the 2nd amendment is that citizens can take up arms against the government if it becomes oppressive like the British or Republicans did, right?

No, not right. The opposite of right, in fact. One of the bigger motivations for the 2nd amendment was so that the people would be armed and readily available to put down an attempted overthrow of the government.

/I thought this was commonly understood.

You are incorrect.
"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- (Thomas Jefferson)


U.S. Constitution
Article 1 - The Legislative Branch
Section 8 - Powers of Congress

"The Congress shall have Power...
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"
 
2012-10-05 03:00:43 PM

WorldCitizen: And let me be clear, by calling Scalia an idiot I do not mean he is not intelligent. I just think his mind is so buried in ideology that he can't see outside of that ideology, and any mental resources he has are used to twist, rip, tear, and shred reality until it fits into the mold of his ideology, humanity be damned.


Bingo. If he wasn't a Supreme Court justice, he'd be a highly respectable scholar on all things Constitutional, the Federalist papers, etc. He KNOWS that stuff, inside and out--you can't do what he does with the law without knowing everything there is to know about how the Constitution came to be. What's sad and scary and indeed shocking is that he uses that knowledge to twist the law to fit his own version of Bizarro World. Worse, like a religious fundamentalist, the Constitution is his Bible: If he likes a law, then he finds a way for it to be Constitutional. If he doesn't like it, then miraculously, there's no "right" to it in there. And yet, because he knows what he's doing, it's very hard to pick apart his opinions and say LEGALLY why he's wrong (ethically and morally, it's very easy to say why he's wrong).

When you've got someone who can look at the decisions in Loving v. Virginia and Bowers v. Hardwick and see NO comparison...and can make an argument that almost makes sense...you've got not just an ideologue, but a very dangerous person to be sitting on the highest court in the land.
 
2012-10-05 03:00:55 PM
If I made the new Supreme Court the members would be: Hugh Hefner, Jack Black, Oprah Winfrey, Snoop Dog (lion), Drew Carey, Mark ZuckerBerg, Mark Cuban, Tim Tebow, and Brooke Burke 

Problem Solved?
 
2012-10-05 03:03:49 PM

DoctorCal: Farkage: DoctorCal: serial_crusher: The whole point of the 2nd amendment is that citizens can take up arms against the government if it becomes oppressive like the British or Republicans did, right?

No, not right. The opposite of right, in fact. One of the bigger motivations for the 2nd amendment was so that the people would be armed and readily available to put down an attempted overthrow of the government.

/I thought this was commonly understood.

You are incorrect.
"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- (Thomas Jefferson)

U.S. Constitution
Article 1 - The Legislative Branch
Section 8 - Powers of Congress

"The Congress shall have Power...
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"


"A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government." -- George Washington
 
2012-10-05 03:07:34 PM
i291.photobucket.com
 
2012-10-05 03:09:00 PM
Copying this post from the other thread, since it apparently needs to be said in here also:

First, allow me to say that I am pro abortion (not pro choice, I'm pro abortion, I don't think we abort nearly enough babies in this country) and I'm also pro gay rights (I support gay marriage, support laws banning workplace discrimination, etc.). That said, this headline is dumb and Justice Scalia is correct.

First, as to why the headline is wrong, Scalia is talking about the State's (not the federal government's) power to outlaw sodomy or abortion or gay marriage. Not the federal governments. This is relevant because while the powers of the federal government are enumerated in the Constitution, the powers of the state governments are not. The state's retain general 'police powers' (which is a bit of a misnomer, because the power has nothing to do with the police) which is the power to regulate behavior for the general welfare.

The federal government would not have the power to regulate abortion or gay marriage because those powers are not enumerated in the Constitution. For example, they would not fall within the Commerce power (except for the broadest possible readings of it) or the Taxing power, etc.

However, the states are not subject to those limits. The states can regulate virtually anything, unless the constitution explicitly prohibits it. The (main) part of the Constitution that limits the powers of the states is the 14th Amendment. This is really the only part of the Constitution that is relevant when talking about issues like abortion (due process clause of the 14th) or gay marriage (equal protection clause of the 14th).

The 14th Amendment was enacted after the civil war, as part of reconstruction, in 1868. If you are an originalist like Scalia, when you are interpreting the 14th Amendment you look to the meaning intended by the original authors. As part of that, you ask "Would they have intended this to apply to things like sodomy and same sex marriage?" The answer to that question is clearly "No, they would not have" and you can tell that's the answer (as Scalia notes) because both of those things were illegal at the time the 14th was enacted, and they remained illegal for a hundred years after. Not just in some states, but in all of the states, including those that supported the 14th Amendment.

Now, you can argue that Justices shouldn't interpret the 14th Amendment that way. But, it's certainly not inconsistent with Scalia's overall ideology to interpret it that way.

This thread is disheartening in that it shows repeatedly just how ignorant people are about the Constitution.
 
2012-10-05 03:13:14 PM
Homosexual sodomy? Come on. For 200 years, it was criminal in every state,

What does that have to do with the Constitution? There are plenty of laws that were on the books in various states that have been taken down due to their being unconstitutional.
 
2012-10-05 03:17:03 PM
The 14th Amendment doesn't specify slavery as its target. It uses broad terms about liberty and equal protection.
How does a "textualist" viewpoint insert that limitation on the scope of the 14th? Seems like Scalia is disrespecting the writers by assuming they were incapable of writing down what they actually meant.
 
2012-10-05 03:23:30 PM

Talondel: Copying this post from the other thread, since it apparently needs to be said in here also:

First, allow me to say that I am pro abortion (not pro choice, I'm pro abortion, I don't think we abort nearly enough babies in this country) and I'm also pro gay rights (I support gay marriage, support laws banning workplace discrimination, etc.). That said, this headline is dumb and Justice Scalia is correct.

First, as to why the headline is wrong, Scalia is talking about the State's (not the federal government's) power to outlaw sodomy or abortion or gay marriage. Not the federal governments. This is relevant because while the powers of the federal government are enumerated in the Constitution, the powers of the state governments are not. The state's retain general 'police powers' (which is a bit of a misnomer, because the power has nothing to do with the police) which is the power to regulate behavior for the general welfare.

The federal government would not have the power to regulate abortion or gay marriage because those powers are not enumerated in the Constitution. For example, they would not fall within the Commerce power (except for the broadest possible readings of it) or the Taxing power, etc.

However, the states are not subject to those limits. The states can regulate virtually anything, unless the constitution explicitly prohibits it. The (main) part of the Constitution that limits the powers of the states is the 14th Amendment. This is really the only part of the Constitution that is relevant when talking about issues like abortion (due process clause of the 14th) or gay marriage (equal protection clause of the 14th).

The 14th Amendment was enacted after the civil war, as part of reconstruction, in 1868. If you are an originalist like Scalia, when you are interpreting the 14th Amendment you look to the meaning intended by the original authors. As part of that, you ask "Would they have intended this to apply to things like sodomy and same sex marriage?" The ...


Right, but then one could argue any Amendment after the Bill of Rights would have to be disregarded if trying to think each case through in a strictly originalist mindset. One can't do that if interpreting and applying the Constitution as the very purpose of the Amendments is either to change (or perhaps try to clarify your idea of) original intent. Once the Constitution is amended to say this:

Amendment XIV
Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
,

that is the Supreme Law of the land original intent or not. No, the Founders were writing the Constitution and Bill of Rights to define federal powers and the rights of Americans regarding the federal government. Sure, they thought individual states could take away your rights within the state. And thank the gods the Constitution was amended to guarantee equal rights and equality before the law no matter where in the United States they happen to find themselves.

Of course, one could argue that's not how the writers of the 14th Amendment intended the amendment, and that is one argument that is out there. But, well, there it is in writing, and I for one am very glad we have it. Some of the states can get up to quite a bit of douchebaggery when it comes to rights, so I'm very glad we have a higher level of protection.
 
2012-10-05 03:25:48 PM

goatleggedfellow: The 14th Amendment doesn't specify slavery as its target. It uses broad terms about liberty and equal protection.
How does a "textualist" viewpoint insert that limitation on the scope of the 14th? Seems like Scalia is disrespecting the writers by assuming they were incapable of writing down what they actually meant.


That gets difficult, goatleggedfellow. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" could be taken as a broad statement. At its broadest, it basically limits legislative authority to the Federal government, which is itself prohibited from writing laws on an intra-state level. My privilege to enter the Governor's mansion whenever I want, for example, would be inalienable, since the state couldn't write a law that would abridge my privilege, and the federal government would have no authority to do so.
 
2012-10-05 03:32:42 PM

Farkage: DoctorCal: Farkage: DoctorCal: serial_crusher: The whole point of the 2nd amendment is that citizens can take up arms against the government if it becomes oppressive like the British or Republicans did, right?

No, not right. The opposite of right, in fact. One of the bigger motivations for the 2nd amendment was so that the people would be armed and readily available to put down an attempted overthrow of the government.

/I thought this was commonly understood.

You are incorrect.
"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- (Thomas Jefferson)

U.S. Constitution
Article 1 - The Legislative Branch
Section 8 - Powers of Congress

"The Congress shall have Power...
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

"A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government." -- George Washington


"All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. Pennsylvania, at this instant, affords an example of the truth of this remark. The Bill of Rights of that State declares, that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops: and in all probability, will keep them up as long as there is any appearance of danger to the public peace. The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the Articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular Constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us, that cases are likely to occur under our Governments, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society; and that it is therefore improper, in this respect, to control the Legislative discretion. It also teaches us, in its application to the United States, how little the rights of a feeble Government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity."

Alexander Hamilton, Federalist Paper #25
 
2012-10-05 03:36:30 PM

WorldCitizen: Of course, one could argue that's not how the writers of the 14th Amendment intended the amendment, and that is one argument that is out there. But, well, there it is in writing, and I for one am very glad we have it. Some of the states can get up to quite a bit of douchebaggery when it comes to rights, so I'm very glad we have a higher level of protection.


Did you even read my entire post, or did you just skim it? An 'originalist' interpretation that looks to the original public meaning of the 14th Amendment would still look back to 1868, not contemporary standards. It's pretty clear based on the available evidence that the original public meaning of the 14th Amendment didn't encompass same sex marriage or abortion, or sodomy laws. As Scalia notes, those were widely illegal and no one alive at the time thought the 14th Amendment applied to those.
 
2012-10-05 03:37:13 PM

Talondel: This thread is disheartening in that it shows repeatedly just how ignorant people are about the Constitution.


People are ignorant about it because it's more ambiguous than a bible and easily construed to serve the point of view of anyone who reads it. Of course the people who pervert the intent and meaning the most are the biggest advocates for it.
 
2012-10-05 03:39:38 PM
So the Constitution has stuff in it like abortion is legal? That kind of made up shiat?
 
2012-10-05 03:40:04 PM
Erm what is subbie pissed off about again?
 
2012-10-05 03:41:24 PM

stevarooni: That gets difficult, goatleggedfellow. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" could be taken as a broad statement. At its broadest, it basically limits legislative authority to the Federal government, which is itself prohibited from writing laws on an intra-state level. My privilege to enter the Governor's mansion whenever I want, for example, would be inalienable, since the state couldn't write a law that would abridge my privilege, and the federal government would have no authority to do so.


The 'privileges and immunities' clause of the 14th Amendment was all but written out of the Constitution in the Slaughterhouse Cases. It was given a ridiculously narrow interpretation that ensures it almost never comes up again. Efforts to overturn the Slaughterhouse Cases and restore the original intent of the P or I clause have gone to naught. But the original intent of the P or I clause has largely been replaced by the modern concept of 'substantive due process.' Both have as their fundamental problem that it ultimately leaves to the courts to decide what rights are worth of protection and what are not.
 
2012-10-05 03:42:52 PM
Oh, I get it.

You're pissed that the constitution says what it actually says and not what you imagine that it might say if you wrote it today.

Who's inventing reality here?
 
2012-10-05 03:43:05 PM

Talondel: WorldCitizen: Of course, one could argue that's not how the writers of the 14th Amendment intended the amendment, and that is one argument that is out there. But, well, there it is in writing, and I for one am very glad we have it. Some of the states can get up to quite a bit of douchebaggery when it comes to rights, so I'm very glad we have a higher level of protection.

Did you even read my entire post, or did you just skim it? An 'originalist' interpretation that looks to the original public meaning of the 14th Amendment would still look back to 1868, not contemporary standards. It's pretty clear based on the available evidence that the original public meaning of the 14th Amendment didn't encompass same sex marriage or abortion, or sodomy laws. As Scalia notes, those were widely illegal and no one alive at the time thought the 14th Amendment applied to those.


Yes, and that's why I addressed that the originalist intent of the 14th Amendment could be taken to mean that it does not apply as broadly as we use it as written today. And I noted that I'm damn glad we interpret it basically as it is written and not limited to dealing with slavery.
 
2012-10-05 03:50:21 PM

Talondel: Copying this post from the other thread, since it apparently needs to be said in here also:


So that more people know how wrong you are? Is that really wise?

The states can regulate virtually anything, unless the constitution explicitly prohibits it. The (main) part of the Constitution that limits the powers of the states is the 14th Amendment. This is really the only part of the Constitution that is relevant when talking about issues like abortion (due process clause of the 14th) or gay marriage (equal protection clause of the 14th).

The 14th Amendment was enacted after the civil war, as part of reconstruction, in 1868. If you are an originalist like Scalia, when you are interpreting the 14th Amendment you look to the meaning intended by the original authors. As part of that, you ask "Would they have intended this to apply to things like sodomy and same sex marriage?" The answer to that question is clearly "No, they would not have" and you can tell that's the answer (as Scalia notes) because both of those things were illegal at the time the 14th was enacted, and they remained illegal for a hundred years after. Not just in some states, but in all of the states, including those that supported the 14th Amendment.


But, the 14th amendment includes a similar clause to the due process clause of the 5th, which had already been held to protect substantive fundamental rights at the time of drafting of the 14th. Thus, by including parallel language, the drafters clearly intended to have the same doctrine applied to the states.

Did they expect that it would encompass sodomy or same sex marriage? Of course not... but they also didn't think it would include travel via automobile or jet plane, communication via the Internet, or the speech rights of corporations. What they did expect was that rulings on such substantive rights would follow the same doctrines that had been established under the 5th amendment, and that rights could be protected beyond just the mere enumerated rights in the Bill of Rights.

Thus, did they intend it to cover jet planes? No. Did they intend it not to cover jet planes? Absolutely not. Similarly, there is no indication, despite what Scalia pulls from his ass, that they intended it not to cover sodomy or same sex marriage.
Furthermore, unlike jet planes, automobiles, the Internet, and loud speaking corporations, sodomy and marriage both existed. Therefore, the drafters could surely have included them as exceptions in the amendment, if they wanted. They did not include them. Therefore, we must assume that they had no intention of the amendment having such exceptions.

Now, you can argue that Justices shouldn't interpret the 14th Amendment that way. But, it's certainly not inconsistent with Scalia's overall ideology to interpret it that way.

Only if Scalia is similarly restrictive on automobiles, communications over wires, the FAA, etc. No, Scalia's position is internally inconsistent, as he appears to only use strict (but false, as shown above) textual reading when it supports his ideology and uses expansive interpretation when that supports his ideology.

This thread is disheartening in that it shows repeatedly just how ignorant people are about the Constitution.

This thread is disheartening in that, owned in one thread, you felt the need to copypaste the same idiocy in this thread. Now you've spoiled two of them. Good jorb.
 
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